Research Handbook on the Politics of EU Law
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Research Handbook on the Politics of EU Law

Edited by Paul James Cardwell and Marie-Pierre Granger

Offering a wealth of thought-provoking insights, this topical Research Handbook analyses the interplay between the law and politics of the EU and examines the role of law and legal actors in European integration.
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Chapter 7: The law and politics of exit from the EU

Nieves Pérez-Solórzano Borragán and Stijn Smismans

Abstract

The implementation of Article 50 is the perfect laboratory to explore the tension between law and politics when legal interpretation on rules defining power relations is at stake. Article 50 TEU is a brief provision for a complex process of withdrawal. The UK’s decision to leave the EU made it clear that the exit clause required further interpretation to put it into practice. By drawing on the concept of legal path-dependency this chapter argues that legal interpretation and the authoritative path-dependency that it sets in motion is not the sole prerogative of courts. Political actors are able to interpret the application of legal texts when these are new and there is no legal precedent to rely on, or when courts have not had the opportunity to adjudicate because a case has not been brought before them. By introducing phasing, conditionality and indivisibility as the principles defining the withdrawal process, the EU has considerably strengthened its bargaining position. Abiding by these principles has set the Brexit negotiations onto specific paths that have bound the EU into a particularly inflexible position, potentially resulting in unintended consequences. Equally, the EU’s interpretation of Article 50 has allowed it to centralise the negotiation process around an enhanced role for the European Commission. This has had the strategic advantage of ensuring EU27 unity. This advantage, however, has set the path for potentially unintended consequences in the form of suboptimal solutions regarding the protection of citizens’ rights and the national strategies developed to mitigate a potential no-deal Brexit.

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