The UK and European Private Law, what’s next?

In the past I have reported on this forum about a simulation that William Bull and I run with Maastricht European Law School Students called the Maastricht Project. In this project, which runs in our course on European Private Law (focusing on contract, property and a bit of tort), we divide students amongst Member State delegations, the European Commission, a presidency and a fictive institute of European Institutional Economics (with the specific aim to bring economic arguments forward). We then run a 7-week negotiation simulation with our students in which we simulate a Council of the EU working group. Students play the role of delegate members and debate a fictive proposal on EU private law, made by the European Commission delegation students. For this, students borrow from the CESL, DCFR and Digital Assets proposals of the European Commission.

This year, there are special circumstances in our course. There have been elections in the Netherlands, which is currently in a state of renegotiations for a government, there have been elections in France, and – most importantly – Brexit is upon us. We explicitly choose to bring this political reality into our course, partly also to investigate what this would mean for the European private law debate.

 

We therefore work with a UK delegation, that is under instructions to represent England & Wales, but also Scotland and Northern Ireland in its one delegation. This includes discussions on a possible referendum for independence of the Scots.

 

In the last weeks we have been talking with our students on what the position of the UK in the negotiations on a potential EU private law would be. This delegation is, for the moment, set to leave the EU now that the Article 50 TEU procedure has been triggered, but is still in the Union for the moment. Would this not certainly mean that the UK delegation has every interest to be included in negotiations?

 

I can see two good reasons why the UK should:

  1. The UK is still a Member State and will therefore be bound by any EU law that comes into being for the moment. Of course this can result in stalling-tactics so that certain rules will no longer be adopted or enter into force on time, but that would be in tension with the principle of sincere cooperation of Article 4(3) TEU.
  2. When the UK leaves the EU, it will have to seek trade agreements with the remaining Member States. The trade rules, of which European private law rules are of course a major part, will determine how difficult such trade agreements can be made. Negotiating now and using its influence will certainly be beneficial to the UK as it will be rules it will have to deal with in the future.

 

It is with these two starting points that we have begun our work. Brexit comes up regularly and we see that also other Member States are looking to find what this means for the balance of power between the EU countries. We can only assume on this basis that this also applies to the real-world negotiations.

 

I asked some students from these delegations whether they would be willing to provide their opinion on this:

 

Andrew Dawood, ELS Student, Maastricht University

 

I personally do agree with the point that the UK delegation has every interest to be included in negotiations. As mentioned, the UK is still not out of the EU, hence still a member state which means that it should be treated equally and receive the same amount of courtesy that all other member states have. The UK’s influence now on the rules to be adopted, will draw the future path in which the UK will face when they are officially out of the EU, since they will still be dealing with other member states in trading and concluding agreements; and its involvement now will absolutely grant it some privilege in the future. (Andrew Dawood, 2nd year ELS student, Maastricht University.)

 

Toygar Sevlu, 2nd Year ELS Student, Maastricht University

First of all, I definitely agree with the opinion that the UK is still in the Union, despite the fact that Art. 50 has been triggered, the rules that shall be adopted will also bind the UK at least at this moment. Moreover, even if the UK leaves the Union in the near future it is still a European country and they must take into account the policies and priorities of Northern Ireland and more importantly Scotland’s. Even though the UK as a whole voted for leave in the elections this is not the case for the ‘whole parts’ of the Kingdom.

I completely agree with the opinion of Dr. Akkermans. It is a real fact that the UK leaves the Union, however, this does not mean that they shall entirely break away from the Union itself. They shall seek to make agreements on various subjects with the Member States and negotiating from now on may be beneficial for the UK for the future.

 

The 2017 edition of our teaching (Maastricht) project therefore is once more a highly interesting exercise, dealing with contract and property specifically, leading to very high level discussion on fundamental aspects of private law.

 

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