 Yn bod hi, mae'n gweithio'r gwaith i yma yng Nghaethol yng nghymru a'r gweithio'r Llywodraeth. Ac yn gwneud o'n rhoi'r cymdeithas o'r cymdeithas i'r Chreg ac yn gwneud hynny'n cael ei wneud ychydig i'u cydweithio'r Llywodraeth, ac nid yw rydyn ni'n gydag dweithio'r cydweithio'n cwestiynau. yw'r oedd yn ymdweud o'r ffordd o'r ffordd o'i ffodol, ac yn ymdweud yn gweithio'r gweithio'n ffordd o'i ddweud? Pwll Creg. Mae'n gwybod i'r pwll Creg, Mae 1973, Oxon, Gibs Prys 1972, Henry Cish Prys 1973, Gweinirian Sgol y 1974, profesor o'r llaw ynglyn â 1998. For those of a certain generation the Terence stamp of British academia. One of them has been described as a handsome devil with impeccable manners and a gleam in his eyes who also managed to romance Bridget Bardot and Tudy Christie and one of them taught to you law. Now for my generation, Paul is quite simply the king, even though he's Oxford, he has led the way in matters of European law. He writes incredible tomes on EU law, he's helped shaped the academic discipline, he's been the chronicler of all major stages of the evolution of the EU and author, it must be said, of its decline in the United Kingdom at least, through works such as Brexit, a drama in seven acts. It's hard to believe he's retiring more of that and on, but we are enormously grateful to him that he's agreed to give this Mackenzie Stuart lecture this year, this lecture named after Baron Mackenzie Stuart, the first British judge at the European Court of Justice. Paul has become very much part of the fabric of sales life, as indeed have the Mackenzie Stuart lectures. They've been generously funded for the last three years by Sherman and Sterling. Sadly none of the members of the Mackenzie Stuart family can be here tonight, but they are very much in our thoughts. Paul's lecture, as you can see, is entitled Membership, Formal and Substantive Dimensions. Ladies and gentlemen, I give you this year's Mackenzie Stuart lecturer. Paul, Professor Paul Craig, thank you very much. Catherine, thank you very much indeed for that really wonderful welcome. I think we deserve any of it, but I'll take it nonetheless. So it's a great honour to be here, it's a great pleasure to be here giving the Mackenzie Stuart lecture and I've been told to speak for about 45 minutes or 40 minutes and that's what I will do, will try and do in the circumstances. Let me make clear at the outset this is not a Brexit lecture, okay? It's not a Brexit lecture. It's a lecture which does touch on issues about exit, but it's an investigation more generally into the conceptions of membership, formal and substantive. And what inspired me to look at this was partly that in an earlier conference I was asked to look at it and I started thinking about it and actually it struck me as to use an overused word, but one which is particularly act in these circumstances, it is genuinely under-theorite. So there are numerous works and very good works on differentiated integration and I'm going to be touching on that in the course of my analysis, but if you think about it compared to the number of edited volumes, books, articles on DI, differentiated integration, there's very little which looks at the issue through the other end of the lens. Membership, okay? DI differentiated integration is an exception, qualification, to a prima facie understanding of membership, but actually we don't look very much at what that entails. So this is a preliminary investigation into the word preliminary is always one of its words of academic use when they say, I'm thinking about it, don't take this as the last word, et cetera, but it is preliminary but hopefully adding some value to our understanding of this concept. And it is about both the formal and substantive dimensions and I begin with the formal dimensions and we're going to begin slowly, but we're going to speed up and build. So we start off as we know with the formal criteria for membership articulated in article 49 of the TEU and people in this room will be very familiar with the text of this particular article. Let me break it down into certain noteworthy features of article 49. There are in my view both formal preconditions and substantive preconditions, okay? Formal preconditions, if you disaggregate, take apart of article 49, formal preconditions, unanimity required to join, countervoting to be unanimous plus the consent of the European Parliament. The second formal precondition, the terms of accession are to be determined between the exceeding state and the existing member states. And a further third precondition, the agreement containing the terms of accession is to be ratified by the member states in accordance with their constitutional requirements. Note however also the substantive preconditions built into membership in article 49. In particular, there is the commitment to EU values in article 2 of the TEU. And that substantive precondition is important for reasons in and of itself, but it's also important for reasons which I will articulate in more detail later, because the linkage between article 49 and article 2 is important for the legitimacy of CJEU intervention in relation to rule of law backsliding by Poland and Hungary, etc. Further substantive precondition is that the conditions laid down in 49 don't give you a right to enter. It's not a right to enter. A state may apply if it complies with these values, but there's no necessary guarantee that it will be accepted having applied. Okay, so turn it round, withdrawal. Article 50, never heard of it. Okay, totally unfamiliar with it. This magical article which we have passed and taken apart with the zeal of a biblical exegesis over the course of the last three years is set out before us and we all know again its salient features. But again, let me disaggregate within article 50 both the formal and substantive dimensions of article 50. Formal dimension, the notice from the member state seeking to withdraw has to be in accord with its constitutional requirements and the elaboration of those constitutional requirements in the UK was what occupied the court in Miller 1, the Supreme Court. And note also a second formal precondition. If there's a withdrawal agreement, you only need QMV. You don't need unanimity comparison to accession. There's also a substantive precondition built into article 50, which became painfully apparent in the last two and a half years. Article 50 is predicated on the bifurcation of the withdrawal agreement and the agreement on future relations, including predominantly trade relations, but not only trade relations. Now, let me make clear that bifurcation is both logical, stroke rational and problematic. That's not a contradiction in terms. Things can be both logical and rational, but also problematic. And I make this point because there's been a lot of, I think, rather ill-informed chatter about this. Why is it logical and rational to have the bifurcation? It's logical and rational for the very simple reason that a full FTR, full agreement on future relationships, might take three, four, five years to conclude. Okay, Boris Johnson hopes for a bare bones agreement to be concluded by the end of December. We'll see. But even if he does get that, that will be a bare bones agreement. It's not going to be a full agreement. A full agreement covering services and goods, covering security, covering the environment, and all of that is going to take a lot longer. So a full agreement on future relationships will take about four, five years probably to conclude. You cannot keep a state that seeks to withdraw in the EU for five years until the withdrawal, until the future agreement on trade and the like is completed. Okay, you can't. It's simply impossible. So that's why it's logical and rational. It's also problematic, however. The bifurcation of problematic and the problematic nature of the bifurcation was revealed in spades in the last two and a half years, stroke three years. And again, it's very simple and fundamental. What the bifurcation means is that in reality Brexit or any other kind of exit is likely to be or almost predestined to be blind in essentials. Why? For the reason set out in the last bullet point of this slide, a withdrawing state may have thought through the nature of its future relationships before deciding to invoke article 50. It's possible. But probably it will not have done so. And certainly, there's no evidence that the UK government, either under Cameron or under May or under anybody else, had thought that issue through. In which case, it's inevitable that once you trigger article 50, you're at least walking down the path of a blind Brexit. Blind Brexit meaning the following. That whether you leave or not or whether you want to leave or not may well be crucially dependent upon the nature of the deal that you make thereafter. And indeed, people's voting inclinations about leave or remain will almost certainly be powerfully affected if they do it by the nature of the relationship that is going to happen thereafter. Either no deal, hard Brexit, EA type deal, EA plus type deal. But you don't know what that deal is going to be when you vote on Brexit when you take part in the referendum. Now, this tension, this very real tension was evident for those who followed it throughout the entirety of the last two and a half years. If you look at all of Theresa May's major speeches and actions about Brexit, Lancaster House, Florence mansion house, the government white paper and then checkers, the entirety or almost the entirety of those documents were concerned with issues which were not on the table when negotiating the withdrawal agreement. They were concerned with the shape of future relationships thereafter. Okay? And whatever Theresa May felt about that as a tested to a hard Brexit as qualified in the Lancaster House speech in mansion house and Florence and checkers, et cetera, whatever she may have felt, the other key thing is not only were those issues not on the table at the time when you were negotiating the withdrawal agreement, they of course were not for the unilateral determination of the UK. Whether we end up with a hard soft medium Brexit is not for our unilateral determination. When the time comes, the UK puts its cards on the table and then it's a matter of discussion with the other side, the EU and the EU won't necessarily accept that. But I repeat this bifocation was at the heart of everything that happened at the executive level of the UK and at the heart of everything that happened at the legislative level or the legislative machinations in Parliament, which are now receding into history, but all of those legislative machinations, those great times when we stood bedazzled as all those motions and different counter motions got put and the House of Commons rules of Byzantine procedure were drawn out and used by people who knew how to use them. All of that was about the stuff that wasn't at state in the withdrawal agreement and even if those votes had gone more towards the EEA, they wouldn't have been binding on anyone. Well, they wouldn't have been binding or determinative of the nature of the future relationship. So we do have, what we have seen is that there is a problem with a bifocation and the bifocation is both logical and rational as I've said on the one hand, but also problematic on the other for the reason in the last part of this slide. So standing back in terms of the formal dimension, if we compare and contrast accession and withdrawal is quite an interesting comparison and contrast. There's two dimensions to both. There's an agreement to get in or out and then the trade terms there after. Accession is actually considerably simpler. Is prima facie a prefix deal? Okay, you have an accession agreement and it's predicated on the default position that the exceeding state complies with the entire EU a key as a precondition of membership. Yeah, they might try and negotiate an opt out from this or a qualification to that, but the bottom line is you apply and you are very much on the back foot, you don't have the cards in your favour and any concession you want to squeeze from the other side in terms of opt outs, that's going to be a concession you have to squeeze. Again, so that's the accession agreement. The trade dimension is again a prefix deal. We've got a whole set of EU rules on the single market competition state aid, the whole nine yards of what constitutes the subventive dimension of the EU law and that's what you that's the the terms of the trade dimension that you sign up to. The withdrawal is more complex in both respects. Is prima facie a la carte in both respects? So if you take the withdrawal agreement and then the agreement on future relations, the withdrawal agreement, there is no boilerplate on which to rely. It has to be crafted afresh, as we've seen painfully or not in the last three years. And again, with the trade dimension, again it's a la carte. There is simply no a priori reason why there should be any particular type of trade deal or deal on future relations between the EU and the withdrawal agreement state. There's simply a range of possibilities which are open to negotiation, which include no deal at one end, hard Brexit, hard Brexit, which leads to no deal and then various forms of softer Brexit, whether signing up to the customs union, signing up aspects of the single market, et cetera. At the moment, by way of comparison to Theresa May, under Theresa May, it was quite clear that the go-to word, literally the go-to word in every one of those speeches that I mentioned before, including the notification of withdrawal letter itself, the go-to word was frictionless. We were going to have a frictionless trade relationship with the EU. Now, I'm not sure what exactly the antonym of frictionless is in the circumstances, but it is clearly the antonym which at present captures the approach of Boris Johnson and Michael Gove to the trade negotiations which are going on. Very much say we're not going to sign up to the EU rule book, we're not going to follow it, we're going to have greater aspects of regulatory autonomy and the like. We'll see how that plays out. Okay. Now, let's move to the substantive dimension. Again, I'm going to look at membership and withdrawal, but let's start off with membership. So, again, starting off with obvious propositions but moving on from there. Membership is undertaken by the exceeding state and has consequences for the state, quay, member state when its application is accepted. Now, those consequences take the form of rights, powers and duties, but those are not conceptually unifor. Okay. Consider by way of example the duties that in here in membership we can distinguish between different kinds of duties. And again, this is early stages of elaboration of these ideas, but I think that it's helpful nonetheless to distinguish between different kinds of duties. So, we have discrete primary duties which are associated with membership. And these capture much of the core substance of EU membership, such as, for example, the duties associated with the four freedoms and the single market, the duties associated with the straight state aid regime, duties flowing from EU environmental rules, et cetera. Now, I accept that the word discrete here is itself as elasticity, okay, before people start firing barbs at me saying, yes, quay, but I mean isn't article 30 pretty wide and not very discrete at all or whatever. I accept that, okay, I accept that. It is relative, relatively discrete and more general. So, what I mean by that is that they are identifiable substantive obligations which adhere to the state which is becoming a member of the EU. Okay. And then, in addition, you'll get when I'm calling for these purposes more general or abstract primary duties. Consider, for example, article two of the TEU which has come into great prominence more recently for reasons which will become clear when we look at the kind of rule of law backsliding dimension. Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. Those values are common to the member states in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between men and women prevail. Now, for a long time people thought this was merely hortatri stuff, but actually experience has shown that it has more and more substantive real dimension to it than we might have thought either to and I think rightly so. Okay, but again, then we have discrete secondary remedial duties. So, we have discrete, we have primary duties, which are the ones I just elaborated, both discrete and general, but also if you think about it in conceptual terms, the EU has both discrete and general secondary duties. So, an example of a more discrete secondary remedial duty is found in article 19, particularly article 19, power two, which tells us that member states shall provide remedies sufficient to ensure effective legal protection in the fields covered by union law and again we'll see the importance of that linked article two in a moment. But again, if you stand back and think about the treaty and the architecture of the treaty, there are also more general secondary duties, which are exemplified and epitomised by article fours free of the TEU. I'm not saying this is the only example, but it's an example. The duty of sincere co-operation union and member states shall inform mutual respect, assist each other in carrying out tasks which flow from the treaties. Member states should take appropriate measures to ensure fulfilment of obligations and rising out of the treaties will result in from acts of the union and then member states shall facilitate the treatment, the achievement of the union's task and refrain from any measure which could jeopardise the attainment of the union's objectives. Now, I'm maybe rather quaint in old fashion, but I tend to take these things quite seriously and I actually think it's not a lecture about Brexit, but I actually think that a failure to comply both with article fours free and with a freestanding independent normative constitutional obligation pursuant to UK law was apparent throughout the Brexit process. If you want an example, not an example, which I think is with respect to those involved, could be outrageous, the UK undertook a very detailed study indeed where all departments of government were asked to consider, this was prior to the referendum, they were asked to consider the effect of union law on that area of domestic law. They were detailed studies, they were procedurally impeccable, procedurally impeccable in the sense that the civil service in the UK was wholly impartial, it's not partial at all, they said, we've been given a job, we're going to do the job, so we're asked to look at the effect of EU single market rules on the UK's business strategy etc etc, that's what we're going to do. Procedurally impeccable in the sense that they took evidence from a wide range of sources, town hall meetings, online access and then also procedurally impeccable because what they did was that the department would then formulate its conclusions and then the department would go to the cabinet office and present the primary facial conclusions before the cabinet office and the cabinet office would bring in two outsiders, I know this because I was one of the outsiders on four occasions, there were multiple instances of this and those outsiders would, they would just give the draft conclusions a good new turnover and to see if they would stood examination in the light of the evidence and quite often we would say okay look yeah that's fine and that's fine but look you need more evidence without all that conclusion if it's substantial. Look the bottom line is as a tested by a wealth of secondary literature looking at this material, pretty much all of those studies without exception found that membership of the EU was either beneficial or the very worst neutral for the area in question. There was no collaboration between the departments, they did their studies at different times. Okay how much did the public know about this when it came to the referendum? Zero, okay, zero. The hard line, the Brexiteers had hoped that this study would show all sorts of malfunctioning in the EU and bad consequences for the UK, didn't show any of that so they didn't mention it, they swept it under the carpet. Now it seems to me in my quaint old-fashioned way that independently of article 43 there is a free standard UK constitutional obligation that a government whatever its persuasion and view should put before the public objective evidence which is relevant for the issue which is to be decided. I don't regard that as rocket science and I don't regard that as controversial if someone thinks to the contrary, I'm very happy to take an answer, take a question on that and see what the argumentation is as to why such a constitutional obligation doesn't exist. It didn't happen. Now would it have made any difference to the referendum? I have no idea, I have no idea. We can't do a counterfactual, we can't go back and do a lab experiment to know whether it would be different but in any event I think those secondary duties are important. Okay so moving on, there's a linkage between the primary and secondary duties of membership and it is powerfully exemplified by an issue that I've touched on as we've gone through which is the recent CGEU case law on rule of backsliding by member states. So what's happened in this case is that Article 2, one of a more abstract primary duties has provided the locus for the primary duty of compliance with the rule of law. And Article 19-2 has provided the locus for the secondary remedial dimension and you see that in these, I could give much longer extracts but I don't have time, but you see that in two of the similar cases, the Portuguese judges case and commission against Poland and we'll see it again when the CGEU grapples with the Polish muscle law in interim proceedings which are coming before it as we speak as it were. So in the Portuguese judges case the guarantee of independence which is inherent in the task of adjudication is required not only at EU level as regard the judges of the union and the advocates general of the Court of Justice has provided form the third sub-parer of Article 19-2 but also at the level of member states as regards national courts. Again in commission in Poland, the requirement that the courts be independent which is inherent in the task of adjudication forms part of the essence of the right to effective judicial protection and the fundamental right to a fair trial which is of cardinal importance as a guarantee that all the rights of individuals derived from the new law will be protected and that the values common to the member states set out in Article 2 T.E.U. in particular the value of the rule of law will be safeguarded and I think both of those judgments are very powerful and very persuasive and I'm very happy to take further questions but all I'm doing for the moment in this lecture is exemplifying the link between the use of a more general abstract primary duty Article 2 and the secondary remedial duty in Article 19-2. Okay again still sticking with the substantive dimension of membership so far we've been looking at the substantive dimension of membership in relation to the obligations which flow there from four member states but of course the EU as we know very well is also for the citizens thereof and again it's I think it's just interesting conceptually and normatively interesting to think about the membership dimensions which in here in citizens so we have the benefits of EU citizenship for example so what's the relationship between membership and EU citizenship well in my view it's not a priori it's perfectly possible to have a community with member states thereof without necessarily having articles 18 to 22 of the T.E.F.E.U. on citizenship indeed we had it for many years before they came on board into the treaties it's not a priori but it's not fortuitous either clearly the inclusion of those provisions was driven by a desire to thicken the political and civic bond created by the EU and again one of the seminal features of the of EU law the benefits of direct effect again reflecting on the relationship between membership and direct effect again it's not a priori perfectly possible to have a community with member states without direct effect on the rights that attach there too again not fortuitous driven by a desire to render more effective the enforcement of the EU law and to drive home the idea that the EEC was not merely an order of member states like other international treaties so again these are just examples okay this is not the entirety of the substantive dimension okay so now let's turn through the lens of membership to the relationship between membership and differentiated integration so about which there has been a lot and a great deal of value written I think it's very important that the outset when thinking about DI differentiated integration to distinguish different models of DI because otherwise confusion emerges if we elide these models and I think Daniel Tim in a recent essay in one of the books of essays are the one edited by Bruno de Vieton various other people correctly distinguishes I mean not for the first time but he puts it very neatly between three primary models of DI, multiple speeds, federal core Europe and flexibility a la carte the essence of a multiple speeds model key characteristic you're all going to the same endpoint you're just going there at different timelines some of you are ready now some of you are not ready now some of you can go there immediately some of you may go there five years later okay so as Daniel Tim says multiple speeds means differentiation as a transitional and transitory phenomenon in response to objective distinctions between member states in terms of stages of economic development and the like federal core Europe model very different idea of DI here the key characteristic is to retain the momentum in support of closer integration to forge ahead with those who are willing and able to do so through for example treaty reform plus optouts enhance corporation etc but the idea is you're moving towards some finality as it were which is a core Europe finality and it's a more federal dimension of the EU than exists present whereas the third model which is out there flexibility a la carte model here I think Tim again is correct that the key characteristic is a rejection of an a priori federal vision an emphasis instead on quote the principle freedom of the member states to decide upon the degree of participation in the EU and that mirrors aspects of intergovernmental international relations theory okay so lots and lots written about DI but just bear with me and start reflecting on DI when viewed through the lens membership rather than just straight on itself so the relationship between membership and differentiated integration let's look at some third what I call first principles so does the concept of membership entail uniformity across all terrains no not in my view there's no a priori reason why membership has to entail absolute uniformity of application across all domains of the new law many organisations have different terms of membership with different obligations attaching there too turn it round the other way does the very concept of membership entail differentiated integration again I think the answer logically is no there's no a priori reason why membership has to entail any differentiating integration many organisations function in effect with flat rights and obligations that pertain to all maybe some tweaking around the edges but pretty much a flat terrain subject to that so what are the factors which circumscribe the uniform conception of membership and drive differentiated integration what actually are the factors which drive us in this way well again I put I think two on the table here I don't regard these as particularly novel or controversial if anyone does so then again they have a chance to um far shocked at me in questions so other things being equal the greater the substantive reach of a treaty regime and the greater the number of member states then the greater incentive for some differentiated integration so it's not surprising there that we first started talking seriously about di in the late 1990s that was when the first study really started happening and it's not surprising that that coincided with an expansion in membership and not surprising that it coincided with an expansion of the realm of EU competence okay so we expanded this substantive reach of the treaty regime we expanded the number of member states and that increased the incentive for some differentiated integration okay second factor again other things being equal I'm boring out of the playbook of economists all the time here um other things being equal the more demanding or far reaching the nature of the EU obligations and the more intrusive they are on national sovereignty the greater the incentive for or pressure for some special treatment by some member states and again I don't think this is particularly surprising but I think it's other things being equal helpful to put it on the table two prominent examples EMU and the area of freedom security and justice are both areas which in different ways entail pretty significant infusions on national sovereignty and it's not surprising that in both areas there have been pressures for some form of differentiated integration the pressures may take the form of complete opt out of the single currency they may take more milder forms and the UK availed itself of pretty much all of this spectrum of opportunities and still wasn't content but excuse me I have to say that got it off my chest right um okay so moving on again I think it's helpful to look at DI through a lens of membership because I think it helps us to think about the issues which we're going to think about now so what are the factors then if we're thinking about the relationship between membership and differentiated integration we've looked at the factors driving DI what by way of contrast are the factors which circumscribe differentiated integration and drive commonality in conceptions terms results of membership well I put down I'm going to look at a number of them firstly there are what I call decisional considerations and this is to satisfy the formal legitimacy of such provisions so there are a number of different decisional considerations that need to be born in mind in this respect firstly DI in order to attain formal legitimacy may have to be embodied in treaty or treaty amendment such as opt out basically the more far reaching the DI the differentiated integration the more likely it is you're going to need to secure it by an opt uh by some treaty amendment if you don't do that then the DI the differentiated integration has to be embodied in EU legislation which is a result of decisional choice in accord with the rules for making such decisions provided of course that the rules last made are consistent with the empowering treaty provisions pursuant to which the regulation directed is made we all know that differentiated integration often takes the form of or is operationalised through a regulation or a directive which contains exceptions qualifications for its application to a particular state or range of states but that is only formally legitimate if the regulation and directed is made in relation to the procedures in the treaty for making of such regulations and is consistent with the empowering treaty provisions the third kind of um foundation for uh decisional foundation for differentiated integration is the dodgyist as it were it's where decision uh differentiated integration is a result of practice power politics inadequate enforcement and all of those may be inevitable but they're nonetheless questionable in terms of formal legitimacy okay we've got now a different set of factors which circumscribe differentiated integration okay um again we're looking through the lens of membership so what here i'm calling it functional considerations and the functional considerations are linked by a realisation of the negative externalities created by differentiated integration and the negative externalities can take different forms so one form of functional negative negative externality created by differentiated integration is the realisation that if you give too much latitude to membership and too much difference in the application of the relevant rules it can lead to significant negative consequences we don't have to be hypothetical about this there are real instances if you look back to the financial crisis 2008 2009 the financial crisis in the u has its roots in part in the asymmetric rules in the treaty concerning economic union and monetary union and what it meant in brief given the exigences of time is that member states were accorded too great a latitude in the regulation of banking institutions in particular which played a part in the perfect stall which followed which was the conjunction of a banking crisis and the sovereign debt crisis uh a second kind of negative externality and functional problem is related but distinct so and here it's the fact that differential treatment allowed in one member state can have effects on the application of regulatory provisions in other member states and again what we we again we don't have to search for hypothetical examples in the 90s the 80s and 90s the whole range was pretty much for let's have minimal harmonisation let's give maximum flexibility to member states and actually the commission has certainly pulled back notwithstanding some of the rhetoric is pulled back because it realises the negative externalities that's created by that kind of regime and in many areas it's gone moved towards a more maximal harmonisation okay a third kind of limitation on di is what i call normative okay there are normative constraints on differentiated integration which flow from conceptions of membership properly understood so couple of points here the central idea here is that different parts of the EU are not hermetically sealed one from another a danger inherent in differentiated integration is that it infringes on precepts of equality wherein the member states share the benefits and burdens of membership and differentiated integration can therefore dependent on the form that it takes generate free rider problems and again a second normative constraint on differentiated integration which flows from ideas of membership in my view at least is that differentiated integration day you are a all day factor but it's a treaty amendment or practice or whatever else cannot be allowed to impinge on common core EU values the content of the common core may be contestable but it does not undermine the point that i'm making here so for example differentiated integration that seriously impinge on article two values would not in my view in any circumstances be acceptable as exemplified by the rule of law problems with hunger in Poland nor do i believe that differentiated integration that undermined central core content of the single market and the level playing field i don't believe that would be acceptable either okay so when i produced this slide i did have to kind of just giggle at myself a bit um biggest uh i thought this is kind of wonderful slide but um people would either say this is kind of wonderful slide or they'd say really you cannot be serious or they might say both at the same time in any event where this leads me just by way of um preliminary conclusion in relation to this part of the lecture concerning substantive dimensions of membership and the relationship between differentiated integration and um membership is the two parts of this slide the logic of chaos is order status quo and what i mean by that that's where we are now and what i mean by that is the following the substantive content of EU membership does and can vary depending into alia on the degree of differentiated integration and the precise content of EU membership in any single member state and as between member states is dynamic and will vary across time nonetheless common institutional and decisional rules continue to apply subject to any ad hoc amendment thereof demanded by differentiated integration so when i say this is the logic of chaos is all this is messy all right it's not perfect it's not pristine doesn't have neat boxes but it's relatively stable okay we've been doing it for 30 years okay and we bump along now compare and contrast the logic of order is chaos so you go for a possible change you say we want analytical purity we want neat boxes we want professors or somebody else to come up with a cleaner neater set of rules which we can take home in a in a ribbon type box so what we have is proposes which say let's formalize the different degrees of di through concentric circles all the kind of suggestion made a number of years ago by Jean-Claude puris in his work and what this means is the precise content of EU membership is formalized to a greater degree depending on the placing of the state within the pattern of the preordained concentric circles and that also leads to changes in the institutional and decisional rules to reflect different types of EU membership so for example suggestions of a separate european parliament and all that kind of stuff now this is neater in theory but incredibly unstable i think and i don't think it's actually attainable so again i'm very happy to take queries about that now i'm approaching my time limit which is good but i'm also approaching the end of my slide so there's a happy conjunction of necessity in both respects substantive dimension withdrawal white man is i think instructed in this respect of course white man in its formal sense was never used and by that i mean white man said that you could unilaterally revoke the notice of withdrawal under article 50 if the UK sought to do so it didn't seek to do so and in that respect the decision is moot but it's not really moot in a broader deeper sense because white man is underpinned by a conception of membership and the conception of membership which underpins white man is a conception of membership which applies to exit from the EU as well as entry and the conception of membership which underpins white man which led the court inactuably to disagree with the commission and the council and to agree with the claimants case is what i call voluntariness and state state sovereignty i have extracted a few paragraphs from the court's judgment in this respect in power 50 we're told article 50 power one provides that any member state may decide to withdraw from the EU in accordance with its own constitutional requirements it follows that the member state is not required to take its decision in concert with the other member states or with the EU institution the decision is for that member state alone to take in accordance with its constitutional requirements and therefore depends solely on its sovereign choice so voluntary nursing state sovereignty shot through that part of the judgment and the same themes recur throughout the judgment so we're told in power 56 article 50 EU pursues two objectives namely first and surrounding the sovereign right of a member state to withdraw from the EU and secondly establishing a procedure to enable such a withdrawal to take place in an orderly fashion and that same theme is repeated throughout the judgment it's very much the idea that the EU is formed from sovereign states a sovereign state chooses to accede pursuant to article 49 and if its membership application is accepted it becomes a member state of the EU and that same idea of voluntariness and state sovereignty informs the CJU's reasoning and conclusions in terms of exit some i'm not going to read all this just summarised in 65 given that a state cannot be forced to accede to the union against its will neither cannot be forced to withdraw from the EU against its will thank you very much indeed for listening to me this evening just a final word i think that at the moment in the history of the EU some focus on membership in and of itself and the obligations that in here in membership both formal and substantive is really pretty important really what underlies the situations in Poland and Hungary in relation to their judiciary is something very fundamental a state wishes to be part of the EU but wishes to undermine one of the central precepts of membership having an independent judiciary is what you think about it for more than about 30 seconds not only an integral part of the rule of law any conception of the rule of law but having an independent judiciary is if you like in many respects the premier right or the premier aspect or a premier aspect the rule of law why think about it if you do not have an independent judiciary then pretty much everything else that the rule of law stands for will be shot to pieces so rule of law stands for the proposition that a legal a political order can only take decisions in accordance with the constitutional legal rules for the making of laws within that society a non independent judiciary will not will not protect that aspect of the rule of law they will bend and distort the interpretation of constituent power and the conditions for legal legislation in a way that leans strongly in favour of the government equally other aspects of the rule of law whether it's protection of fundamental rights whether it's access to court whether it's injunctions against overgeneralized and vague legislation if you do not have an independent judiciary they will not meet and protect those rules and in the EU it's even more important it's important for all those reasons and important because the whole functioning of the EU legal order as instantiated through and by article 267 is dependent upon independent national courts you do not have independent national courts and they do not adhere to the precepts fundamental precepts of membership there really will be troubling times ahead and the importance of that is attested to and this is my final word the importance of that is attested to a letter sent to the then candidate for commission president by the presidents of the three prominent national court associations so the presidents of the supreme court presidents of the ministry of law courts etc expressing they they're just quiet about the challenges to the independence of the judiciary within certain member states and the dangers that that brought in its wake for the survival of the EU thank you very much indeed