Jonatan Echebarria Fernández
Surprised by the outcome of the 2016 EU referendum, several professors of the Faculty of Law of the Autonomous University of Barcelona (UAB) requested a research project to study the process and consequences of the withdrawal of the United Kingdom (UK) from the European Union (EU). Thanks to the funding granted by the Spanish Ministry of Economy, Industry, and Competitiveness (DER2017-88910-P), they followed the negotiations and dissected their results, reporting the main advances and obstacles in the blog of the research project. They wrote several papers in which they disclosed their investigation and held an international seminar at the end of the transitional period in which they presented the outcomes of their study. After having revised the presentations to incorporate the debate and the news of the Trade and Cooperation Agreement, most of the presentations are published in Brexit y libertad de establecimiento. Aspectos fiscales, mercantiles y de extranjería, Atelier, Barcelona, 2021, ISBN: 978-84-18244-53-7.
The book begins with the presentation made by Professor M.ª Dolores Arias. As a member of the research team, she explains the background of the project, its main milestones, summarises the chapters of the book and exposes the methodology used. The first chapter is written by Rafael Arenas, a reputed scholar who has widely published about Brexit. He analyses the negotiations between the UK and the EU from the British perspective. He examines the main questions arisen by the withdrawal process as well, such as the tension between the British Government and Parliament, the possibility of withdrawing the decision to leave the EU, the extensions of the EU membership period to stay in the EU by not approving the Withdrawal Agreement as well as the outcome for Northern Ireland.
The following four chapters deal with Tax Law. José Antonio Fernández adopts a generalist perspective. Concerned about the tax situation of British nationals who reside in the EU, and Europeans who live in the UK, he studies the tax repercussions of Brexit around the principle of non-discrimination. First, he explains its meaning in the EU legal system; then, how it has been established in the Trade and Cooperation Agreement; and finally, its meaning in the Spanish-British Treaty to avoid Double Taxation.
Miguel Ángel Sánchez investigates the tax risks that the UK generates for the Union, given its economic importance and the close links it has with various tax-havens. He explores some issues of the EU tax fraud prevention regime to ascertain which measures could be applied to the UK. “All of this with a double purpose: on the one hand, to highlight any shortcomings and needs, both in the establishment of instruments and application mechanisms. And, on the other hand, to show the need for some precautions or specific measures in relation to the new third State that results after the Brexit process” (page 99).
Teresa Pontón (University of Cadiz) is an expert on Gibraltar, and writes about the International Agreement on Taxation and the Protection of Financial Interests between the UK and Spain regarding Gibraltar. She believes that it will have great importance for the determination of tax residence and for administrative cooperation and emphasizes that the Agreement entails the disqualification of Gibraltar as a tax haven. Closely related to Professor Pontón’s work is the chapter written by Zuley Fernández Caballero. She focuses on the tax regime for cross-border workers, which is essential for Gibraltar. She exposes the situation of Spanish and Gibraltarian workers based on the premise that the Agreement to avoid Double Taxation between the UK and Spain is not applicable.
The following five contributions are more heterogeneous but delve into specific problems generated by the withdrawal of the UK from the EU. Miguel Gardeñes Santiago provides an overview of the residence and movement rights of the British who reside in one of the twenty-seven EU Member States after the end of the transitional period or of the Europeans who reside in the UK. Therefore, it scrutinises Part Two of the Withdrawal Agreement, containing the rules that allow them and their families to partially maintain the rights they enjoyed before the exit of the UK.
The following two chapters focus on Company Law. Jorge Miquel takes a general perspective and explains the great influence that the UK has had on EU Directives, on EU capital markets, especially concerning its practice, and on corporate governance. Vésela Andreeva puts the spotlight on the transnational mobility of companies. In particular, she refers to cross-border transformation, the criteria for determining the lex societatis, and Directive 2019/2121.
Continuing with these specific issues, Carlos Gorriz deals with Competition Law. He explains how the departure from the UK will affect the EU and the British Antitrust Laws. After recalling the situation that existed before 1 February 2021, he comments on the provisions of the Withdrawal Agreement and the Trade and Cooperation Agreement that deal with competition rules. Next, he refers to the possible evolution of the EU and British Antitrust Law and warns about any consequences in case of divergence.
The third part of the book is written by Diana Marín. Her chapter deals with programs to attract investment in exchange for citizenship or residence, especially on the doubts generated by the application of the Spanish program, established in the Act on Supporting Entrepreneurs and their Internationalization 2013, to British citizens after Brexit. She highlights the competition between the Member States’ programs, the reaction of the EU, and the prospects.
Finally, Federico Fabbrini provides some reflections on the consequences of Brexit for the UK and the EU. He points out that the departure of the UK from the Union has generated serious institutional and social crises in the country, has harmed its economy, and has reduced its international appeal. The situation does not seem so negative for the EU, although it will also suffer harmful consequences. The reason is that the EU has been able to stay together throughout the process and is taking the chance to make progress in areas where the UK was reluctant to compromise.