Derrick Wyatt has been a Fellow of St. Edmund Hall since 1978, received the title of Professor in 1996, and retired in 2009. His teaching included EU law, constitutional law, and public international law. He was Visiting Professor of Law at Oxford 2009 - 2014, teaching the law of the EU’s internal market. He practised (Queen's Counsel 1993) from Brick Court Chambers, specialising in litigation before the European Court of Justice and the EU General Court in Luxembourg, and in giving legal advice to businesses and governments. This has involved numerous aspects of EU law, issues of public international law and constitutional law in the UK and Cyprus, and, latterly, Brexit issues. He has appeared in approximately 100 cases before the European Courts in Luxembourg and has represented and/or advised businesses in the UK, Ireland, USA, Germany, and Iran, and the Governments of the UK, Northern Ireland, and Cyprus. He has published numerous articles and contributions to books, served on editorial committees and boards (he is currently a member of the Editorial Board of the Croatian Yearbook of European Law and Policy), and co-authored Wyatt and Dashwood's European Union Law, in its various editions, the latest being its 6th edition (Hart Publishing 2011). He has been increasingly engaged in Brexit issues. In March 2016 he appeared before the House of Lords EU Select Committee giving expert evidence on the process for Brexit under Article 50. In May he addressed the Irish Centre for European Law in Dublin on the likely impact of Brexit on the north/south border. Since the Brexit referendum, he has briefed the media on Brexit issues, and briefed lawyers and financial service providers on Article 50 issues and the likely course of future trade negotiations between the UK and the EU. In September 2016 he again appeared before the House of Lords EU Select Committee, giving evidence on the need for extensive parliamentary scrutiny of the negotiation of the Brexit agreements. In November he addressed the European University Institute in Florence, arguing that “cherry-picking” was a bad description of the UK’s aims in Brexit negotiations. He submitted written evidence on behalf of the Bar Council to the House of Commons Foreign Affairs Committeee inquiry into the implications of a "no-deal" between the UK and the EU in the Brexit negotiations, and he appeared before the Committee in February 2017. He gave oral evidence to the House of Commons International Trade Committee on 29th November 2017, on the Trade Bill, arguing that Parliamentary scrutiny when the UK negotiates trade agreements (something it hasn’t done in its own right for many years) is inadequate. Trade agreements affect the rights and interests of individuals and businesses and the national interest as much as many statutes. Parliamentary scrutiny should be commensurate to that impact, and should allow Parliamentary input capable of affecting the content of trade agreements.
- SUMMARY Neither subsidiarity nor proportionality has acted as an effective brake on the exercise by the EU institutions of their extensive lawmaking powers. The principle of subsidiary is defined in a way which admits of more than one interpretation, and policy considerations and political judgment influence the way it is interpreted and applied in particular cases. These factors allow the EU institutions to present almost any proposal for EU wide action as having an objective which can be better achieved at EU level than at national level, and that is what they do. As regards internal market measures, it is argued that only EU harmonized rules can remove obstacles to cross border activities which result from differences between national laws. As regards other measures (such as environmental or social measures), it is argued that only EU action can guarantee higher standards in the Member States than currently prevail. The current “yellow card” and “orange card” powers of the national Parliaments in respect of draft EU acts have had little effect in practice and are unlikely to do so. Neither the national Parliaments nor the EU institutions apply the principle of subsidiarity without making assessments of policy and exercising political judgment. In both the “yellow card” and “orange card” procedures the policy assessments and political judgments of national Parliaments are subordinated to those of the EU institutions. In these circumstances, the national Parliaments cannot act as a credible check on the exercise of EU competence. Nevertheless subsidiarity, in conjunction with proportionality, have considerable potential for inhibiting unjustified and unnecessary EU legislative initiatives, if further guidelines on subsidiarity and proportionality are formulated, and if national Parliaments are allowed to apply these principles to draft EU acts on an independent basis. Monitoring the compliance of draft EU acts with the principles of subsidiarity and proportionality involves a policy and political assessment which national Parliaments are uniquely qualified to undertake - their democratic legitimacy is unquestioned, as is their independence of the EU institutions.The EU is indeed an organisation of defined, attributed powers. The list of powers which are enumerated from time to time has never been regarded as a closed list, and that list has steadily expanded over the years. The scope of the lawmaking powers entrusted to the EU has been interpreted broadly by the lawmaking institutions. The Court of Justice has not been enthusiastic to enforce the limits of lawmaking competence, except in cases of clear breach of general principles of Community law, including fundamental rights. The Court of Justice has also contributed to the expansion of EU competence by an expansive reading of Treaty provisions, such as those which establish the internal market, and that expansive reading in turn has had an expansive effect on lawmaking competence. The introduction of subsidiarity into the founding Treaties, and attempts to reinforce that principle in the Amsterdam Protocol, were a recognition that such mechanisms for competence control as existed were not working, and needed reinforcement through a system of structured self-restraint on the exercise of EU lawmaking powers. No such system of structured self-restraint has materialised. Responsibility for this is fairly evenly spread between the Member States, the lawmaking institutions, and the Court of Justice. It remains to be seen whether the national parliaments can resuscitate subsidiarity under the arrangements introduced by the Lisbon Treaty. My hypothesis is that the EU is an organisation of limited powers, but it has never fully reconciled itself to the fact. It has political ambitions which necessitate regular increases in its attributed competences, which encourage its institutions to act to the very limits of their powers, and which have stifled attempts to introduce a culture of self-restraint, to strike an appropriate balance between action at the centre, and action at national, regional and local level.In Wyatt and Dashwood's European Union Law, Derrick Wyatt is responsible in particular for the chapters and sections on The Right of Establishment and the Freedom to Provide Services; Corporate Establishment, Cross-Border Acquisitions, Capital Movement (direct investment), and Golden and Special Shares; Company Law Harmonisation (including the European Company Statute, Merger Directive, Takeover Bids Directive etc) ; The Legal Effects of International Agreements; Intellectual Property Rights in the EU, including effects on trade in goods, exhaustion of patent, copyright and trade mark rights, etc.The claim of the Court of Justice in the Tobacco Advertising case that the Community institutions lack a general competence to regulate the internal market does not withstand critical examination. The Tobacco Advertising case contained both competence restricting and competence enhancing elements. The principal competence restricting elements were (a) that obstacles to trade could be addressed by removal of the obstacles, but not by a ban on the subject matter of the trade; (b) that harmonisation could only be justified by distortions of competition if those distortions were appreciable; (c) that in principle all provisions of a contested internal market measure must contribute to the internal market aims of the measure in question. The principal competence enhancing element was the proposition that a measure which makes some contribution to the internal market may be adopted as an internal market measure even if its main aim is public health protection; despite the fact that harmonisation of public health requirements is in principle ruled out by the Treaty. A further competence enhancing element was that the Court adopted an impressionistic approach to assessment of the requirement that distortions of competition must be appreciable if they were to justify harmonisation, leaving open the possibility that this requirement might be relaxed or sidestepped by the lawmaking institutions. The competence restricting elements of the Tobacco Advertising case have been contradicted or eroded by subsequent case law, such as the British American Tobacco case, and the Swedish Match case. After the latter case, obstacles to trade can be addressed by simply banning the trade. After the British American Tobacco case, it seems that hypothetical obstacles to trade, resulting from disparities between national labelling rules, can be addressed by eliminating the disparities in question, even if this makes no contribution to cross border trade in the products in question. In the Leitner case, the Court confirms that its approach to the requirement adopted in Tobacco Advertising, that distortions of competition must be appreciable in order to justify harmonisation, will be an impressionistic one. And in Rundfunk the Court considers that as long as a measure makes a contribution to the internal market, it is legitimate for that measure to regulate situations which have no link at all with freedom of movement - something of a retreat from the Tobacco Advertising case, but in line with case law dating from the 1960s which gives wide reading to competence to coordinate national social security rules in order to provide freedom of movement for workers. More broadly, it is noted that Community competence has not in practice been confined to removing obstacles to trade and distortions of competition, but extended to harmonising national rules which facilitate freedom of movement and to removing differences between national rules which create uncertainty for those contemplating cross border transactions. This aspect of Community competence to regulate the internal market is potentially far reaching, and could lead to the use of such measures as instruments of general governance. This does not seem consistent with a scheme of attributed competences, nor with a system in which decisions are to be taken "as closely as possible to the citizen," in accordance with the principle of subsidiarity.ISBN: 978-1-84113-832-9The judgments in Viking and Laval confirm the Court's previous case-law on the horizontal effect of Articles 39, 43 and 49 EC, and extend the horizontal effect of Articles 43 and 49 EC to cover collective action of trade unions by way of strikes, boycotts and the like. A significant knock-on effect is an extension of Community regulatory competence to cover this same subject matter, despite the contrary indications in Article 137(5) EC. The judgment in Viking implies that Article 28 EC is also capable of horizontal effect, at least in cases where collective action of individuals produces regulatory effects similar to those resulting from State action. The Court's reasoning leaves room for future incremental increases in the horizontal effect of fundamental freedoms in cases which involve contractual rules, in particular rules regulating employed or self employed activities. The approach to horizontal effect in Viking supports, for example, the argument that provisions of a corporate constitution could amount to a restriction on freedom of establishment, as could action taken by the board of a company to frustrate a takeover bid. Advocate General Maduro in Viking argues that the Treaty rules on freedom of movement apply directly to any private action that is capable of effectively restricting others from exercising their right of freedom of movement. The present writer suggests further considerations as being relevant to determining the extent of the horizontal reach of fundamental freedoms. Normal market behaviour on the part of one market operator should not in principle be held to amount to a restriction on the fundamental freedom of another. But discriminatory conduct by market operators, or other conduct which falls outside the range of normal market behaviour, would seem capable of falling within the horizontal effect of a fundamental freedom, at any rate where it restricts access of other market operators, or consumers, to the market, or places market operators or consumers at a disadvantage because they have exercised a fundamental freedom. Account must be taken of the aims and wording of the freedom in question, along with the policy questions of whether it would be excessively burdensome to make private operators subject to the obligation to comply with the fundamental freedom in question, and whether any consequential extension of Community regulatory competence would unreasonably limit that of the Member States. A related issue to be taken into account is the possible horizontal effect of the fundamental principle of equality, as articulated in the Mangold case. Even a restrained reading of this much criticised case would suggest that the prohibition of discrimination on grounds of nationality in Article 12 EC might have horizontal effect in circumstances falling within the material scope of Community law, such as the supply of goods, services, business accommodation and housing. A similar conclusion could be reached as regards discrimination in the sale of goods, services and real property to non residents. It would not be excessively burdensome to impose on private market operators the obligation not to depart from their normal terms and conditions of sale in the case of non-nationals or non-residents, unless such departure represented normal market behaviour. A possible example of discriminatory service provision contrary to the general principle of equality is that of excessive roaming charges, which have been recently regulated by Regulation (EC) No 717/2007. A key question which arises in this context is the extent to which a market operator can, or should be able to be, justify discrimination against out of state operators, or discrimination against customers solely because they have crossed a national frontier, on grounds of normal market behaviour, when market conditions are not normal, and the market is not fully competitive.
Q.C. 1993. Occasional legal practice, principally before the Court of Justice of the European Communities.
European Union Law, International Law, Constitutional Law.
Blog posts by Derrick Wyatt QC28 Mar 2017
Brexit Negotiations - Dereliction of Duty to Fail to Plan for a No Deal?
By Derrick Wyatt QC, St Edmund HallResearch Collection: BREXIT13 Feb 2017
Brexit negotiations: what happens if there is no deal and a 'hard Brexit'?
By Derrick Wyatt QC, St Edmund HallResearch Collection: BREXIT18 Nov 2016
Why 'Cherry Picking' is a bad description of the UK's aims in the Brexit negotiations.
By Derrick Wyatt QC, St Edmund HallResearch Collection: BREXIT06 Sep 2016
The Case for UK Parliamentary Oversight of the Brexit negotiations
By Derrick Wyatt QC, St Edmund HallResearch Collection: BREXIT26 Jul 2016
Can the UK retain access to the single market without allowing free movement of workers: let's rephrase the question
By Derrick Wyatt QC, St Edmund HallResearch Collection: BREXIT16 Mar 2016
Negotiating Brexit: the Legal Framework
By Derrick Wyatt QC, St Edmund HallResearch Collection: BREXIT