Thursday

8th Dec 2022

Opinion

Brexit: what is the 'Lugano Convention' and does it matter?

  • The Lugano Convention - seemingly a technical and bureaucratic issue which has the potential to be resolved in the best interests of citizens, membership is instead embroiled in political machinations (Photo: European Commission)

Many of the trading barriers that now exist post-Brexit between the EU and the UK will inevitably continue for the foreseeable future. Such friction is an unavoidable consequence of Britain leaving the EU - vividly demonstrated by the attempted implementation of the Northern Ireland protocol.

Logic therefore demands that additional cross-Channel barriers are minimised while the new EU-UK relationship evolves.

Read and decide

Join EUobserver today

Become an expert on Europe

Get instant access to all articles — and 20 years of archives. 14-day free trial.

... or subscribe as a group

Following its exit from the European Union, the UK ceased to be a member of the Lugano Convention, an international treaty which governs cross-border civil and commercial legal disputes.

In May, the European Commission published an opinion calling for the UK's re-application to be rejected. Last week, the commission announced it had told the administrators of the convention, the Swiss Federal Council, that the bloc was not in a position to consent to UK accession. The issue now ultimately rests with member states to decide through a Council vote.

The EU has argued that Lugano membership is a "flanking measure" of the Single Market, and that the UK has become a third-country, without the necessary link to justify re-admission into the Convention. While technically the case, this position does not take into account the continuing special relationship between the EU and the UK.

Lugano in many ways embodies the complexities and challenges of the post-Brexit reality.

Seemingly a technical and bureaucratic issue which has the potential to be resolved in the best interests of citizens, membership is instead embroiled in political machinations.

Pre-Brexit, London and Brussels negotiated hard. Post-Brexit, they must now repair the wounds and nurture a new relationship - one which cannot ignore people, geography, history, culture, or economic reality.

A good relationship with continental Europe will make the UK stronger in the world, essential for a global Britain, particularly as the new US administration looks to rebuild the defence and security relationship with Europe.

The UK government should now focus on how best to work with the EU to tackle the challenges they share by virtue of their proximity - from the Russian threat or the Chinese rise, to climate change and Covid-19.

The EU's pretence that the UK is a third-country like any other is a misrepresentation of reality.

It is not geographically nor historically and it is certainly not after 40 years of EU membership providing decades of judicial and security cooperation. Nato is the living proof that the EU's and the UK's safety are interlinked. Cross-Channel rivalry is a self-defeating luxury Europeans cannot afford. Their true rivals – there are plenty around - will take advantage of it.

Access to UK courts?

The questionable motivations behind denying UK's re-accession to Lugano need to be weighed against the dire consequences of its exclusion which would cause EU member states to lose access to UK courts.

The UK's legal system is renowned worldwide for its integrity, efficiency, case law, and language, historically making it the preferred setting for resolution of EU cross-borders disputes. If the authority of the British courts is no longer automatically recognised in EU commercial matters, EU businesses will inevitably be impeded in their ability to seek relief as efficiently as they were with the UK a Lugano signatory.

Developing another EU court system which is capable of efficiently handling a commercial dispute, for example between a Spanish company and a Hungarian consumer - who do not speak the same language and are regulated by two distinct commercial codes in their respective countries - is a decades-long process.

Currently, there is no clear contender in sight for a seat of cross-national litigation.

Meanwhile, time is of the essence in all commercial disputes, and especially in the aftermath of the Covid-19 crisis, which will likely to lead to an increased volume of litigation. Refusing the UK access to the Lugano Convention will hinder the very legal certainty both EU and UK businesses rely upon.

The UK's relationship with the EU Single Market is still very much a work in progress. Covid has effectively put a hold on formulating the future UK-EU relationship.

But talks will resume. As the process of post-Brexit normalisation plays out, the EU may find it expedient to have the UK included in the Lugano Convention.

To reject the UK's application now would only serve to crystallise a situation that is not in the best interests of either party. Effective political and judicial cooperation between the EU and its closest neighbour will, of necessity, always be advantageous for both sides.

Author bio

Mary Honeyball was a British Labour MEP for London from 2000 to 2019. During her 19 years in Brussels, she serves on various delegations and committees, including the European Parliament's Committee on Legal Affairs. Stefano Stefanini is a former Italian diplomat who served as deputy diplomatic advisor to the Italian president, deputy chief of mission at the Embassy of Italy in Washington, and Italian permanent representative to Nato in Brussels from 2007 to 2010.

Disclaimer

The views expressed in this opinion piece are the author's, not those of EUobserver.

Brexit grumbles overshadow UK summit

Harsh words on Brexit overshadowed a G7 summit in the UK this weekend, which also pledged more vaccines for poor countries and criticised China on forced labour.

EU warns UK of using 'real teeth' in post-Brexit deal

EU Commission president Ursula von der Leyen promised "not to hesitate" to use the "real teeth" of the future relations agreement between the UK and EU, if Britain does not comply with the deal.

The military-industrial complex cashing-in on the Ukraine war

From the outset, arms manufacturers eyed this war as a profitable business opportunity. Structural changes took place across the EU, not only to fast-track arms to Ukraine, but also to make more public finance available to the highly-lucrative arms industry.

Column

Autocrats make us all less secure

How should democratic states co-operate with authoritarian governments in the future? My organisation, Democracy Reporting International, has studied the security strategies of 13 democratic governments to understand how they see this relationship.

Big Agri's lies: green EU farming not to blame for food insecurity

The agribusiness narrative is a masquerade. A smokescreen to water down environmentally-friendly reforms and maintain industrial agriculture. A smokescreen to which a majority of European policy-makers, including member states, are dangerously buying into.

Column

Autocrats make us all less secure

How should democratic states co-operate with authoritarian governments in the future? My organisation, Democracy Reporting International, has studied the security strategies of 13 democratic governments to understand how they see this relationship.

Serbia now has no choice but to join EU sanctions on Russia

Vladimir Putin himself is somewhat suspicious of Serbia's leader, as are most who deal with the opaque Aleksandar Vucic. The Russian president has preferred to keep his Serbian counterpart compliant, via a tight rein of annually-reviewed gas pricing.

Stakeholders' Highlights

  1. Nordic Council of MinistersLarge Nordic youth delegation at COP15 biodiversity summit in Montreal
  2. Nordic Council of MinistersCOP27: Food systems transformation for climate action
  3. Nordic Council of MinistersThe Nordic Region and the African Union urge the COP27 to talk about gender equality
  4. International Sustainable Finance CentreJoin CEE Sustainable Finance Summit, 15 – 19 May 2023, high-level event for finance & business
  5. Friedrich Naumann Foundation European DialogueGender x Geopolitics: Shaping an Inclusive Foreign Security Policy for Europe
  6. Obama FoundationThe Obama Foundation Opens Applications for its Leaders Program in Europe

Latest News

  1. EU takes legal action against China over Lithuania
  2. EU Commission shoring up children's rights of same-sex parents
  3. The military-industrial complex cashing-in on the Ukraine war
  4. EU delays Hungary funds decision, as Budapest vetoes Ukraine aid
  5. Borrell gets pension from MEP fund set for taxpayer bailout
  6. Autocrats make us all less secure
  7. Big Agri's lies: green EU farming not to blame for food insecurity
  8. German top court declares €800bn EU recovery fund 'legal'

Stakeholders' Highlights

  1. EFBWW – EFBH – FETBBA lot more needs to be done to better protect construction workers from asbestos
  2. European Committee of the RegionsRe-Watch EURegions Week 2022
  3. UNESDA - Soft Drinks EuropeCall for EU action – SMEs in the beverage industry call for fairer access to recycled material
  4. Nordic Council of MinistersNordic prime ministers: “We will deepen co-operation on defence”
  5. EFBWW – EFBH – FETBBConstruction workers can check wages and working conditions in 36 countries
  6. Nordic Council of MinistersNordic and Canadian ministers join forces to combat harmful content online

Join EUobserver

Support quality EU news

Join us