A Brexit last call: The strange practice of pre-Brexit opt-ins
| Date | 01 August 2021 |
| DOI | 10.1177/1023263X211024990 |
| Published date | 01 August 2021 |
| Subject Matter | Legal Development |
Legal Development
A Brexit last call: The strange
practice of pre-Brexit opt-ins
Johannes Graf von Luckner*
Abstract
As long as the UK’s membership in the EU lasted, it had a special position within the Union. This
could be seen particularly well in a peculiar practice that has largely gone unnoticed in the public,
namely a series of opt-in decisions that the UK took prior to Brexit but after the Brexit refer-
endum. This contribution raises the question of whether the UK used the pre-Brexit period as a
type of ‘last call’, trying to get everything it could of its membership before it ended. To do so, it
studies five opt-in decisions, examining their subject matter, the effects of the opt-ins and the
outcome of the Brexit negotiations in order to understand the UK’s reasons for integrating further
into the EU before withdrawing from it. Uncovering various political and practical motivations, it
comes to the conclusion that the initial impression of a ‘last call behaviour’ is not justified.
Keywords
Brexit, differentiated integration, AFSJ, unitary patent, opt-in, ECRIS, trade and cooperation
agreement
1. Introduction
Imagine an average night in a bar: a serious, elegant gentleman has only reluctantly – after the
occasional stern look at the guest’s empty glass by the bartender – ordered anything at all through-
out the night. As the bartender (let’s call her Europa) announces that it is time for the last call,
however, our guest frenetically starts ordering whatever he can find on the menu that he had so
thoroughly ignored until now. Surprised, the bartender starts delivering the requested drinks. She is
confused and wonders whether it will now take even longer to get the guest out of the bar in order
* Faculty of Economics, Law and Social Sciences, University of Erfurt, Erfurt, Germany
Corresponding author:
Johannes Graf von Luckner, LLM (EUI), Faculty of Economics, Law and Social Sciences, University of Erfurt, Nordha
¨user Str.
63, 99089 Erfurt, Germany.
E-mail: johannes.graf_von_luckner@uni-erfurt.de
Maastricht Journal of European and
Comparative Law
ªThe Author(s) 2021
Article reuse guidelines:
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DOI: 10.1177/1023263X211024990
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MJ
MJ
2021, Vol. 28(4) 556–572
for her to get on with her own business. On the other hand, is serving its products not what a bar is
meant for, and shouldn’t Europa be happy about every glass consumed?
Prior to finally leaving the EU, with the result of the 2016 Brexit referendum and the decision to
trigger Article 50 TEU, the UK has announced its very own last call in terms of EU politics.
However, if anyone expected that the country would, from this point on, slowly start loosening its
ties to the EU, they were mistaken. In a series of surprising decisions between 2016 and 2019, the
UK even established closer ties to the EU, opting into instruments that it was allowed to stay out of
due to its particular membership status. Shortly after the referendum, the UK asked to participate in
the new Europol Regulation. In November 2017, the UK government announced that it wanted to
opt into ECRIS-TCN, the European Criminal Record System for third-country nationals, and its
underlying IT architecture eu-LISA. In 2018, the UK ratified an international agreement estab-
lishing a Unitary Patent Court (UPC). While this was an international law act, it is the basis for
participation in (and the entry into force of) the EU law instrument of the Unitary Patent. On 14
March 2019, the UK opted to join the new Eurojust Regulation, which only started applying in
mid-December 2019 – at the time, the UK was planning to have left the EU by 29 March 2019.
Ironically, the day the request reached the European Commission coincided with the day the House
of Commons voted to postpone the withdrawal.
These are only the most significant decisions
1
in a series of steps towards the EU prior to the
UK’s withdrawal from it, displaying that Brexit was anything but a one-way road. What are the
reasons for this contradictory behaviour? Has the UK really been engaging in a ‘last call frenzy’ as
depicted in the image above? In my contribution, I will analyse the single decisions in order to
answer these questions. I will set out to understand what the single opt-ins mean and what position
they put the UK in during the post-Brexit negotiations. This will enable us to gain insights into the
UK’s vision of the future relationship and portrays the behaviour of the UK towards the EU in areas
with little front-page coverage.
I will not proceed chronologically but by subject matter, as some opt-ins are more similar than
others. When reviewing the opt-in decisions, I will explain their subject matter (what is the
instrument about, what would an opt-in mean without Brexit?) and depict the legal effects created
by a pre-Brexit opt-in as well as the legal situation now that Brexit has happened. Finally, I will
attempt to offer political explanation hypotheses to understand why the UK decided to join at the
last minute.
2. A short background
The UK has always had a unique position in the EU and much has been written about its former
status in the bloc.
2
Therefore, the following is only meant as a very brief recapitulation of the legal
techniques that were utilized prior to Brexit to organize the UK’s special role in the EU.
1. Note that the UK also opted into proposed reform of the Eurodac system, but this legislative proposal was not adopted
before Brexit, meaning that the opt-in had no effect.
2. S. Wall, A Stranger in Europe: Britain and the EU from Thatcher to Blair (Oxford University Press, 2008); S. Peers, ‘In
a World of Their Own? Justice and Home Affairs Opt-Outs and the Treaty of Lisbon’, 10 Cambridge Yearbook of
European Legal Studies (2008), p. 383; D. Curtin, ‘The Constitutional Structure of the Union: A Europe of Bits and
Pieces’, 30 Common Market Law Review (1993), p. 17; D. Thym, Ungleichzeitigkeit und Europa
¨isches Verfassungs-
recht (Nomos, 2004), p. 90 et seq.
557
Graf Von Luckner
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