Author: Alastair Sutton – diplomat, lawyer and advisor on European law and affairs for over 40 years.
Background – the “new settlement” of February 2016
The purpose of this paper is to consider the impact of UK withdrawal from the European Union (EU) on the UK financial services sector and the importance of this sector to the EU. Before doing so however, a short comment on the “Cameron package” establishing “a new settlement” for the UK within the EU is appropriate. As a leading financial centre outside the Eurozone, the key provisions for the City of London are in the section on economic governance. The UK’s commitment here is not to create obstacles and to facilitate the further deepening of the economic and monetary union. In exchange, the Union is to respect the rights and competences of non-euro Member States, notably in the internal market.
It is recognised that the single rulebook to be applied by all credit and other financial institutions may need to be “conceived in a more uniform manner than corresponding rules to be applied by States that do not take part in the banking union.” The latter are exonerated from “bail-outs” for Eurozone States. Emphasis is given to the need to “respect the internal market” whenever measures affecting the Eurozone are adopted. A “safeguard clause” (or, more accurately, a “consultation clause”) is included, whereby the UK may “ask the President of the European Council that an issue relating to the application of this Decision be discussed in the European Council”, where “due account will be taken of the possible urgency of the matter”.
Without questioning the good faith of the 27 Member States which have agreed to this provision, the “integrity” of the UK’s participation in the single financial services market in the future may depend on the extent to which a genuine monetary, economic and fiscal union is achieved. The growing inter-relationship between financial services and these wider policy areas (with a broader supervisory role for the European Central Bank), the development of a banking and capital markets union and Eurozone institutions which exclude the UK, may – in fact if not in law – limit the benefits available to UK financial operators in ways which are not easy to predict. However, the UK is already “semi-detached” from the rest of the EU, as a result of 6 Protocols derogating from core areas of EU law and policy. This separation can only grow to the extent that the Eurozone takes on the characteristics of a genuine single economiy.
The best of both worlds for the UK?
The Government’s White Paper of February 2016 is an attempt to inform the UK electorate about the “new settlement” (and the advantages of remaining in the EU) as required by the EU referendum Act 2015. The Paper highlights the cardinal importance of access to EU markets for the UK financial services sector which “employs over one million persons across the UK, constitutes over 7% of UK economic output, 13% of UK exports and a trade surplus of £60 billion.” The Paper concludes that the UK’s special status in the EU is one which “no arrangement outside the EU could match.” It points (correctly in my view) to “years of disruption and the uncertainty of leaving for an unknown destination outside” in the case of Brexit.
Against this background, I now summarise some of the factors involved in the Brexit debate as regards financial services and the City of London.
A unique range of products and activities
The terms “financial services” and “City of London” are frequently invoked in the Brexit debate, but both cover a wide variety of service sectors. These include retail, wholesale and investment banking, all branches of insurance and re-insurance, pension fund management and “investment services” (including hedge funds, derivatives, UCITS and alternative investment fund management), as well as ancillary activities such as audit and accounting, legal, IT and other consultancy services.
Under the “umbrella” of the G20 following its meeting in London in 2009, EU law in all these sectors has expanded exponentially. European Rulebooks in banking (CRD IV), insurance (Solvency II), hedge funds and private equity (AIFMD), derivatives (EMIR), UCITS IV, short-selling and credit default swaps, credit rating agencies, financial benchmarks and venture capital funds are only some of the measures which have been proposed, amended or enacted since the end of 2007. In parallel with new measures to deepen the Eurozone and to create capital markets and a banking union, the EU (with the technical assistance of European Supervisory Authorities since 2011) has enacted “multi-layered” measures running to thousands of pages. The process is ongoing, even if the emphasis is gradually shifting to enforcement and supervisory convergence.
In many if not all of these areas, the EU has moved ahead of the rest of the world and considers that its Rulebooks set new global standards. This is not always accepted by the EU’s partners, including the United States with its Dodd-Frank legislation and many Asian financial centres such as Singapore. But at least for those countries which depend on EU markets, there is little choice other than to align with EU regulatory and supervisory standards.
The City of London is a leading global capital market as well as a centre for financial services. There is an important (and often overlooked) distinction between EU law on the cross-border provision of financial services and rules on capital movements. In the absence of special arrangements agreed by the EU for third countries (e.g. “equivalence” or “passporting”), the freedom to provide cross-border financial services is limited to operators with a corporate presence in the EU.
In contrast, capital movements such as cross-border investments are based on Article 63 TFEU, which provides for the removal of all restrictions for Member States and non-Member States alike. This unique provision in EU law would continue to benefit the UK (as well as American, Japanese, Russian, Chinese and Commonwealth) financial institutions based in London, even after Brexit. This would not be the case for the vast body of EU financial services law, which would cease to apply to the UK with the entry into force of the withdrawal arrangement provided for in Article 50 TEU.
The iconic value of financial services (and the “City of London”) for the UK – a view not shared in Europe
Partly as a result of the Brexit debate being dominated by the Westminster and Whitehall “villages”, as well as by London-based media, the importance of EU membership for the City of London has over-shadowed other sectors. “London” (both the City and the UK Government) has been a “driver” of EU financial services law even before the first EU Financial Services Action Plan (FSAP) in 1999. The UK is perhaps the most active of the small number (usually less than 10) of the 28 Member States which participate actively in Council legislative debates on technical issues, in investment services perhaps even more than in banking and insurance. Ironically for a Member State which often complains of excessive “red tape” in the EU, the UK has –more than any other Member State – enacted ”gold-plating” national rules to supplement EU directives.
On the other hand, the “iconic” status sometimes given to “financial services” in London is not shared in other Member States, some of whom (Frankfurt especially but also Paris, Milan and Amsterdam) may even relish the prospect of Brexit in order to attract business previously located in London. Many Member States continue to blame “London” (perhaps even more than the sub-prime crisis in the United States) for the hardship, insecurity and instability which European citizens still suffer as a result of the collapse of financial markets in 2007-8. They point, inter alia, to the loose and incomplete regulatory and supervisory culture which existed in the UK and in the EU before 2007, encouraging or permitting excessive risk-taking in complex financial instruments, incompetent management, corporate greed and inadequate supervision.
For many in Europe, it is these factors and not the systemic weaknesses of the eurozone which are the root cause of the current economic crisis. Most if not all “core” EU Member States see the function of financial services as being (primarily at least) to “oil the wheels” of the economy, rather than being a profit-making industry comparable to other sectors of the economy. Continental opposition to excessive bankers’ bonuses is merely one manifestation of the difference in approach to the financial services “industry” in the UK and across the Channel.
This profoundly-felt and lingering resentment will be an important underlying factor in any negotiation for a new relationship with the EU27 under Article 50 TEU. It does not bode well for the City in the event of Brexit.
Financial services in the Brexit campaign
Many of the general political and economic threats facing the UK in its withdrawal negotiations under Article 50 will apply to financial services. By far the most important of these is the absence of any ready alternative to EU membership. The failure of the Cameron administration (or indeed the “Brexiteers”) to offer the UK electorate any credible and quantified alternative to membership appears grossly irresponsible.
Not only are voters handicapped by over 40 years “misinformation” on the economic and political realities of EU membership, but this is compounded by a failure to spell out the possible alternatives, including their negotiability with the EU27 and with other potential partners. Those in favour of withdrawal have assumed or alleged (without any legal or factual justification) that a new arrangement guaranteeing continued access to the Single Market would be readily available because of the importance of the UK market for the EU27.
In fact and in law, the only arrangement offering comparable (but not identical) advantages in terms of market access is the European Economic Area (EEA) agreement, where the EU’s partners are Norway, Iceland and Liechtenstein. As with all other arrangements which the UK might seek under Article 50, membership of the EEA would of course require the consent not only of the EU27 but also the 3 partner States. It is most unlikely that this would be forthcoming. In any event however, the UK itself may not wish to enter an arrangement which provides for the free movement of persons (not to mention diminished participation in decision-making and a continued contribution to the EU budget) as the “price” to be paid for continued free movement of goods and services.
The level of political resentment at the EU having been “held to ransom” by an already “semi-detached” Member State (or at least its current government) in holding a referendum and forcing yet another time-consuming re-negotiation at a time when the Union is facing multiple existential threats from migration, Russian aggression, worsening unrest in the Middle East and Turkey and systemic economic stagnation in the Eurozone, has been seriously under-estimated in the UK. In addition, the untried but inevitably complex process of “de-negotiation and re-negotiation” involved in the Article 50 TEU withdrawal process, appears to have been over-looked, as has the bitter legacy of 40 years “Euroscepticism” by successive UK Governments.
Negotiating withdrawal under Article 50 TEU
In the event of a negative vote on 23 June, the UK Government will have to decide when (or whether) to “decide to withdraw from the Union in accordance with its own constitutional requirements” and “notify the European Council of its intention”. Thereafter, the Council would need to settle “guidelines” for the Union (of 27 Member States) to negotiate and conclude an agreement with the UK. The agreement would “set out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union”. Article 50 has never been used. It is not clear how long it would take for the Council to draw up the guidelines for the negotiation, whether these would be acceptable to the UK, how long the withdrawal negotiations would take, nor indeed whether there would be one or two negotiations leading to a single agreement on “dis-engagement and re-engagement”.
In any event, it is clear that after 42 years membership the international process of “legal disentanglement” would be of considerable complexity. Its accomplishment within the 2 year period referred to in Article 50(3) TEU[1] would depend not only on serious political will on both sides, but also the availability of time, when the Union is faced with other matters of far greater (European) importance. It is – to say the least – possible that an extension to the 2 year period would be necessary, even for “phase one” of the Article 50 process. In this respect, Article 50(3) provides that the Treaties “shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.” What would happen (apart from increased legal uncertainty) if such an extension were not granted is not clear.
Even if the “disentanglement” process could be completed within 2 years, it is not easy to imagine that a replacement agreement would be in place and operational within that time-span. Even assuming the necessary political will and consensus amongst the EU27 (including the European Parliament) – which in my view cannot be assumed – it is almost inconceivable that a new arrangement acceptable to both sides would be devised, negotiated and implemented within 2 years. This implies that the legal uncertainty which is already being felt in the UK would be likely to continue, perhaps as long as 5 years before a new legal framework was devised, negotiated and ratified by the UK and all 27 Member States.
What new arrangement for UK-EU27 relations?
On withdrawal, the UK would retain independent membership of international organisations such as the IMF, OECD and WTO), as well as global standard-setting bodies such as the Basel Committee, IOSCO and the IAIS. However, despite the undoubted importance of the City of London as a leading financial centre, it is unlikely that the UK would exercise the influence on global regulatory and supervisory activity outside the Union that it does as a Member State.
As far as its future bilateral relations with the EU are concerned, although Article 50 TEU appears to envisage the simultaneous negotiation of two arrangements, it is likely that any new arrangement would follow (or at least be conducted in parallel to) to the disengagement process. However, in order to avoid a legal vacuum and even greater legal uncertainty than already exists, both parts of the agreement envisaged by Article 50(2) should (ideally) enter into force simultaneously.
The EU27 would presumably be keen to resolve the withdrawal process as quickly as possible in order to “put their new house in order”. However, the same political will might not exist to negotiate quickly a new arrangement with the UK. Furthermore, the new arrangement would of course require a fully-fledged “negotiation”, different in character and scope from the arrangement on withdrawal in the narrow sense.
As far as market access for the UK financial services industry is concerned for example, it is (to say the least) unlikely that the EU27 would agree to the same (or similar) terms to those which exist under current EU law. On withdrawal, the UK would become a “third country”. The UK would however have a unique (and not necessarily favourable) status, unlike applicant States or other countries (such as the United States and Japan) with which the EU is already in negotiation.
It is inevitable that the UK’s 40 years “baggage” of constant criticism, dissent, hectoring and lecturing (at least at political level) would have an adverse political effect, both on the timing and substance of a new economic arrangement. There is no obvious reason why the EU27 (without UK participation in the Commission, Council and Parliament) should feel the need to grant favourable treatment to the UK, especially when their own access to UK markets, at least for manufactured goods, is legally guaranteed by the WTO agreements. The converse is of course not the case since, on withdrawal, the UK would face the common external trade barriers of the EU rather than the frontier-free internal market and would therefore need a preferential trade agreement with the EU as a matter of urgency.
A key issue therefore will be the scope of the new arrangement sought by the UK (as “demandeur”) and the extent to which this is acceptable to the EU27. Article 50(3) TEU provides that the withdrawing Member State “shall not participate in the discussions of the European Council or the Council” in the decisions concerning it. This would include (of course) the “internal” discussions in the European Council on the “guidelines” for the new agreement, as well as those in the Council of Ministers during the actual negotiations. The UK will therefore – in sharp contrast to the present situation – have no input into the EU “mandate” for the “arrangement” envisaged by Article 50 to replace the current legal framework.
Neither the Government nor those advocating withdrawal have set out with legal clarity any of the possible alternatives to EU membership. Loose talk about the negotiability of a “free trade” agreement (perhaps like Norway, Switzerland or Canada) disguise the fact that none of these agreements make provision for market access for financial services (or even goods) on the same basis as that provided by the law of the Single Market. Thus, even if a “classical” free trade agreement could preserve market access in the EU for manufactured and agricultural goods (provided that EU health, safety, environmental and consumer protection standards could be met), this would not be the case for financial and related services.
Against this unpromising background, there are – at least in theory – at least seven possible “models” for a UK-EU27 arrangement to replace EU membership. These are the EEA agreement, the Swiss approach (a “classical” free trade area agreement complemented by ad hoc bilateral agreements on areas of mutual interest[2]), the European Free Trade Association (EFTA) agreement, a “tailor-made” free trade agreement such as those recently concluded with Korea or Canada, a customs union agreement such as that with Turkey, an association agreement or, in the absence of any bilateral arrangement, reliance on the World Trade Organisation (WTO) agreements.
As far as financial services are concerned, none of these (so-called) alternatives – with the exception of the EEA – provide for market access in financial services, at least with the degree of automaticity guaranteed under EU law. All of these models are public international law agreements which lack direct effect in national law. Even if, therefore, the UK were able to negotiate a form of market access for banks, insurers and investment services industries on the “offer and concession” basis used in the WTO or in “classical” free trade agreements, UK companies would be unable to enforce their rights in the national law of 27 EU Member States.
It is of course not clear which – if any – of these arrangements would be acceptable to the EU27. But it appears that neither the UK Government nor the “Brexiteers” have yet chosen which model would best suit the UK’s interests. My own view is that none of the existing “models” would reflect the UK’s needs nor (necessarily) the EU’s probable attitude to a Member State which had turned its back on the Union. A sui generis or tailor-made agreement would be necessary, but this of course would take longer to devise (especially on the EU27 side) and to negotiate. The treatment of financial and related services would be particularly sensitive – on both sides.
The cost of “self-exclusion” from the EU decision-making process
Given the size and attraction of the EU’s Single Market for third countries, participation in its decision-making process at all levels is crucial, even for small States. One driving factor behind the former EFTA countries’ desire to leave the EEA and join the EU in 1995 was the fact that the EEA membership provided for consultation rather than full participation in the institutional and committee structure of the EU.
EU financial services law (like all other areas of EU law and policy) is conceived, prepared, monitored, enforced and amended through processes and institutions which are primarily or exclusively open to EU Member States and private sector operators. The “shock” for UK regulators, supervisors and “stakeholders” in no longer participating in Council working groups, Commission-chaired sectoral consultative committees and the European Supervisory Authorities, is likely to be severe and damaging to UK interests.
The impact of withdrawal on UK law – the potential unravelling of UK law implementing EU rights and obligations
The legal, technical and indeed practical complexity of “unpicking” the legacy of 42 years assimilation of the “EU acquis” into UK law is almost inconceivable. As with the (untested) Article 50 process in general, the impact on legal certainty for business in the UK is obvious. It would be – to mix metaphors – a step in the dark, with no light at the end of the tunnel, perhaps for several years.
Of course, the disruptive effect of regulatory change in the UK would depend on the extent to which the UK authorities, after withdrawal, take the political decision to “dismantle” UK law implementing EU obligations. In practice, much of the relevant “acquis” on consumer and investor protection would need to be retained – especially in financial services – as a basis for “mutual recognition” or “equivalence”. This may lead to questions why Brexit was necessary in the first place!
Conclusion
The current Brexit debate in the UK (where rhetoric tends to be divorced from reality) demonstrates above all that Brexit would be an irreversible economic and political gamble. On the one hand, Brexit would be based on the view that the EU was undemocratic, dysfunctional and unsustainable. Yet the economic future of the UK would depend significantly and ironically on the economic performance of the EU in general and the Eurozone in particular. In any event, whatever arguments may be made for other sectors of the UK economy, it appears (at least to me) that continued EU membership is vital for the City of London.
(First published in Spotlight)
[1] The Treaties shall cease to apply to the State in question from the date of entry into fore of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend the period.
[2] Switzerland currently has many such arrangements built up over the last 25 years, but excluding financial and related services.