What now? Disengaging from EU law and policy

The process of de-Europeanisation is defined as the active dismantling of EU policy at the domestic level¹²⁵, where dismantling means the ‘cutting, diminution or removal of existing policy’¹²⁶. Copeland distinguished de-Europeanisation from disengagement, the latter taking place when a country backs off from further Europeanisation, whilst still

124 Article 26 TFEU.

125 Burns et al. 2019.

126 Jordan et al. 2013, p. 795 in Burns et al. 2019.

maintaining its domestic structures, just not seeking to adapt them any further to EU’s input and influence¹²⁷. An analytical component of the process of de-Europeanisation is that it is intentional with the aim to reverse the construction, diffusion, and institutionalization of policy paradigms first consolidated at the EU level. In this scenario, the state reverses those processes at the same time it prevents future ‘uploading and downloading in the governance process’¹²⁸. Burns et al claimed this conceptual distinction is useful in the context of Brexit, as the act of leaving the EU shows a clear intention to de-Europeanise.

However, it does not automatically follow that by leaving the EU, the UK will immediately actively dismantle all policies embedded within its domestic legal system during the EU membership. Following from Burns et al assumptions on the future of environmental policy in the UK, if after Brexit the UK decides to leave the majority of EU animal welfare policies in place, then, despite no longer being a member state, UK animal welfare policy may be disengaged rather than de-Europeanised. A variety of political methods are used when assessing the likelihood of each of these processes taking place in the short and long terms after Brexit, but given the limited scope of this thesis, it suffices to present the findings of political scientists. Burns et al considered the absence of capacity as a central variable that indicates the UK’s limited ability, and even limited will, to unpick the manifestation of the EU in its domestic system. The study concluded that while a rollback from EU policy is not likely to happen, significant innovation is improbable either.¹²⁹

Certain legal effects of Brexit are not hypothetical, but inevitable though. The Withdrawal Agreement established that from 1 January 2021 onwards the UK left the EU single market, creating a separate market of its own, with distinct regulatory and legal spaces¹³⁰. The EU-UK Trade and Cooperation Agreement, published on 31 December 2020, created

127 Copeland 2016.

128 Copeland 2016, p. 1126.

129 Burns et al. 2019.

130 Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, OJ C 384I, 12.11.2019.

a new legal relationship between the EU and the UK, including a Free Trade Agreement that provided for zero tariffs and quotas on the trade of goods that comply with the appropriate rules of origin¹³¹. Both parties have committed to a strong level playing field by maintaining high levels of protection in areas such as the environment and the fight against climate change. In brief, the long and burdensome negotiations between the two parties culminated in a healthy trade relationship and in the expected conception of a distinct market, which in consequence comes with more freedom to set standards on animal welfare and other grounds.

This is by no means to state that Brexit is assuredly positive for animals. The threats posed by leaving the EU encompass complex aspects that go beyond regulatory changes and trade factors¹³². Nevertheless, the close links with the EU and the European Economic Area (EEA) require the application of most EU standards. Even the looser trade agreements between the EU and other countries, such as Canada or Ukraine indicate the pursue of high levels of protection, such as the constant inclusion of provisions seeking high environmental standards and the application of the precautionary principle, for example¹³³. Anyhow, within the ambit of this thesis, the most important legal development brought up by Brexit is the UK’s new agency to act in areas where it was once limited by the EU, be it by a matter of legislative competence or by internal market rules.

Most importantly, when analysing potential areas of improvement, the focus is not in the areas where the EU lacks competence (i.e. protecting companion animals), as the UK, as a member state, was already exercising its full autonomy. Neither the focus is in the areas where the UK raised upon EU minimum animal welfare standards (i.e. a total ban on sow stalls), as its protective intentions were made clear in such scenarios and are, therefore, unlikely to change after Brexit. Rather, what is most important when looking at the legal effects posed by Brexit for animal welfare is foreseeing how the UK can now exercise its

131 The EU-UK Trade and Cooperation Agreement, OJ L 444, 31.12.2020.

132 Idem.

133Reid, 2016.

new autonomy in areas where it supposedly could be interested in before, but unable to go any further (i.e. banning foie gras from its market). Even so because looking into this new legal autonomy is not an exercise limited by an expiration date, as the suggestions drafted in this thesis can still be implemented in the future, if not immediately after Brexit.

To further elaborate on the proposed opportunities, an in-depth examination of the status quo is primordial. The following chapter does so by analysing the strengths, gaps, and weaknesses of EU animal law, attempting to draw which lessons should be taken forward for the sake of increasing animal justice.

3. STRENGTHS, GAPS, AND WEAKNESSES OF EU ANIMAL