Brexit and freedom of establishment. Tax, business, and immigration issues (Atelier, Barcelona, 2021)

The book Brexit y libertad de establecimiento. Aspectos fiscales, mercantiles y de extranjería has recently been published by Atelier (ISBN: 978-84-18244-53-7). It contains most of the presentations given at the Seminar held the 4th and 11th December 2020. We have revised them to incorporate the debate that took place and the Trade and Cooperation Agreement. It begins with the presentation made by professor M.ª Dolores Arias. Thanks to being a member of the research team, she explains the background of the project, its main milestones, summarizes the chapters of the book, and exposes the methodology used.The first chapter is written by Rafael Arenas, one of the Spanish scholars who has published the most and best about Brexit. The Professor of International Private Law analyses the negotiations between the United Kingdom and the European Union from the British perspective. He examines the main questions arisen by the withdrawal process, such as the tension between the British Government and Parliament, the possibility of withdrawing the decision to leave the Union, the extensions of the stay of the United Kingdom in the Union by not approving the Withdrawal Agreement and the solution for Northern Ireland.

The following four chapters deal with Tax Law. José Antonio Fernández adopts a generalist perspective. Concerned about the tax situation of British nationals who reside in the European Union, and Europeans who live in the United Kingdom, he studies the tax repercussions of Brexit around the principle of non-discrimination. First, he explains its meaning in the EU legal system; then, how it has been established in the Trade and Cooperation Agreement; and finally, its meaning in the Treaty against the Spanish-British Double Taxation.

Miguel Ángel Sánchez investigates the tax risks that the United Kingdom generates for the Union, given its economic importance and the close links it has with various tax-havens. He explores some issues of the EU tax fraud prevention regime to ascertain which measures could be applied to the United Kingdom. “All of this with a double purpose: on the one hand, to highlight any shortcomings and needs, both in the establishment of instruments and application mechanisms. And, on the other hand, to show the need for some precautions or specific measures in relation to the new third State that results after the Brexit process” (page 99).

Teresa Pontón, lecturer at the Cadiz University and an expert on Gibraltar, writes about the International Agreement on Taxation and the Protection of Financial Interests between the UK and Spain regarding Gibraltar. She holds that it will have great importance for the determination of tax residence and for administrative cooperation and emphasizes that the Agreement entails the disqualification of Gibraltar as a tax haven. Closely related to professor Pontón work is the chapter of Zuley Fernández Caballero. She focuses on the tax regime for cross-border workers, which is essential for Gibraltar. She exposes the situation of Spanish and Gibraltarian workers based on the premise that the Agreement to avoid Double Taxation between the United Kingdom and Spain is not applicable.

The following five contributions are more heterogeneous, but they have in common that they delve into specific problems generated by the withdrawal of the United Kingdom. Miguel Gardeñes Santiago enlightens about the residence and movement rights of the British who reside in one of the twenty-seven Member States after the end of the transitional period or of the Europeans who do the same in the United Kingdom. Therefore, it scrutinizes Part Two of the Withdrawal Agreement, the rules of which allow these people and their families to partially maintain the rights they enjoyed before the exit of the United Kingdom.

The following two chapters focus on Company Law. Jorge Miquel takes a general perspective and explains the great influence that the United Kingdom has had on Community Directives, on EU capital markets, especially concerning its practice, and on corporate governance. Due to her status as a lecturer of Private International Law, Vésela Andreeva puts the spotlight on the transnational mobility of companies. In particular, she refers to cross-border transformation, the criteria for determining the lex societatis, and Directive 2019/2121.

Continuing with these specific issues, I deal with Competition Law. I explain how the departure from the United Kingdom will affect the EU and the British Antitrust Laws. After recalling the situation that existed before February 1, 2021, I comment on the provisions of the Withdrawal Agreement and the Trade and Cooperation Agreement that deal with competition rules. Next, I refer to the possible evolution of the EU and British Antitrust Law and warn about the damages that their distancing may cause.

Diana Marín closes this third part. She deals with programs to attract investment in exchange for citizenship or residence; especially on the doubts generated by the application of the Spanish program, established in the Act on Supporting Entrepreneurs and their Internationalization 2013, to British citizens after Brexit. She highlights the competition between the Member States’ programs, the reaction of the European Union, and the prospects.

Federico Fabbrini puts the finishing touch to the book with some reflections on the consequences of Brexit for its parts. The Professor of European Law and founding director of the DCU Brexit Institute is very critical of the United Kingdom, as leaving the Union has generated serious institutional and social crises in the country, has harmed its economy, and has reduced its international appeal. The situation does not seem so negative for the European Union, although it will also suffer harmful consequences. The reason is that the EU has been able to stay together throughout the process and is using the occasion to make progress in areas where the UK’s presence blocked it.