Should we fear a Frexit?

A British tourist wandering the streets of the French city of Beaucaire would be surprised to encounter ‘rue du Brexit’. The Mayor, a member of the Eurosceptic ‘Front National’, claimed that his decision, approved by a majority of his City council, was an homage to the British people reclaiming their sovereignty.

If that decision now looks odd to most French people, the victory of Marine Le Pen in the upcoming presidential elections might make this street’s name increasingly popular. The extreme right-wing candidate has never hid her dislike for the European Union, and she recently declared that Theresa May – as well as Donald Trump – were “putting her plan into action”.

If the scenario of her election were to come true, how easy would it be for her to force France out of the European Union? What would a ‘Frexit’ look like? Would she have to go through a referendum? And if so, would it be binding or advisory? Would the hypothetical President encounter the same difficulties as the British Prime Minister did with the Miller case? Would the French legal system allow for the Courts to have such a crucial role?

Would a referendum be a prerequisite?

There was no legal obligation for the Prime Minister to call for a referendum before exiting the European Union. David Cameron’s decision to ask Parliament to authorize a national referendum was therefore a purely political decision. As noted by Lord Neuberger in Miller ([2017] UKSC 5, at 117), “[t]he referendum is a relatively new feature of UK constitutional practice” and so far there have been only three national referenda (in 1975, 2011 and 2016), in addition to the ones used in the devolution process. The compulsory use of referenda on significant matters is not found anywhere in the British Constitution.

The French and British constitutional landscapes are, in this respect, relatively similar ...

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