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46 Legal Issues of Econ. Integration 7 (2019)
Brexit and Implications for the Free Movement of Capital

handle is hein.kluwer/liei0046 and id is 11 raw text is: Brexit and Implications for the Free Movement of Capital Jonathan MUKWIRI* One misleading mantra in the Brexit debate is that the EU's single market freedoms were inseparable. This article takes a micro-legal research approach in examining the question: to what extent wouldfree movement of capital be available to the UK when the UK leaves the EU's single market? The free movement of capital is the only one of the EU's fundamental freedoms that extends beyond Member States to also apply to third countries. Like other fundamentalfreedoms, it extends beyond equal treatment to require market access. This article argues that free movement of capital would still be available to the UK post-Brexit, as all restrictions to free movement of capital are prohibited unless justified under EU law. It argues that as long as the post-Brexit legal context in the UK remains comparable with that of the EU, the justifiable derogations to free movement of capital would not apply against the UK. Thus, the mantra that the EU's single marketfreedoms were inseparable is misleading. 1 INTRODUCTION To what extent will free movement of capital be available to the UK when the UK leaves the EU's single market? In the July 2018 White Paper, the UK Government stated: 'Following the decision of the people of the UK in the referendum, the UK is leaving the EU, and as a result will leave the Single Market and the Customs Union - seizing new opportunities and forging a new role in the world. But the EU leaders have, throughout the Brexit debate, insisted that the EU's single market freedoms are inseparable, and in July 2018 the EU chief negotiator Michel Barnier reiterated that 'we will protect the single market which is based on the indivisibility of what we call the four freedoms of movement for people, goods, services and capital.'2 The question is whether EU law allows for separation of these freedoms. Durham Law School, Durham University. I am grateful to Geraldo Vidigal, and to the anonymous referees for their invaluable suggestions to an earlier draft. I am also grateful to Mathias Siems and Barend van Leeuwen for their comments on an earlier draft. The usual disclaimers apply. Email: jonathan.mukwiri@durham.ac.uk. HM Government, The Future Relationship Between the United Kingdom and the European Union (Cm 9593, July 2018), para. 1.1.1. 2 John Campbell, Brexit hite Paper Promises 'Frictionless' Border, BBC News (12July 2018). Mukwiri, Jonathan, 'Brexit and Implications for the Free Movement of Capital'. Legal Issues of Economic Integration 46, no. 1 (2019): 7-28. 0 2019 Kluwer Law International BV, The Netherlands