Article Fifty Teu: The Uses In Addition To Abuses Of The Procedure Of Withdrawing From The Eu

 

Steve Peers

If the UK holds a ‘Brexit’ plebiscite on its continued membership of the European Union inwards close future, voters volition move hearing a lot close Article 50 of the Treaty on the European Union (TEU), the Treaty provision which regulates the physical care for of a Member State withdrawing from the EU. We receive got already begun to take heed close this clause, amongst to a greater extent than or less proposition that it should move invoked inwards fellowship to trigger a renegotiation of UK membership. Most recently, a old UK cabinet minister, Owen Paterson, has suggested that the UK should invoke the clause. But what are the legal as well as political constraints upon using it?

The text of Article 50

Article 50(1) TEU provides precisely that whatever Member State tin withdraw from the European Union inwards accordance amongst its ain constitutional rules. The cardinal business office of Article 50 is the adjacent paragraph, which states that:

A Member State which decides to withdraw shall notify the European Council of its intention. In the lite of the guidelines provided yesteryear the European Council, the Union shall negotiate as well as conclude an understanding amongst that State, setting out the arrangements for its withdrawal, taking concern human relationship of the framework for its hereafter human relationship amongst the Union. That understanding shall move negotiated inwards accordance amongst Article 218(3) of the Treaty on the Functioning of the European Union. It shall move concluded on behalf of the Union yesteryear the Council, acting yesteryear a qualified majority, after obtaining the consent of the European Parliament.

(Note that the European Council is the European Union establishment consisting of Heads as well as State of Government, as well as Article 218 of the TFEU is the provision dealing amongst treaties betwixt the European Union as well as 3rd countries).

Article 50(3) TEU so sets out the timing of withdrawal. The UK would cease to move an European Union Member State either at the engagement of entry into forcefulness of the withdrawal understanding or, ‘failing that’, 2 years after the notification of its intention to withdraw from the EU, unless the European Council as well as the UK unanimously handgrip to extend that period. (Of course, Article 50 applies to any Member State that mightiness take to leave, but I volition focus my comments on the possibility of the UK withdrawing inwards particular).

According to Article 50(4), during this period, the UK could non participate inwards discussions concerning it inwards to a greater extent than or less European Union institutions – namely the European Council as well as the Council, which comprises Member States’ ministers.  A ‘qualified majority’ vote would move recalculated without the UK.

Finally, Article 50(5) says that the UK could rejoin the European Union in ane trial to a greater extent than after its withdrawal. This would move dependent champaign to the same rules applying to whatever other province which asks to bring together the EU.

What does Article 50 mean?

Article 50 TEU was added to the Treaties yesteryear the Treaty of Lisbon. It confirms the possibility to leave of absence the European Union that many (but non all) legal observers believed existed beforehand. No fully-fledged Member State has inwards fact left the European Union earlier or after the entry into forcefulness of the Treaty of Lisbon, although to a greater extent than or less parts of Member US receive got done so. Before the Treaty of Lisbon, this was accomplished yesteryear way of Treaty amendment (an amendment precisely to take Greenland was ratified inwards the 1980s, as well as Algeria’s independence from French Republic was finally recognised equally business office of Treaty amendments inwards the 1990s). After the Treaty of Lisbon, there’s a special physical care for relating to small-scale parts of Member US (or their associated territories) becoming less (or more) connected to the EU. But it doesn’t apply to entire Member States, or fifty-fifty to territories linked to the UK (the Channel Islands, the Isle of Mann as well as Gibraltar).

So Article 50 confirms the possibility of Member US to leave of absence the EU, as well as it is clearly the alone legal route to leave, equally a thing of European Union law. There’s no possibility to throw a Member State out of the European Union against its will, although its membership could move suspended if in that location are serious as well as continued breaches of human rights, republic as well as the dominion of constabulary (Article seven TEU). That clause has never been used to engagement either.

What are the crucial features of Article 50?

The outset crucial characteristic is the timing of withdrawal. An official notification to withdraw volition automatically number inwards the UK ceasing to move a Member State of the EU, equally of 2 years from the engagement of notification, unless ane of 2 things happens: a withdrawal understanding sets a dissimilar date, or the UK as well as the remaining Member US (voting unanimously) handgrip to extend that fourth dimension limit. Presumably the engagement of the withdrawal understanding could move laid either earlier or after the two-year default fourth dimension limit.  

One of import betoken is non explicitly addressed: would it move possible to withdraw a notification to leave of absence the EU? In the absence of explicit wording, the betoken is arguable either way. It could move argued that since a notification to withdraw is dependent champaign to a Member State’s constitutional requirements, the Treaty hence leaves to each Member State the possibility of rescinding that notification inwards accordance amongst those requirements. On the other hand, it could also move argued that Article 50 alone provides for 2 possibilities to delay the withdrawal of a Member State from the European Union in ane trial notification has been given (an extension of the fourth dimension limit, or a dissimilar engagement inwards the withdrawal agreement). There’s no proposition that this is a non-exhaustive list. Therefore the notification of withdrawal can’t move rescinded.

Would it move possible to circumvent this yesteryear the European Council as well as the UK agreeing to extend the deadline indefinitely? This would in all likelihood move opened upwards to challenge (and it sure would move challenged inwards exercise yesteryear Eurosceptics who wanted to ensure the UK’s divergence from the EU). While such an indefinite extension is non explicitly ruled out, the logic as well as context of Article 50 suggests that extensions of the fourth dimension bound are temporary. It’s Article 50(5) that expressly provides for rejoining the European Union after withdrawal. If the Treaty drafters had intended in that location to move other way to stay an European Union Member State after notifying withdrawal, they would sure receive got said so expressly.

This legal number has of import political implications. It way that it would move foolish, equally is sometimes suggested, to invoke Article 50 equally a way of forcing a renegotiation of UK membership of the EU. Legally speaking, it’s precisely non possible to do this. It’s obvious from Article 50(2) that invoking Article 50 leads to negotiations on the UK’s departure from the EU, non close Treaty amendments or changes to other forms of European Union law. While it is probable that if the UK left the EU, in that location would move a separate Treaty amendment agreed yesteryear the remaining Member US (at the rattling least, to take mentions of the UK from the Treaties), the Treaty drafters clearly did non desire Article 50 itself to move used for the piece of work of renegotiating European Union membership or amending the Treaties inwards whatever way.

This is obvious when nosotros compare Article 50 to Article 48, which elaborates a number of dissimilar ways of amending the Treaties, as well as to Article 49, which states that an accession Treaty tin improve the Treaties. In contrast, Article 50 makes no cry of Treaty amendments. And this makes perfect sense: why should a Member State leaving the European Union receive got a say inwards Treaty amendments that won’t impact it?

Politically speaking, invoking Article 50 equally a way of triggering Treaty amendment would move foolish too. Once the UK gives notification of its intention to leave of absence the EU, it volition move forced out 2 years afterward, unless all remaining Member US handgrip to extend that deadline. So triggering Article 50 inwards the context of a renegotiation of UK membership would straightaway give leverage to all the other Member States: nosotros would move forced out of the European Union unless nosotros agreed to whatever damage they were willing to offer. Even if they were willing to move fairly generous, it would look equally if nosotros were forced to handgrip those damage equally a status of remaining a Member State.

All this suggests that those who want to invoke Article 50 equally a way of renegotiation genuinely receive got the objective of ensuring that the UK leaves the EU. There’s null unprincipled when those who openly favour the UK leaving the European Union advocate invoking Article 50 to that end. But those who claim to back upwards invoking Article 50 to trigger renegotiation either receive got a hidden agenda or are quite naïve close what they are suggesting.

Secondly, equally to the content of the negotiations, Article 50 provides for the negotiation of a withdrawal arrangement, non a bargain on the UK’s hereafter human relationship amongst the EU. This is obvious from the wording of Article 50(2), which refers alone to taking concern human relationship of that ‘future relationship’ inwards the withdrawal arrangement. In practice, the details of the withdrawal organisation as well as the treaty establishing that hereafter human relationship would move closely linked. Probably the withdrawal treaty would, amidst other things, aim to regulate a transition menses earlier the treaty on the hereafter human relationship entered into force.

In this context, it should move noted that (contrary to what is sometimes asserted), there’s no legal obligation for the remaining European Union to sign a costless merchandise understanding amongst the UK. The words ‘future relationship’ assume that in that location would move to a greater extent than or less treaties betwixt the UK as well as the European Union post-Brexit, but do non specify what their content would be.

This betoken is politically meaning because patch the withdrawal organisation would move negotiated yesteryear a qualified majority, most of the EU’s costless merchandise agreements are inwards exercise ‘mixed agreements’, ie requiring the consent of the European Union institutions as well as ratification yesteryear all of the Member States. That’s because those agreements commonly comprise rules going exterior the orbit of the EU’s merchandise policy.  While it seems probable that inwards exercise the remaining European Union would move willing to teach inwards into a merchandise understanding amongst the UK (see, for instance, the ‘gaming’ exercise conducted yesteryear Open Europe), the unanimity requirement would complicate this.

It has been argued that a post-Brexit UK could precisely retain its membership inwards the European Economic Area (EEA), a treaty betwixt the EU, its Member States, as well as Norway, Republic of Iceland as well as Principality of Liechtenstein which extends the EU’s internal marketplace position rules to the associated States. I volition come upwards dorsum to this see inwards a hereafter spider web log post. But for now, suffice it to say that the EEA includes the costless motility of persons, an aspect of European Union membership that especially upsets most UK critics of the European Union (indeed, that's why UKIP rules EEA membership out). Although the EEA does comprise a safeguard clause permitting the suspension of to a greater extent than or less obligations, that clause permits the other political party to retaliate. So if the UK suspended the costless motility of European Union citizens, the European Union would probable retaliate yesteryear suspending access to the European Union yesteryear the UK fiscal services industry, and/or removing tariff preferences for UK auto exports to the EU.

Two finally points. First of all, it’s sometimes suggested that that the UK could ignore the Article 50 process, as well as precisely leave of absence the European Union without invoking that clause. As a thing of domestic law, that’s certainly correct. Our membership of the European Union depends upon the European Communities Act, as well as Parliament could halt that membership yesteryear repealing that Act.

But politically as well as economically speaking, this choice is insane. It would leave of absence many practical details of withdrawing from the European Union unresolved, such equally payments of European Union funds to UK recipients. Even if the UK could revert its membership of the EEA, that would alone regulation the merchandise arrangements amongst the EU, non issues exterior the orbit of the EEA. For instance, it would straightaway halt the UK’s interest inwards the European Arrest Warrant (EAW). Unless nosotros had negotiated a transitional and/or replacement organisation – which is patently the betoken of having the two-year menses get down inwards Article 50 – defence forcefulness lawyers would combat that whatever EAWs which the UK had issued to other Member States, as well as whatever EAWs issued yesteryear other Member US which the UK was seeking to execute, were invalid. That would hateful that no fugitives could move arrested or detained on the reason of those invalid EAWs, as well as those already detained would receive got to move released.

More broadly, such a ‘unilateral proclamation of independence’ would destroy the UK’s credibility equally a negotiating partner amongst the remaining EU, as well as indeed amongst anyone else, given the clear contempt that it would display for the legal rules which the UK had previously accepted. It would move a long fourth dimension earlier the UK could plausibly claim in ane trial to a greater extent than that it had a tape of ‘fair play’ inwards international negotiations.

Finally, what close Owen Paterson’s specific proposition that the UK should leave the European Union earlier belongings the Brexit referendum – which would so move a choice betwixt EEA membership on the ane hand, as well as total European Union membership (including participation inwards Schengen as well as the unmarried currency on the other)?

The basic occupation amongst this proposition is that it is utterly as well as totally undemocratic. Over the finally 20 years, the UK constitution has developed an unwritten convention that major constitutional changes demand to move approved yesteryear a referendum. This convention has alone in ane trial been applied at national grade during this fourth dimension (as regards changes to the voting system), but it has oftentimes been applied inwards regions as well as cities across England, equally good equally inwards Scotland, Wales as well as Northern Ireland.

Leaving the European Union is clearly such a major constitutional alter that a plebiscite is required before it happens, non after.  Indeed, this is recognised yesteryear David Cameron’s policy of renegotiation as well as a referendum. It isn’t clear from the UKIP website whether that political party would handgrip a plebiscite earlier leaving the European Union or not, although that party’s leader has made reference to a plebiscite pledge equally a status of supporting to a greater extent than or less other political party after the adjacent full general election. 

This now-established regulation of the British constitution cannot as well as should non move laid aside for the convenience of securing a tactical wages for those who dislike the EU. Paterson’s proposition would inwards fact rob the British populace of voting either for the status quo of European Union membership (which does non involve the unmarried currency or Schengen) or for whatever renegotiated understanding which David Cameron mightiness renegotiate (which volition also sure non involve either characteristic of European Union law).  A Brexit plebiscite should never move held on such an unprincipled basis.

Barnard & Peers: chapter 2

 

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