eu law

Q: ‘The process of the UK’s withdrawal from the EU is steadily answering

questions about how Article 50 TEU works in practice. This provision does not

require fundamental reform.’

Critically discuss.

The British decision to leave the European Union has made a seismic impact on the current political landscape, never has a provision of EU law become so well known in such a short space of time as Article 50 TEU[1], there’s no denying that the withdrawal of one of its largest Member States is a moment of crisis for the Union and a difficult test for the effectiveness of its institutions. “Article 50 itself is a sparsely worded provision, which raises more questions than it answers”[2], I would agree that the process of British withdrawal is ‘steadily’ answers those questions. However, issues remain, these involve the fact that Article 50 doesn’t offer much help when it comes to revocability and there are problems which remain surrounding the withdrawal agreement, this has led me to the judgment that ‘fundamental reform’ is, in fact, required.

No country has ever used Article 50, it is untested. There is a great deal of uncertainty about how it would work[3]. Even the author of the Article, Giuliano Amato, stated his “intention was that it should be a classic safety valve that was there, but never used”[4]. The Article works as follows, “provided there is a valid constitutional decision to withdraw, a Member State can notify the European Council of its decision to do so under Article 50(2), and then negotiate its future relationship with the Union (Art. 50(3)). The withdrawal process envisaged in Article 50 is not subject to specific conditions. It is indeed possible for a State to leave without any agreement at all”[5]. The UK started the process of withdrawal by enacting the European Union (Notification of Withdrawal) Act 2017[6], a Bill which conferred the power on the Prime Minister to notify, under Article 50(2) of the Treaty on European Union, of the United Kingdom’s intention to withdraw from the EU. This was following the High Court decision in R (Miller) v Secretary of State for Exiting the European Union[7] that Parliament should indeed take the decision on whether to trigger Article 50. This enactment led, on the 23rd March 2017, to the European Council receiving a letter from the British Prime Minister, Theresa May, notifying the United Kingdom’s intention to leave the European Union[8]. The stage of negotiation has followed.  Of course, this is the first time the process of withdrawal has occurred, and we are steadily seeing by this how Article 50 works in practice.

However, there are clearly issues which are still apparent. Article 50 does not deal with the question of to what extent is a duly notified intention to withdraw revocable. Lord Pannick stated in Miller, “There is no going back”[9], but to what extent is this reality. The wording of Article 50 doesn’t offer much help when it comes to revocability. If a Member State changes its mind about leaving, it would be absurd for the EU, and indeed for other Member States, to force it to withdraw based on the assumed irrevocability of Article 50[10]. It would make no sense for other EU member states not to accept a change of heart, considering all the repercussions that a withdrawal would cause. Also, there would no longer be a domestic constitutional basis for withdrawal if a Member State re-considered that decision, within the two-year timeframe “since the original decision had been changed in accordance with national constitutional requirements’”[11]. Article 50 should be interpreted by international law, and not by English law, “It is therefore perfectly appropriate for a domestic court to construe Article 50 TEU by applying the rules of interpretation set out in the VCLT”[12]. VCLT Article 31(1) states that the “treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty”[13], however, the text is silent as to whether a Member State subsequently may revoke its notification[14]. It would ultimately be unreasonable for Article 50 to not provide for such a change in heart, especially when “the goal of the Union is integration, not disintegration”[15]. It is because of this issue that I have been lead to the assumption that fundamental reform of the Article is required, the EU should be pushing at every possible opportunity for a state not to leave the Union and I do not think that the provision provides for this.

One legal opinion does argue that the wording of the Article “allows for the possibility that a Member State may change its decision and, therefore, its intention” [16], stating that “the use of the word ‘intention’ in Article 50(2), and the present tense ‘which decides’, rather than ‘has decided’”[17] may mean that the Article provides a revocability option. The likes of Donald Tusk, the European Council President, and Lord Kerr, the former British Ambassador to the EU, both agreed that Article 50 does provide a revocability option. Tusk stated that the provision can be revoked “Formally (and) legally” [18] during the two-year negotiation period and Lord Kerr supported this contention when he stated that “You can change your mind while the process is going on”[19]. However, the argument which builds its entire premise on the use of the present tense of the verb “decides” in the English text of the TEU is rather less than convincing”[20]. Ultimately the wording of Articles 50(3) and 50(5) TEU taken together support the conclusion that the revocation of a notification of withdrawal is not permitted, the provision should at least provide answer to this critical question, and it is because of this that I believe fundamental reform is required.

The Article provides for another problem, this is concerning the withdrawal agreement. It mainly concerns the unspecific language which has led to a range of different interpretations. The current view taken in the EU appears to be that the withdrawal agreement can, or will only deal with the actual terms of withdrawal, and that the future relationship will need to be negotiated post-Brexit when the UK has left and has become its own independent state. Article 50(2) instructs the negotiators to take account of the framework for the future relationship. However, “these are broad terms, in that they neither spell out what is meant by this “framework” nor whether that framework needs to be part of a separate agreement”[21]. So, the main issue here is the extent to which the withdrawal agreement could regulate the future relationship between the UK and the EU. For example, Article 50 does not specifically provide for guarantees of the status of EU citizens in the withdrawing State and vice versa, obviously this is something that should be guaranteed in any agreement, but the provision does not actually provide whether this is something that must be dealt with now, or in a separate agreement. Also, the two-year deadline is very strict, it may not be enough time for issues to be considered, especially when the agreement must be voted through three different bodies of power. A situation cannot arise in which certain rights are not guaranteed due to the confusion that Article 50 causes as to when certain rights must be guaranteed, or due to the restrictions that Article 50 may impose.

There is a further issue which arises, this is concerning what happens once an agreement is reached and what the role of the parliaments is in approving that agreement (both at the domestic and at the EU level). At first, it does seem clear-cut what should occur once an agreement is reached, signed, and ratified. Article 50 (3) states “The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period”[22]. However, there are still apparent issues, such as what should occur if the European Parliament refuses its consent, and asks for renegotiation. We know that in formulating a Brexit deal the EU Parliament has, at times, been reluctant to negotiate. The EU refused to talk about a transition deal until “sufficient progress”[23] was made by the UK on the issues of the Brexit bill, Ireland, and citizens’ rights. Antonio Tajani, the President of the European Parliament, also stated that the EU Parliament would vote against a transition deal “if an agreement on citizen’s rights is not inside the deal”[24]. But, what if the EU Parliament continually refuses to begin negotiations past the two-year period, Article 50 does not give us answers of what should occur if this is the case. It is becoming ever more certain that this is, in fact, the EU’s intentions after the Brexit Minister, David Davis, criticised the EU over their preparations for a no-deal Brexit. Mr Davis stated, “the EU has adopted a number of measures that put agreements or contracts at risk of being terminated in the event of a ‘no deal’ scenario and/or would require UK companies to relocate to another member state” [25], this shows us that there’s a certain sense of bitterness that the EU has in commencing negotiations, and this could quite possibly lead to a no-deal scenario. Article 50 doesn’t provide answers as to what should happen if no deal is formed it just provides us with the possibility that there could be a no-deal scenario.

Also, what if the UK Parliament comes back with amendments, does all this renegotiation need to take place within the two-year period? Britain will stop being part of the EU past midnight on the 30th March 2019 following the two-year transition period, by this time an exit deal should be in place and the EU membership benefits will be phased out. But what if issues are not dealt with by this deadline and new negotiations must take place, is this something which is allowed, or will the EU simply reject any new proposals by the UK? “According to the Treaties which the United Kingdom has ratified, EU law continues to apply to the full to and in the United Kingdom until it is no longer a Member”[26] so past the 30th March 2019 the UK will lose out on its privileges even if negotiation is yet to be finished.  “Article 50 does provide for that two-year period to be extended, if all 28 EU countries, including the UK, agreed”[27], but it may be the case that the deadline has already past and issues do not appear until after this deadline, at which point it is too late for the period to be extended. An even more likely possibility is for not all 28 EU countries to agree to such an extension, as seen above, it is already clear that a certain bitterness has come during the negotiation process and it only takes for one country to not agree to an extension for this route to fail. Article 50 doesn’t provide us with an answer as to whether negotiations can occur past the two-year period, and given that this is potentially a likely option, I believe that the provision which is Article 50 is therefore in need of reform as it lacks essential clarity.

Steadily aspects of how Article 50 works in practice are being answered. Obviously, it is the first time this provision has been triggered and so any practical impact of the provision will answer the questions on how it works. As per a timeline issued by the BBC[28], by 30th September 2018, Michel Barnier wants to wrap up Brexit terms, this is following the 16 months since formal, face-to-face negotiations began. So far, as per a document issued by the UK Government titled ‘Comparison of EU/UK Positions on Citizens’ Rights’[29], the UK and EU have reached many areas of ‘convergence’ (highlighted in green). These areas include “Equal treatment with respect to social security, social assistance, health care, employment and self-employment, education and training, social and tax advantages” and agreements on “International Treaty which creates obligations which are binding in international law on the Parties”. Although disagreements do still exist within this document, highlighted in red, and issues still need to be clarified, which are highlighted in yellow. Theresa May also set out her “plan for Britain”[30] during a speech in January 2017, which set out her 12-point Brexit plan. The fact that agreements have not been met is to some extent irrelevant when deciding if the process is answering the questions of Article 50, the fact that such a document has been created and the that UK is setting out certain guidelines, show us that ‘the withdrawal of the UK is steadily answering questions about how Article 50 TEU works in practice’. The EU’s unwillingness to cooperate with the UK is something of a side effect of withdrawal, whereas the actual planning to leave and the beginning of formal negotiations is what Article 50 sets out to occur and the happening of such shows us that the posed questions are steadily being answered. I would say, however, that the fact that agreements have not been made, or are struggling to be made, proves the inefficiency of Article 50, and proves that the provision requires fundamental reform.

Ultimately, the process of the UK’s withdrawal from the EU has answered many questions on how Article 50 works. This is the first time in history that the provision has been used and, for a provision which is only four paragraphs and has such a consequential impact, we were going to have questions. At this stage of withdrawal, we cannot have all those questions answered, the stage of negotiation is nowhere near over, and the UK Parliament, EU Council and EU Parliament must vote on any deal which has been made. So, it would be correct to assume that the answers are ‘steadily’ coming as to how the provision works in practice and we still have a lot of answers which will come soon. Despite this, I do not believe that the provision is faultless, and Article 50 does, therefore, require fundamental reform. The Article doesn’t provide any clear guidance on many of the not too rationale possibilities which may come after withdrawal, such as revocability and what happens after the two-year deadline is met, especially if the deal is not finalised. These are real possibilities for any withdrawing state and the provision doesn’t provide any sort of advice on what should occur. Article 50 didn’t even say whether the UK Prime Minister, through her prerogative powers, had the right the authority to trigger the provision, a question which was answered by Miller[31]. It is this sort of inadequacy of the provision that my criticism sources from. Hofmann suggests a change to the withdrawal process, that “withdrawal should only be possible under exceptional circumstances which would need to be clearly defined”[32] and should “be made contingent upon the successful conclusion of a detailed withdrawal agreement. This would guarantee an orderly process of withdrawal” “these restrictions could be derived from a broad interpretation of the principle of sincere cooperation as enshrined in Article 4(3) TEU”. Certainly, substantial reform is needed, and currently it is clear the provision is weak at heart and something stronger, clearer and which allows for a better process of withdrawal is needed.  

 

 

 

 

 

 

 

Word Count: 2566

Bibliography:

Cases:

Santos and M v Secretary of State for Exiting the European Union [2017] UKSC 5

Legislation:

European Union (Withdrawal) Bill [2017]

Lisbon Treaty [2007], Article 50 TEU, section 3

Policy Paper: The process for withdrawing from the European Union (Presented to Parliament by the Secretary of State for Foreign and Commonwealth Affairs by Command of Her Majesty) (2016)

Vienna Convention on the law of treaties [1969]

Secondary Sources:

Brexit: Article 50 has been triggered – what now? (2017)

Craig, Paul: Brexit: a drama in six acts (2016) 41 European Law Review 447, 464

Crisp, James: EU likely to refuse to start Brexit trade talks in December, warns European Parliament leader (2017)

Duff, Andrew: After Brexit: A new Association Agreement between Britain and Europe (2016)

Eden, Paul: Can a notification under Article 50 TEU be unilaterally withdrawn? (2017)

Edward, Jacobs, Lever, Mountfield, Facenna: In the Matter of Article 50 of the Treaty on European Union (2017)

Eeckhout and Frantziou: Brexit and Article 50 TEU: A Constitutionalist Reading (2017)

Eeckhout, Biondi, and Ripley: EU Law After Lisbon (2012)

Hoffman, Hannes: ‘Should I Stay or Should I Go?’—A Critical Analysis of the Right to Withdraw from the EU, (2010)

Hooton, Stone: Brexit: Article 50 was never actually meant to be used, says its author (2016)

Khan, Shehab: Brexit deal will be vetoed if citizens’ rights are not protected, President of European Parliament says (2017)

May, Theresa: Theresa May’s Brexit speech in full (2017)

Pearson, Michael: UK votes ‘Leave’: Why it will take at least 2 years to exit the EU (2016)

Pickard, Baker: David Davis attacks EU’s ‘damaging’ no-deal Brexit planning (2018)

Reality Check: Can the UK change its mind on Article 50? (2017)

Sari, Aurel: Biting the Bullet: Why the UK Is Free to Revoke Its Withdrawal Notification under Article 50 TEU (2016)

Sarmiento: “Miller, Brexit and the (maybe not to so evil) Court of Justice” (2016)

 Statement by the European Council (Art. 50) on the UK notification (2017)

UK Government: Comparison of EU/UK Positions on Citizens’ Rights  (2017)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[1] Eeckhout and Frantziou: Brexit and Article 50 TEU: A Constitutionalist Reading, page 695 (2017)

[2] Eeckhout, Biondi, and Ripley: EU Law After Lisbon, page 148 (2012)

[3] The process for withdrawing from the European Union (Presented to Parliament by the Secretary of State for Foreign and Commonwealth Affairs by Command of Her Majesty, 2016)

[4] Hooton, Stone: Brexit: Article 50 was never actually meant to be used, says its author (2016)

[5]Ibid 1, page 705

[6] European Union (Withdrawal) Bill [2017]

[7] [2017] UKSC 5

[8] Statement by the European Council (Art. 50) on the UK notification (2017)

[9] Ibid 7, page 18 (official transcripts)

[10] Sarmiento: “Miller, Brexit and the (maybe not to so evil) Court of Justice” (2016)

[11] Craig, Paul: Brexit: a drama in six acts (2016)

[12] Sari, Aurel: Biting the Bullet: Why the UK Is Free to Revoke Its Withdrawal Notification under Article 50 TEU (2016)

[13] Vienna Convention on the law of treaties [1969]

[14] Ibid 12

[15] Duff, Andrew: After Brexit: A new Association Agreement between Britain and Europe (2016)

[16]  Edward, Jacobs, Lever, Mountfield, Facenna: In the Matter of Article 50 of the Treaty on European Union, page 19 (2017)

[17] Ibid 16

[18] Reality Check: Can the UK change its mind on Article 50? (2017)

[19] Ibid 18

[20] Eden, Paul: Can a notification under Article 50 TEU be unilaterally withdrawn? (2017)

[21] Ibid 1

[22] Lisbon Treaty [2007], Article 50 TEU, section 3

[23] Crisp, James: EU likely to refuse to start Brexit trade talks in December, warns European Parliament leader (2017)

[24] Khan, Shehab: Brexit deal will be vetoed if citizens’ rights are not protected, President of European Parliament says (2017)

[25] Pickard, Baker: David Davis attacks EU’s ‘damaging’ no-deal Brexit planning (2018)

[26] Pearson, Michael: UK votes ‘Leave’: Why it will take at least 2 years to exit the EU, Donald Tusk statement

[27] Ibid 17

[28] Brexit: Article 50 has been triggered – what now? (2017)

[29]UK Government: Comparison of EU/UK Positions on Citizens’ Rights (2017)

[30] May, Theresa: Theresa May’s Brexit speech in full (2017)

[31] [2017] UKSC 5

[32] Hoffman, Hannes: ‘Should I Stay or Should I Go?’—A Critical Analysis of the Right to Withdraw from the EU, page 600 (2010)