Brexit update 1

On 29 March 2017, the United Kingdom’s (hereinafter: UK) Prime Minister, Theresa May, invoked Article 50 of the Treaty of the European Union (hereinafter: TEU). This marks the official beginning of the withdrawal procedure of the UK from the European Union (hereinafter: EU). In this short article we will take a glance at the meaning and consequences of the invocation of Article 50 TEU.

Procedure

The Lisbon Treaty (2009) formally introduced the voluntary right of a Member State to withdraw from the EU in Article 50 TEU. The Article contains five paragraphs stating how a Member State goes about withdrawing from the EU. It is worth noting that Article 50 TEU merely lists procedural requirements, but no substantive requirements that have to be met to withdraw. In this sense Article 50 TEU is more explanatory and formalistic in spirit, which is exemplified by the text of the Article’s first paragraph:

  “Any member State may decide to withdraw from the Union in accordance with its own constitutional requirements”

Initiation (or the “triggering”) of Article 50 TEU takes place by notification of the intent to withdraw by the withdrawing Member State to the European Council (hereinafter: EC). This notification marks the start of the formal withdrawal process. It is entirely up to the withdrawing state to choose when to notify the EC (and thus start the withdrawal process).

Negotiating a withdrawal agreement

Meanwhile, the EC has been working on guidelines that will have to be followed during negotiations between the EU and the UK. In this sense Article 50 TEU (especially the triggering thereof) can be seen as an instrument for displeased Member States to force an (unwilling) EU to negotiate withdrawal terms and conditions. Article 218(3) of the Treaty on the Functioning of the European Union gives the EC freedom to select a negotiator. The European Commission is a strong contender for the position of negotiator on the EU side since it negotiates treaties on behalf of the EU with third countries (e.g. free trade agreements, investment agreements, etc.)

The purpose of these negotiations is the conclusion of an agreement that stipulates the concrete conditions of the withdrawal. Furthermore, the agreement should, ideally, contain arrangements on what the relationship, between the EU and UK, will look like in the future (this would entail subjects like trade, travel, etc.). Logically, the member representing the UK in the EC (and European Commission) may not participate in the internal EU discussions concerning the negotiations.

For the withdrawal agreement to be concluded, on the EU side, the EC needs consent of the European Parliament (hereinafter: EP). Interesting to note is that UK Members of the EP may also vote on this matter. In addition, the EC needs to act “by a qualified majority”. This means that a majority of 72% or more of EC members (not including the UK representative EC member) is needed, which in turn needs to represent at least 65% of the total EU population (not including the UK populace) to conclude a withdrawal agreement.

Article 50 TEU further states that the above-mentioned agreement should be concluded within two years (the “sunset period”), after which all EU treaties shall cease to apply to the withdrawing state. If this deadline is not met the UK's membership of the EU will end automatically. The two-year term can be extended if both parties agree upon this extension. It is important to note that EU laws still apply to the UK, as they normally would, during this two-year period (or until a withdrawal agreement has been reached). The only exception to this of course is that the UK may not participate in internal EU discussions on the withdrawal.

To achieve successful agreements, the withdrawal agreement needs to be ratified by the UK, approved by the European Parliament, as well as by at least 20 of the 27 member states represented in the Council, and the agreement on the future framework needs to be approved by all member states and the European Parliament.

Conclusion

Article 50 TEU has been invoked by the UK Prime Minister by notifying the EC of the UK´s intention to withdraw from the EU. This notification has triggered the formal withdrawal process and negotiations between the EU and UK will formally start. This will lead, without a doubt, to interesting discussions and analyses, which we will closely follow and provide with our comments.