On June 23, the United Kingdom will vote "in" or "out" on its membership in the European Union. What is the procedure of withdrawal and the Treaty Article which governs it all if the UK does indeed vote for a "Brexit" from the EU?
Article 50 of the Treaty on the functioning of the European Union outlines the procedural steps for a Member State wishing to withdraw from the EU. This provision was introduced by the Treaty of Lisbon (in force 1 December 2009). According to Steve Peers, no fully-fledged Member State has left the EU before or after the entry into force of the Treaty of Lisbon although some parts of Member states have done so. Before the Treaty of Lisbon, this was accomplished by means of Treaty amendment (an amendment just to remove Greenland was ratified in the 1980s, and Algeria’s independence from France was finally recognised as part of Treaty amendments in the 1990s). After the Treaty of Lisbon, there’s a special procedure relating to small parts of Member States (or their associated territories) becoming less (or more) connected to the EU. But it doesn’t apply to entire Member States, or even to territories linked to the UK (the Channel Islands, the Isle of Man and Gibraltar).
Article 50 of the Treaty on the Functioning of the European Union
Article 50(1) of the Treaty on the functioning of the European Union (TFEU) reads:
- Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
- A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
- 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.
Any Member State can legally withdraw from the EU if it chooses to do so. EU law does not determine how the decision to withdraw is reached internally (in this case a referendum). The UK would control when the 2-year period starts, by choosing the date when it gives notice under Article 50(2) TFEU.
The treaty foresees two options in which withdrawal can occur (text Tobias Lock, European Futures). The first option is the conclusion of a withdrawal agreement.
A withdrawal agreement would not only set out the exact ramifications of leaving (eg the withdrawal date; the role of UK representatives in the EU institutions during transitional periods; what would happen to civil servants with British nationality working for the EU institutions), but it would also regulate the future relationship between the EU and the UK. Article 50 does not provide any specifics. This means that the future relationship is negotiable in its entirety, however as Steve Peers points out the Treaty drafters did not want Article 50 itself to be used for the purpose of renegotiating EU membership or amending the treaties in any way.
Negotiations would take place in accordance with Article 218(3) of the Treaty on the Functioning of the European Union (TFEU). The Council of the EU would nominate a negotiator or negotiating team for this purpose. This team would normally involve officials from the European Commission. The agreement would then need to be concluded between the Council (acting with a qualified majority) on behalf of the European Union and the UK government on behalf of the UK. For this purpose, the UK would not participate in the Council. The qualified majority would be calculated on the basis of the remaining (currently 27) Member States.
With regard to the withdrawal of the UK, the TFEU foresees a bilateral agreement between the EU and the UK. However, withdrawal might be achieved through a mixed agreement. Mixed agreements are concluded between the EU and its Member States on the one side and other countries or organisations (in this case the UK) on the other. Given the immense complexities associated with a withdrawal agreement, it might become necessary to include the Member States, as the EU alone might not have competence in all the areas covered by the deal. Accordingly, the Member States would be parties to the agreement as well. This point is politically significant, according to Steve Peers, because while the withdrawal arrangement would be negotiated by a qualified majority, most of the EU’s free trade agreements are in practice ‘mixed agreements’, ie requiring the consent of the EU institutions and ratification by all of the Member States. The resulting ratifications in each country could considerably prolong the process.
The second option is that no agreement is reached. Even if an agreement could not be reached, the UK would cease to be subject to the EU treaties and would become a free and independent State at the end of the 2 year period from the day when the UK gives its notice under Article 50(2) formally initiating the procedure. This would result in the UK having to rely on general international trade law, such as WTO law, for its trade relations with the EU. Importantly, the EU would be able to levy customs duties on UK products. It is also possible under Article 50(3) (quoted above) for the 2-year period to be extended, although only by the mutual consent of both the UK itself and the remaining EU Member States.
One final point. It’s sometimes suggested that that the UK could ignore the Article 50 process, and simply leave the EU without invoking that clause. As a matter of domestic law, that’s certainly correct. British membership of the EU depends upon the European Communities Act, and the British Parliament could end that membership by repealing that Act. But politically and economically speaking, this option is insane, according to Steve Peers. It would leave many practical details of withdrawing from the EU unresolved, such as payments of EU funds to UK recipients.
Photo by Gwydion M. Williams.[number of readers: 1464]
A selection of relevant publications from the Peace Palace Library collection
- Barnard, S. and S. Peers (eds.), European Union Law, Oxford, Oxford University Press, 2014.
- Birkinshaw, P.J. and A. Biondi (eds.), Britain alone!: the implications and consequences of United Kingdom exit from the EU, Alphen aan den Rijn, Wolters Kluwer, 2016.
- Lawyers for Britain, Brexit - the Process, http://www.lawyersforbritain.org/brexit-process.shtml, accessed 16-06-2016.
- Lazowski, A. , "Withdrawal from the European Union and alternatives to membership", European Law Review, 37 (2012), No. 5, pp. 523-540.
- Lock, T., The Legal Implications of EU Withdrawal for the UK and Scotland, European Futures, 12-10-2015.
- Peers, S., Article 50 TEU: The uses and abuses of the process of withdrawing from the EU, EU Law Analysis, 8-12-2014.