UPDATE: The British Supreme Court has ruled against Theresa May's Brexit plans and decreed that MPs are entitled to vote on whether to trigger Article 50. The verdict is a blow for the Prime Minister, albeit one she had expected and had prepared for, after she initially wanted to launch the Brexit process unilaterally. There is now no doubt that Ms May must seek the permission of MPs, a vote due by the end of March 2017, before invoking Article 50 and starting a two-year countdown to Brexit. Independent.co.uk
The British newspaper the Guardian called the referendum on June 23 2016 the ‘biggest political decision of the century’. British voters answered the question: ‘Should the United Kingdom remain a member of the European Union or leave the European Union?’
Moreover, particularly on the European continent, political leaders, thinktanks, scholars, business representatives and interested citizens are critically following the campaign for the referendum. On the European mainland various media has pointed out that leaving the European Union would be terrible for the (economic) stability and future of the EU. This can also be seen in the 'Brexit News' section just below. But would leaving the EU be legally possible when taken into account European as well as domestic law? This 'Library Special' tries to identify some –but not extensively- difficult legal talking points when the choice of the British people is to leave the EU.
It should be noted that the referendum is not legally binding. The Guardian of March 7th writes: ‘The British parliament still has to repeal the 1972 European Communities Act if the leave campaign wins, and ratify the Withdrawal Treaty. Members of Parliament could technically choose to ignore the referendum result and block the agreement, but it would be madness for politicians to attempt to go directly against a popular referendum result.’
Source: Financial Times
In European law a provision is codified for Member States to withdraw from the European Union. Article 50 of the Treaty on the European Union (Hereafter: TEU) reads as follows:
‘1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
2. 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.
3. 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.
4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.
A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.
5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.’
Paragraph 1 of art. 50 clearly states that the decision of withdrawal from the European Union is a sole prerogative of the Member State. It therefore, needs to be in accordance with its own constitutional requirements. After a decision is made by the British government it need to send a notification to the European Council. The leaders of the 27 other Member States of the European Union convene to discuss the notification and to draft a 'Withdrawal Treaty'. This particular treaty is concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining consent of the European Parliament. It is confirmed by the 27 remaining heads of state of the European Union.
If such a negotiation between the United Kingdom and the European Union is successful, the date of the United Kingdom's withdrawal from the European Union will then be the date of entry into force of the Withdrawal Treaty they will have agreed on together. Otherwise, if such a Withdrawal Treaty is not concluded, the withdrawal will automatically happen two years after the notification of the United Kingdom's decision to the European Council, according to art. 50 paragraph 3. During the necessary period for negotiating, signing and ratifying a Withdrawal Treaty between the United Kingdom and the European Union, the United Kingdom will remain a Member State of the European Union and continue to participate in its activities under the same conditions as before. The only legal exception is codified in paragraph 4 of art. 50 TEU which states that a representative of the United Kingdom will no longer participate in the discussions of the European Council or in the Council of Ministers as well as in their preparatory bodies (United Kingdom's Ambassador in COREPER, diplomats and civil servants in other bodies).
For the Selective Bibliography please click here!
- Bloomberg I
- Bloomberg II
- The Guardian
- The Economist
- Oxford University Press - Oxford Public International Law - Brexit
- Law in Focus: 'Brexit: Legally and constitutionally, what now?' - Mark Elliott, University of Cambridge, Faculty of Law
- Brexit: Implications And Outlook [What Think Tanks Are Thinking]
- Conference Report: “The Impact of Brexit on Commercial Dispute Resolution in London”
- UK think-tank plans legal challenge over Europe single market access (Reuters)
- Brexit and the Future of the United Kingdom, Istituto Affari Internazionali, 2016.
- Brexit, but rEEAmain? The Effect of Brexit on the UK’s EEA Membership
- The United Kingdom officially votes to leave the European Union. You can find a blog about the result here.
 Piris, J-C., Which Options would be available for the United Kingdom in the Case of a Withdrawal from the EU?, In: Britain Alone!: The Implications and Consequences of United Kingdom Exit from the EU, eds. Birkinshaw, P.J. and A.Biondi, Alphen aan den Rijn, Wolters Kluwer, 2016, pp 111-137.[number of readers: 1415]