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Article 50 TEU
By Nigel Foster, *
This blog post will consider Article 50 TEU and you might remark – surely that’s old hat? My answer to that is that it is always expedient to understand what has gone before as a key into understanding what happened thereafter and what is happening now.
In any case, it all started with Article 50 and is still on-going. Well, that’s not quite true. Article 50 is and was the start of the formal process of exiting the EU. It really all started with the promise by the then Prime Minister of the UK, David Cameron, to hold an in/out referendum on continuing EU membership.^1 It is widely accepted that this was made as an attempt to hold together two quite disparate wings of the Conservative party and to fend of the electoral threat to the Conservative party posed by UKIP. Views are that, if the polls were correct, Cameron expected not to have a working majority and thus not to be able to carry through the promised referendum.^2 Judged by the political events since then, the Conservative Party is more divided over the EU now than ever before. The number of resignations of Government ministers, combined with the 21 dismissals from the party on 4th^ September, is well on the way to 100 since 2016.^3
To move on though, the result of the Referendum held on 23rd^ June 2016 is well known, and we can now review Article 50 TEU, which is the formal mechanism facilitating the exit from the EU.
We need to consider the following aspects of Article 50 to get a full picture of it and to fully understand the role it has played until today, the role it continues to play, and the further role it may still play. These aspects are: what it is, who triggers it, the process, the permissible extensions and who decides on them, and possible revocation.
1. What is Article 50? Prior to 2009, there was no EU Treaty Article facilitating the exit of a member state from the EU. It was therefore unclear whether and indeed how a member state might withdraw if it wanted to. However, Article 50 TEU^4 , introduced by the Lisbon Treaty, does now make it clear and does provide for a member state to withdraw, following a two year negotiation period to agree the terms of withdrawal and to outline the future relationship.
- (^) Author of “Foster on EU Law”, “EU Law Directions”, “Concentrate EU law Questions and Answers”, Editor of “EU
T 1 reaties and Legislation” (All OUP publications). Speech by the Prime Minister on EU at Bloomberg, 23 January 2013: https://www.gov.uk/government/speeches/eu- speech-at-bloomberg. Accessed 5th September 2019. (^2) https://www.theguardian.com/world/2019/jan/21/donald-tusk-warned-david-cameron-about-stupid-eu-
referendum-bbc & https://www.ft.com/content/4f8634c6-3873-11e6-9a05-82a9b15a8ee7 both accessed 5th September 2019. 3 https://www.instituteforgovernment.org.uk/publication/whitehall-monitor-2019/ministers Accessed 5th September
- 4 Article 50:
- 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.
Article 50 TEU is thus a procedural device concerning how the withdrawal must be conducted and does not dictate any substantive conditions of withdrawal. You can view the full Article here: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A12012M050.
2. Who Triggers Article 50? Initially it was the clear intention and claimed right of the Government, as represented by the Prime Minster, to be the most appropriate constitutional body under the “Royal Prerogative” to notify the European Council under Art 50. This was challenged by a number of individuals and was finally considered by the Supreme Court.^5 The counter argument was that prerogative powers may not extend to acts which result in a change to UK domestic law. They argued that withdrawal from the EU Treaties would change domestic law and therefore the Government could not serve Notice under Art 50 TEU unless first authorised to do so by an Act of Parliament. The Court held that “It would be inconsistent with long-standing and fundamental principle for such a far-reaching change to the UK constitutional arrangements to be brought about by ministerial decision or ministerial action alone.”^6
The matter was then brought before Parliament and resulted in the passing of the European Union (Notification of Withdrawal) Act 2017 on 16 March 2017^7. This gave the Prime Minister the power necessary to notify the European Council of the UK’s intention to withdraw from the European Union under Article 50(2) of the Treaty on European Union. Consequently, the UK notification of withdrawal from the EU under Article 50 TEU was given on 29th^ March 2017, and the 2 year clock started ticking. As already made clear, this was the first time that Art 50 TEU was invoked.
3. The process. The withdrawal process is initiated by the member state formally notifying the European Council of its intention to withdraw from the EU. The timing of that notification lies entirely in the hands of the withdrawing member state, given that nothing about the timing appears in the Article itself. When a state notifies its intention to exit, a two year period starts in which the terms of withdrawal are negotiated and agreed.
For the EU, the Council of Ministers is empowered to appoint a negotiator. Michel Barnier, a former MEP, a former European Commissioner, and a former Vice President of the Commission, was nominated and appointed as the Chief Negotiator in the negotiations with the UK.^8
Section I.2 of the European Council guidelines provided “Negotiations under Article 50 TEU will be conducted in transparency and as a single package. In accordance with the principle that nothing is agreed until everything is agreed, individual items cannot be settled separately.”^9
Art 50 (2) TEU requires the EP to be consulted before any withdrawal agreement is concluded. At this stage, the negotiation is focussed on the terms of withdrawal and not the future relationship; prior to exit, only political statements about intentions for the future relationship can be made, and formal negotiations about it cannot be commenced until after exit.^10
(^5) The case of R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European
Union (Appellant). [2017] UKSC 5. 6
7 At paragraph 81 of the judgment. 8 www.legislation.gov.uk/ukpga/2017/9/contents/enacted^ Accessed 26th August 2018. 9 https://ec.europa.eu/info/persons/director-head-service-michel-barnier_en^ Accessed 4th^ August 2018 This is the principle that also applies to membership negotiations in that whilst individual chapters dealing with particular subjects may be “signed off” until everything is agreed there can be no agreement or even a recommendation for an agreement.
This forced those MPs opposed to a ‘no deal’ Brexit to act swiftly, before prorogation took effect, to try to prevent this. The procedure to pass an act compelling the PM to ask for an extension was clearly outlined in a House of Commons Library paper.^14 Parliament subsequently voted on and passed (followed by Royal assent) the “Benn” Act^15 , requiring the PM to seek another extension to Art 50 if a deal cannot be secured by 19th^ October 2019. Thus a third extension may be sought, and must be sought if no deal is agreed by 19th^ October. As noted above, Art 50 does not prevent further extensions being requested and agreed. 16
Concurrently, the PM’s request to prorogue Parliament was challenged before the Supreme Court as illegal.^17 The Supreme Court gave its ruling on Tuesday 24th^ September: that in essence the PM acted unlawfully in advising the Monarch to prorogue Parliament.^18 Whether this has any bearing on the request for a further Art 50 extension remains to be seen.
5. Revocation. Our final section addresses whether Art 50 can be revoked, and if so, whether only by agreement or unilaterally by the state which triggered it. Art 50 is silent too on this point, and after much academic and other discussion and speculation^19 it was decided clearly and definitively by the Court of Justice of the EU. That ruling 20 was essentially that the UK is free to unilaterally revoke Art 50, following its own constitutional procedure, and when put in writing to the European Council. This certainly ends that speculation.
So that’s it for this blog post. As the year continues, we may see the November 2018 Withdrawal Agreement put again to the Commons or to the public.^21 But then again, with Brexit, nothing is certain.
(^14) https://commonslibrary.parliament.uk/brexit/negotiations/the-benn-burt-bill-another-article-50-extension/ (^15) The European Union (Withdrawal) (No. 2) Act 2019, www.legislation.gov.uk/ukpga/2019/26/contents/enacted. (^16) At the time of wiring (19th (^) September 2019) the situation, as it has been since June 2016, remains unclear with
regard to the final outcome, particularly with the Parliamentary 17 The action was defeated in the High Court as being a political decision and not a legal constitutional one. [2019] EWHC 2381 (QB) 18 https://www.judiciary.uk/wp-content/uploads/2019/09/Miller-No-FINAL-1.pdf R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) Case ID: UKSC 2019/0192 [2019] UKSC 41 https://www.supremecourt.uk/cases/uksc-2019-0192.html https://www.supremecourt.uk/cases/docs/uksc- 2019-0192-summary.pdf 19 See inter alia, An EP Paper: http://www.europarl.europa.eu/RegData/etudes/IDAN/2018/596820/IPOL_IDA(2018)596820_EN.pdf Craig, P., The Process: Brexit and the Anatomy of Article 50 in Fabbrini, F. (ed), The Law & Politics of Brexit, Oxford University Press, Oxford, 2017, pp. 49-69 at pp. 64-65. House of Commons Library, Briefing Paper Number 7551, 16 January 2017, https://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7551 Revised transcript of evidence, Lords EU Committee, 8 March 2016. https://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/european-union- committee/the-process-of-leaving-the-eu/oral/30396.html http://eulawanalysis.blogspot.com/2018/01/can-article-50-notice-of-withdrawal.html 20 Case C-621/18 Wightman and Others v Secretary of State for Exiting the European Union. https://eur- lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62018CJ0621 https://www.bbc.com/news/uk-scotland-scotland- politics- https://europeanlawblog.eu/2018/12/11/case-c-621-18-wightman-v-secretary-of-state-for-exiting-the-european- union-the-european-court-of-justice-confirms-that-article-50-notification-can-be-unilaterally-revoked/ 21 See https://commonslibrary.parliament.uk/brexit/negotiations/the-benn-burt-bill-another-article-50-extension/
