13 July 2016

CEPS: Procedural steps towards Brexit

With the dust barely settled on the Brexit referendum, a messy legal picture has emerged. Among the many challenges are what, when and how exactly the UK’s withdrawal from the EU should be negotiated.

In truth, the way the divorce procedure has been regulated under Article 50 TEU leaves much to be desired. Gaps left by the EU legislator will have to be filled rather swiftly by political elites and lawyers. To the EU and its member states, only the rudimentary aspects of withdrawal are clear. In the UK, however, even the staunchest proponents of Vote Leave seem to have been caught off-guard, with no actionable plan for how to handle Brexit – only visions of alternatives to EU membership that are unlikely to be acceptable to the EU27. The fact that alternatives to membership had not been considered seriously prior to the referendum is perplexing, and underlines the impression that the entire exercise was a stroke of irresponsible political chutzpah. [...]

Article 50(2) TEU states that the initiative to commence withdrawal proceedings belongs to the departing country. [...] the UK cannot be formally forced to pull the trigger, but can indeed wait until it sees fit. There are a number of reasons behind Whitehall’s hesitation.

First, with the resignation of David Cameron and a government reshuffle in the offing it was indeed more appropriate for the next prime minister to start the procedure. [...]

Second, a number of UK lawyers claim that domestic constitutional law does not allow a prime minister to issue such a notification without the prior blessing of Parliament.

Third, as mentioned above, it is unclear what, in formal terms, such a notification should look like. Whether a prime minister’s announcement to the European Council would qualify as such a notification is questionable. Even less likely is that the member states, including the UK, would agree that the referendum result itself constitutes a notification of intention to withdraw. It is the first step, but not a notification in its own right. The same goes for the repeal of the European Communities Act of 1972, which facilitates the direct application of EU law in the UK. If the UK Parliament opted for that it would be an act of defiance but not a trigger for Brexit. [...]

Fourth, by delaying its submission, the UK government may be trying to kill two birds with one stone. By the time it formally informs the other member states of its intentions it should have a clear plan regarding the shape of future relations with the EU, which will determine the scope of actual negotiations. [...]

To be sure, the two-year deadline seems unrealistic, given the plethora of dossiers to negotiate. Then again, the prescribed period for negotiations can be extended. But this would require unanimity in the European Council, which in the current political climate of ever-increasing fatigue with the UK, should not be taken for granted. Thus, for Whitehall, it makes perfect sense to delay triggering Article 50 TEU to avoid an accidental Brexit that would lack a proper legal framework. If the UK would crash out of the EU without the legal straps attached, bilateral relations between the UK and EU27 would fall only under the WTO rules, which are not fit for purpose when it comes to regulating an EU divorce. [...]

One should not be surprised, however, that the European Union is pressurising the UK to formally initiate the Brexit procedure. First, the EU and its member states should not be made hostage to the UK’s internal party politics. The delay causes uncertainty and is a nuisance at a time when the UK needs to act fast and the EU, its institutions and member states have a number of other crises to handle. Hence the call made at the Informal Summit on June 29th to trigger Article 50 TEU and to get going with negotiations.

Second, the EU is also considering the economic implications of the referendum. [...] one should not exclude the possibility that the eurozone also takes a hit at a time when it is slowly emerging from its biggest crisis ever. Objectively, there is a great need to calm the markets and to demonstrate that the entire process is under control.

Third, the push for a quick divorce is also a reflection of the EU’s exasperation with UK exceptionalism and a sign that David Cameron has used up what was left of the UK’s political capital in negotiating the February deal, which is now unequivocally off the table. [...]

Full article on CEPS

 

© CEPS - Centre for European Policy Studies