Withdrawal from the European Union

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On 10 December 2018, the ECJ ruled that Article 50 can be revoked unilaterally

Withdrawal from the European Union is the legal and political process whereby an EU member state ceases to be a member of the Union. Under Article 50 of the Treaty on European Union (TEU):

"Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements".[1]

Three territories of EU member states have withdrawn: French Algeria (in 1962, upon independence),[2] Greenland (in 1985, following a referendum)[3] and Saint Barthélemy (in 2012),[4] the latter two becoming Overseas Countries and Territories of the European Union.

No Member State has yet withdrawn from the EU (or the EEC); however, the Government of the United Kingdom triggered Article 50 to begin the UK's withdrawal from the EU in March 2017 following the 2016 EU Referendum, and the withdrawal was scheduled to take place on 29 March 2019.[5]

On 22 March 2019, the day after EU leaders in Brussels agreed on a plan to delay Brexit beyond 29th March, a petition on the UK Parliament website calling for the revocation of Article 50 and staying in the European Union topped three million signatures.[6]

On 28 October 2019, EU President Donald Tusk announced a further 3-month extension in a tweet:

"The EU27 has agreed that it will accept the UK's request for a #Brexit flextension until 31 January 2020. The decision is expected to be formalised through a written procedure."[7]

Background

Article 50, which allows a member state to withdraw, was originally drafted by Scottish cross-bench peer and former diplomat Lord Kerr of Kinlochard, the Secretary-General of the European Convention, which drafted the Constitutional Treaty for the European Union.[8] Following the failure of the ratification process for the European Constitution, the clause was incorporated into the Treaty of Lisbon which entered into force in 2009.[9]

Prior to this, no provision in the treaties or law of the EU outlined the ability of a state to voluntarily withdraw from the EU. The absence of such a provision made withdrawal technically difficult but not impossible. Legally there were two interpretations of whether a state could leave. The first, that sovereign states have a right to withdraw from their international commitments;[10] and the second, the treaties are for an unlimited period, with no provision for withdrawal and calling for an "ever closer union" – such commitment to unification is incompatible with a unilateral withdrawal. The Vienna Convention on the Law of Treaties states where a party wants to withdraw unilaterally from a treaty that is silent on secession, there are only two cases where withdrawal is allowed: where all parties recognise an informal right to do so and where the situation has changed so drastically, that the obligations of a signatory have been radically transformed.

Procedure

Article 50 of the Treaty on the European Union, enacted by the Treaty of Lisbon on 1 December 2009, introduced for the first time a procedure for a member state to withdraw voluntarily from the EU.[11] This is specified in Article 50 of the Treaty on European Union, which states that:[12]

  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)[13] of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council of the European Union, 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.

This provision does not cover certain overseas territories which under TFEU Article 355 do not require a full treaty revision.[14]

Invocation

Thus, once a Member State has notified the European Council of its intention to leave, a period begins during which a withdrawal agreement is negotiated, setting out the arrangements for the withdrawal and outlining the country's future relationship with the Union. Commencing the process is up to the member state that intends to leave.

The article allows for a negotiated withdrawal, due to the complexities of leaving the EU. However, it does include in it a strong implication of a unilateral right to withdraw. This is through the fact that a state would decide to withdraw "in accordance with its own constitutional requirements" and that the end of the treaties' application in a member state that intends to withdraw is not dependent on any agreement being reached (it would occur after two years regardless).

Negotiation

The treaties cease to apply to the Member State concerned on the entry into force of the withdrawal agreement or, in the absence of such an agreement, two years after the member state notified the European Council of its intention to leave, although this period can be extended by unanimous agreement of the European Council.[15]

The leaving agreement is negotiated on behalf of the EU by the European Commission on the basis of a mandate given by the remaining Member States, meeting in the Council of the European Union. It must set out the arrangements for withdrawal, taking account of the framework for the member state's future relationship with the EU, though without itself settling that framework. The agreement is to be approved on the EU side by the Council of the EU, acting by qualified majority, after obtaining the consent of the European Parliament. For the agreement to pass the Council of the EU it needs to be approved by at least 72 percent of the continuing Member States representing at least 65 percent of their population.[16]

The agreement is concluded on behalf of the Union by the Council and must set out the arrangements for withdrawal, including a framework for the State's future relationship with the Union, negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. The agreement is to be approved by the Council, acting by qualified majority, after obtaining the consent of the European Parliament. Should a former Member State seek to rejoin the European Union, it would be subject to the same conditions as any other applicant country.[17]

Remaining members of the EU would need to manage consequential changes over the EU's budgets, voting allocations and policies brought about by the withdrawal of any member state.[18]

Failure of negotiations

This system gives a negotiated withdrawal, due to the complexities of leaving the EU (particularly concerning the euro). However it does include in it a strong implication of a unilateral right to withdraw. This is through the fact the state would decide "in accordance with its own constitutional requirements" and that the end of the treaties' application in said state is not dependent on any agreement being reached (it would occur after two years regardless).

If negotiations do not result in a ratified agreement, the seceding country leaves without an agreement, and the EU Treaties shall cease to apply to the seceding country, without any substitute or transitional arrangements being put in place. As regards trade, the parties would likely follow World Trade Organisation rules on tariffs.[19]

Revocation

Article 50 does not spell out whether Member States can rescind their notification of their intention to withdraw during the negotiation period while their country is still a Member of the European Union. However, the President of the European Council said to the European Parliament on 24 October 2017 that “deal, no deal or no Brexit” is up to Britain. Indeed, the prevailing legal opinion among EU law experts and the EU institutions themselves is that a Member State intending to leave may change its mind, as an “intention” is not yet a deed and intentions can change before the deed is done.[20] The issue is currently before the ECJ (case number C-621/18 Wightman on revocation of Article 50).

The European Parliament resolution of 5 April 2017 on negotiations with the United Kingdom following its notification that it intends to withdraw from the European Union states, "a revocation of notification needs to be subject to conditions set by all EU-27, so that it cannot be used as a procedural device or abused in an attempt to improve on the current terms of the United Kingdom’s membership."[21] The European Union Policy Department for Citizens' Rights and Constitutional Affairs has stated that a hypothetical right of revocation can only be examined and confirmed or informed by the EU institution competent to this purpose, namely the CJEU.[22] In addition the European Commission considers that Article 50 does not provide for the unilateral withdrawal of the notification.[23]

Lord Kerr, the British author of Article 50, also considers the process is reversible[24] as does Jens Dammann.[25] Professor Stephen Weatherill disagrees.[26]. Former Brexit Secretary David Davis has stated that the British Government "does not know for sure" whether Article 50 is revocable; the British prime minister "does not intend" to reverse it.

Following an emergency hearing that was held on 27 November 2018 when the European Court of Justice was asked to decide whether Article 50 can be reversed unilaterally,[27] the Advocate General Manuel Campos Sánchez-Bordona delivered his Opinion in the case (C-621/18 Wightman on revocation of Article 50)[28] on 4 December 2018. In his Opinion, Article 50 allows the "unilateral revocation of the notification of the intention to withdraw from the EU, until such time as the Withdrawal Agreement is formally concluded".[29]

On 10 December 2018, the European Court of Justice ruled the UK can cancel Brexit without the permission of the other 27 EU members and without altering the terms of Britain's membership.[30]

Rejoining

Should a former Member State seek to rejoin the European Union after having actually left, it would be subject to the same conditions as any other applicant country and need to negotiate a Treaty of Accession, ratified by every Member State.[31]

Past withdrawals

Algeria

French Algeria had joined the European Communities as part of France (since legally it was not a colony of France, but rather one of its overseas departments). Upon independence in 1962, Algeria left France and thus left the European Communities.

Greenland

Greenland chose to leave the EU predecessor without also seceding from a Member State. It initially voted against joining the EEC when Denmark joined in 1973, but because Denmark as a whole voted to join, Greenland, as a county of Denmark, joined too. When home rule for Greenland began in 1979, it held a new referendum and voted to leave the EEC. After wrangling over fishing rights, the territory left the EEC in 1985,[32] but remains subject to the EU treaties through association of Overseas Countries and Territories with the EU. This was permitted by the Greenland Treaty, a special treaty signed in 1984 to allow its withdrawal.[33]

Saint Barthélemy

Collectivity of Saint Martin and Saint-Barthélemy in 2007 seceded from Guadeloupe (overseas department of France and outermost region (OMR) of the EU) and became overseas collectivities of France, but at the same time remained OMRs of the European Union. Later, the elected representatives of the island of Saint-Barthélemy expressed a desire to "obtain a European status which would be better suited to its status under domestic law, particularly given its remoteness from mainland France, its small insular economy largely devoted to tourism and subject to difficulties in obtaining supplies which hamper the application of some European Union standards." France, reflecting this desire, requested at the Council of the European Union to change the status of Saint Barthélemy to an overseas country or territory]] (OCT) associated with the European Union.[34] The status change came into effect from 1 January 2012.

United Kingdom

The UK's planned withdrawal, known as "Brexit",[35] is the first and only invocation of Article 50, as of December 2017.

The British government led by David Cameron held a referendum on the issue in 2016; a majority voted to leave the European Union. On 29 March 2017, Theresa May's administration invoked Article 50 of the Treaty on the European Union in a letter to the President of the European Council, Donald Tusk. The UK is set to leave by April 2019.[36]

The terms of withdrawal have not yet been negotiated, and the UK remains a full member of the European Union.[37] May said that the UK government would not seek permanent single market membership,[38] and promised a Great Repeal Bill that would repeal the 1972 European Communities Act and would incorporate existing European Union law into the domestic law of the UK.[39]

Until the withdrawal from the European Union is effected, the UK remains a member of the EU continuing to fulfil all EU-related treaties and must legally be treated as a member.[40][41]

Potential future withdrawals

Several states have political parties and individuals advocating and seeking withdrawal from the EU.[42] In Member States, there are political movements of varying significance campaigning for withdrawal.

Parties in the EU advocating or considering withdrawal

While no country other than the United Kingdom has voted on whether to withdraw from the EU, political parties criticising the federative trend of the European Union and advocating its reshaping into a looser cooperation framework have gained prominence in several Member States since the last European Parliament election in 2014, similar to the rise of UKIP in the United Kingdom.

The main parties are:

The European Parliament currently includes two official groups of Eurosceptic members opposing the EU institutions: Europe of Freedom and Direct Democracy and Europe of Nations and Freedom.

Secession from a Member State

There are no clear agreements, treaties or precedents covering the scenario of an existing EU member state breaking into two or more states. The question is whether one state is a successor rump state which remains a member of the EU and the other is a new state which must reapply and be accepted by all other Member States to remain in the EU, or alternatively whether both states retain their EU membership following succession.[43][44]

In some cases, a region leaving its state would leave the EU - for example, if any of the various proposals for the enlargement of Switzerland from surrounding countries were to be implemented at a future date.

During the failed Scottish independence referendum of 2014 it was clarified by the European commission that any newly independent country would be considered as a new state which would have to negotiate with the EU to rejoin.[45] Such considerations also apply to the likes of Catalonia where even if the independence movement is in favour of rejoining the EU, other states may have an interest in blocking membership to deter independence movements within their own borders.[46]

Legal effect on EU citizenship

Citizenship of the European Union is dependent on citizenship (nationality) of a Member State, and citizenship remains a competence entirely vested with the Member States. Citizenship of the EU can therefore only be acquired or lost by the acquisition or loss of citizenship of a Member State. A probable but untested consequence of a country withdrawing from the EU is that, without otherwise negotiated and then legally implemented, its citizens are no longer citizens of the EU.[47] But the automatic loss of EU citizenship as a result of a member state withdrawing from the EU is the subject of debate.[48]

Expulsion

While a state can leave, there is no provision for a state to be expelled. But TEU Article 7 provides for the suspension of certain rights of a Member State if a member persistently breaches the EU's founding values.

 

Examples

Page nameDescription
BrexitThe United Kingdom's departure from the European Union.
FrexitFrance leaving the European Union.
PolexitThe idea of Poland leaving the EU.

 

Related Documents

TitleTypePublication dateAuthor(s)Description
Document:ECJ Advocate General says UK can revoke Article 50 unilaterallyArticle4 December 2018Tony ConnellyArticle 50 allows the "unilateral revocation of the notification of the intention to withdraw from the EU, until such time as the Withdrawal Agreement is formally concluded"
Document:Legal Challenge To BrexitArticle27 November 2018The UK can stop the Brexit process unilaterally, without the consent of the other 27 EU Member States
Document:Project BrexitComment24 June 2017DavidProject Brexit: "Doomed to Failure"
Document:Theresa May's Misconduct In Public OfficeArticle9 March 2019David Wolchover
Joshua Silver		Theresa May's Misconduct in Public Office offence arises from what is alleged to have been her wrongful activation on 29 March 2017 of Article 50 of the Treaty on European Union
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References

  1. ↑ http://www.lisbon-treaty.org/wcm/the-lisbon-treaty/treaty-on-European-union-and-comments/title-6-final-provisions/137-article-50.html
  2. ↑ https://web.archive.org/web/20140407064217/http://www.victoria.ac.nz/law/nzacl/PDFS/SPECIAL%20ISSUES/HORS%20SERIE%20VOL%20VII/05-ziller.pdf
  3. ↑ http://english.eu.dk/faq/faq/greenland
  4. ↑ https://books.google.com/books?id=9O94iJw9qG0C&pg=PA196#v=onepage&q&f=false
  5. ↑ "The European Parliament & Brexit"
  6. ↑ "'Cancel Brexit' petition passes 2m signatures on Parliament site"
  7. ↑ "EU agrees to give the UK a Brexit extension until January 31"
  8. ↑ https://www.independent.co.uk/news/uk/politics/article-50-design-dictators-not-uk-eu-european-lisbon-treaty-author-lord-kerr-a7655891.html |quote=Article 50 was designed to be used by a dictatorial regime, not the UK government, the man who wrote it has said. ... As Secretary General of the European Convention in the early 2000s, Lord Kerr played a key role in drafting a constitutional treaty for the EU that included laws on the process by which states can leave the bloc.
  9. ↑ https://www.bbc.co.uk/news/uk-scotland-scotland-politics-37852628 quote=After leaving the foreign office, he was secretary-general of the European [C]onvention, which drafted what became the Lisbon treaty. It included Article 50 which sets out the process by which any member state can leave the EU.
  10. ↑ https://books.google.com/books?id=cROAAQAAQBAJ&lpg=PP1&pg=PA10#v=onepage&q&f=false
  11. ↑ http://www.ecb.int/pub/pdf/scplps/ecblwp10.pdf
  12. ↑ https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/228848/7310.pdf#page=40
  13. ↑ page 99 of 344
  14. ↑ Instead, the European Council may, on the initiative of the member state concerned, change the status of an overseas country or territory (OCT) to an outermost region (OMR) or vice versa.
  15. ↑ Article 50(3) of the Treaty on European Union.
  16. ↑ https://constitution-unit.com/2016/01/19/what-happens-if-we-vote-for-brexit/
  17. ↑ Article 50(4) of Lisbon Treaty which cites Article 49 Accession process
  18. ↑ http://www.swp-berlin.org/en/publications/swp-research-papers/swp-research-paper-detail/article/europe_without_britain.html
  19. ↑ https://www.telegraph.co.uk/news/0/what-would-brexit-mean-for-british-trade/
  20. ↑ http://www.richardcorbett.org.uk/not-passed-point-no-return/
  21. ↑ http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P8-TA-2017-0102+0+DOC+XML+V0//EN
  22. ↑ http://www.europarl.europa.eu/RegData/etudes/IDAN/2018/596820/IPOL_IDA(2018)596820_EN.pdf
  23. ↑ http://europa.eu/rapid/press-release_MEMO-17-2001_en.htm
  24. ↑ https://www.independent.co.uk/news/uk/politics/article-50-brexit-eu-negotiator-michel-barnier-stop-theresa-may-withdrawing-latest-a7673596.html
  25. ↑ http://cjel.law.columbia.edu/preliminary-reference/2017/revoking-brexit-can-member-states-rescind-their-declaration-of-withdrawal-from-the-european-union/
  26. ↑ http://eulawanalysis.blogspot.com/2018/01/can-article-50-notice-of-withdrawal.html
  27. ↑ "Brexit: court rejects attempt to derail article 50 hearing"
  28. ↑ "Advocate General Campos Sánchez-Bordona will deliver his Opinion at a date to be announced"
  29. ↑ "ECJ Advocate General says UK can revoke Article 50 unilaterally"
  30. ↑ "Brexit ruling: UK can cancel decision, EU court says"
  31. ↑ Article 50(4) of Lisbon Treaty, which cites Article 49 accession process.
  32. ↑ "Greenland Out of E.E.C.," New York Times (4 February 1985)
  33. ↑ http://eur-lex.europa.eu/en/droit_communautaire/droit_communautaire.htm
  34. ↑ http://register.consilium.europa.eu/pdf/en/10/st15/st15224.en10.pdf
  35. ↑ https://www.bbc.co.uk/news/uk-politics-32810887 |title=Brexit: All you need to know about the UK leaving the EU
  36. ↑ https://www.bbc.co.uk/news/uk-politics-39325561
  37. ↑ https://www.gov.uk/guidance/advice-for-british-nationals-travelling-and-living-in-europe
  38. ↑ https://www.telegraph.co.uk/news/2017/01/17/theresa-may-brexit-12-point-plan-live/
  39. ↑ https://www.bbc.co.uk/news/uk-politics-37532364
  40. ↑ http://www.aljazeera.com/news/2016/06/brexit-chancellor-warns-launching-article-50-160627071007679.html
  41. ↑ https://www.theguardian.com/politics/2016/jun/26/who-will-dare-pull-trigger-article-50-eu
  42. ↑ "Brussels' Fear of the True Finns: Rise of Populist Parties Pushes Europe to the Right," Spiegel (25 April 2011).
  43. ↑ Edward, David, "Scotland's Position in the European Union", Scottish Parliamentary Review, Vol. I, No. 2 (Jan 2014) [Edinburgh: Blacket Avenue Press]
  44. ↑ https://www.bbc.co.uk/news/uk-scotland-scotland-politics-21195630
  45. ↑ https://www.theguardian.com/politics/2017/mar/13/independent-scotland-would-have-to-apply-to-join-eu-commission-says
  46. ↑ "The Catalan independence movement is pro-EU – but will the EU accept it?", London School of Economics 10/OCT/17
  47. ↑ http://www.ilecproject.eu/sites/default/files/GUIDELINES%20INVOLUNTARY%20LOSS%20OF%20EUROPEAN%20CITIZENSHIP%20.pdf
  48. ↑ http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2324&context=ilj
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