Brexit in the Spirit of the Treaties
Ton van den Brink (University of Utrecht)
A new phase of Brexit uncertainty has started now that the British Prime Minister has asked for an extension of Article 50. Uncertainty on whether the EU will agree on the length of the extension, on how it will be used and on what the European Union will want in return. European Council president Tusk has already announced that he will only support a delay if the House of Commons agrees on the Brexit deal. In that light, it is important to go back to the EU’s withdrawal article and see how the ‘spirit’ of Article 50 could – and should – guide the coming negotiations. In doing so, we should therefore not limit ourselves to viewing the concrete procedural issues and practical consequences of Article 50 (two-year period to negotiate a withdrawal deal, hard exit in case of no-deal etc.) but we should focus primarily at its structure and foundational principles.
Giuliano Amato, one of the drafters of what in the end became Article 50, argued that it was intended never to be used, “it is like having a fire extinguisher that should never have to be used. Instead, the fire happened”, he claimed.
The text of Article 50 suggests, however, that exiting the EU is designed to be a real option and not just a symbolic one. The EU Court of Justice confirmed this in its Wightman decision in which it more specifically had to rule on whether the UK could unilaterally revoke its withdrawal notification. To make the option of exiting real, Article 50 identifies a number of steps to be taken and defines the role of the Member State concerned and that of the EU institutions therein.
Article 50 does not elaborate the possibility of reversing the exiting process (by revoking the notification), and thus the EU Court of Justice in Wightman had to derive this right from the principle that Article 50 is based on Member State sovereignty. What Article 50 does, however, elaborate are the options to leave, either on the basis of a withdrawal agreement or without such an agreement, as well as the possibility to rejoin after withdrawal. In other words, Article 50 is structured in such a way that sovereign decisions of Member States to exit the EU are fully implemented.
Since the Treaty of Lisbon, the possibility to exit the EU has thus been deeply interwoven into the constitutional fabric of the EU. This has important consequences, especially in terms of responsibilities for the EU and its remaining Member States. First, Article 50 may leave many things unclear, but there can be no misunderstanding that the Treaty prioritizes a no-deal exit over an infinite process of negotiations. The EU Court in Wightman argued that the second aim of Article 50 (next to Member State sovereignty) would be to allow for an orderly withdrawal. Part of such an orderly withdrawal is to ensure it takes place within a limited period of time. In that regard it should be noted that we are actually discussing already the second delay of the negotiation period after the nine months that lapsed between the Brexit referendum in June 2016 and the 29th of March 2017 when the UK Prime Minister notified the European Council of the withdrawal decision. Any decision to extend the negotiating period affects in this sense the orderly and prompt withdrawal prescribed by Article 50 and should thus be accompanied by appropriate guarantees that by the end of the agreed extension Brexit will indeed be delivered.
This brings me back to the other objective of Article 50 as identified by the EU Court of Justice: respecting the sovereign decision of a Member State to exit the EU. If this is the main objective of the provision, then this has a second important consequence for the EU and its Member States. A responsibility – indeed, a constitutional requirement – for them to ensure that a withdrawal of a Member State that wishes to do so, becomes effective.
Article 50 thus transforms the political stance of Prime Minister Theresa May that ‘Brexit must be delivered’, into an EU law-based obligation upon the EU and its Member States. The principle of loyal cooperation (Article 4(3) TEU) that has been applied to very different situations already must be considered here as well.
There are many practical and political reasons why extending the negotiation period is not in the EU’s interest. To name just a few: it would make EP elections in the UK in May unavoidable and the EU may need its energy to address other issues such as the rule of law crises in some of its Member States. But the constitutional imperative to agree on an extension that is short and conditionalized may provide the most compelling argument here.
State sovereignty is a crucial element of Article 50. After notification, the signs are directed towards exiting, but the aim is that such an exit should take place in an orderly fashion. This is an issue of common interest and serves as a “Rule of Reason” here. The internal decision-making in the UK may lie beyond the reach of the EU – as chaotic, divided and unfocused as it may be – but there exists a common constitutional obligation upon the UK, the EU and the other 27 Member States to ensure the orderly nature of the withdrawal. In the Wightman decision, this Rule of reason led the EU Court of Justice to formulating conditions on the revocation of the withdrawal. The impact is, however, bigger and arguably extends to all aspects that may contribute to an exit which is orderly instead of endless and regulated instead of creating a legal vacuum.
The spirit of Article 50 should thus guide the extended negotiations to make sure Brexit happens, and that it happens in an orderly way.
Ton van den Brink is associate professor of EU law at Utrecht university. He is part of the leadership of the Utrecht Centre for Shared Regulation in Europe – RENFORCE. His research interests include EMU, EU constitutional law and EU/Member States relations.