Article 50 of the Treaty on European Union

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Article 50 of the Treaty on European Union is a part of European Union law that sets out the process by which member states may withdraw from the European Union. It has been extensively debated after the referendum held in the United Kingdom on 23 June 2016 in which 51.9% of those voting favoured the United Kingdom's withdrawal from the European Union.[1]

Once Article 50 is triggered, there is a two-year time limit to complete negotiations. If negotiations do not result in a ratified agreement, the seceding country and EU would follow World Trade Organisation rules on tariffs.[2]

This article was used for the first and so far only time by the United Kingdom on 29 March 2017.

Provisions[edit]

Article 49A of the Treaty of Lisbon, which came into force on 1 December 2009, introduced for the first time a procedure for a member state to withdraw voluntarily from the EU,[3] this is specified in Article 50 of the Treaty on European Union, which states that:[4]

  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)[5] 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.

Process[edit]

Member state invocation[edit]

Article 50 of the Treaty on European Union provides that: "Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements."[6] Once a member state has notified the European Council of its intent to leave the EU, a period begins during which a leaving agreement is negotiated setting out the arrangements for the withdrawal and outlining the country's future relationship with the Union. A withdrawal agreement would then be negotiated between the Union and that State.

In an opinion piece, The Guardian explained that Article 50 could be invoked only by an individual departing EU member country and that the treaty obligation for the EU to negotiate was not activated until formal notification was delivered.[7]

The article allows for 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 that a state would decide to withdraw "in accordance with its own constitutional requirements" and that the end of the treaties' application in a withdrawing state is not dependent on any agreement being reached (it would occur after two years regardless).[3]

Remaining members of the EU consequently would need to undertake negotiations to manage change over the EU's budgets, voting allocations and policies brought about by the withdrawal of any member state.[8]

This provision does not cover certain overseas territories which under TFEU Article 355 do not require a full treaty revision.[9]

Post-invocation process[edit]

The treaties cease to apply to the member state concerned on the entry into force of the leaving agreement; or, in the absence of such an agreement, two years after the member state notified the European Council of its intent to leave, although this period can be extended by unanimous agreement of the European Council.[10] The two-year period of time in which the terms of the withdrawal agreement are negotiated is known as the sunset period.[11]

Deal conclusion[edit]

The leaving agreement is negotiated on behalf of the EU by the Council of the European Union and must set out the arrangements for withdrawal, including a framework for the member state's future relationship with the EU, the agreement is to be approved 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.[6]

The remaining members of the EU would also need to undertake negotiations on how to make the necessary changes to the EU's budgets, voting allocations and policies.[8]

Re-entry or unilateral revocation[edit]

It is unclear whether Member States can rescind their declaration of withdrawal during the negotiation period when their country still is a Member of the European Union, the European Parliament's (EP) negotiating position is that EU treaties do not explicitly allow a member state to unilaterally halt its withdrawal although the issue is untested in court. The EP's resolution pointed to a concern that “A revocation of notification needs to be subject to conditions set by all EU27 [states] so they cannot be used as a procedural device or abused in an attempt to improve the actual terms of the United Kingdom’s membership.”

On the other hand, Lord Kerr, the British author of Article 50, consider the process is reversible[12] as does Jens Dammann.[13] 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.[12]

Should a former member state seek to rejoin the European Union, it would be subject to the same conditions as any other applicant country.[14]

Pre-Lisbon situation[edit]

Before the Treaty of Lisbon entered into force on 1 December 2009 no provision in the treaties or law of the EU outlined the ability of a state to voluntarily withdraw from the EU, the European Constitution did propose such a provision and, after the failure to ratify it, that provision was then included as Article 50 of the Lisbon Treaty.

The absence of such a provision made withdrawal technically difficult but not impossible.[3] 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;[15] 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.[3]

There is no precedent for a sovereign member state leaving the European Union or any of its predecessor organisations. However, three territories of EU member states have withdrawn: Algeria (1962, independence from France),[16] Greenland (1985)[17] and Saint Barthélemy (2012),[18] the latter two becoming Overseas Countries and Territories of the European Union.

Invocation by the United Kingdom[edit]

Letter from Theresa May invoking Article 50

After a referendum on the United Kingdom's membership of the European Union in June 2016 supported exiting the European Union, the Prime Minister Theresa May announced in October 2016 that Britain would invoke Article 50 by the end of March 2017.[19] After the Supreme Court's ruling in Miller's case, followed by the passing of the European Union (Notification of Withdrawal) Act 2017, the prime minister sent the notification letter invoking Article 50 on 29 March 2017.

The United Kingdom became the first and, thus far, only country to invoke Article 50. Barring negotiation timeline extensions as described in the article, the UK will formally withdraw from the EU by April 2019, 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.[20][21]

Origins[edit]

The clause 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.[22] The clause was incorporated into the Treaty of Lisbon.[23]

See also[edit]

References[edit]

  1. ^ "Article 50: Theresa May to trigger Brexit process next week". BBC News. 20 March 2017. Retrieved 26 March 2017. 
  2. ^ "What will Brexit mean for British trade?". Telegraph.co.uk. Retrieved 2 April 2017. 
  3. ^ a b c d Athanassiou, Phoebus (December 2009). "Withdrawal and Expulsion from the EU and EMU: Some Reflections" (PDF). Legal Working Paper Series. European Central Bank (10): 9. ISSN 1830-2696. Retrieved 19 February 2013. 
  4. ^ "Consolidated Version of the Treaty on European Union" (PDF). HM Government. 
  5. ^ page 99 of 344
  6. ^ a b Renwick, Alan (19 January 2016). "What happens if we vote for Brexit?". The Constitution Unit Blog. Retrieved 14 May 2016. 
  7. ^ "...there seems to be no immediate legal means out of the stalemate. It is entirely up to the departing member state to trigger article 50, by issuing formal notification of intention to leave: no one, in Brussels, Berlin or Paris, can force it to, but equally, there is nothing in article 50 that obliges the EU to start talks – including the informal talks the Brexit leaders want – before formal notification has been made. "There is no mechanism to compel a state to withdraw from the European Union," said Kenneth Armstrong, professor of European law at Cambridge University. ... "The notification of article 50 is a formal act and has to be done by the British government to the European council," an EU official told Reuters."Henley, John (26 June 2016). "Will article 50 ever be triggered?". The Guardian. London, UK. Retrieved 26 June 2016. 
  8. ^ a b Oliver, Tim. "Europe without Britain: Assessing the Impact on the European Union of a British Withdrawal". Stiftung Wissenshaft und Politik. Retrieved 1 March 2014. 
  9. ^ 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.
  10. ^ Article 50(3) of the Treaty on European Union.
  11. ^ Alderton, John; Kavanagh, Helen (24 June 2016). "EU Referendum Results: It’s Going To Be Brexit". The National Law Review. Squire Patton Boggs (US) LLP. Retrieved 28 June 2016. 
  12. ^ a b https://www.independent.co.uk/news/uk/politics/article-50-brexit-eu-negotiator-michel-barnier-stop-theresa-may-withdrawing-latest-a7673596.html
  13. ^ Dammann, Jens (5 April 2017). "Revoking Brexit: Can Member States Rescind Their Declaration of Withrawal from the European Union". Columbia Journal of European Law. Columbia University. Retrieved 5 April 2017. 
  14. ^ Article 50(4) of Lisbon Treaty, which cites Article 49 accession process
  15. ^ Hurd, Ian (2013). International Organizations: Politics, Law, Practice. Cambridge University Press. p. 10. ISBN 9781107040977. 
  16. ^ Ziller, Jacques. "The European Union and the Territorial Scope of European Territories" (PDF). Archived from the original (PDF) on 7 April 2014. Retrieved 31 March 2014. 
  17. ^ "What is Greenland's relationship with the EU?". Folketing. Retrieved 20 June 2016. 
  18. ^ Hay, Iain (2013). "Geographies of the superrich". Edward Elgar Publishing. p. 196. Retrieved 20 January 2015. 
  19. ^ "Brexit: Theresa May to trigger Article 50 by end of March". BBC News. 2 October 2016. Retrieved 16 October 2016. 
  20. ^ "George Osborne: Only the UK can trigger Article 50". Al Jazeera. 
  21. ^ Henley, Jon (26 June 2016). "Will article 50 ever be triggered?". The Guardian. 
  22. ^ "Article 50 was designed for European dictators, not the UK, says man who wrote it". The Independent. 29 March 2017. 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. 
  23. ^ "Article 50 author Lord Kerr says Brexit not inevitable". BBC News. 3 November 2016. 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. 

External links[edit]