The process for withdrawing from the European Union as seen by the UK Government

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The UK Government released in February 2016 a paper entitled ‘The process for withdrawing from the European Union’.

The forthcoming referendum on the UK’s membership of the European Union may turn out to be in favour of a Brexit according to the latest survey (The Observer, 3 April 2016. p. 1). There is only one way to leave the EU, namely to trigger Article 50 of the Treaty on European Union. The process is unprecedented since no country has ever used Article 50, which states, notably, that “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) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament”. It adds that “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”.

The process begins when the Member State that wishes to leave notifies the European Council. The European Council, minus the departing State, then agrees by consensus the guidelines for the Commission to negotiate the withdrawal agreement. Consensus requires every Member State (minus the departing State) to vote in favour. The final agreement would need to be agreed by both parties: the EU side and the UK. On the EU side, this would require an enhanced qualified majority among the remaining Member States. This means that no single Member State could veto the deal, but that it would need to reach a critical level of support. Specifically, it would need to be agreed by 20 out of 27 Member States, representing 65 per cent of the population. The European Parliament would also need to approve the deal. This would require a simple majority of its 751 MEPs. According to the UK Government, MEPs from the departing Member State would probably be allowed to vote, because at this stage it would still formally be part of the EU. The EU Treaties would continue to apply to the departing Member State until the Article 50 agreement had entered into force, or for two years if no agreement had been reached and no extension to the two year period had been granted. A request for an extension could only be granted with the unanimous agreement of the remaining Member States. Very interestingly, the UK Government believes that “The complexity of the negotiations, and the need for the UK to negotiate adequate access to the Single Market after it leaves the EU, would make it difficult to complete a successful negotiation before the two year deadline expired” (point 2.5). Moreover, the UK Government specifically mentions two key elections, which may have an impact on the negotiations: the French Presidential election and the German Federal election in 2017. It also does not hide the fact that “While these [Article 50] negotiations continued, we would be constrained in our ability to negotiate and conclude new trade agreements with countries outside the EU. The countries with which we currently have preferential trade agreements through the EU are likely to want to see the terms of our future relationship with the EU before negotiating any new trade agreements with the UK. In addition, many of our trading partners, including the United States, are already negotiating with the EU. Before they start negotiations with the UK they are likely to want those deals to conclude” (point 2.8).

If the UK was to reach the end of the two year period specified by Article 50 without having reached an agreement, and if any of the 27 other Member States vetoed an extension of this period, this would lead to the UK leaving the EU with no immediate replacement agreed, without any protection under EU law for the rights of UK business to trade on a preferential basis with Europe or the EU’s free trade agreement partners, UK citizens to live and work in Europe, or UK travellers to move about freely in Europe. By contrast, the UK would be bound by new EU legislation up to the moment its leaves.

(Altalex, 11 April 2016. Article by Emmanuel Guinchard)

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