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Article 50 of the Treaty on European Union: the legal path to withdrawal

Article 50(1) of the Treaty on European Union (TEU) is the trigger for an EU withdrawal process of up to two years, possibly longer. Article 50 envisages a negotiated, orderly withdrawal from the EU “taking account of the framework for [the leaving State’s] future relationship with the Union”. The Article states that the EU “shall negotiate and conclude an agreement” with the leaving State. The word “shall” implies an obligation on the EU and the leaving State, although some argue that the obligation is only on the EU, not the leaving State.

Article 50 also provides for a Member State to leave the EU after two years without a withdrawal agreement.

Under Article 50 the EU lays the ‘ground rules’ for withdrawal negotiations. The other EU Member States adopt Guidelines and the European Commission negotiates for the EU in accordance with detailed negotiating directives.

The UK Government has accepted that the Article 50 process is the only ‘legal’ way to leave the EU. There are other ways to withdraw from an international agreement, but as the EU Treaty provides for withdrawal, these are not being considered as options for the UK.

Withdrawing from treaties – provisions in international law

The 1969 Vienna Convention on the Law of Treaties (to which the UK is a party) provides that states can withdraw from a treaty “only as a result of the application of the provisions of the treaty or of the present Convention” (Article 42(2)) and sets out other grounds for terminating a treaty. The Convention applies to treaties adopted within an international organisation ‘without prejudice’ to the organisation’s own rules (Article 5).[1] In other words, Article 50 TEU takes precedence over the Vienna Convention’s general provisions.

In evidence to the House of Lords Select Committee on the European Union on 8 March 2016, Professor Derrick Wyatt looked at alternative routes for withdrawing from international treaties and concluded that in the case of leaving the EU, Article 50 TEU was the only route:

  1. It is not open to all the member states simply to sit down and agree the matter between themselves. The institutions are involved and the national parliaments are involved. I am certainly not disagreeing with the proposition that because there is a specific provision it excludes others, but quite apart from that, any alternative under public international law simply does not fly. In my view, Article 50 is the only route.

Just repeal domestic legislation and leave …

It has been suggested that the UK could leave the EU simply and quickly by repealing the European Communities Act 1972 (ECA), thereby unilaterally removing its obligation to implement EU law.[2]  Although technically, repealing the ECA would be all that is needed for EU law no longer to apply in the UK, simply repealing the ECA would not by itself remove the UK’s obligations under EU or international law. It would also pose problems of a practical as well as constitutional and legal nature and make it more difficult for the UK to negotiate preferential terms for a trade agreement with the EU after leaving.

Simply repealing the ECA would also not bring an end to the domestic incorporation of EU law in the devolved nations.

‘Crashing’ out with no deal

Leaving the EU without a withdrawal agreement would be the ‘cliff edge’ Brexit scenario much discussed in 2017. The Government initially spoke of ‘no deal’ being better than a ‘bad deal’, but later concluded that a negotiated exit deal with a transition period would be preferable. Of course, it is still possible that in spite of the negotiations, there will be no agreement; or Parliament might vote against the final agreement, or fail to pass the proposed EU Withdrawal and Implementation Bill which would incorporate the withdrawal agreement into UK law. Any of these outcomes could mean leaving the EU without a withdrawal agreement or transition provisions.

The Government has not published an evaluation of the impact or implications of leaving the EU without a withdrawal agreement, but most experts believe that it would be highly disadvantageous for the UK both politically and economically.

[1]     The Convention Praesidium’s comments on the 2003 draft EU Constitution provision made clear that the exit clause was based on the Vienna Convention.

[2]     See, e.g. Douglas Carswell’s Private Members’ Bill, the European Communities Act 1972 (Repeal) Bill 2012-13, and Philip Hollobone’s similar European Communities Act 1972 (Repeal) Bill 2013-14, and Nigel Lawson, Telegraph,17 February 2016.

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