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BREXIT: NEGOTIATING THE UNITED KINGDOM’S WITHDRAWAL FROM THE EUROPEAN UNION
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members. The wording of the article, suggested
by the Secretary General of the European
Convention, Lord Kerr, was based primarily on
the relevant international law – the Vienna
Convention on the Law of Treaties
6
– although
the procedure also reflects the need to make
provision for the possibility of withdrawing from
a federal European Union.
Withdrawal starts with unilateral notification
of the European Council by the member state,
“in accordance with its own constitutional re-
quirements”. There is some dispute as to
whether European institutions are empowered
to rule on the constitutionality of the notifica-
tion.
7
It is our understanding that they are not,
and that this clarification was introduced solely
to allow for the possibility of rejecting a notifica-
tion of withdrawal submitted by a government
that had gained power through unconstitution-
al means.
Another important issue, which has major
practical implications, concerns whether the
member state notifying its intention to leave the
EU may then withdraw this notification at any
time.
8
The European Council will have to clarify
this question as part of the process of agreeing
a series of principles to address the gaps in arti-
cle 50. In our opinion – applying the precedent
that has already been set for the expansion pro-
cess – it would appear that the member state
6
See: Secretaría de la Convención Europea:
Título X: de
la pertenencia a la Unión,
Brussels, 2 April 2003, (CONV
648/03).
7
In this respect, see: Rieder, C.: “The withdrawal clause
of the Lisbon Treaty in the light of EU citizenship: between
disintegration and integration”,
Fordham Int. Law Journal,
vol. 37, 2013, pp. 147-74.
8
The notion that lodging notification is an irrevocable legal
act that necessarily leads to withdrawal from the EU was
one of the principal argument of the plaintiffs in their ac-
tion in the High Court that called for a ruling on the need
for Parliamentary authorisation prior to invoking article 50.
may withdraw its notification at any time, even
after negotiations have begun.
9
From a political
perspective, EU law needs to reflect the process
in the member state. If there was a significant
change in the national political situation – for
example, forces opposed to withdrawal win-
ning power at a general election or a second
referendum reversing the result of the previous
one – then basic democratic principles would
surely require EU institutions to respond to this
change in the political landscape. However, the
conditions governing notification require fur-
ther clarification to prevent the member state
from using the possibility of withdrawing its no-
tification as a form of blackmail if it is unhappy
with the outcome of negotiations.
There are a number of differences between
the withdrawal procedure established in article
50 and the procedure for joining the EU. The
European Council establishes the general guide-
lines for the negotiation, the Commission pre-
sents its recommendations to the Council, and
the Council appoints a negotiator and enters
into negotiations. In so far as there is any refer-
ence to article 218.3 of the Treaty of the
European Union, it is understood that the
Commission will be responsible for conducting
the negotiations, as in the case of any interna-
tional agreement involving the European Union.
Article 50 does not state that the rest of article
218 must be applied but, given the nature of
the negotiations, it seems likely that the
European Council will follow its precedent and
that the actions of the Commission will be con-
trolled by a committee of representatives of the
member states.
9
Iceland withdrew its application for membership in March
2015, following the election of a new government, even
though negotiations were already under way.