The State of the European Union 2017

THE STATE OF THE EUROPEAN UNION

108

With respect to the final agreement, article

50 specifies that this should cover two areas:

the conditions under which the member state’s

withdrawal occurs and the framework of its fu-

ture relations with the EU. This agreement must

be approved by a reinforced qualified majority

of the European Council, and by the European

Parliament.

Both institutions therefore have

“constitutive power”, an arrangement that is

consistent with the EU’s federal political struc-

ture, which draws on the dual legitimacy of

member states and EU citizens. By contrast, the

decision to admit a new member must be ap-

proved unanimously by the Council. The relative

flexibility of the arrangements for approving

withdrawal are to be understood as a reflection

of the desire to facilitate the member state’s

wish to leave the EU.

In the same spirit, article 50 provides for the

possibility of withdrawal without agreement,

where this is not reached within a period of two

years and in the absence of a unanimous agree-

ment by the European Council to extend nego-

tiations. This scenario has been dubbed “dirty

Brexit” and would be nothing short of a disas-

ter, as it would create a legal vacuum and gen-

erate huge uncertainty.

In contrast with the Treaties or Acts of

Accession, any future withdrawal agreement

does not require ratification by all member

states to take effect, but need only be ratified

The qualified supermajority or reinforced qualified major-

ity, as defined in the Treaty, requires the support of 72 % of

Member States, representing at least 65 % of the popula-

tion. In a 27-member EU (excluding the United Kingdom)

this requires 20 Member States to vote in favour, represent-

ing at least 288,712,996 inhabitants.

With respect to the problematic legal effects of with-

drawal without agreement, see: Lazowski, A.: “Unilateral

withdrawal from the EU: realistic scenario or a folly?”,

Journal of European Public Policy

, vol. 23, no. 9, 2016, pp.

1294-301.

by the withdrawing member. This has signifi-

cant implications from a constitutional perspec-

tive as it means that such an agreement does

not have the status of Primary Law and, as a

result, approval of any withdrawal treaty would

not, in itself, modify the Treaties of the EU.

Therefore, in addition to the withdrawal agree-

ment, whenever a member state leaves the EU

this will inevitably give rise to the requirement to

review the European treaties in order to, as a

minimum, eliminate all reference to the depart-

ing state.

Among those analysing the probable path-

way towards Brexit, a consensus is emerging

that it is unlikely to be possible to conclude the

twin negotiations on withdrawal conditions and

the framework of the future relationship within

a two-year timeframe.

A more realistic goal is

to agree on the conditions and the withdrawal

date, and to establish the rules that will apply

during the transition period. After that, and

without the pressure of a looming deadline, it

would be possible to negotiate the contents of

the future relationship, in what could turn out to

be a lengthy process. However, it is important to

realise that it is in the interests of the UK to ne-

gotiate both agreements while it is a full mem-

ber of the EU, as this would enable the country

to negotiate from a position of greater structural

power, and would give it access to resources,

information and influence that would not be

available if its relationship to the EU was that of

Aldecoa Luzárraga, F.; Guinea Llorente, M.: “The consti-

tutional future of relations European Union and the United

Kingdom”,

After the UK Referendum: Future Constitutional

Relationship of the United Kingdom with the European

Union. Workshop for the Committee on Constitutional

Affairs. Outlines of Presentations,

Brussels, 5 September

2016; Duff, A.: “Brexit: What Next?”

Statement to the Con-

stitutional Affairs Committee of the European Parliament,

November 2016.