By Græme Gordon, Executive Director, Praxity
Last week I was privileged to attend a talk by Thomas Tindemans on Brexit, where he detailed the now famous, or is that infamous Article 50 (§50) of the Lisbon Treaty, which is now the key trigger of a full Brexit. I would therefore like to acknowledge the debt I owe to him regarding my commentary below.
What I aim to do is to assist the reader with some clear facts, some potential factors to consider and not to make any predictions at this stage. It will be up to the reader to decide what they think will occur and what, if any actions to take. Thus, as events unfold over the next months and years, the reader has, what I intend to be, a factual point of reference going forward.
Therefore, please accept that unlike my Blogs to date, this is not intended to contain my thoughts, ramblings or opinions.
So where to start? Maybe with the actual §50 itself? It is an article of only 5 clauses. The final clause, #5, simply states that "If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49." §49, requires, amongst other 'normal' factors, that all the EU States should agree to a new (or in this case re-applying) State joining the Union. This is in contrast, as we will see, to the tests in §50, which only requires a Qualified Majority of States to agree to terms. So, it is worth remembering that leaving the EU under §50 is probably less difficult than changing one's mind after the event and trying to re-join.
Let's therefore look at the other 4 clauses:
§50 Clause 1
This appears initially to be a very simple statement of fact. "Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements".
One needs, however, to consider the expression "its own constitutional requirements". I bring this up as there is an argument that the Referendum did not create a constitutional imperative. I cannot rule on this as I am not (thank goodness, as this is a potential minefield) a constitutional lawyer, but it so happens this is being tested in the British Courts as I write.
§50 Clause 2
This is the key clause, and contains a number of interesting specific facts & action points within it.
The first sentence states "A Member State which decides to withdraw shall notify the European Council of its intention". This can be seen as the trigger point. It is this part of Clause 2 that the UK Government has not, at the time I write, undertaken.
Obviously all of the key personnel and bodies within the EU, Europe and most of the rest of the World, are well aware of the result of the vote on Thursday June 23rd, but the UK, as the "Member State" has not, to date, notified "the European Council of its intention". Thus none of §50 can be invoked.
The second sentence requires the European Council to create guidelines regarding the operations of negotiations. Further, as we will see, Clause 4, specifically says that the "withdrawing Member State shall not participate" in any such discussions. Thus the UK will be required to abide by the guidelines imposed by the other 28 Member States via the European Council.
The second sentence then goes on to state that "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".
So those who, like the Swedish Commissioner, Cecilia Malmström, state that the withdrawal must happen first then the negotiations will start about the UK's relationship with the EU, may well be re-interpretating the phrase " taking account of the framework for its future relationship with the Union". However, those, who like Commissioner Malmström, say that the negotiations need to be in series rather than in parallel, appear to interpret the "framework for its future relationship", as something less than actual agreed terms or a draft treaty.
Clause two goes on to say "That agreement [the one relating to withdrawal] shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union". So what does Article 218(3) say? Well "The Commission, ...shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union negotiator or the head of the Union's negotiating team." Maybe not surprisingly, this is the one part of §50 which appears to have already been agreed. As the Commission has said that Didier Seeuws is to lead post-referendum talks on nature of Britain’s future relationship with EU. Mr Seeuws, was the chief of staff to former European Council president Herman Van Rompuy.
Maybe the most interesting sentence of Clause 2, is its final paragraph. This states "It [the Treaty] shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament."
Why interesting? Well, as before this is agreed by a "qualified majority" so no power of a Member State to veto anything directly. However, the fact that this can only happen "after obtaining the consent of the European Parliament", is interesting.
Especially as at no point, unlike when referring to the European Council or to the Commission, does §50 require those European Parliamentarians from the withdrawing Member State, to absent themselves from the vote. Thus, the UK MEPs are entitled to vote on the Treaty before it goes to the Council for the qualified majority vote. How many of the 73 UK MEPs will take part in the debate and the vote, and how many will absent themselves? Interesting question, especially as they constitute almost 10% of the total number of MEPs.
§50 Clause 3
This is the, by now, 'famous' two year clause. This is because it states "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". Thus if no agreement or treaty is reached inside the two year period, from the time (as per Clause 2) the Member State notifies the European Council, then on that anniversary and with no further comment, the Member State in question is no longer a "Member State", and cannot use, rely on or be a party to any treaty or agreement which was negotiated by or within the EU. This does extend to the 'Right of Free movement of both people and trade'.
However, the final part of this Clause gives everyone an option to avoid such a precipitous move as it says "unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period". Is this the way things will go, or, if one is an experienced negotiator, and sitting on the EU side, would one know about the two year deadline and use that to ensure the Member State withdrawing agrees to your terms before the date? Only time will tell, but Mr Seeuws is a very seasoned negotiator and as I write this, the UK Government has said that it does not have any trade negotiators with any experience, let alone seasoned experience.
§50 Clause 4
As I indicated above this clause is fairly simple as it states that the representatives of the Member state withdrawing, cannot "participate in the discussions of the European Council or Council or in decisions concerning it". However, as I indicated above, it is silent on the participation of MEPs within the European Parliament.
I am not sure conclusion is the correct title for this, my final section, as I do not want to draw any conclusions for myself. I intend that the reader will draw their own conclusions. The only things I will say are:
a) Article 50 is deceptively short, and hopefully I have identified the key areas for focus and consideration;
b) The UK negotiations and negotiators need to be very detailed and very aware of both the deadline and the advantages that the EU side start with;
c) We are now in those very "Interesting Times" and the next months and years have the opportunity to affect the lives of all the present EU citizens, and many more beyond the present EU boarders.
I am not sure how much patience I will personally have, to sit on the sidelines and watch. Conversely, I cannot see anyway a single citizen can have much influence on the outcome.
That said, I hope those of you who have read this have found it informative and unbiased as I intended.