Article 50 of the Treaty on European Union

Article 50 of the Treaty on European Union is a part of European Union law that sets out the process by which member states may withdraw from the European Union. Its use became extensively debated after the referendum held in the United Kingdom on 23 June 2016 in which a majority of those voting favoured the United Kingdom's withdrawal from the European Union.

Once article 50 is triggered, there is a two-year time limit to complete negotiations. If negotiations fail to reach agreement, the member state leaves with nothing. This process is generally accepted to leave a seceding member without any bargaining power in negotiations, because the costs of having no trade treaty would be proportionally far greater to the seceding individual state than the remaining EU bloc.^[1]

Provisions

Article 49A of the Treaty of Lisbon, which came into force on 1 December 2009, introduced for the first time a procedure for a member state to withdraw voluntarily from the EU.^[2] This is specified in Article 50 of the Treaty on European Union, which states that:^[3]

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
2. 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.
3. 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.

Process

Member state invocation

Article 50 of the Treaty on European Union provides that: "Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements."^[4] Once a member state has notified the European Council of its intent to leave the EU, a period begins during which a leaving agreement is negotiated setting out the arrangements for the withdrawal and outlining the country's future relationship with the Union. A withdrawal agreement would then be negotiated between the Union and that State.

Coverage of the issue with respect to the United Kingdom in The Guardian includes an explanation as to Article 50 and how it would be invoked. "...there seems to be no immediate legal means out of the stalemate. It is entirely up to the departing member state to trigger article 50, by issuing formal notification of intention to leave: no one, in Brussels, Berlin or Paris, can force it to. But equally, there is nothing in article 50 that obliges the EU to start talks – including the informal talks the Brexit leaders want – before formal notification has been made. "There is no mechanism to compel a state to withdraw from the European Union," said Kenneth Armstrong, professor of European law at Cambridge University. ... "The notification of article 50 is a formal act and has to be done by the British government to the European council," an EU official told Reuters."^[5]

Remaining members of the EU consequently would need to undertake negotiations to manage change over the EU's budgets, voting allocations and policies brought about by the withdrawal of any member state.^[6]

Post invocation process

The treaties cease to apply to the member state concerned on the entry into force of the leaving agreement, or in the absence of such an agreement, two years after the member state notified the European Council of its intent to leave, although this period can be extended by unanimous agreement of the European Council.^[7] The two-year period of time in which the terms of the withdrawal agreement are negotiated is known as the sunset period.^[8]

The agreement is concluded on behalf of the Union by the Council and must set out the arrangements for withdrawal, including a framework for the State's future relationship with the Union. The agreement is to be approved by the Council, acting by qualified majority, after obtaining the consent of the European Parliament. For the agreement to pass the Council of the European Union it needs to be approved by at least 72 percent of the continuing member states representing at least 65 percent of their population.^[4]

This system gives a negotiated withdrawal, due to the complexities of leaving the EU (particularly concerning the euro). However it does include in it a strong implication of a unilateral right to withdraw. This is through the fact the state would decide "in accordance with its own constitutional requirements" and that the end of the treaties' application in said state is not dependent on any agreement being reached (it would occur after two years regardless).^[2]

The remaining members of the EU would also need to undertake negotiations on how to make the necessary changes to the EU's budgets, voting allocations and policies.^[6]

Should a former Member State seek to rejoin the European Union, it would be subject to the same conditions as any other applicant country.^[9]

This provision does not cover certain overseas territories which under TFEU Article 355 do not require a full treaty revision.^[10]

Pre-Lisbon situation

Before the Treaty of Lisbon entered into force on 1 December 2009 no provision in the treaties or law of the EU outlined the ability of a state to voluntarily withdraw from the EU. The European Constitution did propose such a provision and, after the failure to ratify it, that provision was then included as Article 50 of the Lisbon Treaty.

The absence of such a provision made withdrawal technically difficult but not impossible.^[2] Legally there were two interpretations of whether a state could leave. The first, that sovereign states have a right to withdraw from their international commitments;^[11] and the second, the treaties are for an unlimited period, with no provision for withdrawal and calling for an "ever closer union" – such commitment to unification is incompatible with a unilateral withdrawal. The Vienna Convention on the Law of Treaties states where a party wants to withdraw unilaterally from a treaty that is silent on secession, there are only two cases where withdrawal is allowed: where all parties recognise an informal right to do so and where the situation has changed so drastically, that the obligations of a signatory have been radically transformed.^[2]

There is no precedent for a sovereign member state leaving the European Union or any of its predecessor organisations. However, three territories of EU member states have withdrawn: Algeria (1962, independence from France),^[12] Greenland (1985)^[13] and Saint Barthélemy (2012),^[14] the latter two becoming Overseas Countries and Territories of the European Union.

Situation in the United Kingdom

After a referendum on the United Kingdom's membership of the European Union in 2016 supported exiting the European Union, it has been debated whether article 50 will be triggered. The UK remains as a member of the EU until invoking Article 50, continuing to fulfill all EU-related treaties and must legally be treated as a member.^[15][16]

On the morning of the UK referendum result, David Cameron resigned and stated that his successor should activate Article 50^[17] although there are arguments over whether it needs Parliamentary approval^[18][19] and the approval of devolved Parliaments.^[20] There is no official negotiation between the UK and the other states until Article 50 is invoked,^[21] although there have been unofficial contacts and negotiating positions have been publicly laid out by parties such as the European Council (of heads of national governments).^[22] In the aftermath of the UK vote, the EU Parliament called for the "immediate" triggering of Article 50^[23] and there is believed to be "alarm in many European capitals" at the British consensus for delaying invocation.^[24] Due to the (then) upcoming French and German elections in 2017, the European Commission had been working under the assumption that Article 50 notification may not be made before September 2017.^[25]

At the beginning of October 2016, UK prime minister Theresa May announced that the government intended to invoke Article 50 by the end of March 2017.^[26] However, in R (Miller) v Secretary of State for Exiting the European Union, the High Court held that the government did not have the power under the Royal Prerogative to trigger Article 50, and that only Parliament held this power. The UK government intends to appeal to the Supreme Court, with the case to be heard in December.^[27]

See also

• European Union law
• Brexit
• Text of Article 50

References

External links

• The Guardian (UK) - Article 50 special report