Article 50 Analysis

1st May 2015

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Although relatively short, Article 50 has caused confusion among many commentators. This confusion partly arises (as we shall see) from the article casually underplaying a Member State’s right to withdraw without opting to negotiate an agreement and overplaying a desire for there to be one (with all of its subtle weighting in this respect, we might wonder whose future needs the article is preempting and giving priority to avoiding?). It is this lingual dexterity which results in some of the article’s meanings being more obscure to the reader than they might otherwise be.

A misunderstanding of Article 50’s overall purpose is another cause of widespread confusion. In all of its five clauses, the article addresses no one but the State motivated by voluntary withdrawal. Its provisions exclusively facilitate, and are of service to, that motivation… for as long as it remains active. Those looking in the article for a mechanism to use by a State no longer motivated by that end  – such as revocation – won’t find one. This is not because such a mechanism doesn’t exist – as is widely claimed – but because they are looking in the one place where it can’t possibly be found. Such a claim is like someone on a speeding ticket insisting they couldn’t stop the car because its accelerator pedal has no braking ability.

Here is the Article in full – with some brief analytical notes:


Clause 1
“Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements(I).”

(I) In the first clause, the EU acknowledges and accedes to the voluntary grounds for the State’s decision – over which it has no legal or political bearing.

Clause 2
“A Member State which decides to withdraw shall notify the European Council of its intention(II). 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(III). 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.”

(II) Here, the EU recognises the State as acting upon its intention to eventually withdraw.

(III) In this sentence, the EU begins obscuring the actual options available to a State intending to withdraw. “In the light of the guidelines…” means ‘Taking into account the guidelines…’ and those guidelines, of course, will only be taken into account if the State accepts them – its acceptance being prerequisite to a use of the clause’s remaining provisions. The State might take into account a desire to withdraw without an agreement, instead.

Clause 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(IV).”

(IV) Clause 3 causes by far the most confusion among commentators. Many read into it some sort of implied threat that a State pushing hard to secure its own interests during negotiations will face the danger of an enforced eviction if no agreement has been reached after two years. In fact, the “failing that…” alludes not to a lack of success in concluding an agreement – but to the same option the EU also skirts around in Clause 2… the failure of a State to opt for a negotiated agreement at all. In this instance, the clause is (out of self interest) stipulating a two year notice period before withdrawal takes place (…the EU’s coyness here might also have a lot to do with the improbability of its stipulation being legally enforceable). A State negotiating an agreement as part of its voluntary withdrawal from the EU will never face eviction. If no agreement is concluded after two years (and if the EU is prepared to take the risk of not extending that period), the State can simply choose to revoke Article 50 and try again at a later date.

Clause 4
For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it(V). A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.

(V) Meaning: In reference to the negotiation process set out in the previous clauses, one negotiating party (the withdrawing State) can not sit in on the meetings of the other (the EU) while negotiations are underway.

Clause 5
“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(VI).”

(VI) But, as Clause 3 asserts, a State has not withdrawn from the Union until a new agreement (if it has one) comes into force. And a new agreement cannot come into force unless having first received consent in accordance with the State’s own constitutional requirements – eg, by means of a referendum. Ergo No consent = ongoing membership.


Revocation
Another widely-held misunderstanding of the Article is that once a Member State invokes it, it cannot be revoked. Many commentators tenaciously cling onto this assumption even though there is nothing at all in the Article to support it. In fact, it is only the Article’s lack of a provision to be revoked which encourages the view that it can’t be. It should be relatively easy to disillusion anyone holding this assumption by drawing their attention to the EU’s own stated purpose of the Article as being to facilitate the voluntary withdrawal of any Member State intending to do so(1). If a State’s initial notification of that intention (by invoking Article 50) immediately transforms its intended voluntary act into a compulsory one, then the EU would be acting in contradiction to itself. The twisted logic of this assumption would have the EU ordering a State to voluntarily withdraw its membership.

The fact of a State’s acting under its own volition for the duration of its passage through the mechanisms of Article 50 is an important one to establish. Although revocation falls outside of the Article’s remit of facilitating the progress of a voluntary act, a State finding itself with a need to abandon the process can (should the EU require it) formalise its decision by using a provision in the Vienna Convention on the Law of Treaties – which states that a notification to withdraw from a treaty “may be revoked at any time before it takes effect(2).”

Conclusion
With a more lucid reading of Article 50, we are able to massively expand the scope of opportunities available to Britain in considering a withdrawal from the EU. At the same time, we can streamline the requirements for doing so into a risk-free, ambitious and British-tailored procedure which campaigners would find easy to communicate and voters would find compelling to accept. A campaign built upon known realities rather than assumptions, preconceptions and aggregated guesswork would become impervious to those same weaknesses in all efforts to undermine it.

Pressing for the invocation of Article 50 – as the only true and reliable means to arriving at a fixed agreement which fully accords with Britain’s unique status and interests – need not be feared as a dangerous, irreversible step to take… but held as a safe and highly reasonable route towards a desired outcome. As a procedure, it guarantees the electorate both a fully-formed, ‘all-bases-covered’, new agreement and an assured continued EU membership to choose between at the ballot box.


(1) The Praesidium of the European ConventionDraft Constitution, Vol 1. “The Praesidium considers that the Constitution [now, Treaty] must contain a provision on voluntary withdrawal from the Union… the Praesidium feels that inserting a specific provision in the Constitution [now, Treaty] on voluntary withdrawal from the Union clarifies the situation… Moreover, the existence of a provision to that effect is an important political signal to anyone inclined to argue that the Union is a rigid entity…”

“…withdrawal of a Member State from the Union cannot be made conditional upon the conclusion of a withdrawal agreement. Hence the provision that withdrawal will take effect in any event two years after notification. However, in order to encourage a withdrawal agreement.. Article I-57 [now,50] provides for the possibility of extending this period…”

(2) Vienna Convention on the Law of Treaties. Article 68 – Revocation of notifications and instruments provided for in articles 65 and 67. “A notification or instrument provided for in articles 65 or 67 may be revoked at any time before it takes effect.”

 


Tag: Article 50 Analysis

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