22 February 2015

What is Article 50?

Article 50 of the Treaty on European Union allows a member state to notify the EU of its withdrawal and obliges the EU to try to negotiate a ‘withdrawal agreement’ with that state – it involves five points laid out below.

  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.
  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. A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.
  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 If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.”

The form of any withdrawal agreement would depend on the negotiations and there is therefore no guarantee the UK would find the terms acceptable. The EU Treaties would cease to apply to the UK on the entry into force of a withdrawal agreement or, if no new agreement is concluded, after two years, unless there is unanimous agreement to extend the negotiating period.

During the two-year negotiation period, EU laws would still apply to the UK. The UK would continue to participate in other EU business as normal, but it would not participate in internal EU discussions or decisions on its own withdrawal. On the EU side, the agreement would be negotiated by the European Commission following a mandate from EU ministers and concluded by EU governments “acting by a qualified majority, after obtaining the consent of the European Parliament.” This means that the European Parliament would be an additional unpredictable factor in striking a deal.

However, if the final agreement cuts across policy areas within the preserve of the member states, such as certain elements of services, transport and investment protection – as many recent EU FTAs have done (for example with Peru and with Columbia) – it will be classed as a ‘mixed agreement’ and require additional ratification by every national parliament in the EU. The EU Treaties would also need to be amended to reflect the UK’s departure. In effect, this means that the final deal at the end of a negotiated UK exit from the EU would need to be ratified by EU leaders via a qualified majority vote, a majority in the European Parliament and by the remaining 27 national parliaments across the EU.

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Are there withdrawal options other than Article 50?

Theoretically, there is nothing to stop a British Government unilaterally withdrawing from the EU by simply repealing the 1972 European Communities Act. Article 50 compels only the EU to seek a negotiation, not the withdrawing member state. However, while this may be the case in principle, such an approach would likely damage the UK’s chances of striking a preferential trade agreement with the EU after exit – since its first act as an ‘independent’ nation would have been to have reneged on its EU treaty commitments. It would also mean there is no transition period, so EU legislation along with the UK’s free trade agreements via the EU lapse immediately. Since some EU law applies in the UK directly, the UK would need to legislate to replace it.

When would Article 50 be triggered?

The Prime Minister’s spokeswoman said today “a vote to leave is a vote to leave” and suggested that Article 50 would be triggered immediately if the referendum vote were for Leave. This was confirmed by David Cameron in the House of Commons, adding that Article 50 is the only way to leave. When it is triggered is ultimately up to the UK government but it is hard to imagine that it could be significantly delayed after a leave vote. Some have suggested that, since the EU cannot throw the UK out, one way would be for the UK government to use a No vote in the referendum as a de facto negotiating mandate. But this would depend on the EU’s willingness to negotiate an exit before Article 50 was triggered.

Similarly, any alternative mechanism for exit would need to be devised and agreed by the rest of the EU – a significant gesture of goodwill. Nevertheless, any potential agreement the UK struck with the EU at any point after withdrawal would come up against the same dynamics as Article 50, most notably requiring approval by EU leaders, MEPs and national parliaments. Therefore, unless the UK is truly prepared to ‘go it alone’, any ‘unilateral withdrawal’ option is tricky.