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Guide to the Brexit Negotiations | EU Law Analysis |

The guidelines do not refer to any possible withdrawal of the UK notification, although the EP resolution (point L) assumes that a withdrawal of the notification is possible with consent. There is also an argument that the time period for withdrawal in Article 50 could be extended indefinitely. I will return to this issue another time.

Some have speculated that the EP might insist that the UK hold a referendum result on the outcome of the talks, as a condition for its consent to the deal. This would almost certainly backfire spectacularly, and in any event the draft EP resolution does not address this.

European integration has brought peace and prosperity to Europe and allowed for an unprecedented level and scope of cooperation on matters of common interest in a rapidly changing world. Therefore, the Union's overall objective in these negotiations will be to preserve its interests, those of its Member States, its citizens and its businesses.

'It's not you, it's me': Article 50 and the future EU-UK relationship

On 14 May 2017, the Secretary of State for Exiting the European Union David Davis was interviewed on `Peston on Sunday' and the topic was, unsurprisingly, Brexit. The contentious issues of the sequencing of the negotiations according to the Council's Guidelines for withdrawal arose. As is now known, the Chief Negotiator for the EU, Michel Barnier, has insisted that the issues of EU citizenship rights, the UK's financial liabilities and the border between the Republic of Ireland and Northern Ireland are resolved before any discussion of the future trade relationship with the UK can proceed. This position was further affirmed in the Negotiating Directives issued by the Council on 22 May 2017 which deal exclusively with the negotiating priorities of the Withdrawal Agreement. The goal of this contribution is to point out that the plain language of Article 50 does not in fact envision the necessity of a future, separate agreement to deal with the future relationship between the EU and the UK, contrary to much debate both at UK and EU level.



Global Warming - distance between America and Europe is steadily increasing.
by Oui on Mon Sep 24th, 2018 at 06:03:21 PM EST
I have replied to the law blog you linked to via twitter as follows:
The phrase "clutching at straws" comes to mind. Whatever way you look at it, the insertion of a simple clause or sub clause in A.50 providing for the revocation of an A.50 notification in certain circumstances would have made this whole question absolutely clear. The absence of such a clause is therefor damning. Clearly there was no intention to create such a "right" by the framers of, and parties to, the Treaty. You are asking the ECJ to create a "right" where patently none is provided for in the Treaty.

You must also take the separation of powers between the ECJ and the European Council and Parliament into account. The latter two institutions are charged with the political running of the EU. Clearly they could, at their absolute discretion, decide to accept a request for the revocation of an A.50 notification as a political act. However making a political decision to accept or reject such a revocation, and granting an absolute right to a withdrawing member to unilaterally withdraw their notice of leaving are two very different things. You are asking the ECJ to impose constraints on their powers and freedom of action which are nowhere alluded to in the Treaties.

There are also practical issues to consider. What is to prevent any member, dissatisfied on any matter, to issue A.50 notifications willy nilly only to withdraw them at the last moment if they manage to gain some negotiating leverage by doing so. The EU would be in ongoing turmoil, not knowing which notifications are for real, and which were purely tactical. Political decisions are best left to the political institutions, and the ECJ would be reluctant to intervene unless some action is clearly in breach of the Treaties. The Council and Parliament have wide discretion within the Treaties to make political decisions, and that is as it should be. The rights of any one member state are not absolute, but exist only insofar as they are provided for in those treaties.

The more interesting question is whether the Council can accept a revocation by weighted majority vote, or whether unanimity would be required. A. 50 does make provision for the extension of the 2 year notice period under A.50, but only by unanimous agreement. As a revocation most closely resembles an indefinite extension, meaning the notice party never leaves, it seems reasonable to assume a revocation would also require unanimity. That would make any decision to remain subject to the whims of each and every one of the remaining 27 member states -j ust as it takes only one member to block the accession of a new member under A.49.

The alternative point of view is that as an Exit Agreement only requires a weighted majority to be accepted by the Council, so should a decision not to conclude one and instead terminate the exit process also only require a weighted majority vote? It is a pity the ECJ is not being asked to adjudicate on this issue.The bottom line depends on whether the EU and UK continue to be on good terms as the A.50 process nears its end and the UK decides it wants to remain in after all. If relationships have become very strained there is always a possibility that a blocking minority might object to accepting a withdrawal of an A.50 notification. That too is as it should be. Membership of a club should be dependent on the willingness of all parties to work constructively together and to accept obligations as well as entitlements.

The UK has not always demonstrated a willingness to do so over the past 45 years of membership. It would be ironic indeed if it was the EU which ultimately decided it no longer wished to have the UK as a member and blocked attempts to terminate the A.50 process. Most Council members have expressed a willingness and indeed an eagerness to welcome the UK to remain in the EU should the UK change its mind so this seems a very unlikely prospect. However the invocation of A.50 should not be a cost or risk free action, and the possibility that some other members would be more than happy to see the UK or some other "difficult" member exit should not be entirely discounted. Other members have rights too, and the ECJ most take cognizance of their rights as well.



Index of Frank's Diaries
by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Mon Sep 24th, 2018 at 08:52:41 PM EST
[ Parent ]
1. EU Council "Negotiating Directives issued by the Council on 22 May 2017" has been scrubbed.
See body of European Commission receives mandate to begin negotiations with the UK (22 May 2017)

2. Garner's full legal analysis, question put to ECJ review, "syllabus" (premises of argument), and case law citations. I note with interest, as I indicated before, the subjects in dispute are ultimately (separation of powers) in the UK legislature in accordance with the "constitutional requirements of the Member State"(A50);

The purpose of the reference is to clarify for Members of Parliament whether it would be a legally valid option under Section 13 of the European Union (Withdrawal) Act* to withhold a resolution approving any negotiated withdrawal agreement, or lack thereof, and instead vote to revoke notification under Article 50(2).
* a/k/a in the UK "the Withdrawal Bill," "the Repeal Bill," or "the Withdrawal Act"

and the so-called second limb of ECJ review, namely the authority of the ECJ to judge an event which has not occurred --a statute prescribing revocation, unilateral revocation of A50-- evoked by a "Member of State" (devolved gov of Sc'land). This "limb" too contemplates separation of powers (exec, judicial, legislative) in EU gov --ECJ interpretation of statute that does not exist, a judgement, as force of law (exec and leg authority).

On 8 June 2018 the Lord Ordinary at first instance refused the petition upon three grounds: (1) the issue was hypothetical as the United Kingdom government had stated that they did not intend to revoke notification; (2) the matter was outside the Court's jurisdiction as it encroached upon Parliamentary Sovereignty; and (3) the conditions for a referral under EU law had not been met as the facts were not ascertainable and the issue was hypothetical.
Garner goes on to sketch alternative legal strategies for the petitioners of which, I note with interest, appeal to articles of the Vienna Convention on the Law of Treaties (VCLT).

All in all, I stand by my prediction.

Great pick, Oui.

Diversity is the key to economic and political evolution.

by Cat on Mon Sep 24th, 2018 at 09:20:14 PM EST
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