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The legal framework of #Brexit: the key is Article 50 of Lisbon

Stefano Fugazzi (ABC Economics) – A decision to leave the European Union will begin with the UK Government invoking Article 50 of the Treaty of Lisbon and commence negotiations on the terms of the withdrawal. Article 50 allows a Member State unilaterally “to withdraw from the Union in accordance with its own constitutional requirements” (Article 50, paragraph 1).

Article 50, paragraph 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.

Article 218(3):

The Commission, or the High Representative of the Union for Foreign Affairs and Security Policy where the agreement envisaged relates exclusively or principally to the common foreign and security policy, 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.

While invoking Article 50 of Lisbon, a Member State shall begin negotiations with the European Council i.e. EU Heads of State and Government, particularly with reference to the transitional period whilst taking account of the framework for [a State’s] future relationship with the Union (see Article 50, paragraph 2).

According to Sir David Edward, a former high profile judge at the European Court of Justice from 1992 to 2004, a long negotiation period under Article 50 would be necessary because “withdrawal from the Union would involve the unravelling of a highly complex skein of budgetary, legal, political, financial, commercial and personal relationships, liabilities and obligations”. However, it should be noted that (i) negotiations are expected to last a maximum of two years (unless extended by unanimous agreement) and (ii) the decision to leave does not require formal agreement of the other Member States as withdrawal can happen, whether or not there is a withdrawal agreement, two years after the leaving State notifies the European Council of its intention to leave the EU.

Article 50, paragraph 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.

Under Article 50(5), if a State which has withdrawn from the Union asks to rejoin, it must re-apply under the procedure referred to in Article 49 that implies that the applicant would basically start completely afresh:

Article 49:

Any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union. The European Parliament and national Parliaments shall be notified of this application. The applicant State shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the assent of the European Parliament, which shall act by an absolute majority of its component members. The conditions of admission and the adjustments to the Treaties on which the Union is founded, which such admission entails, shall be the subject of an agreement between the Member States and the applicant State. This agreement shall be submitted for ratification by all the contracting States in accordance with their respective constitutional requirements. The conditions of eligibility agreed upon by the European Council shall be taken into account.




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