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Brexit: 4 things Vote Leave got wrong

by Piet Eeckhout | 08.03.2016

Piet Eeckhout, Professor of EU Law at University College London, highlights four major errors Vote Leave made when considering the process and consequences of Brexit.

  • Article 50 as the only lawful route to withdraw

Vote Leave point to the withdrawal of Greenland and of Algeria. Both were partial withdrawals, as neither was ever a member state. They also took place at a time when the EU Treaties did not have any provisions on withdrawal. These are not precedents, because since the 2009 entry into force of the Treaty of Lisbon, there is now an express provision on withdrawal, which regulates the process in substantial detail. The position under EU law is most clear: it is Article 50 of the Treaty on European Union which comprehensively governs any withdrawal, and which bars any other routes to withdrawal. There is no doubt in my mind that other EU governments, the EU institutions, and the EU Court of Justice would adopt that position.

The reference to the Vienna Convention on the Law of Treaties is completely beside the point: that Convention merely expresses customary international law, and Treaties can derogate from it on matters of termination or withdrawal.

  • Whether the vote to leave and the withdrawal negotiations would have an impact on the UK’s ability to affect EU decision-making

Of course it would. Vote Leave point out that the UK would retain membership of the EU institutions until the withdrawal is effective. That is true, but whenever the EU made new legislation, the Commission, the EP and the other governments would not be very likely to listen to the UK, as it is on its way out. Most legislation is the result of majority voting, so it is pretty easy to discount the UK’s position once the UK has decided to withdraw. This is different of course in the case of continued membership, because then the UK continues to be a strong player, capable of forming coalitions.

As to Vote Leave’s reference to all the votes the UK lost: that is but a very small part of the political picture. A vote against new legislation is symbolic, at the point where the battle in the Council has been lost. The figure completely hides the countless cases where the UK was successful in EU negotiations, leading it to vote in favour of the measure.

  • Whether the UK would be constrained to negotiate and conclude new trade agreements during the withdrawal process.

As a matter of law, that is clearly the case. Trade negotiations are one of the few areas of EU exclusive competence, meaning member states are not allowed to act on their own. As long as the UK is a member, that principle would apply. The UK could definitely not conclude any agreements itself; nor could it apply them provisionally. Informal talks would be possible, of course, but it is not clear how substantive they could be. The UK would first need to set up its own external trade regime – what tariffs to apply – before being in a position to negotiate free trade agreements. Setting up that regime would need to be done within the framework of the World Trade Organisation (WTO), and the EU would have a say on that, as would all other WTO members.

  • The status and entitlements of UK citizens in other member states.

To say that the rights of residence would end is not baseless scaremongering. All of this would need to be negotiated, and the EU could be expected to require reciprocity. Moreover, there is not just the mere right of residence. There is a range of issues concerning benefits, pensions, health treatment, access to education, etc, which are now all governed by EU law. If and when the UK were no longer a member, the protection of EU law would disappear, unless arrangements were made to continue it. Those arrangements will depend on the UK-EU negotiation under Art 50. The reference by Vote Leave to Art 39(2) of the EU Charter, concerning collective expulsions, is rather beside the point. The principle is simply that illegal residents can be deported – that is a principle to which the UK itself adheres. So unless arrangements are made for continued residence rights, the other EU member states would be entitled to ask UK citizens to leave.

Edited by Jack Schickler

A version of this article also appeared on the UCL European Institute blog.