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Revoking an Article 50

by Alan Dashwood | 18.07.2016

The vote on 23 June for the UK to leave the EU is beginning to expose uncertainties in the withdrawal procedure laid down by Article 50 of the EU Treaty. Among the issues currently being debated is whether it would be possible to revoke a formal Article 50 notice to withdraw from the EU before the withdrawal process has been completed. In other words, would the die have been cast irretrievably for the UK to exit the European Union once Article 50 is triggered, or could the process be reversed before its conclusion if the UK wished to do so?

The wording of Article 50 itself is inconclusive. Paragraph 3 of the Article reads: “The Treaties shall cease to apply to the State in question from the date of the 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”.

Nothing is said there as to whether or not the running of the two-year time limit for negotiating a withdrawal agreement can be interrupted. Must this silence be taken to mean that, absent an agreement on the terms of departure or an extension agreed by all member states, the UK’s membership of the EU would end automatically two years after the date when notice was given, even if that were no longer the outcome desired by the Government or the British people, the real consequences of withdrawal having by then sunk in?

There is no reason in law why that should be so.

A close reading of Article 50 would suggest that the cut-off after two years is to operate “failing” the negotiation of an agreement. In other words, its aim is to ensure that the wish of the State concerned to withdraw should not be frustrated, if agreement cannot be reached. Should the State no longer wish to withdraw, the absence of an agreement would not represent a “failure”, because no agreement would be needed.

Can it be argued against the possibility of revocation that, to allow this would be incompatible with the requirement of unanimity in the European Council for any extension of the two-year period, because it would open the way for a State to secure additional negotiating time by revoking its Article 50 notice and then invoking it once again?

The argument is unconvincing: such a tactic would be self-defeating, for the obvious reason that it takes two to tango. A State that indulged in  trickery of this kind would find that the other member States were unwilling to negotiate with it, thus condemning itself to a disorderly withdrawal without a negotiated agreement.

The truth is that the matter would be determined politically if the UK decided that it wished to revoke its Article 50 notification. On the one hand, if a majority of Member States, including most of the bigger ones, opposed revocation, remaining in the Union – like a bad tenant waiting to be bribed to vacate the premises – would simply not be practicable – the two-to-tango argument, again.

On the other hand, if a similar majority were willing to allow the revocation, however grudgingly, then the provisions of Article 50 would not prevent this outcome. If it came to litigation it is very hard to believe that, on such an issue, the Court of Justice would take a position different from that of the majority of the Member States, whether it was in favour of our staying or of our leaving the EU.

Professor Sir Alan Dashwood, KCMG CBE QC, has a 40-year career in EU law spanning most forms of legal practice – as an advocate, scholar, teacher, author, editor and a senior EU civil servant. He contributed this article to InFacts.

Edited by Geert Linnebank