Following the 23 June 2016 referendum in the United Kingdom, in which the British people voted to leave the European Union, and after its Prime Minister Cameron stepped down without invoking the UK's withdrawal from the EU, the 27 EU Heads of State or Government as well as the President of the European Council and the President of the European Commission gathered in Brussels on 29 June for an informal meeting to exchange views on the political and practical implications of the referendum result. In a joint statement, they stated that Article 50 of the Treaty on European Union (TEU) provides the legal basis for the process of the UK leaving the EU and that "it is up to the British Government to notify the European Council of the UK's intention to withdraw from the Union."
Article 50, Treaty on European Union (TEU) reads as follows:
- Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
- 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.
- 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.
- 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.
- If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.
Although the UK has not yet formally notified the EU, certain actions have already been taken by key players within the European Union, feeding into the prevailing uncertainties regarding the way forward. Council President Donald Tusk appointed Belgian diplomat Didier Seeuws to head a "Special Task Force on the UK Brexit". His role will formally be of a coordinating nature. However, his most important role will be to protect the prerogatives of the Council (and hence the EU Member States) against the European Commission, which is expected to manage the (technical) bulk of the negotiations.
Regardless of speculative scenarios and power struggles over whom will take on the leading role, a formal withdrawal procedure is enshrined in the Treaties, predominantly under Article 50 TEU and Article 218 of the Treaty on the Functioning of the European Union (TFEU).
Formal procedure in a nutshell
- The UK formally notifies the European Council of its decision to withdraw from the Union.
- The European Council approves guidelines for the negotiations between the UK and the remaining 27 Member States.
- The Commission will submit recommendations on the negotiations to the Council.
- The Council adopts a decision authorising the opening of the negotiations and nominating the Union's negotiator or the head of the Union's negotiating team.
- Negotiations on a withdrawal agreement take place between the EU and the UK.
- The European Parliament consents to the withdrawal agreement by a majority of votes cast.
- The Council concludes the withdrawal agreement on behalf of the EU by qualified majority voting (20 out of 27 Member States & 65% of population of the remaining States).
- Ratification of necessary Treaty changes by remaining Member States.
Status: to be or not to be (a Member)
During the period following the formal notification, the UK will remain a Member State of the EU with all rights and obligations entrusted to it by the Treaties. However, the UK is not allowed to "participate in the discussions of the European Council or Council or in decisions concerning it" (cf. Art. 50(4) TEU). Otherwise, until the actual withdrawal, the UK representatives in the Council and European Council continue to take part in the regular institutional proceedings, including the adoption of EU legislative acts.
However, one could argue that, since a substantial amount of discussions within the aforementioned institutions 'concern' the UK and its future relationship with the European Union, it should be barred from participating in most discussions of the European Council or the Council.
Following the outcome of the referendum, outgoing UK Prime Minister David Cameron stated that the decision to trigger Article 50 TEU would be taken by the new UK leadership later this year. However, the new leadership is not formally bound by any timing.
Even though there is no timeframe within which the UK has to trigger Article 50, in practice the UK is being pressured by all Member States and European institutions to submit its notification as soon as possible. In the joint statement issued following their informal meeting, the 27 Heads of State or Government and the Council and Commission Presidents underlined that "this should be done as quickly as possible", adding that "there can be no negotiations of any kind before this notification has taken place".
Who's in charge of the negotiations?
Article 50 TEU states that the withdrawal agreement shall be negotiated in accordance with Article 218(3) TFEU. Article 218(3) TFEU stipulates that the Commission shall submit recommendations to the Council and that the Council shall adopt a decision authorising the opening of negotiations and nominating the Union negotiator or the Head of the Union's negotiating team.
According to media reports, the Commission believes that Article 50 TEU treats the withdrawing Member State as if it were already a third state, since that state should not participate in the Council's discussions on the negotiations. This would give the Commission the prerogative in the negotiations, since it is in charge of negotiations with third countries.
However, the UK should not be seen as a third state merely because it cannot participate in internal talks concerning it. Moreover, Article 50 TEU is clear about the status of the UK: the Treaties shall cease to apply to the UK from the date of entry into force of the withdrawal agreement or when the aforementioned two-year period elapses (in case of no extension) - meaning that until that very moment the UK remains a Member State.
It is important to note that Didier Seeuws was appointed by Council President Donald Tusk to head a special task force on the matter and that his appointment was not based on a Council decision as such in accordance with Article 218(3) TFEU. His role may therefore be of a more coordinating nature for now - harmonising the positions of the Member States on Brexit. Moreover, Article 50 TEU has not yet been triggered. This means that if Seeuws was appointed to be the Union's negotiator, that appointment would be premature and without legal basis. Once the procedure enshrined in Article 218(3) TFEU has been set in motion by the triggering of Article 50 TEU by the British Government, it is likely that the Council will mandate the Commission to do the bulk of the negotiations - since the Commission is best equipped to take on such a comprehensive task.
The European Parliament plays no notable role in the negotiations. However, in this particular case, the Parliament's role is crucial to the overall process since it will have to give its consent to the final agreement. Nonetheless, this also entails the right to withhold consent and to be kept in the loop of how the negotiations are proceeding, giving the Parliament certain political leverage in influencing the final content of the agreement. Notably, the Treaties are silent when it comes to the role of British Members of the European Parliament, meaning that they are able to participate in the Parliament's proceedings and even give consent to the withdrawal agreement (or not). In addition, it should be noted that the European Parliament in a resolution of 28 June has invited the Council to appoint the European Commission as negotiator for the EU in the talks with the UK over its withdrawal.
Timing of negotiations
The formal notification by the British Government to invoke Article 50 TEU initiates the two-year timeframe stipulated by Article 50(3) TEU within which the EU and the UK have to negotiate and conclude a withdrawal agreement. If an agreement has not been reached after two years following the notification, the Treaties will automatically cease to apply to the UK.
However, the two year timeframe can be extended following a unanimous decision of the Council (including the United Kingdom) to do so.
Effective withdrawal from the Union
Withdrawal of the UK from the EU becomes effective from the date of entry into force of the withdrawal agreement or automatically two years after the UK notified the European Council of its intention to withdraw (except if this period has been extended, as stated above).
The withdrawal itself does not require ratification by the remaining Member States. However, changes to the Treaties that might be necessary following the withdrawal of the UK (e.g. the territorial scope of the Treaties) do require ratification.
Despite the actions already taken and the formal procedure in place, questions regarding the way forward remain. In particular since the United Kingdom has not triggered the formal procedure, leaving the remaining EU Member States in limbo. Moreover, the procedure has never been invoked before, leaving its use open to various interpretations and scenarios.