The legal nature of the withdrawal agreement

Katharina Behrend

LERU Brexit Seminar

LERU Brexit Seminar

 

The negotiations between the EU and the United Kingdom (UK) about the UK’s withdrawal from the EU in March 2019 are underway. For both sides Brexit has proven to be much more difficult so far than expected. This can be observed with regard to its political but also its legal challenges. In particular, the withdrawal agreement between the EU and the UK raises interesting questions about the competence of the EU to negotiate treaties in the field of public international law. In the context of the withdrawal agreement, the basic provision of Article 50 TEU shows legal gaps and linguistic imprecision.

This blog post will take a closer look at the history and the purpose of Article 50 TEU and the legal nature of the withdrawal agreement. It argues that the imprecision of Article 50 TEU can be explained by its political dimension.

History and purpose of Article 50 TEU

Article 50 TEU is the legal basis for a withdrawal of a Member State from the EU. There was a long debate among the EU/EC Member States and EU law scholars whether Member States should have the opportunity to leave the EU/EC, as the EU/EC treaties were silent about it. Despite this, the possibility of withdrawal played a role, e.g., in the referendum in the UK in 1975, or during the election campaign in Greece in 1981, although that state had joined the EC only months before. In EU law scholarship, the right to withdraw was one of the most discussed topics for decades. There were mainly two opinions. Some scholars argued that becoming a Member State is a “one-way ticket”, i.e., that the state enters an insoluble bond with the EU and is obliged to stay in, if only because the treaties did not provide for a withdrawal. Others referred to rules and principles of public international law. The Vienna Convention on the Law of Treaties (VCLT) gives states a right to withdraw from a treaty under specific circumstances (Articles 56, 60-62 VCLT). At least, it was argued, the principle of the sovereign equality of states (e.g., Article 2(1) UN Charter) must give the Member States the right to withdraw from the EU/EC, as a state cannot be bound to an international treaty against its will, even if the treaties do not expressly mention the possibility of withdrawal. Basically, this question was, and is still, part of another related ongoing debate: the question whether EU law is a so-called “self-contained regime”, or whether legal gaps in EU law can be filled with rules from public international law.

The European Convention on the Future of Europe (ECFE), which was entrusted with drafting a Constitutional Treaty for the EU, finally did deal with the right to withdraw from the EU. Some Member States (including the UK) supported consideration of this concern in the process of drafting that treaty. In the end, Valérie Giscard D’Estaing, President of the ECFE, put forward a draft provision, which corresponded largely to the version in the current EU Treaty (TEU). Although the Constitutional Treaty as such failed to be adopted, due to the negative referendums in France and the Netherlands in 2005, the provision became part of the Treaty of Lisbon (Article 50 TEU) (merely with some editorial changes).

Since then the issue of a right to withdraw has been resolved. Now, however, the question whether Article 50 TEU in fact thwarts the goal of an “ever closer Union”, and thus the possible longer-term aim of becoming the “United States of Europe” has come to dominate scholarly debate.

In my view, there is a strong political dimension to Article 50 TEU. It was meant to provide a Member States with effective leverage against the EU, in case there were EU actions which that Member State could not ― or did not want to ― support. This has become especially important as there has been repeated conflict between the EU and its Member States ― more particularly between some Member States and other Member States ― about conferring competences on the EU, and how this may affect their sovereignty. As a form of leverage in this sense, Article 50 TEU was almost certainly never meant to be triggered in fact, and this can explain the legal gaps and linguistic imprecision. If it had been meant to be triggered in fact, then the article would have been more detailed, as all those involved must have been aware that a withdrawal of a Member State from the EU is a major step, needing a clear framework and procedure.

Withdrawal agreement – open questions

The legal gaps and the linguistic imprecision cause particular uncertainties with regard to the withdrawal agreement upon which the EU and the withdrawing Member State need to agree. Article 50(2) 2nd sentence TEU provides that “an” agreement should be negotiated that takes into account two aspects: “the arrangements for its withdrawal” and “the framework for its future relationship with the Union”. While it is not entirely clear to what extent it is possible to consider both aspects fully in one agreement, the European Council stated in its immediate response to the UK’s triggering of Article 50 TEU that the two elements would not be negotiated simultaneously, but rather in two phases, commencement of negotiations on the future “framework” (Phase 2) being dependent on the degree of progress on the arrangements for withdrawal (Phase 1).

Given the exact wording of Article 50(2) 2nd sentence TEU (“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“), it is in fact not entirely clear whether the approach taken by the European Council is formally correct, as one reading might suggest that the framework of the future relationship should, at least in some way, influence (if not govern) the withdrawal agreement. Another reading might, however, justify the European Council’s serial approach, which as such appears to have been adopted in particular in order to safeguard vital interests of the EU.

What appears completely clear from Article 50 TEU, however, is that the detail of the future relationship is not the stuff of the initial withdrawal agreement. Also, Article 50(2) TEU does not say anything about the actual content of the withdrawal agreement. Some scholars have argued that this might be difficult to do beforehand, as this depends on the policy and politics of the individual withdrawing Member State; every withdrawal (should there be any further cases) is likely to be different. However, in the interests of legal certainty and the equal treatment of all Member States, Article 50 TEU should be more detailed and therefore amended in the next treaty revision. However, in the light of the enormously complex and often confusing negotiating process still affecting the withdrawal of the UK, it is not entirely clear what amendment(s) ought in fact be proposed. One conceivable aim might be to specify certain limits on the right to withdraw, echoing the “leverage” character of Article 50 TEU mentioned above. On the other hand, this would almost certainly open the Pandora’s Box of the ECFE once again. More likely might be changes which lay down a clear procedural path, such as that adopted in fact by the European Council. That, however, as has been seen, provides no guarantee that the withdrawing Member State is in a position to adhere to such a procedure in a systematic, timely and constructive way, especially where domestic politics erect almost insurmountable barriers to doing so. Put another way, one must seriously ask whether the obvious difficulties associated with the present Brexit process would in fact have been avoided by a more carefully worded Article 50 TEU.

Not only the content of the agreement concluded under Article 50 TEU is an open issue with very particular characteristics, the categorization of that agreement within the framework of EU law will be special as well. According to Articles 218 and 216 TFEU, the EU is allowed to negotiate an agreement only with third countries (or international organizations), but not with any of its own individual Member States. Otherwise, that might create an opportunity for Member States to “renegotiate” the EU treaties, as it were internally, in order to reach a better deal, probably causing a chain reaction, as other Member States would try to do that too. In that light Article 50 TEU (also because it only refers to Article 218(3) TFEU) should be considered lex specialis (compared with Articles 218 (and 216) TFEU) in that it lifts the negotiating ban in case of a withdrawing Member State. That is, Article 50 TEU can be regarded as an explicit norm for concluding a so-called “inter-se agreement” to the extent that the EU is concluding a special treaty with an existing Member State, but which becomes a “non inter-se agreement” at the moment that state leaves the EU, indeed at the moment at which that agreement presumably comes into force.


Katharina Behrend
Oxford University

Katharina Behrend is a DPhil in Law student at the University of Oxford. Her doctoral work focuses on trade secrets. She is also a co-convenor of the Intellectual Property Discussion Group.


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Please note that this article represents the view of the author(s) alone and not European Futures, the Edinburgh Europa Institute or the University of Edinburgh.

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