LERU Brexit Seminar
The purpose of this piece is to update my recent article in the European Law Review on the role of the European Parliament during the Article 50 TEU process. At the time when the paper was originally accepted for publication, formal notification of the UK’s decision to withdraw from the EU as required by Article 50(2) had not yet been delivered to the European Council. Furthermore, it remained unclear from statements made by ministers in the UK government whether Brexit would result in one, two or three separate agreements (or none, should a no-deal Brexit materialise).
We are now more than six months into the two-year time period mandated by Article 50(3) within which to conclude a withdrawal agreement (absent the unanimous decision of the UK and EU27 to extend the deadline). The position of the UK government has been clarified to a certain extent, with its preferred option now seeming to be the conclusion of a withdrawal agreement before March 2019 and that such an agreement will also make provision for a time-limited ‘transitional period.’ According to Brexit Secretary David Davis, this transitional agreement can be concluded on the same legal basis as the withdrawal agreement (Article 50).
From the perspective of EU law, what we are likely to have (should negotiations prove successful) are two separate agreements: (1) a withdrawal agreement concluded under Article 50 TEU which also makes provision for a transitional period beyond March 2019 and (2) an agreement setting out the future relationship between the UK and the EU on trade and other matters under Article 218 TFEU. Leaving the agreement over any future UK-EU relationship to one side for the time being, this piece will consider the role that the European Parliament might play in the negotiation and conclusion of the withdrawal agreement under Article 50.
Parliament Consent Requirement for Withdrawal Agreement
Based solely on the wording of Article 50(3) TEU, it seems as if the European Parliament has no role to play during the negotiation of the withdrawal agreement and will only enter the picture at the end of the process, in order to give or withhold its consent to the final deal. Should consent not be forthcoming at this stage, it is clear from Article 50(3) that proceedings cannot then move on to a qualified majority vote in the EU Council. Consequently, without the consent of the European Parliament, no withdrawal agreement can be concluded and the prospect of a ‘no-deal’ or ‘cliff-edge’ Brexit becomes very real indeed. As an aside, Article 82 of the European Parliament’s Rules of Procedure provides that, in the case of Article 50 withdrawal agreements, ‘Parliament shall decide whether to give its consent to an agreement on the withdrawal by a majority of the votes cast.’
The question to be posed, then, is whether the European Parliament can influence the negotiations during the two-year period, notwithstanding its role being formally restricted to a single vote on consent when presented with a final deal? In a resolution passed in April 2017, the Parliament ‘points out that full involvement of the European Parliament is a necessary precondition for it to give its consent to any agreement reached between the European Union and the United Kingdom.’
Furthermore, following the UK government’s announcement that its official policy was to seek a time-limited transitional period beyond March 2019, the European Parliament passed a further resolution in October 2017, in which the European Parliament:
Notes…that the Prime Minister of the United Kingdom proposed in her speech of 22 September 2017 a time-limited transitional period; points out that such a transition can only can only happen on the basis of the existing European Union regulatory, budgetary, supervisory, judiciary and enforcement instruments and structures; underlines that such a transitional period, when the United Kingdom is no longer a Member State, can only be the continuation of the whole of the acquis communautaire which entails the full application of the four freedoms (free movement of citizens, capital, services and goods), and that this must take place without any limitation on the free movement of persons through the imposition of any new conditions; stresses that such a transitional period can only be envisaged under the full jurisdiction of the Court of Justice of the European Union (‘CJEU’); insists that such a transition period can only be agreed provided that a fully-fledged withdrawal agreement covering all the issues pertaining to the United Kingdom’s withdrawal is concluded…
Although this latter resolution does not say so in as many words, reading it alongside the April 2017 resolution strongly implies that the European Parliament may well withhold consent from any withdrawal agreement in the event that its concerns are not addressed. Whilst this position is significant in itself (particularly given the Parliament’s insistence that the withdrawal agreement must incorporate the full set of rights EU citizens currently enjoy), this stance has taken on even greater importance following the abovementioned view of the UK government that a transitional agreement can be based upon Article 50 TEU.
In effect, by seeking to place the details of the withdrawal itself alongside any transitional period within a single Article 50 withdrawal agreement, the European Parliament has been handed two separate grounds for withholding its consent. Not only can it now object to the provisions of the withdrawal agreement (for instance, on citizens’ rights), it can now also object to the terms of any transitional deal. Indeed, it would appear from the October 2017 resolution that unless any transitional period contains the continued application of all four freedoms and the jurisdiction of the CJEU, the European Parliament with not be forthcoming in providing its consent to any withdrawal agreement.
Consequently, despite Article 50(3) TEU envisaging a limited role for the European Parliament at the end of the process, it is clear that the views of the Parliament must be taken seriously throughout the negotiating process. Moreover, by insisting that any transitional arrangements can be adopted as part of an Article 50 withdrawal agreement, the European Parliament has gained an even greater degree of influence over the entire process.
Can the Parliament Seek an Opinion from the CJEU?
In addition to seeking to influence the direction of travel of the negotiations prior to being asked to consent to the withdrawal agreement, it is also worth considering whether the European Parliament can seek an opinion on the legality of any proposed agreement from the Court of Justice of the European Union (CJEU) prior to such a vote. Article 218 TFEU governs the negotiation and conclusion of agreements between the Union and ‘third countries or international organisations.’ According to Article 218(11) TFEU: ‘…the European Parliament…may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the Treaties. Where the opinion of the Court is adverse, the agreement envisaged may not enter into force unless it is amended or the Treaties are revised.’
Can the European Parliament request an opinion from the CJEU on the legality of the proposed UK-EU withdrawal agreement before providing its consent under Article 50(3) TEU? The answer will depend upon the legal basis of the withdrawal agreement. The first point to note is that Article 50 is silent on the question of referring the legality of any proposed withdrawal agreement to the CJEU.
Essentially two scenarios exist. The first would be to treat the UK-EU withdrawal agreement as analogous to an international agreement concluded under Article 218 TFEU, with the result that the EP would be able to refer its legality to the CJEU under Article 218(11). The second is to view the withdrawal agreement concluded by the EU and a Member State which is soon to become a third country as a legally distinct type of agreement which does not fall within the scope of Article 218. If this is correct, the procedure as laid down in Article 50 TEU is all that is applicable to the withdrawal agreement, with the result that the European Parliament cannot request an opinion from the CJEU before voting to provide or withhold consent under Article 50(3).
Scenario 1: Request for a CJEU Opinion is Possible
The first scenario would be to treat the withdrawal agreement under Article 50 TEU as analogous to an agreement between the EU and a third state for procedural purposes. Support for this approach can be found in the reference to Article 218(3) by Article 50(2) TEU, which provides that the withdrawal agreement is to be ‘negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union.’
Does an Article 50 withdrawal agreement that is negotiated in accordance with Article 218 result in it being considered as an international agreement for the purposes of the rest of Article 218? The answer to this question carries with it important procedural implications with regards to the role of the European Parliament during the Brexit process. In particular, given that Article 50 TEU is silent on the matter, the possibility for the Parliament to request an opinion from the CJEU on the legality any UK-EU withdrawal agreement before giving its consent under Article 50 is at stake.
If the withdrawal agreement can indeed be interpreted so as to fall within the ambit of Article 218, Article 218(11) TFEU would allow the European Parliament to seek an opinion from the CJEU before providing its consent. Moreover, according to Rule 108(6) of the European Parliament’s Rules of Procedure governing international agreements, before any vote is taken on giving consent to an international agreement, ‘the committee responsible, a political group or at least one-tenth of the Members may propose that Parliament seek an opinion from the Court of Justice on the compatibility of an international agreement with the Treaties. If Parliament approves such a proposal, the vote shall be adjourned until the Court has delivered its opinion.’
As a result, a mere 75 MEPs could proposal seeking an opinion on the legality of a withdrawal agreement from the CJEU. It would then be for the European Parliament to approve or reject this proposal for an opinion. Two questions arise here: first, how does the European Parliament ‘approve’ such a proposal? Second, would seeking an opinion from the CJEU also impact upon the two-year time limit set down in Article 50(2) TEU?
With regard to approving the request for an opinion from the Court, Rule 108(6) Rules of Procedure is silent. Rule 99(4) provides, however, that wherever the European Parliament is required to give its consent on a legally binding act, ‘Parliament shall decide on the proposed act by means of a single vote on consent.’ Furthermore, the default voting rules of the European Parliament are set out in Article 231 TFEU: ‘Save as otherwise provided in the Treaties, the European Parliament shall act by a majority of the votes cast. The Rules of Procedure shall determine the quorum.’
A combined reading of these two provisions provides that the European Parliament may approve a request for an opinion from the CJEU on the legality of a withdrawal agreement by a majority of votes cast in a single vote procedure. But what is the quorum necessary for such a vote to be valid? Article 168(2) Rules of Procedure provides that ‘A quorum shall exist when one third of the component Members of Parliament are present in the Chamber.’ Accordingly, should the withdrawal agreement be interpreted in such a way as to bring it within the ambit of Article 218(11) TFEU, 10 per cent of MEPs may propose that such an agreement be referred to the CJEU for an opinion on its legality with the EU treaties. This proposal can be approved by a majority of votes in the European Parliament, provided that at least one third of MEPs are present for the vote.
As was noted above, following notification of the UK’s decision to withdraw from the EU on 29 March 2017, the two-year period within which to negotiate and conclude a withdrawal agreement commenced. Operating on the assumption that Scenario 1 above is correct and it is possible for the European Parliament to seek an opinion from the CJEU, the question necessarily arises as to whether filing such a request before the Court would stop the two-year clock from ticking? Once again Article 50 TEU says nothing on this matter. Indeed, absent the unanimous consent of the UK and European Council, there would appear to be no way of stopping the clock.
Does this mean that the UK could crash out of the EU without an agreement because the two-year time limit expired with an opinion from the CJEU still pending? Whereas the treaties and the Rules of Procedure are silent on the suspensory nature of a request for an opinion from the CJEU vis-à-vis the two-year time limit, it is nonetheless clear that the European Parliament cannot vote to give its consent while the case is pending. As Rule 108(6) makes clear, ‘[i]f Parliament approves such a proposal, the vote shall be adjourned until the Court has delivered its opinion.’ Therefore, if the European Parliament does find a way to refer the legality of the withdrawal agreement to the CJEU, the ability to stop the clock is of the utmost importance. Without stopping the clock, the European Parliament must wait for the CJEU’s opinion before it can move to a vote to consent to the withdrawal agreement.
Scenario 2: Request for a CJEU Opinion is Not Possible
Scenario 1 fundamentally rests on interpreting withdrawal agreements in such a way as to bring them within the scope of Article 218 TFEU. Essentially, this requires one to view an agreement signed between the EU and the UK as analogous to ‘agreements between the Union and third countries or international organisations’ under Article 218(1) TFEU, since the UK is soon to become a third country. Without such an interpretation, however, there is nothing in Article 50 TEU or any other provision of the EU treaties which would allow the European Parliament to request an opinion from the CJEU on the legality of a withdrawal agreement.
The second scenario presumes that such an interpretation is not possible and, therefore, that the European Parliament cannot request an opinion from the CJEU prior to voting to give its consent to a withdrawal agreement. According to this view, the withdrawal agreement is a distinct type of agreement between the EU and a current Member State, with the result that the Article 218(11) TFEU opinion procedure does not apply to Article 50 withdrawal agreements. In support of Scenario 2, the first point to note is that Article 50 deals specifically with withdrawal agreements and does not leave their negotiation and conclusion solely to Article 218 – thus suggesting that there is a legal difference between the two types of agreement from the perspective of their negotiation and conclusion.
Furthermore, the fact that the EU would be negotiating and concluding a withdrawal agreement with an existing member state and not a third state lends support to this positon. In this regard, the UK will not legally be a third state until after the withdrawal agreement enters into force (or crashes out without a deal). As Article 50(3) provides: ‘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.’
With regards to the substance of Scenario 1 above, the reference in Article 50(3) to Article 218(3) TFEU concerns only the negotiation and not the conclusion of the withdrawal agreement. Whereas Article 218(3) provides the legal basis for the EU Council’s decision to appoint the European Commission as negotiator and authorise the opening of negotiations, the conclusion of any agreement duly negotiated is clearly governed ‘by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament under Article 50(3) TEU.’
In other words, the negotiation of the withdrawal agreement is governed by Article 218(3) TFEU, whereas the conclusion is governed by Article 50(3) TEU (requiring consent of the European Parliament followed by QMV in Council). In following this to its logical conclusion, then, since Article 50 governs the consent of the European Parliament to the withdrawal agreement, and it does not provide for a mechanism to request an opinion from the CJEU before voting to provide such consent, no such request is possible under Article 50 TEU.
Therefore, if Scenario 2 is correct, the European Parliament can only vote to provide or withhold its consent from the withdrawal agreement. Whilst it may have doubts as to the legality of the agreement, this is something that MEPs will have to factor in to their decision to vote in favour or against giving consent. They will not be able to ask the CJEU for assistance.
Despite the seemingly restrictive wording of Article 50, the European Parliament has clearly sought to influence the withdrawal negotiations prior to being asked to give its consent to a final deal. The ability of the Parliament to seek an opinion from the CJEU on the legality of the withdrawal agreement will ultimately come down to a matter of interpretation, given the silence of Article 50. However, since it is unclear whether such a request would stop the two-year negotiating clock, the possibility of the UK crashing out of the EU without a deal by virtue of the time period expiring whilst a request for an opinion is pending before the CJEU cannot be entirely excluded.
University of Edinburgh
Darren Harvey is Early Career Fellow in EU Law at the University of Edinburgh and PhD Candidate in Law at the University of Cambridge. His research interests include in European Union law, comparative constitutional law and judicial review.
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