Facts Explained Article 50 Withdrawal from European Union
What is Article 50?
Withdrawal from the European Union is a right of European Union (EU) member states under the Treaty on European Union (Article 50): "Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements."
Article 50 sets out the processes and deadlines that would govern an exit from the EU and is the only legal way to leave the union.
The right of a Member State to withdraw from the European Union was introduced for the first time with the Lisbon Treaty; the possibility of withdrawal was highly controversial before that.
Article 50 TEU does not set down any substantive conditions for a Member State to be able to exercise its right to withdraw, rather it includes only procedural requirements. It provides for the negotiation of a withdrawal agreement between the EU and the withdrawing state, defining in particular the latter's future relationship with the Union. If no agreement is concluded within two years, that state's membership ends automatically, unless the European Council and the Member State concerned decide jointly to extend this period.
The legal consequence of a withdrawal from the EU is the end of the application of the EU Treaties (and the Protocols thereto) in the state concerned from that point on.
EU law ceases to apply in the withdrawing state, although any national acts adopted in implementation or transposition of EU law would remain valid until the national
authorities decide to amend or repeal them.
A withdrawal agreement would need to address the phasing-out of EU financial programmes and other EU norms.
Experts agree that in order to replace EU law, specifically in any field of exclusive
EU competence, the withdrawing state would need to enact substantial new legislation and that, in any case, complete isolation of the withdrawing state from the effects of the EU acquis would be impossible if there is to be a future relationship between former Member State and the EU. Furthermore, a withdrawal agreement could contain provisions on the transitional application of EU rules, in particular with regard to rights deriving from EU citizenship and to other rights deriving from EU law, which would otherwise extinguish with the withdrawal.
Article 50 – Treaty on European Union (TEU) –
1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
2. 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.
3. 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.
4. 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.
5. 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.
Relevant international-law provisions cannot be applied in parallel to Article 50 TEU.
Rather, the procedure and consequences of a withdrawal from the EU are now governed by EU law and no recourse to international law is possible.
This is all the more important as Article 50 TEU lowers the conditions for a withdrawal as stipulated under international law.
Under Article 62 of the Vienna Convention, a state party can withdraw from a treaty only if there is a fundamental change of circumstances which has occurred compared to those existing at the time of the conclusion of that treaty. In contrast, Article 50 TEU does not establish any substantive conditions for a Member State to be able to exercise its right to withdrawal, but only procedural requirements.
Expert opinions on the legal situation prior to the introduction of the withdrawal clause arguing that a withdrawal should be ultima ratio and that any Treaty changes should have priority, are not reflected in Article 50 – it does not require a Member State considering a withdrawal to first seek agreement on the amendment of the Treaties before triggering the withdrawal procedure. Commentators have criticized the mere procedural character of the withdrawal clause, which does not even oblige the
withdrawing Member State to state formally a reason for its decision.
The formal withdrawal process is initiated by a notification from the Member State wishing to withdraw to the European Council, declaring its intention to do so. The timing of this notification is entirely in the hand of the Member State concerned, and informal discussions could take place between it and other Member States and/or EU institutions prior to the notification. The European Council (without the participation of the Member State concerned) then provides guidelines for the negotiations between the EU and the state concerned, with the aim of concluding an agreement setting out concrete withdrawal arrangements. These arrangements should also cover the
departing Member State's future relationship with the Union. The Union and the Member State wishing to withdraw have a time-frame of two years to agree on these arrangements. After that, membership ends automatically, unless the European Council and the Member State concerned jointly decide to extend this period (Article 50(3) TEU).
The role of the European Commission in the withdrawal procedure is not entirely clear in the Treaties. According to Article 218(3) TFEU, the European Commission would make
recommendations to the Council to open negotiations with the withdrawing state. As a general rule, the Commission negotiates agreements with third countries on behalf of the EU, but Article 218(3) leaves it open for the Council to nominate a different Union negotiator.
Before concluding the agreement, the Council would need to obtain the European Parliament's consent (Article 50(2) TEU). It should be noted that whilst, under Article 50(4) TEU, the member of the European Council or of the Council representing the withdrawing Member State does not participate in the discussions of the two institutions or in decisions concerning the withdrawal, no similar provision exists for Members of the European Parliament (MEPs) elected in the withdrawing Member State. This has led some to conclude that the Treaties therefore do not prevent MEPs elected in the Member State in question from participating either in debates in the Parliament and in its committees, or from voting on Parliament's motion to consent to the withdrawal agreement, given the role of MEPs as representing the Union's citizens as a whole and not only those of the Member State in which they were elected.
The Council decides to conclude the agreement with a 'super qualified majority', without the participation of the state concerned. The qualified majority is defined in this case as at least 72% of the members of the Council, comprising at least 65% of the population of the Member States (without the withdrawing state) (Article 238(3) b TFEU).
Ratification by Member States –
Unlike the accession of new Member States to the EU, the withdrawal of a Member State does not require ratification by the remaining Member States – Article 50(1) TEU mentions (in a declaratory way) only the decision of the withdrawing state, in accordance with its constitutional requirements. However, any Treaty changes or international agreements (such as a free trade agreement) that might be necessary as a consequence of the withdrawal agreement would need to be ratified by the remaining Member States in accordance with Article 48 TEU. At the very least, Article 52 TEU on the territorial scope of the Treaties, which lists the Member States, would need to be
amended, and Protocols concerning the withdrawing Member State revised or repealed.
Consequences of a withdrawal and possible content of a withdrawal Agreement -
Under Article 50(3) TEU, the legal consequence of a withdrawal from the EU is the end of the application of the Treaties and the Protocols thereto in the state concerned from that point on. EU law ceases to apply in the state concerned, although any national acts adopted in implementation or transposition of EU law would remain valid until the national authorities decide to amend or repeal them. A withdrawal agreement would need to address the phasing-out of EU financial programmes and other EU norms. Experts agree that, in order to replace EU law, specifically in any field of exclusive EU competence, the withdrawing state would need to enact substantial new legislation and that, in any case, a complete isolation of the withdrawing state from the effects of the EU acquis would be impossible if there were to be a future relationship between the former Member State and the EU.11 The rights and obligations deriving from the Treaties would therefore extinguish, at least to the extent agreed between the EU and the withdrawing state. In addition, agreements between the EU and third countries or international organizations, for example on trade, would also cease to apply to the withdrawing state, and it would thus need to negotiate alternative arrangements.
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Friday, July 15, 2016
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15 July 2016
Facts Explained Article 50 Withdrawal from European Union