What is Article 50?
Article 50 is the article of the Treaty on European Union (TEU) which sets out how a country can leave the European Union. Article 50 was inserted into the TEU by the Lisbon Treaty, which came into force in 2009.
Article 50 has never been used: no country has ever left the EU; and when the territory of Greenland left, after gaining autonomy within Denmark, it was before Article 50 existed.
Article 50 requires the departing member state and the EU to negotiate an exit agreement ‘setting out the arrangements for [the state’s] withdrawal’.
How is Article 50 triggered?
The Article 50 process is triggered when the departing country formally notifies the European Council – the body of EU member state leaders, plus President Donald Tusk – that it wishes to leave the EU. The UK is likely to give notification in a letter, which may set out the UK’s objectives for the withdrawal agreement.
The domestic processes that the UK must go through before triggering Article 50 are subject to legal and political dispute. The Government maintains that the triggering of Article 50 falls within its Prerogative powers and requires no authorisation from Parliament. The Government’s position was challenged in two legal cases, in London and in Belfast; these were combined and presented to the High Court in October 2016.
The High Court judged that Parliament is required to authorise the Government to trigger Article 50. The Government has appealed this, and a fresh case will be heard at the Supreme Court in December 2016.
Meanwhile, as a result of pressure from MPs, the Government has committed to ensuring that the House of Commons ‘is able properly to scrutinise’ its plan for leaving the EU before Article 50 is triggered, but it is not clear whether there will be a vote.
When will Article 50 be triggered?
Assuming that the legal cases do not hold up the process, the Government has said that it will trigger Article 50 between the start of January and the end of March 2017.
The Government does not wish to trigger Article 50 until it has prepared its position for the negotiations with the EU. This process is likely to involve decisions about not only the Article 50 issues but also the future relationship with the EU that the UK will seek. As a result, the pre-negotiation phase involves a huge and politically charged cross-government information-gathering and priority-setting exercise. As well as reaching an agreed position itself, the UK Government needs to take into account the perspectives of Scotland, Wales, Northern Ireland and Gibraltar.
How does the Article 50 process work?
On the EU side, once the European Council has received the UK’s Article 50 notification it determines guidelines for the EU’s negotiation of the withdrawal agreement. These are likely to set out the negotiation’s broad scope and objectives from the EU’s perspective.
Article 50 states that after this the procedure for negotiating the withdrawal agreement is the same as that for the negotiation of an EU agreement with a third country. The European Commission submits a detailed negotiating mandate for approval by the Council (of member state ministers). The Council also formally authorises the opening of negotiations and nominates a negotiator. For the UK withdrawal agreement, the Council is expected to make the Commission the EU’s negotiator. Commission President Jean-Claude Juncker has named former European Commissioner and French Foreign Minister Michel Barnier to head the Commission’s negotiating team. If it is not the negotiator itself, the Council will still be closely involved, probably through a special committee.
It could take several months before the EU is in a position to start substantive negotiations.
Traditionally, the EU did not publish its negotiating mandates for agreements with third countries, but public pressure in recent years has pushed it increasingly into doing so.
Under Article 50, the UK will be excluded from all formal discussions in the Council about the withdrawal negotiations and agreement.
What will the Article 50 negotiations cover?
There are different views on the likely scope of the Article 50 negotiations. On a ‘minimalist’ view, the Article 50 negotiations and agreement will cover only those issues which are triggered by existing rights and obligations on both sides, or which would create a legal limbo if left unresolved. Such issues are likely to include the rights of UK citizens in other member states and EU nationals in the UK, existing budgetary commitments, and international agreements that the UK has entered into by virtue of its EU membership.
However, Article 50 stipulates that the withdrawal agreement must ‘tak[e] account of the framework for the [departing state’s] future relationship with the Union’. Many of the issues engaged by withdrawal may not be capable of resolution without some sort of understanding on post-Brexit UK-EU relations. On a more ‘maximalist’ view, the Article 50 agreement might thus cover more of the future UK-EU relationship.
Nevertheless, the weight of legal and academic opinion is that a UK-EU trade agreement could not be concluded under Article 50; and that if the UK and EU seek a preferential mutual relationship in trade and other areas, this would require a second agreement, in addition to the Article 50 withdrawal agreement.
Who has to approve the Article 50 UK-EU withdrawal agreement?
On the EU side, the withdrawal agreement must be agreed by a qualified majority of participating member states – that is, 72% of the 27 remaining member states (i.e. 20) and 65% of these states’ combined population. The European Parliament must also give its consent – by a simple majority of voting members – before the agreement can be signed.
The UK must also agree. Assuming that the withdrawal agreement is treated as a normal international treaty, under the Constitutional Reform and Governance Act 2010 the House of Commons could, through delay, prevent the Government from ratifying it, but it could not amend it.
What is the timeframe for the Article 50 process?
Article 50 gives the two sides a maximum of two years to get the withdrawal agreement in place, counted from the date the departing state triggers Article 50.
The withdrawal agreement must specify the date on which it comes into force, which will become the date on which the departing state leaves the EU. The date on which the withdrawal agreement comes into force could be earlier or later than two years after the triggering of Article 50.
If no withdrawal agreement is in place two years after the triggering of Article 50, the EU Treaties cease to apply to the departing member state on that date and it falls out of the EU. This scenario is sometimes called a ‘disorderly Brexit’.
The two-year deadline to get a withdrawal agreement in place can be extended, but only with the unanimous agreement of both the departing and all remaining EU states.
Could the Article 50 notification be withdrawn?
Legal opinion is divided on this issue. Article 50 itself is silent on it. The weight of opinion is that the Article 50 notification could probably be withdrawn, but any such move might need the agreement of the remaining 27 EU states. If there were a dispute, the issue might end up at the European Court of Justice for adjudication.