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12 Oct 2015

Union

UK Scotland and EU flags

In the first of a two-part article, Dr Tobias Lock examines the process for a member state to leave the EU and the effects of withdrawal. He suggests, should the UK leave the EU, some form of EU-UK agreement will likely be reached, although the shape of any deal is very much open to question.

A great deal of uncertainty surrounds the legal questions associated with the process for leaving the EU and the implications of that process for Scotland, should the UK vote for exit in the upcoming EU referendum.

In the first place, we do not know much about the UK government’s negotiation agenda, let alone the possible outcome of the envisaged renegotiation. In addition, the key legal provision for withdrawal of a country from the EU has never been ‘road tested’. A UK withdrawal – should it take place – would be a first. For these reasons, any answers we have can only be tentative for now.

At the outset, it is important to clearly distinguish between the domestic (UK) legal perspective and the perspective of European Union law. Some of the procedural ramifications for and the effects of a possible withdrawal would be determined by domestic law and open to political negotiations at the national (and possibly sub-state) level. Others are pre-determined by EU law.

It is also important to realise that a UK withdrawal from the EU would have effect for the whole of the United Kingdom, and thus include Scotland. In the absence of any specific arrangement, Scotland would find itself outside the European Union.

Process for Leaving Under the EU Treaties

Article 50 of the Treaty on European Union (TEU) outlines the procedural steps for a Member State wishing to withdraw from the EU. This provision was introduced by the Treaty of Lisbon and has consequently only been in force since 1 December 2009. It has never been used.

The article sets out the steps necessary under the law of the European Union. As Article 50(1) TEU makes clear, EU law does not interfere with the constitutional requirements in the Member State concerned. In particular, EU law makes no provision for sub-state entities, but leaves these questions to be determined by the law of the Member States.

Procedurally, Article 50 requires that a Member State notify its intention to withdraw to the European Council. Under the provision, no reasons need to be given. In this case, the UK government would need to inform the President of the European Council.

EU law does not determine how the decision to withdraw is reached internally. In particular, it does not require that the national government hold a referendum or consult with its sub-state entities, such as Scotland. Therefore, the wording of the referendum question or the extent of the franchise are of no concern to EU law.

The treaty foresees two options in which withdrawal can occur. The first option is the conclusion of a withdrawal agreement.

A withdrawal agreement would not only set out the exact ramifications of leaving (eg the withdrawal date; the role of UK representatives in the EU institutions during transitional periods; what would happen to civil servants with British nationality working for the EU institutions), but it would also regulate the future relationship between the EU and the UK. Article 50 does not provide any specifics. This means that the future relationship is negotiable in its entirety.

Negotiations would take place in accordance with Article 218(3) of the Treaty on the Functioning of the European Union(TFEU). The Council of the EU would nominate a negotiator or negotiating team for this purpose. This team would normally involve officials from the European Commission.

The agreement would then need to be concluded between the Council (acting with a qualified majority) on behalf of the European Union and the UK government on behalf of the UK. For this purpose, the UK would not participate in the Council. The qualified majority would be calculated on the basis of the remaining (currently 27) Member States.

It is noteworthy that the treaties envisage a bilateral agreement between the EU and the UK. In contrast to an accession agreement for a new Member State, it would not necessarily be multilateral (concluded by all Member States) and would thus not modify the EU treaties themselves. In consequence, any withdrawal agreement would need to comply with the treaties. A future relationship between the EU and the UK could not contradict them.

However, for practical reasons, withdrawal might be achieved through a mixed agreement. Mixed agreements are concluded between the EU and its Member States on the one side (hence ‘mixed’), and other countries or organisations (in this case the UK) on the other. They are very common in the EU’s external relations.

Mixed agreements are often used when the EU itself does not have the competence to conclude a deal on its own. This can be the case where a political dialogue is included, such as the Partnership and Cooperation Agreement with Russia, or where there are direct budgetary implications for the Member States.

Given the immense complexities associated with a withdrawal agreement, it might become necessary to include the Member States, as the EU alone might not have competence in all the areas covered by the deal. Accordingly, the Member States would be parties to the agreement as well. The resulting ratifications in each country could considerably prolong the process.

The second option is that no agreement is reached. In this scenario, a country ceases to be a Member State two years after notification of its intention to withdraw, unless the European Council decides to extend this period, in agreement with the country in question. The period could be extended, for instance, if negotiations are still ongoing after two years.

Should the UK’s membership terminate on this basis, there would be no agreement regulating future relations with the EU. The UK would be in the position of a third country. The main agreements governing trade relations between the UK and the EU in such circumstances would likely be those under the WTO. In practice, such a reality is unlikely to come about, as it would be in the interest of all parties concerned to come to an arrangement.

This piece by Dr Tobias Lock, co-director of the Edinburgh Europa Institute and lecturer in EU Law at the University of Edinburgh, originally appeared on European Futures.

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