Brexit: A Leap into the Article 50 Dark

As they prepare for their first post-Brexit European Council meeting this week (June 28 and 29), EU leaders have started to transition from the political shock the British people’s choice has created to the preparation of the ongoing negotiations with the United Kingdom. This “divorce process” is foreseen by the 2009 Lisbon Treaty on the European Union in Article 50. Facing for the first time the prospect of a member state withdrawal, European leaders are about to find out whether its succinct provisions can provide for a reasonably consensual and swift negotiation. In many respects, the triggering of Article 50 will be a leap into the unknown.

Q1: What is the timeline for the upcoming withdrawal negotiations?

A1: Article 50 articulates a number of steps through which the United Kingdom and the European Union will operationalize the decision of the British people to opt out of the Union.

First, the United Kingdom needs to “notify the European Council of its intention” to withdraw from the European Union. Article 50 does not define the nature of the UK notification. According to a press note released over the weekend by the European Union, the triggering could “either be a letter to the President of the European Council or an official statement at a meeting of the European Council duly noted in the official records of the meeting.” In no way, therefore, can the referendum itself account for such notification, as it does not create any legal obligations by the British government.

In his resignation speech made on Friday morning, David Cameron insisted that the “new prime minister takes the decision about when to trigger Article 50 and start the formal and legal process of leaving the EU.“ The UK notification may therefore only take place after the nomination of Mr. Cameron’s successor, something that might take as long as several months, considering the next Tory convention is scheduled for October. Although several EU senior officials such as French president Francois Hollande, as well as EU institution leaders, are willing to see negotiations start at the earliest, there is nothing that the EU members can do beyond putting political pressure on Mr. Cameron to force London to notify its intent to withdraw from the Union. Likewise, nothing legally forces the UK government to do such a thing at all.

If and once the new British prime minister triggers Article 50, a negotiation will begin between the United Kingdom and the European Union over “an agreement setting out the arrangements of its withdrawal.” This negotiation must be concluded before a two-year countdown after which “the treaties shall cease to apply” to the United Kingdom. If an agreement cannot be reached in due time, the negotiation can be extended by unanimous decision of the 27 remaining member states. Article 50 does not set limits to such extension, which could therefore be dragged out for several years.

Q2: What do the United Kingdom and the European Union need to negotiate?

A2: There are two things the two parties will need to agree on to settle the divorce.

One is the ”withdrawal arrangements“ that will define how the United Kingdom parts ways with the European Union. This agreement may enact some temporary provisions until a new framework for the UK relationship with the Union can be put in place. This agreement would need to receive the “consent” of the European Parliament and then be adopted by a Council decision voted on by a qualified majority by the member states. “Qualified majority” requires 72 percent of member states (i.e., at least 20 of 27 member states) representing 65 percent of the population of those states. It is unlikely that the agreement would not end up being adopted by consensus to avoid creating divisions among the 27 member states.

The other piece to be negotiated is “the framework for its future relationship with the Union,” something on which Article 50 remains mostly silent, although it notes that the “withdrawal arrangements” should be “taking into account” in regards to the future framework. This new partnership agreement will need to address matters such as UK access to the Union’s single market. Because the framework will deal with issues involving both EU institutions and member state competencies, it will be an agreement signed by the United Kingdom, the European Union, and the EU member states. It will take the form of a “mixed agreement” that the European Council will first need to agree on unanimously before member states ratify it according to their constitutional requirements.

Once those two agreements are adopted, the 27 remaining member states will be required to amend the EU treaties to take stock of the changes the implementation of the divorce deal will entail (which may or may not trigger referenda in EU member states).

Sequencing the negotiation of the “withdrawal arrangements” and the “framework for the new partnership” will be critical, but Article 50 is silent on the matter. The two-year timeline before the treaties cease to apply to the United Kingdom is only related to the former, but realistically a “framework agreement” is needed first. This is where temporary provisions could play a role so as to bridge the potential legal vacuum that may result from a time gap between the entry into force of the “withdrawal arrangements” and the subsequent “framework for the new partnership.” Whether the two things are negotiated by the same negotiating teams or in parallel is also unclear and will need to be agreed upon, even perhaps before London triggers Article 50.

Because the whole negotiation will take (a lot of) time, London and Brussels are likely to be in need of an understanding as to the extent to which British representatives participate in the EU decisionmaking process during the withdrawal negotiations. Article 50 does not preclude the United Kingdom from participating in the Union’s decisions, so long as they do not relate to the withdrawal negotiations. But this would be politically challenging, for it would be hard to explain to the European people that London keeps shaping the future of the European Union and its citizens while not belonging to it anymore.

Q3: Who will the United Kingdom negotiate its withdrawal with?

A3: This is another issue that Article 50 does not address in detail. The Treaty on the Functioning of the European Union, to which Article 50 refers, says that the European Council—without the United Kingdom’s participation—should nominate the ”Union negotiator or the head of the Union’s negotiating team.” This specific procedure is employed for third-country agreements such as association agreements. Considering the European Commission usually represents the Union in the negotiation of such deals, it will be the natural negotiator on the EU side. But other EU institutions could be involved as well. The Council, representing the views of the member states that will ultimately vote on the deal, will likely want to be represented in the negotiating room. The European Parliament, as well as the European Council, could also request to be associated to the negotiations.

Q4: Can the United Kingdom turn its back on withdrawal despite the win of Brexit?

A4: This would be challenging but not entirely impossible. Different scenarios could play out.

• Once the negotiations are completed, the United Kingdom will not be able to turn its back on withdrawal. It could ask to rejoin the Union, once it withdraws, but such a demand would need to go through the normal procedure for membership candidates. London might not benefit from the flexible conditions and opt-outs it has enjoyed until Brexit.
• Once Article 50 is triggered but before the negotiations are completed, nothing in Article 50 explicitly discards the possibility that London could withdraw its “intent to withdraw” from the European Union. This could happen if London was unsatisfied with the negotiations or if the political context in the United Kingdom changes to the extent of making withdrawal problematic (for instance the prospect of Scotland’s independence if a second referendum on that question is accepted by the British Parliament). In theory, the withdrawal of the withdrawal would interrupt the two-year countdown, and EU treaties would then continue to apply to the United Kingdom. Its relations with the European Union would be based on the current arrangements, as the compromise reached by Mr. Cameron in February 2016 is no longer on the table. EU leaders were clear during the Brexit campaign that the February deal would only apply if Remain won the referendum.
• There exists a limited but real possibility that London does not trigger Article 50 at all. The UK government might in this case be intending to engage in a renegotiation of the February 2016 deal so as to extract better terms from the European Union in order to organize a new popular consultation a couple of years down the road. Boris Johnson, a likely candidate to succeed Mr. Cameron, hinted on June 24 that the United Kingdom should not rush to notify its withdrawal intent. As he indicated during the campaign, Mr. Johnson could be intending to further renegotiate the arrangements existing between London and the European Union rather than withdrawing completely from the Union. As he said on March 16 in The Telegraph, “there is only one way to get the change we need, and that is to vote to go, because all EU history shows that they only really listen to a population when it says No.” It is imaginable that Mr. Johnson may need to go through new parliamentary elections to receive an explicit mandate from the British people to turn their backs on the outcome of the referendum. But even then, there are few chances that EU member states could accept such tactics, or even engage in any negotiations over UK status absent the activation of Article 50 (“Before Britain files such a note, there will be no informal talks about the modalities of a divorce,” in the words of German chancellor Angela Merkel’s spokesman, Steffen Seibert).

Q5: Finally, what can be achieved at this week’s European Council?

A5: It is unclear at this stage that the European Council will be able to cover a lot of ground this week, at least on the withdrawal negotiations. For one thing, it seems unlikely that Mr. Cameron will be unwilling to trigger Article 50. The UK prime minister is only expected on Tuesday to provide his 27 colleagues with his views on the situation, before they meet on Wednesday for a full day of informal discussions without the United Kingdom. During that part of the European Council, the 27 member states could make progress in their discussions toward the negotiating format they would like to put in place, as well as the first orientations they would like to give to their negotiators.

The main players do not approach those negotiations from the same position. German chancellor Merkel has called for patience and appears willing to make sure the divorce process does not preclude a fruitful relationship between London and the continent. Others, such as French and EU institution leaders, or even German foreign affairs minister Frank-Walter Steinmeier, want to move forward quickly so as to avoid EU involvement in complex negotiations for much more than two years. De facto, the extent to which the European Union can multitask and address at the same time Brexit negotiations, a revamp of the European Union, as well as the handling of the multiple other crises (e.g., migration crisis, Greek debt crisis, Ukraine crisis) is uncertain. The longer the Brexit negotiations last, the more distracted the European Union and the United Kingdom will be from addressing common security challenges with their international partners such as the United States. And the more divided the Union finds itself on the terms of the Brexit negotiations, the more divided it is likely to be on saving the European Union from its existing shortfalls.

Simond de Galbert is a visiting fellow with the Europe Program at the Center for Strategic and International Studies in Washington, D.C.

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