The Process: Brexit and the Anatomy of Article 50
F Fabbrini (ed), The Law and Politics of Brexit (Oxford University Press, 2017), Chap. 3
29 Pages Posted: 16 May 2017
Date Written: May 13, 2017
The UK withdrawal process from the EU is framed by Article 50 TEU. There has been significant discussion of particular issues, such as revocability. There has not, however, been a more holistic examination of this Treaty provision, which analyses the stages of withdrawal from a UK and EU perspective. There are three stages in Article 50, which involve contestable issues of process and substance: triggering, negotiation, and outcome.
Stage 1 is the triggering stage in Article 50(1) TEU, whereby a Member State decides to withdraw in accord with its own constitutional requirements, and this includes the first sentence of Article 50(2), which is the notification of that intention to the European Council.
Stage 2 concerns negotiation and is contained in Article 50(2). The negotiations are conducted in the light of guidelines provided by the European Council. There is to be a withdrawal agreement negotiated in accordance with Article 218(3) TFEU. Article 50(2) also envisages another agreement concerning future relations between the state that has withdrawn and the EU.
Stage 3 concerns outcomes, and is dealt with in the last sentence of Article 50(2), and in Articles 50(3)-(4). Treaty rights and obligations apply to the state until the withdrawal agreement is concluded, or until two years from the date of notification, unless the European Council unanimously agrees to extend that period. Stage 3 may be affected by the possibility of revoking the notice of withdrawal prior to the end of two years; and by the possibility of a transition agreement.
Keywords: EU, Brexit, process, substance, transition, revocability
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