Conference of European States: The Next Steps

Article 50 of the Lisbon Treaty

It is now Monday morning 27 June 2016, and the CES has been “doing the rounds”, with this WordPress Blog, over the weekend.  But the major media this morning are all demanding –

“How do we now prepare for the Brexit negotiations?”

I want to give my personal answer to that question.  I will address two questions – the first in this Blog (Article 50), and the second (What we should do about Migration, if European states regain control of their own borders) in subsequent Blogs, still to come.

First: we should study carefully the precise wording of “Article 50”.

Article 50(1) reads –

“Any Member State may decide to withdraw from the Union in accordance with its own constitutional arrangements.”  That’s all.  There is nothing in UK’s unwritten Constitution, to guide events.

• It is however quite clear that, as of this morning (i.e. Monday 27 June), the UK as a State has not yet “decided” to withdraw from the EU.  Parliament approved the conduct of an advisory referendum, and that referendum has been concluded but (so far) that is all that has happened.  It will be for the Government (“in accordance with the UK’s constitutional arrangements”) to take the matter further.  The term “A Member State” means the legal entity, with its “state” constitution and distinctive procedures, which are specifically referred to in Article 50(1).  This is wholly consistent with EU practice – as confirmed by the later provisions of Article 50.  Now read on…

Article 50(2) reads –

“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 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”.

This is a more intimidating paragraph…  But let’s pick it apart…

First:   Even when a Member State decides to act, it is envisaged merely as giving notice “of its intention”.  All existing legal provisions of the Lisbon Treaty would remain in force, on both sides: the status of the Member State’s nationals living (whether working or not) in the EU would remain unaltered – nothing would change – what had already been done, would remain legally done – throughout this period.

Second:  The paragraph envisages that negotiations would follow – “in the light of the guidelines provided by the European Council”.  Now: I suspect that no guidelines have ever been provided by the European Council – although they may now being hurriedly drafted, in Brussels.  If they had been drafted already, the UK – as a full and senior Member of the European Council, would have known about it…  I think the EU institutions are probably as flummoxed as ours are, without guidance…

Third:  The withdrawal Agreement is to be negotiated “in accordance with Article 218(3) of the Treaty on the Functioning of European Union.”  It is not just Article 50 which is involved!   Article 218(3) is harmless: it sets out how constitutional negotiations are to be shared between the Council (Ministers), the Commission (civil servants) and the European Parliament (MEPs), and is too long to reproduce here.  But it contains no unusual provisions, and is essentially a long schedule of who does what, and when…

Fourth:  The Lisbon Treaty has built in a further delaying step, namely that when it comes to final approval of a negotiated withdrawal deal, the EU Parliament must give its prior consent – the Council can sign the deal only “after obtaining the consent of the European Parliament.”   Admittedly, if the proposal were to abolish the European Parliament (as I argue, with the formation of a new Conference of European States/CES) it would be difficult, if not impossible, to secure that consent – that risk would have to be considered by the negotiators.

Article 50(3) reads –  

“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”.

• NB   I say that this Article is not the “two-year time-limit” of the popular public debate.   It recognizes that, during the negotiations, all the Directives and EU, together with all the EU’s financial provisions, will remain in force – but that there must be some end to that.  This paragraph says that the EU framework will simply cease to apply to the UK at the two-year point, from the date of the UK’s Notice of Withdrawal – and if those negotiations were going in a consensual constructive direction (which I think they would be) then the EU would have more to lose than the UK by allowing the time-limit to be triggered – so it is likely that the time-limit would be extended!   If there were no extension, that would be the true moment of BREXIT – the UK would be free to tear up the Lisbon Treaty, and re-take control of its own affairs.  But that would be a long way down the line…

Article 50(4) reads –

“For the purposes of Paras 2 & 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 discussions 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 (the Lisbon Treaty).

NB That paragraph of Article 238 reads –

• “(b) Where the Council does not act on a proposal from the Commission or from the High Representative of the Union for Foreign Affairs and Security Policy, the qualified majority shall be defined as at least 72 % of the members of the Council representing the participating Member States, comprising at least 65 % of the population of these States.”

This means that, in reacting to the UK proposed withdrawal, the Council could only act by overcoming the highest of the qualified majority hurdles, namely – approval by 72% of the remaining 27 Member States, whose vote covers at least 65% of the population of the EU.  This Article is deliberately weighted in favour of the big states: each member-state is permitted to “vote its entire population”, in an effort to reach the required 65% popular majority.  Without the support of the “big” members (and remember, the UK would be debarred from voting) that obstacle would be virtually impossible to overcome.  And the member-state with the largest population is Germany. This is the paragraph that opens up a huge field for future negotiation.  And Angela Merkel is trying to delay the UK “withdrawal notice”, so that Germany can prepare properly for those negotiations.  That is a significant straw in the wind…

Article 50(5) reads –

“If a State which has withdrawn from the Union asks to re-join, its request shall be subject to the procedure referred to in Article 49”

End of Article

Article 49 merely states the standard procedure for access, and Article 50(5) merely cross-refers to it.  It states that a re-application would be treated as an entirely new application, made in the then prevailing circumstances.  All the circumstances would be taken into account at that time, as for any new application.  This has, in my view, been correctly interpreted in the popular debate: a repentant UK could not expect simply to “resume its former position”.

The obvious conclusion is that, over the next two years, the UK will be pinned into observance of its full obligations under the Lisbon Treaty, and freedom of movement of labour will continue to apply.  The right constructive course is for the UK to move quickly, to develop the outline of a more consensual European “association” capable of achieving the same international policy objectives as the EU, without all the paraphernalia of a supra-national “shadow-state”.

Let’s get on with the job.

Roger Warren Evans    Barrister-at-Law [Retd]

Swansea    roger@warrenevans.net  Tel:  0044-1792-366134  23 St Peters Road, Newton, Swansea SA3 4SB