Article 50 TEU: starting the clock on Brexit

Oxford, 26 June 2016

I have lived and worked in the UK for four and a half years. During that time, I have sadly seen the country go from bad to worse. The closure of the Children’s Centres, which provide crucial support for young parents, and the utter unaffordability of housing – we’re talking £ 800,000 for a three bedroom terraced house with single glazing and poor heating and insulation in a country that isn’t exactly known for its mediterranean climate – were just two of several reasons why I have decided to move back to the Netherlands with my family this summer. The outcome of the EU referendum last Thursday was the final nail to the coffin. The referendum stands to harm the other Member States’ economies and political stability (to the extent we still had any left), but many of the reasons underlying the Leave voters’ choice are also personally hurtful to us EU migrants who have lived here for years, paid our taxes, spent our money in the British economy, speak perfect English and immensely enjoy our fish and chips, our full English breakfast, and our Pimm’s. I therefore feel compelled to point out an aspect of EU law which may take control over ‘what next’ out of British hands.

No Member State has ever left the EU before, partly because it did not use to be possible. With the entry into force of the Lisbon Treaties in December 2009, a new provision was inserted that enabled Member States to leave the Union if they so wished: Article 50 of the Treaty on European Union (TEU).

Article 50 states that, if a Member State wishes to withdraw from the Union, it ‘shall notify the European Council of its intention’. Once the European Council has received such notification, the clock starts running: if no other agreement is reached, the Treaties will cease to apply to the Member State in question two years after notification. The issue we are faced with now is what constitutes ‘notification’ in the sense of Article 50.

Over the past few days, a lot of the discussion surrounding Article 50 seems to have assumed it is purely up to the UK to decide to initiate proceedings. However, there is another conceivable route through which the Commission or another Member State might activate Article 50 TEU.

Article 4(3) of the Treaty on European Union (TEU) entails the so-called principle of sincere cooperation. It stipulates amongst others that Member States shall ‘refrain from any measure which could jeopardise the attainment of the Union’s objectives’.

It could be argued that economic harm and uncertainty caused by undue delay of the UK’s notification is a breach of this principle. Under Article 258 of the Treaty on the Functioning of the European Union (TFEU) the Commission could start proceedings against the United Kingdom for infringing the principle of sincere cooperation. The steps to be taken under this Article are as follows:

1) the Member State must be given the opportunity to submit its observations – this could be interpreted as an ‘opportunity’ (read: expectation) to clarify if and when the UK government plans to invoke Article 50;

2) after the Member State has submitted its observations, the Commission delivers a reasoned opinion with which the Member State must comply within a period provided by the Commission – another opportunity to ‘encourage’ the UK to trigger Article 50;

3) if the Member State does not comply with the Commission’s reasoned opinion, the matter can be brought before the Court of Justice of the European Union (CJEU).

A similar process could be followed under Article 259, this time started by a Member State instead of the Commission (i.e. any of the other Member States could start proceedings against the UK for infringing the principle of sincere cooperation). Cases of Member State v Member State are rare for obvious diplomatic reasons, but given the adverse effects of the referendum on the other Member States they may no longer feel very diplomatically inclined towards the UK.

 

Dr Eveline Ramaekers LLM MA

Fellow and Tutor in Law

Wadham College

Oxford, OX1 3PN

eveline.ramaekers@wadh.ox.ac.uk

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