Advanced European Law – Week 7
Relevant Primary Law Provisions
Article 19 TEU
Article 20 TEU
Article 48 TEU
Article 49 TEU
Article 50 TEU
Article 216 TFEU
Article 217 TFEU
Article 218 TFEU
Article 326 TFEU
Article 327 TFEU
Article 328 TFEU
Article 329 TFEU
Article 330 TFEU
Article 331 TFEU
Articles 47 Charter of Rights
Article 51 Charter of Rights
Steve Peers and Darren Harvey, ‘Brexit: the legal dimension’, in Barnard and Peers (eds),
European Union Law (2017) chapter 27 – Brexit: the Legal Dimension
1 Introduction
This chapter examines the broad legal issues raised by the ‘Brexit’ process.
2 Withdrawing from the EU pre-Lisbon
2.1 Public international law
It is controversial whether a state may lawfully denounce an international treaty to which it is a
party, or withdraw from an international organisation that does not explicitly provide for such
denunciation or withdrawal. For some scholars, withdrawal remains a sovereign prerogative of
states. Others, however, is argue that there may be no unilateral right to withdraw from
organisations which purport to either be established in perpetuity or whose specific characteristics
are such that permanence is deemed necessary. The starting point for this discussion is the VCLT,
Article 54 of which provides for consensual withdrawal and Article 56 sets out a general rule that a
treaty which contains no provisions regarding its termination and which does not provide for
denunciation or withdrawal is not subject to denunciation or withdrawal. This is to be distinguished
from Article 62 VCLT which governs the right of states to unilaterally withdraw from Treaties due to a
fundamental change in circumstances since the Treaty was concluded.
, 2.2 The European Union
Disagreements over the existence of a right of withdrawal from the EU was a manifestation of the
more general and longstanding debate in academia over the legal nature of the European Union
itself. If the EU is simply an advanced international organisation, withdrawal would be governed by
public international law (VCLT and customary international law), but if it’s a “new and autonomous
legal order”, for the benefits of which the states had limited their sovereign rights, the community
was one of unlimited duration. The only cases of withdrawal that have existed until now are those of
Algeria, which was part of France, and of Greenland, which was part of Denmark.
3 Article 50 TEU: the decision to withdraw
3.1 Must Article 50 be used to withdraw?
The right of a Member State to withdraw has been settled following the insertion of Article 50 into
the TEU by the Lisbon Treaty. The effects of this provision has been that the process of any Member
State leaving the EU is now clearly subject to the internal rules of the EU, rather than being governed
by the classic norms of public international law. It is important to note that Article 50 does not place
either side under a legal obligation to conclude an agreement, but rather represents a compromise
solution: although the Member States possess a unilateral right to withdrawn, they do not have an
immediate right to do so.
3.2 ‘Constitutional requirements’
Article 50(1) TEU provides that a Member State may withdraw in accordance with its own domestic
constitutional requirements, which for the UK was the referendum, in which not only UK citizens, but
also Irish and Commonwealth citizens could vote. EU citizens in the UK, however, could not.
Furthermore, in Preston, it was ruled that UK citizens who had been living in another EU Member
State for me than fifteen years were justly withheld from voting. A similar conclusion was reached in
Schindler. In Miller, moreover, both the High Court and the Supreme Court of the UK ruled that a
decision pursuant to Article 50 could only be notified following approval by Parliament and that the
executive could not act alone to this end.
3.3 Notifying the decision
Article 50(2) provides that a Member State that wishes to withdraw shall notify the European Council
of its intention. However, this provides no guidance as to the form or timing that this notification
must take. Nonetheless, the general position seems to be that notification would require a formal
letter from the Prime Minister to the President of the European Council.
3.4 Can notification be withdrawn?
In Miller, both the applicants and the government agreed that the provision of notification of the
UK’s decision to withdraw from the EU under Article 50(2) was irrevocable. Later however, the ECJ
ruled that a Member State could revoke its decision to withdraw from the Union under Article 50(2).
4 Article 50: withdrawal negotiations
4.1 The Article 50 process
4.1.1 The European Council
The first point to note about the Article 50 process is the removal of the need for unanimous
Member State consent before any withdrawal agreement may take effect, as paragraph 2 makes
clear that any agreement will be concluded following a qualified majority vote in the Council after
obtaining the consent of the European Parliament. The only veto the Member States have is in
setting guidelines under Article 50(2). It is important to keep in mind three factors which could
render deliberations in the European Council significant within the grand scheme of the UK’s
withdrawal from the EU. First, the setting of negotiation guidelines provides the only de facto veto
point for individual member States in the entire Article 50 TEU process. Second, failure to swiftly
agree upon negotiation guidelines at this preliminary phase will not prevent the two-year clock from
