Brexit! What is the withdrawal procedure? When is it applicable?
(BRUSSELS2) The date of June 23 and the British referendum is approaching. And, despite a reassuring feeling, it is totally unpredictable to make a bet on Yes or No. The exit of a Member State from the European Union is therefore a real unknown politically. What about the legal plan? B2 takes stock.
Are there any provisions?
Yes. Since the Treaty of Lisbon, the possibility of a Member State leaving the European Union has been explicitly mentioned, as well as the procedure that must be followed (1). It is article 50 of the EU Treaty which provides for the principle: “ Any Member State may decide, in accordance with its constitutional rules, to withdraw from the Union. “Some terms and conditions are also set, quite succinctly.
What is the procedure to follow ?
First, it is up to the Member State concerned to " notify(s) its intention to the European Council ". It is this notification that officially starts the procedure.
Secondly, the European Council decides and then adopts “guidelines”.
Third, " In the light "Of these" directions », a negotiation begins. It must lead to an agreement setting the terms of withdrawal " East " negotiated and concluded "taking into account" of its future relations with the Union ».
How is this agreement negotiated?
This agreement is negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. That is to say: concluded " on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament ».
What is the purpose of fixing the deal?
It is not fixed by the Treaty. According to our sources, it is in particular a question of fixing the fate of the various and varied contributions to the Community budget, of determining the fate of participation in certain calls for tenders by British companies, of the fate of the subsidies received (Until when will the funds be allocated? How? Who will control the funds?), the fate of agents and civil servants of British nationality, the payment of pensions to former British agents, the settlement of disputes, etc.
When do European provisions cease to apply?
The treaties " cease to apply within a time limit set by the treaty. Three hypotheses are considered:
1 ° " the date of entry into force of the withdrawal agreement ". NB: it can be very distant in time or shorter, as desired.
(2) a period of " two years after notification – if no treaty could be concluded in time.
(3) another time limit. The Heads of State and Government (the European Council) may decide " in agreement with the Member State concerned to extend this period by two years. The procedure is not fixed: it can be at a meeting of the European Council or by written procedure. Two conditions: first of all, this decision must be taken " unanimously » ; it is therefore subject to a right of veto from any member state. Then, it must intervene, before the automatic deadline of two years (it can be at D-1!). No final deadline is set. The European Council is sovereign. The extension can be for a few months or a few years. And nothing excludes either that this decision is modified several times (to extend the deadline).
Can this delay be very long or short? aeternam ?
In theory, yes. But it seems unthinkable, on a political level, that a British government could not quickly respect the will expressed in a referendum. But it is not impossible to think of another solution. We can thus very well envisage that a new British government, in another geopolitical context, would organize a new referendum to cancel the first… and ultimately remain in the European Union.
How does the exit actually take place?
We do not know. No official text (regulations, communication, note, etc.) has come to specify, in an official way, the concrete progress of this exit procedure, which is highly sensitive and very political...
How are the votes calculated during this procedure?
The UK vote will not count. " The member of the European Council and of the Council representing the withdrawing Member State shall not take part in the deliberations or decisions of the European Council and of the Council which concern him. “says the article. A sentence that gives some arguments to those who think like Alain Lamassoure that the right to vote must be withdrawn from all British officials in the institutions the day after a vote “for withdrawal from the European Union” (read: And if Brexit happens... We'll talk about it again on June 24! The mole method... ).
(1) This does not mean — contrary to what some say — that it was not possible before. Since the Treaty of Lisbon is an international treaty, it obeys the rules laid down by the Treaty of Vienna. Now there are “community” rules that apply.
One thought on “Brexit! What is the withdrawal procedure? When is it applicable?"
You may be interested to know that the British Government has published a note on the legal aspect of Brexit (procedure for withdrawal from the EU). I made a summary at the request of a blog (http://www.altalex.eu/content/process-withdrawing-european-union-seen-uk-government, where you will find the relevant link). You will see that the position on the right to vote of British MPs following a positive vote in the referendum may not be that expressed by others…
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