Abstract
AbstractThis article aims to analyse the limits of Article 50 of the Treaty of the European Union (TEU) which expressly consecrates a Member State’s unilateral right to leave the Union. However, the provision seems to raise more questions than it answers due to the lack of concrete legal guidelines, and Brexit has underlined this reality. For example, the exit procedure contemplates the possibility of signing a withdrawal agreement with the European Union (EU), but it does not discipline its content. In our opinion, any agreement must regulate three questions: fundamental rights, financial settlement, and borders. A second limitation refers to the possibility of a Member State withdrawing its withdrawal notice. This question has recently been decided by the Court of Justice of the European Union (CJEU) in a manner that leaves the EU without any say in the process. Finally, the provision does not deal with the constitutional implications of withdrawal: treaty revision, institutional deadlock, and institutional representation. In sum, these critical omissions are analysed considering the relevant legal doctrine, jurisprudence, as well as the Brexit process. It also proposed that Article 50 of the TEU be amended in the future.
Highlights
One of the novelties of the Treaty of Lisbon, as emphasized by the German Federal Constitutional Court, in its Lisbon judgement, is the introduction of an explicit withdrawal clause in European Union (EU) primary law
On October 3rd, 2018 the Scottish Court referred the question to the Court of Justice of the European Union (CJEU) through the preliminary reference procedure foreseen in Article 267 of the TFEU and requested that the Court in Luxembourg apply the expedited procedure
The CJEU begins its interpretative journey with European Union law – Article 50 of the TEU – and ends it when it arrives at the Member State’s Constitutional Law, in order to justify that it has a unilateral right to revoke a withdrawal notification which, in the final analysis, “reflects a sovereign decision to retain its status as a Member State of the European Union”
Summary
One of the novelties of the Treaty of Lisbon, as emphasized by the German Federal Constitutional Court, in its Lisbon judgement, is the introduction of an explicit withdrawal clause in European Union (EU) primary law The codification of such a right in Article 50 of the Treaty of the European Union (TEU) has received mixed reviews. More important is the fact that the consecration of the right to leave the EU raises more questions than it resolves due to the lack of clarity and the absence of concrete legal guidelines connected to the provision In our opinion, these limits or deficiencies are a source of political uncertainty and legal insecurity that render the norm incapable of answering the numerous thorny questions that will stem from the withdrawal of the United Kingdom or any other Member State due to the lack of domestic political support or other reason (for example: the euro and sovereign debt crisis). In order to achieve this aim, I will resort to the legal and political doctrine that discusses the right to leave as well as the Court of Justice of the European Union’s decision regarding the revocability of that right
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