Abstract
AbstractThis Article highlights the legal and procedural restrictions a Member States faces during its withdrawal from the EU and subsequent talks on a future trade relationship by analyzing the unprecedented case of the UK. One such restriction consists of an obligation to negotiate withdrawal as a result of the principle of sincere cooperation. Other limits derive from the withdrawal process itself, designed as it was by the European institutions on the basis of a very scant Article 50 TEU. By then comparing the three substantive pillars of the EU-UK WA—citizens’ rights, the financial settlement, and the Irish border— with the UK’s initial negotiating red lines, I offer two conclusions: That the aforementioned constraints on the withdrawing state can significantly weaken the defense of its interests during its withdrawal process and that having to agree to important issues in a first and separate stage of “orderly withdrawal” talks also diminishes the state’s bargaining power with regards to the next stage of negotiating a future partnership with the EU.
Highlights
Since the entry into force of the Lisbon Treaty, there is one clear restriction placed upon a Member State wishing to leave the European Union (EU), which most if not all scholars agree to: That it must use Article 50 of the Treaty on European Union (TEU) as lex specialis and any attempt at an exit through other means would be in breach of both EU and international law.[1]
Brexit has highlighted that when it comes to withdrawal, the most significant EU principle is that of sincere cooperation, Article 4(3) TEU, which tempers the unilateral character of the right to withdraw by obliging the withdrawing party to help the Union fulfil its mandate of negotiating and concluding a withdrawal agreement
Because the European institutions are put in charge of the negotiations—a considerable anomaly when compared to standard treaty withdrawal among states—it has allowed the EU to capitalize on the rudimentary nature of Article 50 TEU and fill in its legal gaps with rules that naturally favor its side of the negotiations to the detriment of the defecting state’s
Summary
The first informal statement the EU27 gave after the British referendum, but still before official notification triggering Article 50 had been sent, established two connected principles which already strengthened the EU’s negotiating power at the expense of the UK’s.25 The first pre-notification principle was that, it was up to the British government to notify the European Council of the UK’s intention to withdraw, it should be done “as quickly as possible.” In other words, the need to prepare for such complex talks which, once Article 50 is triggered, only guarantees the withdrawing state two years of negotiations—extension requires unanimity in the European Council—was counterbalanced by the uncertainty a long delay between public declarations and official notification could create for the remaining members.[26]. A withdrawing state might try to hold talks with other members individually and undermine the Union’s negotiating strength as a bloc. This too was avoided by the Union’s determination to remain united, “quite to the surprise of many in London.”[28] without these two opportunities which the UK tried to take advantage of to no avail, the PM announced that Britain would be triggering Article 50 before the end of March 2017.29 It is widely agreed the UK was handicapped from the start by these pre-notification principles which left it in a weakened position and with little time to prepare for the complexity and seriousness of its exit procedure.[30]
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