Does the UK really enjoy absolute discretion as to when to trigger the Article 50 procedure?

It seems that everyone is talking about Article 50 of the Treaty on European Union (TEU) – the procedure by which a Member State can actually leave the EU. One key political and diplomatic issue is when Article 50 should be triggered. Many domestic politicians appear to take the view that it is entirely a matter for the UK to decide, but this view does not appear to be shared by any of the key players in the other Member States and the EU institutions who have expressed their views on the appropriate timing. Here I want to look at the legal question that lies behind those issues – namely who gets to decide when Article 50 should be triggered?

Among Remainers, there is a widespread view that, despite the outcome of the referendum, Brexit can be prevented.  Legally, that view seems quite sound. But for present purposes let us suppose that that option is ruled out for political reasons. On this basis, what are the next steps?

As is well known, Article 50 lays down the procedure for a Member State to withdraw from the EU.  In so far as is material, this provision reads:

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
2. A Member State which decides to withdraw shall notify the European Council of its intention.
3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

By lodging the notification provided for in Article 50(2) (“the notification”), the departing State triggers the withdrawal process.  Nothing in this provision requires that the notification be effected in writing; so the Prime Minister must avoid inadvertently making an oral notification, or appearing to do so.

Within the UK, the prevailing view – voiced by the Prime Minister, among others – is that the timing of its notification is entirely a matter for the UK itself.  On this view, it can wait one month, 3 months, 6 months or until 2017, 2018 or indeed as long as it likes.

This reading of Article 50 is attractive to Remainers and Leavers alike.  Many Remainers believe that, the longer notification is delayed, the greater the chance is that the Brexit will not come to pass.  Meanwhile, Leavers tend to see this as part of the UK’s sovereign power to act as it wishes.

However, this view is plainly not shared by the other 28 players (the 27 Member States and the EU itself, represented by the Commission).  The day after the referendum, the President of the Commission initially called on the UK to lodge its notification within days of the referendum.  Chancellor Merkel took a more relaxed view, accepting that the UK could enjoy a few months to take this step.  Now the 28 appear to have agreed that the notification must be lodged in September or October, when David Cameron’s successor has taken office.  While they may agree to a further extension, there appears no likelihood that they will accept an unlimited postponement (and I repeat that I am assuming for the moment that Brexit will go ahead).

Another crucial development occurred on 29 June at the informal summit held without the UK.  As President Tusk has subsequently confirmed, it was decided there that there will be no negotiations of any kind with the UK until it lodges its notification.

Which view is correct?

In my view, the answer is to be found in two provisions:

• Article 4(3) TEU, which imposes a duty of sincere cooperation on the Member States of the EU and its institutions in their dealings with one another; and
• Article 26 of the Vienna Convention on the Law of Treaties, according to which parties to treaties must act in good faith.

From both these provisions, it follows that, if a party to the EU Treaties gives every sign of being on the brink of denouncing them without actually doing so, it is incumbent on that party to clarify its position within a reasonable time so as to put an end to the uncertainty.

We cannot overlook the fact that the referendum has created monumental uncertainties of an economic, political, legal and constitutional nature for the 28 as well as for the UK.

Literally hundreds of examples could be given, but let me take just two.

First, while the UK continues to be a full member of the EU until it actually leaves, this creates enormous difficulties.  For instance, can the UK vote against a legislative proposal which requires a unanimous vote in the Council of Ministers?  As a matter of law, the answer appears to be “yes”; but that is hardly very satisfactory for the 28 in respect of legislation which may have little if any application before the UK leaves.  And similar issues arise in the other institutitions of the EU.

Second, what of the Structural Funds?  Should the Commission implement a decision which it has already taken to pay the first instalment of a subsidy for the construction of (say) a bridge in the UK, knowing that the subsequent installments (or even completion of the project) will not be due until after the UK can be expected to have left the EU?

Consequently, the 28 have a real and pressing interest in bringing these uncertainties to an end.

Furthermore, the view that the UK does not enjoy unfettered discretion in this regard is corroborated by Article 50(3). What is the point of having the two-year cut-off date if the departing Member State can defer triggering the procedure as long as it likes?

On this view, the UK should lodge its notification within a reasonable time. According to Article 50(1), it must comply with its own constitutional requirements (whatever they are, and that is not clear).

What the UK cannot do, however, is to behave as though it is no longer bound by EU law before lodging its notification. The most radical idea, proposed not long ago by at least one leading Brexiteer, is to repeal with immediate effect section 2 of the European Communities Act 1972, which provides that EU law is fully effective and applicable within the UK. Quite apart from anything else, that would probably amount to a systemic breach of the rule of law such as to empower the EU to impose sanctions on the UK pursuant to Article 7 TEU. This is an issue to which I shall return in a future post.

Even without taking such an extreme step, the UK would not be acting in good faith if it were to act as if it regarded itself as not bound by the EU Treaties (although minor infringements would be a different matter, since no Member State has a completely clean bill of health).   This would also mean that the UK will have to continue to implement and apply new legislation such as the recent package on data protection.

What are the practical consequences of this analysis?

If the UK were to drag its feet conceivably for too long without showing that this is necessary to satisfy its own constitutional requirements, the EU might set what it considers to be a reasonable deadline for the UK’s notification to be lodged – quite apart from the possibility of the Commission bringing infringement proceedings for breach of Article 4(3) TEU. Should the UK fail to comply without good reason, the EU could conceivably deem the 2-year period to have begun on the specified date.

Whether the EU would be able to take effective steps to exclude the UK at the end of that period is unclear. In any case, the more the UK delays without good reason in lodging its notification, the fewer concessions the EU can be expected to make in the ensuing negotiations.

The question might be: would the UK want to find out?