Article 50 Q&A 1. What is Article 50 and how is it triggered?
7. Who are the main UK and EU actors in negotiations?
Article 50 of the Lisbon Treaty allows a member state to withdraw from the EU “in accordance with its own constitutional requirements”. Article 50 will be triggered on Wednesday 29 March via a notification letter from the Prime Minister, Theresa May, to the President of the European Council, Donald Tusk.
Whilst there will be numerous politicians and officials handling various aspects of the negotiations, the following individuals will be leading the process:
2. What is the significance of the March 2017 deadline?
• Jean-Claude Juncker – President of the European Commission • Michel Barnier – European Commission Chief Brexit Negotiator • Donald Tusk – President of the European Council • Didier Seeuws – European Council Head of the Special Taskforce on the UK Brexit • Guy Verhofstadt MEP – European Parliament Brexit Coordinator
The UK Government’s deadline of 31 March is self-imposed, but failure to meet it would carry political implications. The Government wants to be seen to be implementing the referendum result, and Ministers also have an eye to the next UK general election, scheduled for May 2020. The Government wants to go to the electorate having delivered on their instruction – and they also want to avoid the potentially destabilising impact of conducting a campaign whilst negotiations are on-going.
3. What happens immediately after Article 50 is triggered? Once Article 50 has been triggered, the European Council will need to agree and issue broad guidelines to the Commission before formal negotiations can begin. The Council President Donald Tusk has said he will present the draft guidelines to the remaining EU member states within 48 hours of Article 50 being triggered. This is likely to be followed by a summit of EU27 leaders to finalise the guidelines.
4. Are there any key milestones during the two-year period? Article 50 does not specify what issues are discussed and when. This will be determined by those participating in the negotiations. There are numerous political events that could disrupt the negotiations, including elections in France (April/May) and Germany (September). Michel Barnier has indicated there will effectively be an 18-month window for negotiations to provide time for a final deal to be approved by EU institutions.
5. Can the UK’s withdrawal be completed sooner, or take longer, than two years? Article 50 states the EU 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 negotiation”. It may be technically possible for the UK and EU to conclude an exit agreement ahead of the two-year deadline. However, the general view is that once Article 50 has been invoked, the two-year timeframe cannot be paused. The two-year period could be extended through unanimous agreement of member states.
6. Can the UK legally revoke its invocation of Article 50? This remains subject to a considerable degree of interpretation. The European Court of Justice has never examined the question in the past. Technically, a “notification”, which is the term used in the article, is not a binding decision and can be withdrawn. The Commons Brexit Committee concluded there is nothing in Article 50 to prevent a member state from reversing its decision to withdraw. However, the political implications for doing so would be considerable, and would likely require a significant and sustained shift in public opinion.
EU27
UK
• Theresa May – Prime Minister • David Davis – Brexit Secretary • Sir Tim Barrow – UK Permanent Representative to the EU • Olly Robbins – Permanent Secretary, Department for Exiting the EU In practice, there is no firm cast list. Article 50 simply states that the European Council will agree “guidelines” for the process. German Chancellor Angela Merkel, as leader of the biggest EU country, will obviously play a key role. The UK will also be seeking bi-lateral conversations with individual EU member states. The Commission will carry out the day-to-day negotiations.
8. What will be the initial points for negotiation? The UK and EU are likely to focus initially on the liabilities that will form the UK’s ‘Brexit bill’. If not agreed sooner, there will also be pressure to confirm mutual rights for existing EU citizens in the UK and vice versa. It is not yet clear whether the EU will agree to negotiate in depth the terms of the UK’s future relationship with the EU alongside the negotiation of the UK’s exit.
9. What are the red lines? Theresa May has focused on ending free movement and the authority of the European Court of Justice in the UK. Various EU leaders have focused on the unity of the ‘four freedoms’ (i.e. freedom of movement of goods, capital, services and people within the Single Market) and want to ensure that no deal to leave the EU is better than full membership.
10. Can divorce talks and talks over a new trading relationship take place concurrently? This is a matter for the negotiating teams, although some believe the EU is legally obliged to discuss the future relationship during the two-year Article 50 timeframe, due to Article 50’s wording. Another view is that the EU cannot engage in talks with the UK over a new free trade agreement as long as the UK is a member of the EU; it would need to become a “third country” for this to happen.
Article 50 Q&A 11. How will the deal be agreed?
13. What happens if no deal is reached within two years?
The final exit agreement will require a qualified voting majority in the European Council. It must also be approved by a majority vote in the European Parliament. The agreement will then need to be ratified by all 27 member states. The UK Government has signalled that MPs will get to vote on the final deal on a “take it or leave it” basis, though this is not in statute.
If no deal is reached at the end of the two-year process, there are two options: the negotiating period can be extended by unanimous agreement in the European Council, or the UK leaves with no withdrawal agreement in place and in effect falls back on WTO trade terms. Upon leaving, EU treaties will cease to apply to the UK and the UK would in theory be able to diverge from EU laws and conduct its own trade deals. However, through a ‘Great Repeal Bill’, the UK Government has said it will ensure the same laws continue to apply in the UK at the point of Brexit to ensure legal certainty.
12. What role will the UK’s Devolved Administrations play? The UK Government has asserted its right to negotiate on behalf of the whole of the UK in line with its reserved powers under the devolution settlement. Nonetheless, the Prime Minister has said that she wants the devolved administrations to be “fully engaged in the process”, including through a Joint Ministerial Committee. ‘Remain’ majorities in Scotland and Northern Ireland mean Brexit is a sensitive matter for the constituent parts of the UK, and the SNP Scottish Government has already announced its intention to seek a second independence referendum. Beyond Brexit, parties in the devolved administrations have begun to raise questions about the extent to which powers repatriated from Brussels will in future return to Westminster, Edinburgh, Cardiff and Belfast.
14. How likely are transitional arrangements? Michel Barnier has suggested he would favour a transitional deal if it served as a ‘bridge’ to a pre-agreed destination, though it may involve continued ECJ jurisdiction and free movement which would be hard for Theresa May to accept. The EU may look to negotiate a transition as late as possible in the process to maximise the chances of shifting UK business activity to EU member states.
ARTICLE 50 TIMELINE
First phase of negotiations anticipated to focus on ‘Brexit bill’/status of EU nationals: until end of 2017
Ratification of divorce settlement by European Council, European Parliament, EU27 and UK Parliament (from October 2018-March 2019) Bulgaria EU Council Presidency: Jan-Jun
EU27 Informal Meeting (60th anniversary of the Rome Treaties): 25 March
EU Council Summit: 22-23 June
Netherlands General Election: 15 March
France’s Presidential Election: 23 April/7 May
Germany’s Federal Elections: 24 September
EU Council Summit: 14-15 December
EU Council Summit: 28-29 June
Agreement on divorce settlement (in line with Michel Barnier timeframe): by October 2018
Q2 2017
Q3 2017
Q4 2017
Q2 2018
Q4 2018
Malta EU Council Presidency: Jan-Jun
Q1 2017
Notification of Article 50: 29 March European Council acknowledgment letter on Article 50 notification
Great Repeal Bill expected to be published following Queen’s Speech: likely to be May
EU Council Summit: 19-20 October
Q1 2018
EU Council Summit: 22-23 March
European Parliament resolution on Brexit expected
Austria EU Council Presidency: July-Dec
Romania EU Council Presidency: Jan-June
Q1 2019
Article 50 timeframe expires (unless extension granted)
Q2 2019
European Parliament elections: May 2019
Estonia EU Council Presidency: July-Dec
European Council to agree on and issue broad negotiating guidelines to the Commission following A50 trigger
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