The Bruges Group spearheaded the intellectual battle to win a vote to leave the European Union and, above all, against the emergence of a centralised EU state.

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Bruges Group Blog

Spearheading the intellectual battle against the EU. And for new thinking in international affairs.

The deals that may be worse than no deal

How a compromise agreement may keep Britain subject to aspects of the EU.

2nd June 2017
article50withdrawalagreement

Introduction

Here we answer your questions on the Article 50 UK/EU Withdrawal Agreement.

 

- Would it be one big treaty with lots of articles, so one cannot repudiate one article without denouncing the whole treaty?

 

Article 50 of the Treaty on European Union (TEU), which was introduced by the Treaty of Lisbon (and came into effect with the rest of that Treaty on 1st December 2009), provides that the EU and the departing Member State are to enter into an agreement governing withdrawal. However, the Article does not specify very much about the content of the agreement. It is thus possible to conceive of minimalist and maximalist approaches to the content of the agreement. Article 50 TEU states:

 

2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

 

The wording of Article 50 refers to ‘taking into account the framework’, this is all it says prescribing the content of the withdrawal agreement. Understood textually, this seems to indicate that the withdrawal agreement should set out or at least reflect a general framework of future relations. This seems to indicate the agreement could tend toward a minimalist approach, setting out certain fundamental features of the future relationship, but not necessarily addressing the detail.

 

The closest precedent in the context of the EU is the secession of Greenland and their subsequent withdrawal in the 1980s from the then European Economic Community (EEC). The resulting agreement between the then EEC (now the EU) and Greenland was quite short, just setting out some basic principles. The EEC/EU later into entered into separate agreements in specific areas with Greenland, mainly to do with fisheries. This practice is consistent with the wording of Article 50 TEU and may well have informed it. 

 

- Or can we have a series of different agreements, perhaps separate treaties on specific areas or a Memorandum of Understanding(s)?

 

As discussed above, this option seems open. A main advantage of this option would be that it could help localise disputes in future between the EU and UK, in case a comprehensive treaty would lead to a situation where a dispute between the UK and EU could be used to cast doubt over the continuing validity of the entire Treaty, which could introduce uncertainty into future UK-EU relations.

 

Any such withdrawal agreement would be subject to the general rules of public international law on treaties. In international law, a dispute about one term or part of a treaty does not generally invalidate or suspend the entire treaty. Normally, in international law, when a State or organisation violates a treaty obligation, the victim state can respond in a proportionate way by suspending its own adherence to relevant obligations (under the law of counter measures and reprisals). There are relatively well established grounds for legitimate repudiation or suspension of the entire treaty, which are quite narrow (they are set out in the Vienna Convention on the Law of Treaties 1969 or ‘VCLT’). However, treaties can provide for this issue by specifying that breach of one provision does not justify repudiation of the entire treaty (see Article 44 of the VCLT). It would be advisable for the UK to specifically deal with this issue in the text of the withdrawal agreement, whether or not the agreement is meant to be comprehensive or just to set a framework for relations between the UK and EU.

 

An important related issue here is the dispute settlement procedure that the withdrawal agreement would adopt. The comments just made in the previous paragraph (about repudiation/suspension and countermeasures/reprisals) relate to the normal or default rules of international law, but the withdrawal agreement could substitute its own dispute settlement procedure (just in the way the EU Treaties establish their own dispute settlement procedures, chiefly by giving a key role to the Court of Justice). If the UK wants to maximise its influence over the future dispute settlement procedure, it should ensure that the Court of Justice of the EU is not given jurisdiction over future disputes about the withdrawal agreement. The agreement between the EU and New Zealand contains the following dispute settlement clause, which could be a model or precedent for the withdrawal agreement:

 

Article 54

Modalities for implementation and dispute settlement

1. The Parties shall take any general or specific measures required to fulfil their obligations under this Agreement.

2. Without prejudice to the procedure described in paragraphs 3 to 8 of this Article, any dispute relating to the interpretation or application of this Agreement shall be resolved exclusively through consultations between the Parties within the Joint Committee. The Parties shall present the relevant information required for a thorough examination of the matter to the Joint Committee, with a view to resolving the dispute.

3. Reaffirming their strong and shared commitment to human rights and non-proliferation, the Parties agree that if either Party considers that the other Party has committed a particularly serious and substantial violation of any of the obligations described in Articles 2(1) and 8(1) as essential elements, which threatens international peace and security so as to require an immediate reaction, it shall immediately notify the other Party of this fact and the appropriate measure (s) it intends to take under this Agreement. The notifying Party shall advise the Joint Committee of the need to hold urgent consultations on the matter.

4. In addition, the particularly serious and substantial violation of the essential elements could serve as grounds for appropriate measures under the common institutional framework as referred to in Article 52(1).

5. The Joint Committee shall be a forum for dialogue and the Parties shall do their utmost to find an amicable solution in the unlikely event that a situation as described in paragraph 3 would arise. Where the Joint Committee is unable to reach a mutually acceptable solution within 15 days from the commencement of consultations, and no later than 30 days from the date of the notification described in paragraph 3, the matter shall be referred for consultations at the ministerial level, which shall be held for a further period of up to 15 days.

6. If no mutually acceptable solution has been found within 15 days from the commencement of consultations at the ministerial level, and no later than 45 days from the date of notification, the notifying Party may decide to take the appropriate measures notified in accordance with paragraph 3. In the Union, the decision to suspend would entail unanimity. In New Zealand, the decision to suspend would be taken by the Government of New Zealand in accordance with its laws and regulations.

 

From the internal perspective of EU law, Article 344 of the Treaty on the Functioning of the European Union might cause a problem. It states that “Member States undertake not to submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided for therein.” This has bene interpreted extensively by the Court of Justice in its caselaw, and it cannot be excluded that the Court of Justice would decide, irrespective of the text of the future EU-UK withdrawal agreement, that it (i.e. the Court of Justice) should decide any disputes between the EU and UK over the withdrawal agreement. This would be very strained conclusion, but it is certainly possible in light of the overall approach of the Court to legal reasoning. Although the UK would no longer be a Member State at that point, the Court of Justice could not impose its judgment, but it would be a complicating factor for UK-EU relations.

 

- Can this be done via the Withdrawal Agreement which should follow the Article 50 negotiations?

 

It seems it could be done by having a general withdrawal agreement and then separate agreements regarding particular policy areas. 

 

- Or can it be done via the EU itself under its legal personality, or requiring the of all member states national Parliaments, and perhaps even referenda in some EU members?

 

Article 50 TEU sets out the procedure for the withdrawal agreement. If separate agreements were to be adopted in specific policy areas, it would depend on the decision-making procedure in that area of the Treaty. It is up to each Member State to decide how its positon at EU level is to be determined first at national level. Where unanimity amongst the Member States applies in the Council (of Ministers) (which it generally doesn’t since the Treaty of Lisbon), the EU in its decision-making is to a certain extent hostage to the idiosyncrasies of national procedures (e.g. if Belgium required the consent of the Walloon Parliament or one of the other two regional Parliaments).

 

 

Links: 

Database of EU bilateral agreements with other countries:

http://ec.europa.eu/world/agreements/searchByType.do?id=1

 

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Friday, 21 July 2017