UK Constitutional Law Association

affiliated to the International Association of Constitutional Law

Franz C. Mayer: Two Years Are Two Tears Are Two Years? When Does the Brexit Countdown Actually Begin?

Franz MayerSummer 2026. Germany has decided to leave the European Union. A few thousand votes were sufficient on the basis of a special referendum under Article 20(2) of the German constitution. The Scottish President of the European Commission immediately demands that Germany submit within 48 hours a notification according to Artcile 50 TEU to initiate the process of withdrawal from the Union. Meanwhile, constitutional discussions begin in Germany. Bavaria refuses to accept the vote, presses the ‘Bundesrat’ (second chamber) for a counter-decision, and threatens to withdraw from the Federal Republic of Germany, invoking an inverse interpretation of Article 23 of the German constitution in its pre-reunification version. It is unclear, whether a formal decision of the ‘Bundestag’ is necessary at all and, if so, with what kind of majority. Federal President Claudia Roth announces that she will not sign any statute of withdrawal. Peter Gauweiler brings a lawsuit to the German Constitutional Court applying for interim relief because that is what he always does. This time, he wants the GCC to keep the Federal Government from notifying Germany’s withdrawal without prior Bavarian consent and a decision from the Bundestag. The President of the German Constitutional Court Voßkuhle still in office after a constitutional amendment makes a statement from his vacation in England declaring that a decision cannot be expected before October. And the Chancellor? She advises calm and prudence. Simultaneously, more and more people call for a repetition of the referendum because of a turnout well under 50%   apparently, a significant part of the electorate was distracted by the 2026 football World Cup held in North Korea…

It does not come as a surprise: with the Brexit vote, legal problems are only beginning. It seems as if once again, it is up to the lawyers to sort things out. But as is often the case, this is not only about strictly legal questions if we look more closely.

Since the 2009 Lisbon Treaty, Article 50 of the Treaty on European Union (TEU) specifies the following:

  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. 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.

    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.

    4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.
    A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.

    5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.

When does the two year countdown begin whose end marks the expiration of UK membership rights unless a treaty of secession has taken effect in the meantime?

Initially, no problems were discernable here. British Prime Minister David Cameron announced his intention to hold a special session of Parliament the very weekend after the Brexit referendum, in order to notify the British intention to withdraw from the EU according to Article 50 TEU within days after a negative membership referendum. The day after the referendum, however, Cameron declared that he would leave the statement and all negotiations to his successor. Sometime in October. At the earliest.

I can relate to the irritation and vexation this change of direction has roused on this side of the Channel. I had the same reflex. The Brexit debate within the UK has been anything but factual and appeared to a large extent to be informed by half-truths, non-truths and nasty rumours perpetuated by the media, with a large part of the media having morphed into pro-Brexit agitators. It is therefore almost impossible not to suspect some degree of dishonesty in this case as well. However, Cameron’s unwillingness to take over the responsibility for a momentous and formal step he personally has been opposing for weeks is equally understandable. Even if he presents himself one last time as a politically inconsistent party leader who has failed miserably.

Of course, European Council President Tusk could simply ask Cameron in the next session of the European Council whether he has any news from back home. If Cameron then somehow mentions the result of the referendum, one could interpret that as a statement in the sense of Article 50(2) TEU. There are no precedents and no uncontested text book definitions for Article 50 TEU issues. Let them run to the European Court of Justice (ECJ) if they don’t like that turn of things.

There are good reasons, though, not to try this rather brute force approach right away. It is simply true that as of yet, there is no legally binding decision on withdrawal from the European Union “in accordance with the constitutional provisions” of the UK. This is what Article 50(1) TEU demands. The referendum did not have any immediate legal effect. It did not repeal the 1972 Communities Act. From a strictly legal point of view, the referendum is not much more than an opinion poll. Governmental or parliamentary action is necessary in order to make the will expressed by the majority effective. There may be further complications due to devolution. After all, Scotland has its own Parliament that could try to have a say or to block the process. Wales and Northern Ireland also have parliamentary assemblies. At any rate, the outgoing Prime Minister Cameron cannot rely on a pro-Brexit majority of his own parliamentarians in the British Parliament. That makes a vote in Parliament difficult, if such a vote should turn out to be necessary. It is hardly imaginable at this moment that the British Parliament will openly oppose the will of the majority of the people, though. But who knows what could happen if a new election of Parliament is required with unknown majorities. On a very formal level, one should not forget that an appeal against the referendum is still possible, just remember the last presidential elections in Austria.

The comparative scenario I used in the beginning – which is completely hypothetical in political and in legal terms – indicates that in Germany, far-reaching decisions of such an immense impact as the withdrawal from the EU could not be formalised within just a few days either. For Germans, too, there would be a number of legal-political issues concerning preconditions and procedures that would take longer than 48 hours to sort out.

The notification under Article 50(2) TEU is actually without any doubt a far-reaching decision. It not only triggers the two year countdown but also means that to some extent the Member State in question gives up control over membership. This sounds more dramatic than it actually is; after all we are talking about a Member State that has decided to completely give up membership, so this is simply the first step to this status as a non-member. Still: After the notification, the UK can no longer unilaterally stop the process of leaving the Union and somehow unilaterally withdraw its notification after one and a half years or so. Only a unanimous decision of all other 27 Member States can stop the process then. Any malevolent Member State could block and veto this and British membership would automatically end after two years. After that, the UK would have to apply for membership anew, Article 50(4) TEU says.

Some argue that the UK could withdraw from withdrawal unilaterally at any point. If that was possible the two year countdown would not make any sense: the UK could reset the clock endlessly by taking back the notification, filing a new notification triggering a new countdown, taking back the notification etc. ad infinitum.

Once the process starts, it can only be extended or stopped by all Member States and a unanimous vote – that’s simply the price tag for the introduction in 2009 of this possibility to withdraw unilaterally, a possibility pushed for by the British government. Before the introduction of Article 50 TEU, it would have been the withdrawal as such that would have necessitated consensus of all Member States. Before 2009, a unilateral withdrawal was basically impossible. There was the remote option based on a complicated argument under the Vienna Convention on Treaties on changed circumstances (clausula rebus sic stantibus). But the truth is that a Brexit would have been a matter of negotiation and unanimous consent on the terms of a withdrawal agreement between all Member States, not a matter of “we decide and we are out”. Pacta sunt servanda, remember?

I believe that the new mechanism under Artcile 50 TEU is fair to the extent that it doesn’t give all control of the process to one side, while at the same time there is legal certainty – after two years.

Speaking of fairness: The beginning of the two year countdown cannot be delayed forever.  Limiting the duration of negotiations to two years has not only the purpose of creating legal certainty, it also provides an incentive for agreeing on a treaty of withdrawal because the alternative would be an unregulated “rogue” exit. The result of the British vote with a majority against EU membership is known publicly all over Europe and the world, economic and political effects are felt in the EU and elsewhere. The outcome of the vote is already a political reality. Legal reality cannot remain unaffected by this. Therefore, the EU should not accept any reasons for a delay of the notification other than constitutional ones. The legal argument here is the duty to sincere cooperation and mutual loyalty between Member States and the European Union enshrined in Article 4(3) TEU.

Article 50 TEU is not meant to expose the European Union to unilateral tactical moves of a country determined to withdraw with all domestic constitutional procedures and requirements obviously fulfilled. In that situation, with a view to the European Union’s interest to clarify the situation, the European Union should invoke Article 4(3) TEU and set off the two year countdown. Let the Member State determined to withdraw challenge this at the European Court of Justice. Hard to imagine that Boris Johnson or whoever will have the responsibility to steer the country out of this mess then will ask the ECJ, deeply despised by the Brexiteers, for help.

I said the European Union should accept only reasons of constitutional law for delaying the notification under Article 50(2) TEU. The only exception could be indications of a substantive change in political opinions in the UK on the Brexit. Who knows, perhaps political wisdom and sanity will prevail in the UK after all, in another referendum or new elections.

I hope the following point has become clear: all this is not only about formal legal arguments based on Article 50 TEU. Political wisdom and sensitivity is what is needed here. On the one hand, the possibility of turning back on the part of the British is not fully foreclosed yet, that door should still be kept open, for some time. On the other hand, there is an urgent need to clarify the situation, which is also in the British interest.

It is crucial that all reflection, talks, negotiations are undertaken in withdrawal mode, not in renegotiation mode. The idea of some Brexiteers that after a negative outcome of the referendum, an EU full of fear to lose the United Kingdom would somehow agree to renegotiate the British status and British exceptions is just a phantasy. This will not happen. “In is in, out is out”, as a wise man turned it.

The best measure right now would be to immediately start pre-negotiations of withdrawal on a preliminary basis to signal the rejection of the renegotiation phantasy. These talks could concern the technical aspects of the withdrawal process, but there is also a need to prepare negotiations on the future relationship between the UK and the EU. The perspective here is a status akin to that of Norway or Switzerland. For the remaining 27 member states, the founding treaties would have to be adjusted. Perhaps this could be an occasion for a more substantial revision of the treaties (without the UK), but maybe this will also be postponed for now. The option of considering an independent Scotland as successor of British EU membership should also be explored.

Here’s another element: The three or four months that will pass until the British have formed a functioning government with a corresponding majority and a formal decision of Parliament or Government could be granted to the British on top of the two years by way of a decision of the European Council – immediately. And if there was an even more generous addition of time looming, the UK could turn out to be prepared to make the notification under Article 50(2) TEU right away.

An alternative would be to agree on pre-withdrawal talks, expecting the notification after the constitutional requirements have been fulfilled. There should be a cut-off date for this, though. Should a formal notification under Article 50(2) TEU not materialise after the expiration of the deadline agreed upon, the opening of negotiations could retroactively be interpreted as an implicit notification. This implicit notification would then mark the start of the countdown.

In the current situation, a few months more or less do not really matter anyways, as long as the direction of the whole process is clear. And the direction is withdrawal, not renegotiation. It should also be clear that there will not be substantive negotiations without prior notification and a beginning of the two year countdown. Arguably, it would even be illegal under EU law for the European side to begin substantial negotiations without the clock ticking.

All things considered, it appears to be a good idea, just as a precautionary measure, to let European Council President Tusk ask the British Prime Minister on Tuesday at the European Council meeting specifically if there is any news worth notifying, back at home in the UK…

Franz C. Mayer, Bielefeld/Berlin

(Suggested citation: F. C. Mayer, ‘Two Years Are Two Tears Are Two Years? When Does the Brexit Countdown Actually Begin?’ U.K. Const. L. Blog (27th Jun 2016) (available at https://ukconstitutionallaw.org/))

This is an English version of a post originally appearing on the Verfassungsblog, and is cross-posted here with thanks.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Information

This entry was posted on June 27, 2016 by in European Union, UK government, UK Parliament and tagged , , .
%d bloggers like this: