In this post Piet Eeckhout adopts a constitutional law perspective to argue that there are numerous ways in which the two-year Article 50 clock could be stopped or extended. Not only could the decision to withdraw be revoked by the UK, but both the UK and European Parliament could ask for the negotiations to be extended. Crucially, EU constitutional law requires an orderly transition.
The deed has been done, the letter delivered. All over media screens the two-year clock started ticking, registering to the level of seconds the time left for Britain’s EU membership. The point of Brexit, when by virtue of Article 50 the treaties cease to apply, can be determined with atomic precision, so it seems.
But the relationship between law and time can be treacherous, and those who look at the two-year deadline of the withdrawal process as a physical fact could well come in for a surprise. Of course we know that the European Council has the power to decide, unanimously, to extend the withdrawal process. So much is expressly stated in Article 50. There is, however, more to Article 50 than meets the eye.
In a paper written with Dr Eleni Frantziou (Westminster), and to be published in the coming months (for an earlier version see here; for my lecture on the subject, see here), we argue that Article 50 needs to be interpreted and implemented in line with broader EU constitutional principles. We also point out that UK constitutional law governs further UK decision-making on Brexit. Our conclusions are that the clock can be stopped in a number of ways.
First, the UK could change its mind. Our view is that the Article 50 notification is revocable. The notification implements a decision to withdraw, in accordance with the withdrawing state’s ‘constitutional requirements’ (Article 50(1)). If that state rescinds that decision, in good faith, and in a constitutionally orthodox fashion, the very basis for withdrawal falls away. In the UK parliament is sovereign. It has authorised the government to notify the intention to withdraw; it could decide, at any point, that Brexit is off. The EU respects the constitutional identity of its member states (Article 4(2) TEU), and would therefore need to respect a Brexit reversal, for else the effect of Article 50 would be one of forced expulsion. The travaux of Article 50 show that such an expulsion mechanism was rejected. Of course any abuse of the Article 50 process must be avoided – there cannot be an opportunistic letter-sending sequel – but the law can deal with abuse. The EU’s whole purpose is integration, and the return of the prodigal son would fit that purpose.