Academic journal article Texas International Law Journal

The British Withdrawal from the European Union and the Construction of a New Relationship

Academic journal article Texas International Law Journal

The British Withdrawal from the European Union and the Construction of a New Relationship

Article excerpt

TABLE OF CONTENTS

TABLE OF CONTENTS.........................109

INTRODUCTION.........................110

I. A DECISION TO WITHDRAW FROM THE EU.........................110

A. The Right to Exit.........................110

B. The Adoption and Notification of the Decision to Withdraw.........................112

C. A Right to Rescind.........................113

II. THE ONGOING AND FORTHCOMING NEGOTIATIONS.........................114

A. Negotiating Two Agreements.........................114

B. The Role of the European Parliament.........................118

C. The Participation of the Member States During the Negotiations............................119

III. CONCLUDING THE AGREEMENTS.........................121

A. Conclusion of Two Different Agreements.........................121

B. The Role of the European Parliament.........................125

C. The Role of the CJEU.........................126

IV. TIME CONSIDERATIONS.........................127

V. PROVISIONAL APPLICATION OR AN INTERIM AGREEMENT.........................130

VI. STILL A MEMBER STATE DURING THE WITHDRAWAL.........................132

CONCLUSION.........................136

INTRODUCTION

Following a long, acrimonious, and occasionally harsh campaign, the United Kingdom voted to leave the European Union on 23 June 2016. The period immediately after the referendum could perhaps best be described as relatively calm, although initially colored by domestic political turmoil in the UK. This waiting period ended on 29 March 2017 when the United Kingdom formally notified the European Union of its intention to withdraw from the EU. With the clock ticking and the British departure rapidly approaching, the Brexit process is reaching a critical stage. The parties produced a joint report on 8 December 2017 (hereinafter "the joint report") which recorded what had been agreed during the first phase of the negotiations and also marked that sufficient progress had been achieved in order to move on to the second phase. Moreover, a draft version of a withdrawal agreement was published on 23 March 2018 and the parties seem to have agreed on transitional arrangements meant to cover the period between the British departure and the establishment of future relations. However, there are a number of important issues related to the withdrawal still outstanding and the parties have not yet begun discussing a future relationship in any detail. Accordingly, what is to come of the British intention to withdraw from the EU remains uncertain.

In view of the United Kingdom's momentous decision to leave the EU, it is of course not unexpected that there are speculations concerning its consequences. However, while comments on divorce related issues and what the content of future relations between the UK and the EU will consist of appear frequently, it is striking that relatively little is said about what the procedure of leaving the EU actually entails. This is surprising, particularly in view of the unprecedented road ahead and the procedural complications the withdrawal could entail. It is the procedural framework that sets the parameters of the negotiations; and, the conclusion of any agreement between the parties must fit into what the procedural requirements demand.

The purpose of this Article is to shed light on what the decision of an EU Member State to leave the EU entails from a procedural perspective, and to unpick what the withdrawal process requires as a matter of EU law. Rather than focusing on the current exit of the UK specifically, this Article instead considers the process from a general perspective. However, it is of course difficult to escape the realities of the ongoing events related to the United Kingdom, and those realities are accordingly referred to where it is appropriate to do so.1

I. A DECISION TO WITHDRAW FROM THE EU

A. The Right to Exit

Article 50 of the Treaty on European Union (TEU) has quickly become one of the most famous, or indeed notorious, provisions of the EU Treaties. …

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