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The Constitutional Case for Making the Article 50 TEU Notification

100%
O'Neill R.
Studia Iuridica
|
2016
|
vol. 68
249-262
EN
In a referendum held on June 23, 2016, the United Kingdom voted in favour of leaving the European Union. For the first time since its creation in the Lisbon Reform Treaty of 2009, art. 50 TEU will probably now be invoked by the UK for the withdrawal process from the EU, envisaged by the outcome of the referendum, to commence. Article 50 TEU requires that national constitutional arrangements exist so that notification on withdrawal can be made to the European Council. Curiously, to date, the biggest consequence of the referendum outcome has not been the creation of a debate about the role of EU law in the UK legal order, but rather the separation of powers within the UK’s unwritten constitution and which organ of state has authority to activate the art. 50 TEU withdrawal: Parliament or the Executive. The debate has spawned dozens of constitutional blog posts, numerous academic articles, a High Court judicial review of the Government’s position, a second draft independence bill published by the Scottish Government and a judicial review before the Northern Irish Court of Appeal. On one side of the debate, the Government maintains that it alone possesses the Royal Prerogative to ratify and withdraw from international treaties, and thus to make the notification of withdrawal. On the other hand, Parliament and the ’Bremainers’ maintain that any unilateral action by the Government exceeds its authority, and Parliament must provide authorisation; a position which could ultimately result in the referendum outcome being ignored and the UK remaining a Member State. In a third corner, the governments of Scotland and Northern Ireland, two countries within the UK whose electorates voted to remain in the EU, demand a voice in both the decision to leave and in the subsequent negotiations with the EU institutions (note, however, that the status of the devolved administrations will not be addressed in this article, as the issue is considered by the author as being too unclear in the absence of any judicial statement on matters of devolution and institutional hierarchy, including but not limited to the limitations imposed on the doctrine of Parliamentary Sovereignty by the Sewel Convention). The judgment of the High Court has not yet been published, and even if it were there will inevitably be an appeal to the Supreme Court, so it is only possible to speculate on what will happen, but this article intends to provide clarity on the legal principles currently under discussion in the most important constitutional discussion to happen in the UK since it joined the EU in 1973.
2

The Constitutional Case for Making the Article 50 TEU Notification

100%
O'Neill R.
Studia Iuridica
|
2016
|
vol. 68
249-262
EN
In a referendum held on June 23, 2016, the United Kingdom voted in favour of leaving the European Union. For the first time since its creation in the Lisbon Reform Treaty of 2009, art. 50 TEU will probably now be invoked by the UK for the withdrawal process from the EU, envisaged by the outcome of the referendum, to commence. Article 50 TEU requires that national constitutional arrangements exist so that notification on withdrawal can be made to the European Council. Curiously, to date, the biggest consequence of the referendum outcome has not been the creation of a debate about the role of EU law in the UK legal order, but rather the separation of powers within the UK’s unwritten constitution and which organ of state has authority to activate the art. 50 TEU withdrawal: Parliament or the Executive. The debate has spawned dozens of constitutional blog posts, numerous academic articles, a High Court judicial review of the Government’s position, a second draft independence bill published by the Scottish Government and a judicial review before the Northern Irish Court of Appeal. On one side of the debate, the Government maintains that it alone possesses the Royal Prerogative to ratify and withdraw from international treaties, and thus to make the notification of withdrawal. On the other hand, Parliament and the ’Bremainers’ maintain that any unilateral action by the Government exceeds its authority, and Parliament must provide authorisation; a position which could ultimately result in the referendum outcome being ignored and the UK remaining a Member State. In a third corner, the governments of Scotland and Northern Ireland, two countries within the UK whose electorates voted to remain in the EU, demand a voice in both the decision to leave and in the subsequent negotiations with the EU institutions (note, however, that the status of the devolved administrations will not be addressed in this article, as the issue is considered by the author as being too unclear in the absence of any judicial statement on matters of devolution and institutional hierarchy, including but not limited to the limitations imposed on the doctrine of Parliamentary Sovereignty by the Sewel Convention). The judgment of the High Court has not yet been published, and even if it were there will inevitably be an appeal to the Supreme Court, so it is only possible to speculate on what will happen, but this article intends to provide clarity on the legal principles currently under discussion in the most important constitutional discussion to happen in the UK since it joined the EU in 1973.
3
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Wymogi konstytucyjne określone w art. 50 ust. 1 TUE – możliwe procedury podjęcia decyzji o wystąpieniu z Unii Europejskiej w państwach członkowskich

100%
Krawczak M.
Acta Iuris Stetinensis
|
2022
|
vol. 37
69-85
EN
The vast majority of the literature on the procedure of a Member State’s withdrawal from the European Union concerns the analysis of subsequent stages of the process at the EU level. Researchers rarely resort to internal (national) procedures related to making a decision on the withdrawal from the EU. According to Article 50(1) of the Treaty on European Union, which is the legal basis for a Member State’s withdrawal from the EU “Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements”. The term “constitutional requirements” has raised numerous problems of an interpretative nature in the Brexit process. This paper, therefore, addresses the possible procedure for making a decision to withdraw from the European Union in all Member States. The study analyzes national provisions relating to membership in the EU and international organizations in general. Although no Member State, except Poland, regulates the procedure of making a decision to withdraw from the EU directly, legal systems of all Member States include provisions concerning ratification and termination of international agreements.
PL
W literaturze traktującej o procedurze wystąpienia państwa członkowskiego z Unii Europejskiej przede wszystkim analizowane są kolejne etapy całego procesu na poziomie unijnym. Rzadko badacze odnoszą się do wewnętrznych (krajowych) procedur związanych z podjęciem decyzji o wystąpieniu z UE. Zgodnie z ust. 1 art. 50 Traktatu o Unii Europejskiej, stanowiącym podstawę prawną wystąpienia państwa członkowskiego z UE, „Każde Państwo Członkowskie może, zgodnie ze swoimi wymogami konstytucyjnymi, podjąć decyzję o wystąpieniu z Unii”. Sformułowanie „wymogi konstytucyjne” nastręczyło licznych problemów natury interpretacyjnej w procesie brexitu. Niniejszy artykuł traktuje zatem o prawdopodobnej procedurze podjęcia decyzji o wystąpieniu z Unii Europejskiej we wszystkich państwach członkowskich. W ramach badań dokonano analizy przepisów krajowych odnoszących się do członkostwa w UE oraz ogólnie w organizacjach międzynarodowych. Choć w żadnym państwie członkowskim, nie licząc Polski, nie uregulowano bezpośrednio procedury podjęcia decyzji o wystąpieniu z UE, to w systemach prawnych wszystkich państw członkowskich ujęte są postanowienia dotyczące ratyfikacji i wypowiadania umów międzynarodowych.
4
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Advocatus populi and advocatus diaboli – on law, arguments and strategies in Brexit negotiations

84%
Radwan A., Schäfer H. B.
Politeja : Pismo Wydziału Studiów Miedzynarodowych i Politycznych Uniwersytetu Jagiellońskiego
|
2017
|
issue 49
231-271
EN
The decision on leaving the EU was driven by identity politics rather than sober economic considerations. The British government will have to reconcile the political expectations of the voters (red lines) with their long term economic aspirations, as it will be accountable towards the electorate for delivering both. The two-years sunset clause elicits the specter a hard Brexit scenario with theUK ending up as Union’s uncushioned dropout. The failure to work out any withdrawal agreement, ergo UK downgrading to a mere WTO status makes up the BATNA for the negotiating parties. From the day of the notification made pursuant to Article 50 TEU, this BATNA looms larger for the UK than it does for the EU-27, as the costs of losing the access to the other party’s market are estimated to be much higher for London than for Brussels. Avoiding hard Brexit will only be possible if a new model of future EU-UK trade relations will be worked out. The cost calculation for EU-27 cannot be limited to a ‘single game’ (one-stage strife) but it has to take into account the influence of the negotiated outcome on future behaviour of other players to the game, i.e. the remaining MS. Both parties remain in a confrontational logic. They resort to entering a chicken game – a negotiation strategy of signalling a limited room for manoeuvre. The main demands of the Leave camp are now being taken by the British government for red-lines supposed to be limiting London’s array of acceptable negotiation outcomes (Brexit means Brexit). On the other hand, the EU-27, as a heterogeneous group of countries remains inherently unpredictable, which may be also perceived as a structural narrowing of Brussels’ room for manoeuvre. Thus, contrary to the received wisdom, the London’s divide et impera strategy would easy turn counter-effective. A tension that exists between meeting voters’ political expectations on the one side, and safeguarding country’s long-term economic prosperity on the other, makes any possible tradeoff hard to accept. A strategy capable of reconciling these conflicting premises would be for London to strive to prevail in political symbolism while at the same time accept far-going concessions in the real sphere by allowing the EU-UK economic integration to be upheld through UK continued Club’s ‘membership in disguise’. The most probable outcome of the Brexit negotiation will be the adoption of a comprehensive free trade agreement. It is unlikely for the withdrawal agreement and/or for the future EU-UK FTA, alleviating the adversity of Brexit for the British economy, to be concluded without London’s readiness to rendering transfer payments towards the EU, and without UK participation in at least some of the Union’s key policies. Furthermore, UK will need to continue following at least some of the internal market regulations. The inherent downside of this arrangement for theUK will be the reduced influence of London on the Brussels-made laws. The compliance of United Kingdom with the EU legislation will need to be flanked by arrangements designed to guarantee a functioning law enforcement through institutionalized dispute resolutions mechanism (e.g. EU-UK court modelled after the EFTA-court).
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