Analysis

What does Article 50 really mean? Some common questions answered

With Theresa May’s letter invoking article 50 now delivered to Donald Tusk at the EU, Natasha Levanti looks at some common questions being asked as to what it all means.

Is the United Kingdom still a member of the European Union?

Yes the United Kingdom currently remains a member of the European Union. As per Article 50, without the unanimous consent of the European Council, the UK’s membership of the European Union will end exactly two years from the invoking of Article 50 by Theresa May, which will be 29 March 2019.

Will we have a transitionary agreement with the EU at the end of the withdrawal negotiations?

There are currently different views held by the EU side and the UK side as to what the withdrawal negotiations consist of. The EU has been adamant that the next two years be withdrawal negotiations only, while the UK is pushing for the withdrawal negotiations to occur in parallel to settling the UK’s future relations with the European Union. Whether or not a transitionary agreement will be agreed within the next two years will likely be clarified within the coming months by the European Union, which has the legal mandate to set the withdrawal process. However, it is not guaranteed under the straightforward interpretation of the withdrawal process.

How is the withdrawal process determined?

The overall process for UK withdrawal will be set by the EU. More specifically it will be developed by the Conference of Presidents, who have already identified Guy Verhofstadt as the parliament’s coordinator. The various inputs from the standing committees will shortly result in parliament adopting a plenary resolution to impact the European Council guidelines for the withdrawal process. As the parliament will eventually need to consent to concluding the withdrawal agreement, it is likely that many of their inputs will have already been anticipated or taken on board regarding the framework governing the withdrawal process. This will likely largely determine if a transitionary agreement will be permitted to occur as part of the negotiation process. Once the European Council has adopted the framework for the withdrawal negotiation process, the actual negotiating begins.

Does Article 50 allow for a partial withdrawal, allowing the UK to withdrawal from some but not all membership aspects?

No, Article 50 only allows for the full withdrawal on all aspects of the UK’s membership with the EU, with no potentiality of a partial withdrawal.

What if we do not reach an exit agreement to the satisfaction of the UK within two years?

Any extensions on the two-year set negotiation period prior to the UK no longer being a member of the European Union must have the unanimous consent of the European Council. The UK officially cannot extend this, whether or not the UK is happy with the withdrawal agreement.

Could the notification of Article 50 be revoked by the United Kingdom over the next two years?

If you go merely by the Treaty on European Union (TEU), then there is not a concrete answer as to whether Article 50 can be revoked at some point over the next to years. However, within the Vienna Convention on the Law of Treaties there is a provision for the notification of a state’s intention to withdraw from a treaty to "be revoked at any time before it takes effect". However, within this, as the member states are the keepers of the treaties and TEU would take precedence, the current consensus of experts on the topic is that the withdrawal process could be suspended only if all other member states agree to this. 

A lesser stressed argument for potentially revoking Article 50 is that unilateral revocation could occur if the revocation is made in accordance with the national constitutional requirements of the United Kingdom. Given the recent court ruling on the topic of UK withdrawal, this option is unlikely.