Let the negotiations begin—triggering Article 50

Let the negotiations begin—triggering Article 50
Theresa May officially notified the EU on 29 March 2017 that the UK is leaving, and has kick-started the Art 50 TEU process. Hazel Moffat, partner at DLA Piper, discusses the road ahead, and the various challenges and impediments the UK could face in extricating itself from the EU.


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Once the EU accepts the UK’s notification of its intention to withdraw, what are the next stages in the process under Art 50 TEU?

The first step will be for the remaining 27 EU Member States to formulate guidelines for the European Commission to use in its negotiations with the UK. European Council leader Donald Tusk has declared the EU will act swiftly and have these drafted for discussion and agreement within 48 hours of the UK’s formal trigger of Art 50 TEU. European leaders will then discuss and agree these guidelines and adopt a formal decision, authorising the opening of negotiations and adopting various negotiating Directives. The necessary documentation will also need to be translated into all of the EU’s official languages. This formal opening stage might take several weeks, if not months, although there is a clear commitment from the EU to move swiftly. Only then will negotiations with the UK begin.

The negotiation guidelines are set by the EU, is there any opportunity for the UK to influence the process?

The UK government set out what it is hoping to achieve in the exit negotiations in its February white paper on the UK’s exit from, and new partnership with, the EU. No doubt there will be diplomacy behind the scenes, but it is unlikely that the UK will have much opportunity to influence the process. It is now on the other side of the negotiating table, after all.

What are the key milestones in the two-year Art 50 TEU timeline and when is each of these likely to happen?

The first milestone will be the finalisation of the negotiating guidelines. Getting agreement across all of the remaining EU Member States will take time, so it may be the summer before the actual negotiations begin. Later milestones are hard to predict at this stage. However, time needs to be built in at the end of the process for the UK Parliament to vote on the final deal, and it is also likely that the deal will have to be ratified by the national parliaments of the remaining EU Member States as well.

What are the key political events on the horizon across the EU in the two-year Art 50 TEU timeline which could impede/impact the Brexit process?

The French Presidential elections may cause a political upset in May 2017. Presidential hopeful, Marine Le Pen is running a campaign based on anti-globalisation and anti-EU positions, both of which have seen a surge in popularity. If she wins, some commentators predict that France will seek to join the UK in exiting the EU, with significant consequences for the future of the EU as a whole.

In September 2017, the German general elections will take place. Angela Merkel is seeking a fourth term as Chancellor and is likely to face a difficult re-election campaign. These elections will be a distraction from the exit negotiations.

In Scotland, the latest call by the Scottish Government and First Minister, Nicola Sturgeon to hold a second independence referendum at some point before the end of the two-year process is a further potential complexity.

Meanwhile in the US, there is also considerable uncertainty as to how the business environment is going to be shaped under Donald Trump’s presidency.

What is the predicted course of EU negotiations? Are there any typical stances, challenges that the UK will face?

The two-year window for negotiating the exit agreement is going to present timing challenges in light of the complexity of the issues. This period can only be extended if all Member States agree. The question of how much the UK will have to pay the EU in order to clear outstanding spending commitments and liabilities will be high on the agenda. The legal obligation to make such a payment, and the numbers at stake, are far from clear.

The negotiations will also be complicated by the fact that EU Member States are likely to have different stances on different issues. Even the ambit of the negotiations will need to be debated, and in particular the extent to which the negotiation period can be used to discuss future relations between the UK and the EU (as the UK government would like) as well as simply the terms of its withdrawal.

Part of the debate so far centres on the transparency of the Brexit process and the way in which political progress in the negotiations is reported back to Parliament. That is a potential impediment for the government, because until a deal is done everything will be up for negotiation. One of the difficulties for the government will be protecting the confidentiality of the negotiations to ensure they are not derailed by media interference or other political influences, particularly where matters are misreported or taken out of context. However, there is clearly a strong desire within the UK Parliament for some level of transparency and accountability, and therefore the government must take cognisance of this.

What happens if a deal isn’t reached within the two-year window?

If a deal is not done, the UK effectively withdraws from the EU on whatever terms are reached by the end of the two years. The government remains committed to finalising a deal within this period, although there is much scepticism that any deal reached could be detailed in all respects. This is a huge challenge in a short timetable—it is more likely that there is an outline or interim deal reached within this period. There is also a distinction to be made between the deal to exit, and what will then be the enduring arrangements after Brexit—a nuance that is often overlooked.

If there really is no deal reached—and Theresa May has said that no deal is better than a bad deal—that could be an incredibly hard Brexit. I genuinely cannot see businesses across Europe (and not just within the UK) accepting that, and Member States would be under considerable pressure to agree to a time extension on Brexit negotiations. But it requires unanimity to do so.

Could the UK change its mind once Art 50 TEU has been triggered?

Whether Art 50 TEU is irrevocable is a much-debated point at the moment. Lord Kerr, the author of Article 50, has openly said that it is revocable, while the government’s position has suggested the exact opposite—although this may be simply a statement of political fact as opposed to legal interpretation. I imagine that the next phase of the legal challenges against Brexit will focus on the irrevocability of Art 50 TEU and I can see the matter going all the way—ironically—to the European Court of Justice.

Interviewed by Duncan Wood.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

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