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1. Reading tweets over the (notional) Christmas Brexit truce, I’ve been struck by the repeated confusion about what the UK can / cannot do over the three months to 29th March 2019.
2. As Parliament resumes and the surrounding discussion heats up, it may therefore perhaps be helpful to offer a little (further) clarification about how the process under Article 50 TEU works.
3. Once Article 50 is triggered – as was done by the Prime Minister’s letter on 29th March 2017 – the two year time period specified by Article 50 runs down automatically.
4. Contrary to what some tweets that I’ve read suggest, the leaving Member State cannot hit a ‘pause’ button to suspend the process. Nor indeed can the EU. Article 50 TEU is not fitted with a pause button.
5. By default, on 29th March 2019 at midnight CET (23h00 UK time) the UK will therefore leave the EU, irrespective of whether there is or is not a deal at that point.
6. Without a formal withdrawal agreement (WA) there will be no transitional period providing legal security, during which the new relationship with the EU can be negotiated.
7. There are two possible ways of ensuring that the UK does not automatically leave the EU on 29th March 2019. One is an extension of the Article 50 period. The other is revocation of the Article 50 notice. The differences between the two are important.
8. The UK cannot unilaterally extend the Article 50 period. That requires unanimity. Put another way, both the UK and ALL the other Member States have to want and therefore agree to an extension.
9. It follows that the UK cannot usefully ‘demand’ an Article 50 extension. It could request one, citing some reason(s) that both it and its EU partners will consider important enough to warrant agreeing to an extension.
10. There have (for example) been plausible indications that the EU27 would probably be amenable to agreeing an extension in order to make the necessary time for a second referendum, should the UK wish to hold one.
11. Perhaps the same would be true were there to be a general election.
12. Technically, it would probably be difficult – perhaps, not impossible – to extend the Article 50 period for longer than an additional three month period, to 2nd July 2019.
13. That is because the UK would have no members in the new European Parliament that is due to take office on that date. If the UK were still a Member State at that point, it should of course have elected MEPs in May to sit in that new European Parliament.
14. A three month extension could, however, provide an important space in which to seek a clearer mandate on Brexit from the British public, if Parliament decides to adopt that course of action.
15. Conversely, seeking an Article 50 extension in order to try to obtain further legally binding concessions from the EU on the Irish backstop might not receive such a favourable response from the EU27.
16. There appears little appetite for reopening the legal process and re-negotiating the WA, which was approved by the European Council at the end of November.
17. So, whether an Article 50 extension is obtainable would depend on the reason(s) advanced for seeking it.
18. Importantly, at the end of the (extended) Article 50 period, the UK would cease to be an EU Member State. The only legal effect of an extension is thus to postpone the point at which the UK leaves, not to alter that outcome.
19. The alternative way of stopping the UK from leaving the EU automatically on 29th March 2019 is to revoke the Article 50 notification (see my earlier thread on the CJEU judgment in Case C-621/18 Wightman and others). That can indeed be done by the UK unilaterally.
20. However, revocation of the Article 50 notification must be unequivocal and unconditional; its purpose is to confirm EU membership; and it brings the withdrawal process to an end (Wightman para. 74).
21. That is fundamentally different from extending the Article 50 period.
22. Whatever happens when Parliament resumes on 7 January, it really is important for these basic parameters to be borne in mind. (Ends – please feel free to RT)
