Article 50 TEU Reborn?

A Review of Benjamin Martill and Uta Staiger (eds.), Brexit and Beyond: Rethinking the Futures of Europe, UCL Press, 2018. 293 pp. £35 (HB). ISBN: 978-1-78735-277-3

1

In Wightman and Others v Secretary of State for Exiting the European Union, the Court of Justice of the European Union (CJEU) determined that Article 50 permits a Member State which has notified the European Council of its intention to withdraw from the European Union (EU) to unilaterally revoke that notification, subject to certain conditions, which the CJEU outlined at paragraph 75 of its judgment.

I want to focus on just a fragment of this already much analysed and commented upon decision, which is contained between paragraphs 38 and 42 of the judgment. Here the CJEU sets out the reasons why both the European Council and the European Commission opposed not the principle of revocation per se, but the “unilateral nature of that right” (para. 38). The Commission and Council feared that the grant of a right of unilateral revocation would allow a Member State to prolong the withdrawal negotiating period beyond the time limit envisaged in Article 50 (para. 40), and/or threaten revocation in order to strengthen its negotiating position (para.41) Such potential “abuse” (para. 39) would undermine the EU and its institutions (para. 39).

The CJEU was not persuaded by the arguments put forward by the Commission and Council - for good reasons. The scenarios which the two EU institutions contemplate as amounting to abuse (set out in paras. 41-42) are exactly those of a Member State under siege at home, and beset by doubts over its decision to initiate the Article 50 process. Under such conditions, the Member State may consider that a creative stretching of the withdrawal negotiation period is its sole defence against the potentially catastrophic consequences of a “disorderly exit” from the EU. In the generality of disputes with its Member States, the EU has been effective in preserving its authority by aggressively asserting its supremacy. However, such a time-worn strategy may be neither effective nor appropriate when applied to a Member State faced with the painful decision of whether to leave or remain within the European Union - not least in the case of a Member State that has played an instrumental part in the EU’s enlargement and expanded areas of competence (see: Cini and Verdun, 2018, p. 64-65; Hadfield, 2018: p. 180; Hill, 2018: p. 185-6).

So, beyond its immediate relevance to the Brexit situation, the CJEU decision in Wightman opens a space for reflection on whether there are ways in which the EU (via its institutions and institutional framework) can express its “supremacy” through new discursive forms - forms which do not endanger the “...relationships of solidarity and mutual trust among Member States” (Isiksel, 2018: p. 242) without which the EU project is destined to fail. In this regard, the EU is perhaps most tested in its dealings with a Member State after that Member State has invoked Article 50. In Wightman it was decided that the Member State who initiated the withdrawal process should be free to change its mind, and not await the “unanimous consent” (para. 42) of a European Council arguably over-preoccupied with guarding against all discernible “risks”( para. 42) to the EU’s international standing.

Whilst the CJEU decision could be interpreted as a mild rebuke to the Commission and Council for their failure to appreciate the “...acute constitutional, administrative, political and social pressures” (Bickerton, 2018: p. 136) that planned exit from the EU inevitably brings, it does not go far enough in correcting what (inspired by the various contributions to Brexit Beyond: Rethinking the Futures of Europe) I argue is the EU’s error in attempting to address the Brexit question through the supremacy lens.

Consisting as it does of just five short paragraphs, Article 50 might conceivably be the subject of further judicial interpretation as the Brexit saga rumbles on. If so, it is to be hoped that imposing a more active duty on the EU to retain a Member State - especially where significant controversy and dispute surrounds that Member State’s decision to leave the EU - is deemed to be consistent with the terms of Article 50, and undermining of neither Member State “sovereignty” nor the EU’s legitimate interest in preserving its authority. Nicolaidis comes closest to expressing how a reborn Article 50 might operate when he poses the question “...what kind of policies and institutional arrangements could make the exercise of exit less palatable” (2018: p. 214). In the context of Brexit, it seems that the EU’s response to the question Nicolaidis raises is to “...pursue policies designed to diminish the UK’s economic and political power” (Morgan, 2018: p. 43). It is determined to ensure that the UK is not “...seen to have won a deal that results in it being materially no worse off ...” (Nugent, 2018: p. 61) - thereby “...highlighting once and for all exactly what would be lost without European integration” (Glencross, 2018: p. 27). Whilst it is “ ...essential that the EU should refuse any deal that would give ‘global Britain’ the capacity to undermine any future European effort to better care for the losers of globalisation, of the Single Market and of the single currency” (Van Parijs, 2018: p. 257), the EU’s negotiating strategy overall appears not to have this laudable aim in focus. This is not to say that the EU’s interest it is self-preservation is not legitimate. However, in view of the fact that it represents a “...significant experiment in post-sovereign governance ...” (Martill and Staiger, 2018: p. 12-13), the EU’s self-preserving strategies appear to be firmly rooted in ideologies more commonly associated with the nation state form (Tuitt, 2017).

Noting that “...there has never been a default mode for leaving the EC/EU” (Patel, 2018: p. 117), it might be argued that, in the context of its relations with its Member States, the EU’s authority depends not on a rigid demarcation of those inside or outside of the EU, but, rather, acknowledgement of an increasing “...preference by some Member States for ‘ outsiderness’ over full membership...” (Curtin, 2018: p. 148), and a demonstrable capacity to absorb the occasional institutional shocks caused by the increasingly “...complex relationship between processes of integration and disintegration as a more permanent feature of the European integration process...” (Patel, 2018: p. 114). The Brexit case reveals that the EU is a long way off from this desired state, instead “...because...legitimacy is predicated on little more than ‘you’re better off thanks to the EU’, supranational institutions experience every crisis of competence, every economic slump, as an existential crisis” (Isiksel, 2018: p. 242).

2

Beyond Brexit predates Wightman and other major developments surrounding the UK’s planned exit from the European Union. However, as one would expect from a cross-disciplinary collection which brings together so stellar a cast of academics, much of what has followed the conclusion of the Brexit Withdrawal Agreement - including two European Council Decisions (22.3.2019 & 11.4.2019) extending the Article 50(3) period - was, to a greater or lesser degree, anticipated by the authors, making the book’s publication all the more timely.

The Brexit Withdrawal Agreement was thrice rejected by the UK Parliament, largely due to fears that once the UK had withdrawn from both the Single Market and the Customs Union the logical outcome of a “hard” “...border between the Republic and Northern Ireland…” (Wright, 2018: p. 105) would become a factual reality. Wright’s chapter explores the seemingly intractable problem of the post-Brexit Irish border, concluding that “[n]orthern Ireland’s fragile and fractious political settlement, Anglo-Irish intergovernmental relations, and the UK’s long-term post-Brexit relationship with the EU would all be at risk in the event a hard border is re-constituted” (2018, p. 105-113, at p. 112). The debates, motions and other stratagems around the Brexit Withdrawal Agreement could all have occurred when Eeckhout and Weale completed their chapters. In spite of the fact that the Supreme Court in Miller v Secretary of State for Exiting the European Union “upheld the principle of parliamentary sovereignty “ (Weale, 2018: p. 32) “executive dominance” over the withdrawal process (Weale, 2018: p. 32) would almost certainly make an orderly exit from the EU more difficult to achieve, since the Miller decision only required that the UK Parliament approve terms which were agreed exclusively between the EU and the UK government. Eeckhout accurately predicts the current state of play when he opined that “...the resulting deal (if there is one) will come before Parliament in a take-it-or-leave-it vote, which in the leave-it version would mean that Parliament becomes responsible for there being no rights at all. The constitutional concept is that 3 million people can be stripped of a range of basic rights by mere executive action” (2018: p. 171).

Staiger (2018: p. 230-238), Innes (2018: p. 138-147), and Hix (2018: p. 72-80) draw attention to the ways in which the weaknesses of the UK state, caused primarily by a process of privatisation which has “..made the state both an inefficient public regime and a poorly performing market” (Innes, 2018: p. 144), have been attributed to EU policy -often by means of emotional appeals and rhetoric addressed to a public which “...cannot be ignored, and...is heading against the EU” (Hix, 2018: p. 73). Such appeals are all the more effective because traditional politics discounts all but “...a process of measured preference formation” (Staiger, 2018: p. 231). “To dismiss the role of emotions in politics…” (Staiger, 2018: p. 31), according to Staiger, is to dangerously “...misconstrue the problem of contemporary politics...”(2018: p. 231).

3

Article 50 TEU has been widely interpreted as doing little more than “...setting out the procedure for withdrawing from the Union...”(Martill and Staiger, 2018: p. 6) but as the CJEU decision in Wightman establishes it is capable also of facilitating a process whereby a Member State reconsiders its decision to withdraw, to the point that its decision is changed. Whilst Wightman envisages only a situation in which the departing Member State reflects and revokes, the language of Article 50 is capable of being construed so as to enable the appropriate EU official or institution more actively/proactively to encourage a period of reflection where they/it considers, on reasonable grounds, that the primary aim of Article 50 negotiations (which is to bring about an orderly exit of the departing Member State) is unlikely to be achieved. Indeed, one might read the terms of the second European Council decision (11.4.2019) on extension of Article 50(3) as coming close to a more proactive effort on the part of the EU to prevent the UK from what Bellamy sees as doing harm of a kind which is no less destructive for being partly turned in upon itself. The UK’s “...moral and political wrong...” (Bellamy, 2018: p. 228) is evidenced by the fact that it has “...delivered a formal facade of national sovereignty, symbolised by certain immigration controls against the poor and powerless that disregard their moral obligations to assist those in dire need, combined with a total openness to global economic processes over which they will have little of no democratic control” (Bellamy, 2018: p. 228).

Bellamy is just one in a long line of experts who, since the 23 June 2016 referendum outcome was delivered, have sought to highlight the “...economically and psychologically very painful” (Paterson, 2018: p. 96) consequences of leaving the EU. The most significant of these consequences bear repeating here. It is expected that the Euro will “...strengthen permanently vis-a-vis the pound sterling as the role of the City of London diminishes and international financial regulation reflects continental European preferences more strongly...” (Schelkle, 2018: p. 129). Also “Britain risks both diminishment of its soft-power diplomatic status, and an attenuation of its hard-power security and defence capabilities across continental Europe...” (Hadfield, 2018: p. 176), because it will rightly be perceived as having “...wilfully given up its privileged position in foreign policy consultations” (Hill, 2018: p. 192). The financial losses will not only be on the UK’s side, for “[w]ithout Britain’s net contribution...the EU will be poorer...and the likelihood of budget shortfalls that much stronger” (Gillingham, 2018: p. 200). The EU’s weakened budget position is “...certain to have an impact on the shape of EU policies designed to generate public goods” (Shackleton,2018: p. 207). Eclipsing all of the above is the realisation that “...the loss of individual rights resulting from the UK’s departure from the EU could be the most substantial loss of rights in Europe since the break-up of Yugoslavia in the 1990s, with the loss of the status of ‘Yugoslav’ citizen for millions of people” (Shaw, 2018: p. 158).

4

The latest European Council decision on the extension of Article 50(3) notwithstanding, there is little indication that the EU will accept that the best way to offset the potential “contagion effect” (Paterson, 2018: p. 93) of Brexit is to accept that the process of withdrawal itself accentuates the EU’s supremacy, and, therefore, it can guard against any reduction of its standing in the world stage in much less strident terms. Bickerton neatly puts the case in the following observation: “[a]s a process, Brexit makes demands upon the British state that presume it to be and to act like a nation-state, when in fact it has become a Member State”( 2018: p. 135-6). Whatever the true position, the idea that Brexit is doing irreparable harm to the EU’s standing is so strong that the authors view the prospects of the UK ever rejoining the EU with something less than confidence. For de Burca, the existence of a younger generation of UK citizens less hostile to the EU encourages thoughts of “...renewed EU membership after a period outside the EU...” (2018: p. 50). For Morgan,too, “...Britain’s re-entry into Europe...is...in all likelihood a generational project...” (p. 37). Shackleton, on the other hand, writes of the “...unlikelihood of the UK’s being able to rejoin the EU, should it wish to change its mind” (2018: p. 205).

In short, far from making “...place for phases and processes of disintegration...” (Patel, 2018: p. 120), the Brexit situation, at least until recently, has seen a hardening of the EU supremacy trope. This is because the EU’s “...entire system has been based on...the idea that integration is a one-way street toward ‘ever closer Union’. Only the membership of new Member States and the addition of new competences are envisaged. In this vision, there is no place for Member States to quit the club..[.i]n this sense, the result of the Brexit referendum was unthinkable” (van Middelaar, 2018: p. 82-3).

5

Most of my writings on Brexit have given little thought to the question of whether a less rigidly rules-based approach to the Article 50 process on the part of the EU might have meant that “...the Brexit vote, and its consequences, could have turned out very differently...” (Martill and Staiger, 2018: p. 263). I have chosen instead to focus on the signs which indicate that the UK government, in deciding to initiate the Article 50 process, was intent on much more than the “passive” withdrawal from the EU which the Article envisages, and sought, instead, ambitiously to bring about permanent alteration to the EU’s constitutional foundations (see: Tuitt, 2017 and 17.7.2018). On this view, “...the UK’s withdrawal from the EU is by definition a matter of ‘breaking things’ (Drake, 2018: p. 97). “The endgame is change, and the method is disruption” (Drake, 2018: p. 104). “It is a method of challenging the status quo that relies on creativity, speed and luck” (Drake, 2018: p. 104). Two extensions to Article 50(3) must surely indicate that at least one of the ingredients for engineering change to the EU’s foundations - speed - is no longer part of the UK’s Brexit box of tricks. As far as luck is concerned, the UK, throughout its membership of the EU, “...sought and received special treatment ...and ...adopted a pragmatic, case by case approach to the introduction of new areas of EU policy” (de Burca,2018: p. 49). Its store of luck is empty.

References

Case C‑621/18 Wightman and Others v Secretary of State for Exiting the European Union [2018].

European Council Decision taken in agreement with the United Kingdom, extending the period under Article 50(3)TEU, 22.3.2019.

European Council Decision taken in agreement with the United Kingdom, extending the period under Article 50(3)TEU, 1.4.2019.

R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5.

Tuitt, Patricia “The UK’s General Strike: Brexit and Critiques of Violence”, patriciatuitt.com, 2017. https://www.patriciatuitt.com/brexit-download

Tuitt, Patricia “Common Rulebooks and Frictionless Borders: The UK’s Redesign of the European Union” (commentary post), patriciatuitt.com, 17.7.2018.

https://www.patriciatuitt.com/single-post/2018/07/17/Common-Rulebooks-and-Frictionless-Borders-The-UKs-Redesign-of-the-European-Union