Brexit and Article 50 TEU: A Constitutionalist Reading

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Eeckhout, P. ; Frantziou, E. (2016)
  • Publisher: UCL European Institute
  • Subject: UOW8

This article considers the constitutional requirements and implications of Article 50 TEU for the EU. It argues that it is essential to read Article 50 in light of the features of the Treaty of which it forms part together with its drafting context, that of the Convention on the Future of Europe, as well as the substantive protections of EU constitutional law. The article demonstrates that important constitutional constraints are in place in EU law, which can affect the most significant debates in the withdrawal process, namely: the manner in which notification to withdraw from the Union is given; the revocability of a decision to withdraw; and the legal basis and content of the withdrawal agreement. Most importantly, a reading of Article 50 informed by key constitutional features of the EU legal order stipulates clear duties for the EU to respect the UK’s constitutional requirements and to protect, in any eventual agreement, acquired rights for EU citizens in the UK and UK citizens in the EU, by emphasizing the illegality of a non-compliant withdrawal agreement from the EU perspective.
  • References (118)
    118 references, page 1 of 12

    2. On the difference with prior withdrawals, see Tatham, “Don't mention divorce at the wedding, darling!: EU accession and withdrawal after Lisbon” in Eeckhout, Biondi, and Ripley (Eds.), EU Law After Lisbon (OUP, 2012), p. 148.

    3. R (Miller) v. Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) (“Miller Divisional Court”); R (on the application of Miller and another) (Respondents) v. Secretary of State for Exiting the European Union (Appellant) [2017] UKSC 5 (“Miller Supreme Court”).

    4. Weiler, “Editorial: The case for a kinder, gentler Brexit”, 15 I-CON (2017).

    5. See further Fabbrini, “How Brexit opens a window of opportunity for Treaty reform in the EU”, (2016) Delors Institut/Bertelsmann Stiftung: Spotlight Europe, <www.delorsinstitut. de/2015/wp-content/uploads/2016/09/spotlight_europe_01_2016.pdf> (last visited 29 Mar. 2017).

    6. Case C-26/62, Van Gend en Loos v. Nederlandse Administratie der Belastingen, EU:C:1963:1.

    7. Case C-294/83, Parti Ecologiste “Les Verts” v. Parliament, EU:C:1986:166, para 23.

    8. Grimm, “The democratic costs of constitutionalisation: The European case”, 21 ELJ (2015), 469-471.

    9. Loughlin, The Idea of Public Law (OUP, 2003), pp. 5-7.

    10. Kostakopoulou, “Brexit, voice and loyalty: Reflections on Article 50 TEU”, 41 EL Rev. (2016), 488.

    11. The right of voluntary withdrawal from the Union was initially envisaged as Art. 46 in Ch. X of the first part of the Constitution entitled “Membership of the Union”. It was renumbered Art. 59 in the Constitution's final draft.

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