European Union member states questioned on Wednesday (29 March) the legality of a European Parliament move to open up the possibility that Article 50, the legal process taking Britain out of the EU, could be reversed.
Diplomats told euractiv.com that by offering the UK a way out of Brexit, the EU had weakened its hand in the two years of tough divorce talks that were triggered by today’s notification of the treaty clause.
According to a draft Parliament resolution adopted today by the conference of presidents of the political groups, the reversal of Article 50, needs to be subject to conditions set by all the EU-27 “so it cannot be used as a procedural device or abused in an attempt to improve the current terms of the United Kingdom’s membership”.
But Article 50 of the EU treaty does not mention the possibility of reversing it once it has been invoked.
“There is no possibility to revoke article 50 because there is no legal basis”, stated one diplomat.
Another official said that it was “clear” that it was not possible to cancel the process once it started. However, she expected a discussion among her colleagues on this issue.
A diplomat from a large member state went beyond the legal argument to dispute its inclusion.
Given that British Prime Minister Theresa May was “extremely clear” saying that there is no way back once the notification has been sent, he wondered why the EU should offer the possibility.
All diplomats consulted agreed that, by offering the possibility to revoke the notification, the EU could have weakened its negotiating position.
One said that there were three positions on the issue of stopping the exit talks. A group of member states argue that it is not possible. Poland would be among these countries.
Another group believes that it is possible only if all the member states can agree unanimously, as it is required also to extend the divorce talks. The Parliament, the European Commission and countries like the Netherlands would be in this group.
Finally the UK believes that it could stop the process by itself. But this option is rejected by the EU institutions.
“Since 1.20 pm the Brexit is a problem for the EU as a whole,” said European Parliament President Antonio Tajani. Britain cannot change its position alone, all member states should decide if it is possible, he said. “But the rules are very clear”, he added.
Commission sources admitted that, according to the wording of the article, the process has reached “a point of no return”.
But the same sources added that if there is an agreement among the 27 member states and the UK to revoke the notification “everything is possible”.
The Parliament is expected to adopt its resolution next Wednesday during its plenary session in Strasbourg.
The draft text put the utmost importance on protecting the citizens’ rights during the talks and once a new settlement has been sealed.
The rights of the EU citizens in the UK and the British citizens in EU have to be “the first issue to be tackled in the negotiations”, the Parliament’s Brexit negotiator Guy Verhofstadt said.
He warned against turning citizens into “bargaining chips” during the negotiation.
The Parliament and the Commission said that once the issue of citizens’ rights, borders and the outstanding financial commitments have been settled, both sides could start discussing the future relationship.
This is also reflected in Article 50, as it says that the final exit agreement would take into account the future relationship with the EU.
But in order to finalise every detail of the future association deal, Verhofstadt admitted that a transitional period could be needed. MEPs propose a maximum period of three years.
The Parliament also warned against any attempt to use the cooperation in the fight against terrorism or crime as a tool to gain access to the single market in fields such as financial services, a priority for Britain.
“Security of our citizens is far too important to trade off one against the other”, Verhofstadt said.
The Parliament recommends an association agreement with the UK with “reciprocal rights and obligations”.
This relationship, based on article 217, would be similar to the EU-Ukraine partnership. It would be broader than any trade or economic deal, to include issues such as security or programmes like Erasmus.