Revoking Article 50 would be illegal, claim EU diplomats

European Parliament President Antonio Tajani and Brexit negotiator Guy Verhofstadt put citizens first during the break-up talks. [European Parliament]

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.

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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”.

Citizens first

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.

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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.

Positions

S&D group president Gianni Pittella said: “It is a sad day today for the whole of Europe and the United Kingdom. A divorce is always a defeat. Contrary to the false promises of the Brexiters´ propaganda, leaving EU will involve difficult decisions and there will be unexpected and often harmful consequences. British citizens should never forget who is to blame for this leap in the dark: Nigel Farage, the UK Conservatives, David Cameron and Theresa May.”

“Facing a divorce, the first and most important thing to care about are the rights and wellbeing of the children. In this divorce, these are our citizens. We have a duty to safeguard the acquired rights of the EU citizens living in UK and the UK citizens living in the EU based on equity, reciprocity, symmetry and non-discrimination. We will not accept any degradation of these rights before the date of the withdrawal. We are confident a deal can be reached on this and should do so as quickly as possible to send a positive signal and reassure citizens who feel lost.

Belgian Prime Minister Charles Michel said: “Belgium will adopt a constructive attitude during the negotiations,” he said.

“We are in favour of a far-reaching free trade agreement with the United Kingdom. Such an agreement must honour the integrity of the single market and its four liberties. Securing a fair and level playing field is the main objective here, as is providing a clear legal framework.”

Greens/EFA group co-president in the European Parliament, Philippe Lamberts, said:  “We deeply regret that the UK will be leaving us. With such a rich shared history, the UK will always have a special relationship with the EU. We want, as far as it is possible, to accommodate the wishes of all UK citizens, not just those who voted to leave.

“This makes the close involvement of the devolved powers of Northern Ireland, Scotland and Wales essential to successful negotiations. We also want to reflect the wishes of young people, so many of whom voted to remain part of the European family. “

Greens/EFA co-president Ska Keller added: “We will not accept anything that degrades the existing rights of European citizens. The status of British citizens living in the EU, and people from across Europe living in the UK, must be an urgent priority for the negotiations. They must be able to continue to live and work in the countries in which they have made their homes.”

The European Banking Federation noted that the EBF is keen to see clarity and certainty for banks during this process so that the banking sector can continue financing the economy while serving customers to the fullest extent and without undue disruption.

“We stand ready to support policy makers at all levels and to assist their understanding of the impact that the upcoming negotiations will have on the supervisory and regulatory framework and on business models.”

Marco Mensink, director general for Cefic said: “We appreciate negotiators have a very difficult and sensitive task ahead. Politicians on both sides must provide the earliest possible signal concerning how the EU and UK will trade in future so companies on both sides can continue their mutually beneficial trading relationship. Decisions about continued investment can only be made based on long-term predictability.”

An Irish government statement said: “Although we regret the UK's decision to leave the EU, it has been clear since the referendum last June that the British Government would follow this path.

“Ireland is well prepared for the challenges ahead. We will negotiate from a position of strength as an integral part of the EU 27 team, and will work with all our partners to achieve the best possible outcome.

“The Government has been working very hard for more than two years, even before the UK referendum, to engage with all sectors across the island of Ireland, to fully analyse our main areas of concern, and to develop our negotiating priorities.

Susan Danger, CEO at AmCham EU, said: “We have only one key interest here: we want the best possible deal between the EU and the UK – for businesses and citizens alike. We are fully committed to do everything in our power to help negotiators reach an outcome that takes into account economic and employment consequences.”

A BusinessEurope spokesperson said: “The European Union needs a strong United Kingdom and the United Kingdom needs a strong European Union in order to pursue mutually beneficial relations in the future.

“The future relationship between the UK and EU must be based on reciprocity with the UK having the rights and obligations of a non-EU member.

“The best trade agreements are not stuck in time, so we favour an agreement that adjusts to changes in the long-term partnership between the EU and UK.”

Timeline

  • 31 March: European Council President Donald Tusk will issue draft negotiating guidelines to be agreed by the EU-27
  • 11 April: First Sherpa meeting
  • 19 April: Revision of the draft guidelines
  • 24 April: Second Sherpa meeting
  • 25 April: New draft guidelines
  • 27 April: General Affairs Council in Luxembourg
  • 28 April: Revised guidelines
  • 29 April: EU Summit on Brexit