The turnout was 72.2% of eligible voters; 51.9% voted to leave and 48.1% voted to remain in the EU. See Electoral Commission, ‘EU Referendum Results’ .
See speech delivered by Rhodri Thompson QC, ‘TheEUReferendum’ (Holborn Bars, London, 14 June 2016).
See Council Conclusions of 18–19 February 2016 providing a new settlement for the UK, Brussels, 19 February 2016 (OR. en) EUCO 1/16 CO EUR 1 CONCL 1.
The Institute for Government estimates that the annual cost of Whitehall restructuring to manage Brexit will be £65 million for each year that the Department for Exiting the EU and the Department for International Trade will operate: see Jill Rutter and Hannah White, ‘Planning Brexit: Silence Is Not a Strategy’ (Institute for Government Briefing Paper, September 2016).
Police statistics suggest a substantial increase in hate crime in the aftermath of the referendum. See, among others, accessed 28 September 2016, and see, more recently, ‘Race and Religious Hate Crimes Rose 41% after EU Vote’ (BBC News, 13 October 2016) accessed 13 October 2016; see also the Report of the UN Committee on the Elimination of Racial Discrimination ; and the Report by the European Commission against Racism and Intolerance (ECRI) .
The Treaty establishing a Constitution for Europe was drafted by the Convention on the Future of Europe and adopted by the European Council in 2004 but never came into force as it was rejected by popular referenda in France and the Netherlands. For its final text, see [2004] OJ C310/1. It was replaced by the Treaty of Lisbon.
For the view that, before Article 50, there was no right to withdraw, see eg Clemens M Rieder, ‘The Withdrawal Clause of the Lisbon Treaty in the Light of EU Citizenship (Between Disintegration and Integration)’ (2013) 37 Fordham International Law Journal 147;
Phoebus Athanassiou, ‘Withdrawal and Expulsion from the EU and EMU: Some Reflections’ (2009) ECB Legal Working Paper Series, No 10;
Joseph HH. Weiler, ‘Alternatives to Withdrawal from an International Organisation: The Case of the European Economic Community’ (1985) 20 Israel Law Review 282. This view receives some support from the case law of the ECJ: Case 7/71 Commission v France [1971] ECR 1003, paras 19–20. Cf the view of the German Federal Constitutional Court in the Lisbon Treaty judgment, BVerfG, 2 BvE 2/08, 30 June 2009, para 233 .The initial position of the British Government in the negotiations for the adoption of the Constitutional Treaty was that the inclusion of a specific withdrawal clause was not necessary although, as the negotiations developed, it seemed to favour it. For a discussion of the views of the Government, see Vaughne Miller, ‘The Treaty Establishing a Constitution for Europe: Part I’ (House of Commons Research Paper 04/66, 4 September 2004) 78–79 .
See Vienna Convention on International Treaties, Arts 54 and 56. For a thorough discussion, see Laurence R. Helfer, ‘Exiting Treaties’ (2005) 91 Virginia Law Review 1579, and for a more provocative approach, see
Curtis A Bradley and Mitu Gulati, ‘Withdrawing from International Custom’ (2010) 120 Yale Law Journal 202.
See also N Feinberg, ‘Unilateral Withdrawal from an International Organization’ (1963) 39 British Yearbook of International Law 189.
Such territorial changes have occurred also in other cases. Algeria had joined the European Communities as part of France but left upon independence in 1962. The reverse occurred with German reunification when the territorial scope of EU law was extended: see Jean-Paul Jacqué, ‘German Unification and the European Community’ (1991) 2 European Journal of International Law 1.
See Frederik Harhoff, ‘Greenland’s Withdrawal from the European Communities’ (1983) 20 Common Market Law Review 13
Friedl Weiss, ‘Greenland’s Withdrawal from the European Communities’ (1985) 10 European Law Review 173.
See eg Vienna Convention, Art 62 (the rebus sic standibus clause) and, more generally, the provisions of the Convention on the validity and termination of treaties, Arts 42 et seq.
For international law, see for example Gabcikovo-Nagymaros project (Hungary/Slovakia) 1997 ICJ 7.
Raymond J. Friel, ‘Providing a Constitutional Framework for Withdrawal from the EU: Article 59 of the Draft European Constitution’ (2004) 53 International & Comparative Law Quarterly 407. For further contributions on Art 50, see, among others: Rieder (n 7); Athanassiou (n 7); Weiler (n 7); Christophe Hillion, ‘Leaving the European Union, the Union Way: A Legal Analysis of Article 50 TEU’ European Policy Analysis (SIEPS, August 2016); Eva-Maria Poptcheva, ‘Article 50 TEU: Withdrawal of a Member State from the EU’ (EP Briefing, ΡΕ 577.971, February 2016) ;
Allan F. Tatham, ‘“Don’t Mention Divorce at the Wedding, Darling!”: EU Accession and Withdrawal after Lisbon’ in Andrea Biondi, Piet Eeckhout and Stefanie Ripley (eds), EU Law after Lisbon (OUP 2012) 128–54;
Adam Lazowski, ‘Withdrawal from the European Union and Alternatives to Membership’ (2012) 37 European Law Review 523; Hannes Hofmeister, ‘“Should I Stay or Should I Go?”—A Critical Analysis of the Right to Withdraw from the EU’ (2010) 16 European Law Journal 589;
Jochen Herbst, ‘Observations on the Right to Withdraw from the European Union: Who Are the “Masters of the Treaties”?’ (2005) 6 German Law Journal 1755.
Specific procedures for withdrawal are also provided, for example, in the GATT (Arts XXVIII and XXXI); the IMF Treaty (Arts XXIV and XXVI) and the EEA Agreement (Art 127).
See eg the Nuclear Non-Proliferation Treaty (NPT) which makes withdrawal conditional on extraordinary events that have jeopardised the supreme interest of the withdrawing country, see Art X, para 1. For a discussion, see Masahiko Asada, ‘Arms Control Law in Crisis? A Study of the North Korean Nuclear Issue’ (2004) 9 Journal of Conflict & Security Law 331.
See eg the Lisbon Treaty judgment (n 7) and, more recently, the OMT I judgment, BVerfG, 2 BvR 2728/13, 14 January 2014 .
See Praesidium de la Convention européenne, Note du Praesidium à la Convention: Titre X—L’appartenance à l’Union, CONV 648/03, Brussels, 2 April 2003, at 10 .
See Draft Constitutional Treaty Part I, transmitted by the Praesidium to the members of the Convention on 26 May 2003, commentary under Article I-59, Praesidium de la Convention européenne, Note de transmission du Praesidium à la Convention: Projet de Constitution, Volume I—Texte révisé de la Partie I, CONV 724/03, Brussels, 26 May 2003, at 135 .
See Helfer (n 8).
See Helfer (n 8).
See H Hestermeyer, ‘How Brexit Will Happen’, at
For example, a British citizen living in another EU State who no longer enjoys EU rights of free movement might conceivably dispute the legality of the withdrawal process in proceedings before the courts of the State of its residence which may then make a preliminary reference to the ECJ. Nevertheless, even if in such a case the ECJ decided that the national constitutional requirements had not been followed it would not follow that the withdrawal agreement was invalid.
A question could arise as to whether systematic and comprehensive disobedience of EU law could be seen as constructive notification. Could, for example, the repeal of the domestic law providing the basis of EU membership by itself or coupled with a systematic failure to comply with EU obligations and a policy of non-cooperation within the EU institutions be characterised as constructive notification triggering the two-year period? This is a highly theoretical possibility which would lead to a political crisis. In the first place, it should be treated as a failure to comply with EU law triggering the enforcement mechanisms available to the Commission and the Council. Notably, the scheme of the Treaties is somewhat uneven in that it provides for a right to withdraw but no power of expulsion. Persistent and egregious violation of EU law could result in the application of TEU, Art 7 and the withdrawal of voting rights in the Council, as well as pecuniary sanctions under Art 260 of the Treaty on the Functioning of the European Union (TFEU) and, ultimately, the operation of the EU under some doctrine of necessity.
For the opposite view, see Jake Rylatt, ‘The Irrevocability of an Article 50 Notification: Lex Specialis and the Irrelevance of the Purported Customary Right to Unilaterally Revoke’ (UK Constitutional Law Association Blog, 27 July 2016) .
Under Art 68 of the Vienna Convention, a Contracting Party who gives notice of withdrawal or denounces an international agreement under its terms may withdraw the notice at any time before it takes effect. The International Law Commission which drafted the Convention considered that, although there were good arguments against allowing revocation, the counterarguments were so strong that there should be a general freedom to revoke subject to a specific provision providing otherwise in an international agreement. See ‘Draft Articles on the Law of Treaties with Commentaries’ (1966) II Yearbook of the International Law Commission 187, 264.
Ultimately, whether notification is revocable is a matter of interpretation of Art 50 which is for the ECJ to decide but there is no procedure under which a Member State which contemplates withdrawal can obtain a definitive view before it gives notification. The Court could rule on the issue in any type of proceedings in which it has jurisdiction, provided its resolution was material to their outcome but it is difficult to see how such a question could reach the Court without it being hypothetical.
See HL Select Committee on the Constitution, The Invoking of Article 50 (4th Report of Session 2016–17, HL 44), paras 11 et seq.
See BBC News (2 October 2016) .
See Vienna Convention, Arts 56(2) and 67(2).
Note also that the withdrawal agreement is concluded by the Council acting by a super-majority of the remaining Member States: see Art 50(4) discussed below. This means that no State has the right to veto the terms of exit and the withdrawing Member State could seek to form alliances in its favour. Along with the juxtaposition between the EU and the withdrawing Member State there lies an intra-EU juxtaposition. States who have less close economic ties with the withdrawing State will be less concerned with accommodating its demands unless they can extract a worthy price either from it or from the EU States that are amenable to its demands in view of their own trade advantages. However, the alignment of those interests acquires much more importance in relation to the negotiation of a new agreement governing future relations with the exiting State where the EU decision-making process is different. 31 TFEU, Art 50(2).
The duty of cooperation binds the withdrawing Member State to conduct the negotiations in good faith and in a spirit of cooperation. The extent to which TEU, Art 4(3) binds more generally the withdrawing Member State after notification is a different issue. It is submitted that duties under Art 4(3) still persist given that the withdrawing Member State continues to take part in EU decision-making and vote in the Council except on matters relating to withdrawal: see Art 50(4). It is however difficult to see how the Member State could take part in long-term planning of EU policy. See below.
TFEU, Art 50(2). Article 218 lays down the general procedure for the conclusion of international agreements.
Cf Art 218(4).
TFEU, Art 218(11).
Article 50(2).
Article 50(4).
See TFEU, Art 238(3)(b) in combination with TEU, Art 16(4). Note, 72% of 27 Member States provides a figure of 19.44 but this should be considered to require 20 and not just 19 votes in Council since Art 238 ((3)(b) refers to ‘at least’ 72% and, numerically, that percentage is more than 19 votes.
Praesidium de la Convention européenne, Note du Praesidium à la Convention: Titre X—L’appartenance à l’Union, CONV 648/03, Brussels, 2 April 2003, at 10 .
Article 50(4).
See Michael Dougan, ‘The Treaty of Lisbon 2007: Winning Minds, Not Hearts’ (2008) 45 Common Market Law Review 617, 688.
See Poptcheva (n 13).
See Art 99(1) of the European Parliament Rules of Procedure.
See TEU, Art 49.
See Hillion (n 13).
See Art 50(5).
Thus, it may cover, among other matters, the following: (a) the rights of EU citizens and corporations in the withdrawing State and vice versa, after withdrawal; (b) the possible continued application of mutual recognition and free movement rights; (c) transitional provisions for the application of some EU measures to the withdrawing State; (d) reciprocal financial obligations, namely, the contributions of the withdrawing State to the EU budget and entitlements of the latter to EU structural funds and other EU monies; (e) the possible continued participation of the withdrawing State in international agreements concluded by the EU; (f) the timetable for the termination of the representation of the withdrawing State in the EU institutions, eg the Court of Justice and the Commission; (g) the timetable for the relocation of EU agencies located in the withdrawing State.
See Art 50(5).
See Draft Constitutional Treaty Part I, transmitted by the Praesidium to the members of the Convention on 26 May 2003, commentary under Article I-59, CONV 724/03, Brussels, 26 May 2003, at 135 .
See J Shaw, ‘Legal and Political Sources of the Draft European Constitutional Treaty’ quoted by HC, op.cit. 78.
Cf TEU, Art 49. It is correct that the withdrawal of a Member State will entail consequential adjustments in the Treaties, for example TEU, Art 52 and TFEU, Art 355 which provide for their respective territorial scope, but withdrawal is not conditional on their ratification. See Vaughne Miller, ‘The Treaty Establishing a Constitution for Europe: Part I (House of Commons Research Paper 04/66, 4 September 2004) 77 .
See TFEU, Art 344.
See eg Case 104/81 Hauptzollamt Mainz v Kupferberg [1982] ECR 3641; Case 12/86 Demirel v Stadt Schwäbisch Gmünd [1987] ECR 3719, para 14.
See Sionaidh Douglas-Scott, ‘What Happens to “Acquired Rights”’’ in the Event of a Brexit?’ (UK Constitutional Law Association Blog, 16 May 2016) .
Similarly, citizens of the withdrawing State resident in an EU Member State post-withdrawal may be able to derive some constitutional protection from the domestic law of their residence.
Case C–122/95 Germany v Council [1998] ECR I–973.
In its seminal judgment in Kadi, the ECJ held that the obligations imposed on the EU by an international agreement cannot have the effect of prejudicing the constitutional principles of EU law which require that all EU acts must respect fundamental rights: see Joined Cases C–402/05 P and C–415/05 P Kadi v Council and Commission, judgment of 3 September 2008, para 285. See further: Opinion 1/91 on the Draft Agreement Relating to the Creation of the European Economic Area [1991] ECR I–6079; Opinion 2/13 on Accession to the ECHR EU:C:2014:2454.
It should be borne in mind here that the possible remedies appear incomplete. Even if the withdrawal agreement prevented the withdrawing State from introducing such rules, it is not clear what remedies would exist for the affected parties in the absence of direct effect of the agreement in the law of the exiting Member State.
See, in agreement: Rieder (n 7) at 160 et seq.
See TEU, Art 53.
Case 26/62 Van Gend en Loos [1963] ECR 1, at 12.
Case 26/62 Van Gend en Loos [1963] ECR 1, at 12.
See, eg Case C–184/99 Grzelczyk [2001] ECR I–6193, para 31.
