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Activation of Article 50: What happens now?

GBCC

Article 50 of the Lisbon Treaty has now officially been activated. Here, Professor Martin Trybus, Professor of European Law and Policy at the University of Birmingham gives us his take on what will happen next.

The University of Birmingham are a member of the GBCC Brexit Advisory Group (click here for more information).

Nine months after the referendum on the continued EU membership of the UK, the Prime Minister finally triggered Article 50 of the Treaty on European Union (TEU), thereby starting the formal process of withdrawal from the EU.

What has happened so far – court judgments, votes in both Houses of Parliament, Scotland – was the domestic run-up to what from now on will also be an external process, with non-British actors and factors.

The negotiations with the EU and her other 27 Member States are designed to lead to an agreement between the parties on the settlement of the withdrawal within two years. This “withdrawal agreement” will deal inter alia with the future of British nationals working for EU institutions and especially with money. It needs a qualified majority in the Council and the consent of the European Parliament. This means that it can pass even against minorities of Member States and MEPs and the only really contentious issue is how much the UK will pay.

However, first there will be negotiations about the modalities of the negotiations and no substance will be discussed before the second half of the year or later. Another agreement, “on the framework of the [UK’s] future relationship with the Union”, after the withdrawal, is to be taken into account in the withdrawal agreement, but is not the main subject of Article 50 TEU. It is highly unlikely that this ‘future relationship agreement’ can be concluded within the two-year period envisaged in Article 50 TEU, not because either party will be a difficult negotiating partner, but because experience shows that these agreements always take longer, probably five to ten years. This means that a provisional agreement will be needed or the parties accept the consequences of years without a trade agreement.

While the final outcome cannot be predicted, it might help putting oneself in the shoes of the other party. The EU and her Member States will mainly pursue their own interests.

First, the trade with each other is far more important for the remaining 27 EU Member States than their trade with the UK, with the possible exception of Ireland.

Second, connected to the first point, it is imperative for the EU and the remaining Member States that the post-Brexit agreement is worse for the UK than the current full and arguably special EU membership (rebate, opt-outs, no Schengen or Euro): the deal must not encourage others to follow the UK example. From their perspective, ‘no deal is better than a better deal’. This is Realpolitik, not a punishment of the ‘deserter’.

Third, the more difficult the negotiations, the more UK-based companies, investment, and skilled people might move to other EU Member States.

Fourth, the EU and many of her Member States have other more pressing problems (public debt, unemployment, refugees). Brexit might be on top of the UK national agenda, it is not in any other Member State or even the EU.

Fifth, the UK has been losing friends fast after last June and the slogan “no (more) UK cherry picking” goes a long way in French and German election campaigns.

Sixth, Member States with many of their citizens working in the UK, such as Poland, are very concerned about free movement. Moreover, Ireland is worried about the implications of Brexit for the yet borderless island.

Finally, we on this side of the Channel must appreciate that neither the decision for Brexit as such nor how it has been handled so far have increased the international standing of the country as a reliable partner. The negotiations will be difficult and not just ‘red, white, and blue’.