The Brits have decided to exit the European Union in 2016 via a referendum, after which the long process of negotiations and bargaining between the United Kingdom (UK) and the European Union (EU) has started. The Brexit finally happened on January 31 2020, so as from February 1 2020, the UK is not a Member State (hereinafter: MS) of the EU. Brexit has raised several vital questions regarding the withdrawal process, the contractual obligations of the exiting MS and the EU, and the management of the consequences of the decision. Lilla Nóra Kiss has explored the main legal, social and institutional aspects of the withdrawal in her monograph published in 2020. In the following, I address the key findings of her analysis in the light of the happenings of the last three years since the Brexit has been delivered.
Where did it all start?
The United Kingdom held a referendum about its EU membership on June 23, 2016. The Westminster has made an official decision to approve Prime Minister Theresa May to notify the EU about the UK’s intention to exit. Three years later, on January 31, 2020, the United Kingdom officially exited the European Union. Although a referendum on the membership was not a first in the EU’s history, the invocation of Article 50 of the Treaty of the European Union (TEU) was.[R11]
The right to withdraw from the European Union was introduced by the Lisbon Treaty. Although the exit was (and would have been) possible pre-Lisbon as well – based on the general rules of international law – up until the Brexit, this option was used only as an instrument of political pressure or a bargaining chip to achieve temporary political goals. See for example Greece during the Eurozone crisis; or the Netherlands, when a far-right party called for a referendum on EU membership – but the idea was rejected by the Dutch parliament – or in France, when Marine Le Pen has also called for a “Frexit” referendum, but she has not gained significant political traction, and her party was defeated in the 2017 presidential election. Thus, it was a shocking surprise when the Brits had not just expressed their intention to leave via the referendum, but actually have exited the EU 3,5 years later.
Brexit-abouts with the eyes of a lawyer
Brexit has drawn attention to the fact that there is a great deal of uncertainty surrounding the interpretation and practical application of the exit clause. First, Article 50 TEU does not set out a common set of criteria for the making of the decision about the exit. As a result, the decision to withdraw has to be made in accordance with the constitutional requirements of the Member State intending to exit. The respect of national constitutional decision-making is important from a sovereignty point of view, however, it brings uncertainty to the system right from the beginning of the withdrawal process. Is it enough to express the withdrawal intention by a referendum? In several states, the result of the referendum is not binding to the parliament. This is the case in the UK. However, in other states (e.g., in Hungary), the outcome of the referendum is binding to the legislature (if the referendum is valid, legally). So, as in the case of the UK, the referendum is not binding, therefore, the result cannot be considered as a decision to withdraw. That is why a parliamentary decision made in accordance with the British constitutional requirements was needed about the exit before the British Prime Minister – Theresa May – has notified the European Council about the withdrawal intention in March 2017. This is just an example of the open constitutional questions – however, the TEU does not give an answer to these as it gives the room for the Member States.
Secondly, the exit clause did not set up a strict timeline for the withdrawal process. It declares that “The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the [withdrawal] notification, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.” The clause says that the Treaties shall cease to apply, but it does not say that it is equal to the cease of the membership – and not just a termination of rights and obligations arising from the membership. So, it declared a 2-year frame from the notification, but it did not say that an agreement is a must to withdraw, neither it says that lacking an agreement between the EU and the exiting state means the cease of the membership just by the lapse of time. Thirdly, Art. 50 is not clear whether it requires an agreement to withdraw. However, the membership is a contractual relationship between the EU and the Member State. It would be odd (and uncertain) to finish it without an agreement.
Fourth, the exit clause did not list those issues that need to be solved before the withdrawal in general (in case of any state). For example, the key question was the future of the EU citizens who are about to lose their complementary status as EU citizens ipso iure by the fact of the withdrawal. Another key question was the access to the single market by the exiting state, but the Schengen-zone and the border issues were also vital. The financial settlement and the relocation of certain EU agencies are more on the technical side of the negotiations; however, these are not insignificant either. In the case of the UK, a specific question was the settlement of the borders – particularly between Northern Ireland and Ireland given the Good Friday agreement. In the case of a euro-zone state, the exit agreement should also cover the retransition to the national currency from the euro, or the reorganization of the fiscal sovereignty in that certain state.
Moreover, besides the main legal questions mentioned above, there are several political issues – such as the future of the EU integration in a post-Brexit era. A significant aspect of this dimension is the closeness of the integration, so, whether the ever-closer integration process is really getting ever closer or not. Brexit unraveled the fraction between the “old” and the “new” Member States, or with a less fortunate geographical nomination, between Western and Eastern Europe. The old Member States, who have been implementing EU law for over six decades, are reacting differently to policy related harmonization of the national laws than the new Member States who are seemingly more supportive to an economic integration compared to a political union. The political approach towards the supranational power obviously impacts the policy-making as well. Thus, some policy areas are about to change due to Brexit – where the unification of rules were blocked by the UK and small and medium size states and the decision-making is not subject to consensus.
As a result of the uncertainties around the exit clause, examining the legal framework and the conditions for leaving the Union and answer the open questions of the exit procedure were vital.
Framing the Big Brexit Picture – Legal, Institutional, and Social Aspects
The withdrawal was a complex and important historical event with major political, economic, social and policy implications for the EU, and also for the exiting state. It is important to understand what has happened in recent years, what led to Brexit, and what the implications of the exit were and are for both the European Union and the UK, which can help shape the future of the cooperation.
“The main legal, institutional and social aspects of exiting the EU“ is a monograph based on the doctoral dissertation of Lilla Nóra Kiss, successfully defended in November 2019. The 180-page book provides a comprehensive picture of the possibilities of leaving the EU, the practical problems encountered, and suggestions for future solutions. The work does not focus specifically on Brexit but looks at it only as a case study for examining the case of leaving the EU. In preparing this work, the author has carried out a wide range of research in Hungary and abroad, including research in EU institutions and academia, and has consulted with academics and practitioners, making the monograph extremely thorough.
The monograph – in accordance with its objective – is a real niche in both domestic and international literature, which systematically examines the legal aspects of the unprecedented situation of the withdrawal of a Member State from the European Union and presents the withdrawal procedure with a theoretical foundation. The emphasis is on the social processes preceding the exit process, the development of the integration paradigm and the relationship between exit and the development of the integration paradigm, and the analysis of Article 50 TEU. In doing so, the author provides an excellent context for the subject of Member State withdrawal and lays the foundations for understanding the rest of the work.
The monograph is structurally divided into three major sections, which are logically linked to the chronology of the withdrawal of a MS, thus placing the practical and legal issues of the withdrawal procedure and the effects of the withdrawal in chronological order.
The first structural unit refers to the time before Brexit, placing it in context, referring to the development and evolution of integration processes, and the rise of Euroscepticism as a possible cause. Of particular interest is the author’s comparison, through the example of Greenland’s withdrawal from the European Communities, between the withdrawal procedure under international law and the procedure under EU law. The comparison concludes that the TEU, while not completely departing from the norms of international law, brings the withdrawal process within the framework of EU law.
The second part of the work examines the right of withdrawal, the substantive and procedural issues of withdrawal, and the legal nature of the withdrawal agreement. The author makes realistic and necessary de lege ferenda proposals for reforming, clarifying, and supplementing the withdrawal clause which, in my view, are extremely forward-looking and therefore worthy of consideration if the Treaties are amended.
The third section focuses on the issues that arose after the withdrawal of a Member State, the legal status of EU citizenship, and possible changes to the legal institution in the event of a Member State’s withdrawal. As the withdrawal of a Member State has an obvious impact on the free movement of persons, the author suggests that there is a need for a minimum harmonization of national citizenship rules in the Member States − of course, whilst respecting national sovereignty − which would resolve the contradictions and tensions that exist concerning the recognition of dual citizenship. The author’s ambition is also to redefine the rules on EU citizenship. The proposals reveal the author’s humanist approach and her commitment to the principle set out in the introductory section, namely that ‘the vocation of law is to regulate people’s lives in a modern way‘. I am also a believer in the natural law approach, according to which law serves man, and not vice versa. Therefore, when it comes to reforming the Treaties and EU citizenship, it is not only the interests of the Union and the Member States that must be taken into account, but also the interests of EU citizens.
The monograph is logically structured, well contextualized, and follows a coherent train of thought, making it easy to understand. The author’s style is readable, reflecting her point of view, while at the same time being exhaustively precise in her statements and arguments. The monography focuses on the current events of Brexit only to the extent necessary for the analysis, so that it does not make the mistake of basing the assumptions on vague facts, and this allows the work to remain relevant today and in the future.
Brexit demonstrated that a MS could not just vote to leave the EU, but do exit, too. This may have emboldened Eurosceptic and anti-EU movements in other countries, who saw Brexit as a validation of their stances. Brexit also served as a warning sign that discontent could lead to other countries reevaluating their EU membership. Brexit vote was partly driven by a desire to reclaim national sovereignty, other MS facing similar concerns about loss of sovereignty might be inspired to follow a similar path. As a result of the various post-Brexit effects, some argue that Brexit may encourage other countries to leave the EU, while others believe that Brexit may serve as a cautionary tale and persuade the Member States to remain constituents of this elite club. Some have raised concerns about the stability of the EU and the potential for further exits, while others have emphasized the importance of unity and solidarity in the face of this challenge. Either way, it was crucial to clarify clearly how a Member State can leave the European Union.
In my opinion, based on what has happened in the last three years since the Brexit has happened, the British withdrawal only strengthened the continental alliance and put the development of integration on the right track – highlighting the points of potential tension among the Member States – and gave a great opportunity to these states to keep their cooperation working. Right after the Brexit has happened, the COVID-19 has hit globally, and then the Russian war in Ukraine has started (again). All these events brought the EU closer, showing that the countries are better up for continental economic cooperation than dividing based on their differences. Although, there are a lot of tensions and conflicts on the European political map, seemingly, the Brexit has strengthened the internal cohesion of the Member States. Hopefully, there will be no need to apply the procedure again in the future. As a matter of this, Brexit can serve as a good incentive to avoid future breakups by avoiding irrevocable conflicts – or solving them right after their occurance.
Brexit is an important and complex historical event, I therefore recommend this handbook to anyone who wants to understand the legal background and the procedure of leaving the European Union, as it is allowing readers to gain a comprehensive picture of the events and their effects.
Zsuzsanna Mária Nagy, JD, specialized in English legal translation, Analyst at the European Union Research Directorate of the Center for Fundamental Rights. Zsuzsanna’s past and present research focuses on geo-blocking, matrimonial property law in European countries, the use of telecommunications devices in criminal proceedings, EU funding to Ukraine, circular economy, cryptocurrencies, data protection. During her university years she won the National Higher Education Scholarship and the New National Excellence Programme in 2021. She also completed Erasmus+ studies at the University of Salento in Lecce and she completed a Public International Law course at the FernUniversität in Hagen. E-mail: email@example.com