The sentence with which, last November 3, the High Court established that the withdrawal of the United Kingdom from the European Union requires parliamentary authorization urgently reproposes a fundamental problem: can the notification of the intention to withdraw provided for by art. 50 Do you, once made, be revoked?
This is a matter not expressly regulated by EU law, but whose decisive importance results from the articulation of the withdrawal procedure.
THE WITHDRAWAL PROCEDURE
Only with the notification of the intention to withdraw does the procedure formally start and negotiations begin between the withdrawing State and the Union aimed at defining the modalities of the withdrawal.
However, the negotiations must be concluded within the deadline, which can only be extended by the European Council by unanimity, of two years from the notification. In the absence of an agreement or extension, the withdrawal takes effect automatically at the end of the two-year term, without any transitional regime.
It is difficult to escape the impression that the process is designed to discourage withdrawal. The decision to abandon the common project is in fact risky, because the Union has no obligation to negotiate the methods of withdrawal, let alone the regulation of future relations with the withdrawing State, until the latter has made the notification.
However, since the deadline after which the withdrawal occurs automatically also runs from the notification, the State is the weaker party in the negotiating relationship, probably forced to choose between accepting unfavorable conditions and the trauma of withdrawal without an agreement, which would involve, among other things, the sudden exclusion from the internal market.
A REVERSIBLE CHOICE
This is true, however, only if it is assumed that the notification triggers an irreversible process. Despite the literal tenor of the art. 50, par. 3, Tue ("the treaties cease to be applicable to the State concerned [...] two years after the notification") seems to support it, this thesis cannot be shared for at least three reasons.
The first argument in favor of revocability can be drawn from customary international law, which is binding on the Union. The Vienna Convention of 1969 on the law of treaties, which largely codifies rules of customary law, defines the procedure applicable to the withdrawal from an international treaty: the art. 65 of the convention states that the party interested in withdrawing from the treaty must notify the intention to the other parties; this notification – as specified by art. 68 – can however be revoked “at any time before it takes effect”.
Although the customary nature of Articles 65-68 of the convention is contested, art. 68 is, within this set of provisions, the rule with respect to the customary status of which there are fewer doubts. Therefore, general international law suggests that notification of intention to withdraw may be served until the withdrawal has become effective.
A further argument can be drawn from a teleological and systematic reading of the institution of withdrawal. Since the main objective of the EU consists in the creation of "an ever closer union between the peoples of Europe", the eventuality that a member state decides to withdraw obviously represents an exceptional hypothesis, as such subject to restrictive interpretation.
The institutions of the Union should favor the preservation of unity, not disintegration: therefore, any decision by a Member State to backtrack and revoke the notification of withdrawal should not be opposed, but welcomed.
The opposite solution would also lead to a paradoxical result: if the withdrawal procedure were irreversible, the State that had initiated it but subsequently changed its orientation would have to wait passively for the two-year term to elapse and, once the withdrawal has become effective, submit an application newly joined. Certainly not an efficient solution.
A CONCLUSION IMPOSED BY THE PRINCIPLE OF DEMOCRACY
Finally, allowing that the withdrawal notification can be revoked is consistent with the democratic principle and with the respect that the European treaties prescribe for the national identity of the Member States, including its constitutional dimension.
The provision of a right of withdrawal of the Member States is an expression of respect for the democratic choices of citizens. Therefore, if the decision was taken according to the constitutional procedures prescribed by domestic law, art. 50 Your requires us to take note of it. However, the road leading to withdrawal is long and its outcome unpredictable.
Negotiating an agreement that governs how to withdraw and takes into account future relationships is an extremely complex task that can take years. Furthermore, relations between the Union and the outgoing Member State can be constructed according to a variety of models which makes the outcome of the negotiation highly unpredictable at the time of notification.
In this scenario, it cannot be excluded that before the expiry of the two-year term, or any extension, a second referendum will be held in the United Kingdom and Remain will prevail. Or that the British parliament and government, following new elections, decide to interrupt the procedure before the withdrawal becomes effective.
Why shouldn't it be possible? If this is a decision made in accordance with constitutional procedures, why shouldn't the British people and their representatives be able to have second thoughts, especially given that there is so much uncertainty and so much at stake?
THE MILLER CASE AND THE REVOCATION OF THE NOTICE
Perhaps unexpectedly, the opportunity to resolve the proposed doubt could be offered by the appeal of the sentence of the High Court in the Miller case before the Supreme Court.
The argument of the High Court in support of the need for parliamentary approval appears to be based on the assumption that the notification is irreversible. However, since this is a matter of interpretation of EU rules, the Court of Justice should rule on it.
If the Supreme Court considers the matter to be relevant for the purpose of deciding the dispute, it should therefore be required under EU law to make a preliminary reference to Luxembourg. This would probably nullify the expectation that the withdrawal process will start by March 2017, but it would clarify once and for all a dilemma which, if left unresolved, could negatively affect the progress of the negotiations.
Source: AffarInternazionali.it
