IS AR­TI­CLE 50 RE­VERSIBLE?

Con­tra­dic­tory re­marks point to the com­pli­cated na­ture of the process

New Straits Times - - World -

BRUS­SELS

THE an­swer to the ques­tion of whether Bri­tain’s exit process from the Euro­pean Union is re­vo­ca­ble is sim­ple: it de­pends on who you ask.

Bri­tish Prime Min­is­ter Theresa May in­sisted af­ter trig­ger­ing Ar­ti­cle 50 of the Lis­bon Treaty on Wed­nes­day that it was a “his­toric mo­ment from which there can be no turn­ing back”.

But hours later, Euro­pean Par­lia­ment President An­to­nio Ta­jani said the clock could be re­versed, with the ap­proval of the other 27 mem­ber states.

“If the United King­dom changes its mind, it can’t do it alone, the other mem­ber states of the union have to de­cide if they can do it or not,” Italy’s Ta­jani said.

The ap­par­ently con­tra­dic­tory re­marks re­flect a po­lit­i­cal and le­gal am­bi­gu­ity about whether Bri­tain is say­ing good­bye for good.

The once ob­scure and now fa­mous Ar­ti­cle 50 is frus­trat­ingly vague on this is­sue, as on most oth­ers. It says merely that “a mem­ber state which de­cides to with­draw shall no­tify the Euro­pean Coun­cil of its in­ten­tion”.

It then adds: “If a state which has with­drawn from the union asks to re­join, its re­quest shall be sub­ject to the pro­ce­dure re­ferred to in Ar­ti­cle 49,” re­fer­ring to the sec­tion for fresh ap­pli­ca­tions to join the bloc.

Bri­tain’s Supreme Court said in Jan­uary that it was “com­mon ground” that the no­tice was “ir­rev­o­ca­ble and can­not be con­di­tional”, al­though it was not rul­ing on that sub­ject, but on Par­lia­ment’s supremacy.

The Euro­pean Com­mis­sion ap­pears to be agree, but only on the sur­face.

“Once trig­gered, it can­not be uni­lat­er­ally re­versed. No­ti­fi­ca­tion is a point of no re­turn,” it said on Ar­ti­cle 50 on Wed­nes­day.

But, this ap­pears to leave open the pos­si­bil­ity sug­gested by Ta­jani that the other 27 EU states could agree to let it re­verse the no­ti­fi­ca­tion.

The Euro­pean Par­lia­ment men­tions the pos­si­bil­ity of re­vok­ing Ar­ti­cle 50 in a res­o­lu­tion on Brexit that it in­tends to pass next week, if only to say that a “re­vo­ca­tion of no­ti­fi­ca­tion needs to be sub­ject to con­di­tions” so it can­not be “abused in an at­tempt to im­prove the cur­rent terms of UK’s mem­ber­ship”.

A lead­ing EU le­gal ex­pert said all the work on cre­at­ing Ar­ti­cle 50 nearly a decade ago had been fo­cused on mak­ing it a smooth process for a coun­try to exit, and that Brus­sels of­fi­cials be­lieved it was ir­re­versible.

“But, it was ad­mit­ted that it could be con­sid­ered that it is re­versible in ex­cep­tional cases,” added the ex­pert, who spoke on con­di­tion of anonymity be­cause of the sen­si­tiv­ity of his po­si­tion.

The au­thor of Ar­ti­cle 50, John Kerr, who iron­i­cally is Bri­tish, had the same idea.

“An Ar­ti­cle 50 no­ti­fi­ca­tion is not ir­rev­o­ca­ble,” he told the House of Lords last month.

“If, hav­ing looked into the abyss, we were to change our minds about with­drawal, we cer­tainly could and no one in Brus­sels could stop us.”

Jean-Claude Piris, a for­mer di­rec­tor of le­gal ser­vices at the Euro­pean Coun­cil who is now a con­sul­tant, agreed.

“If the Bri­tish au­thor­i­ties said ‘I don’t want to any more’, you can’t force a mem­ber state to leave.

“My the­ory is that in this case, you would re­turn to the sta­tus quo.”

Ul­ti­mately, the ques­tion is a le­gal one.

Po­lit­i­cally, there ap­pears to be lit­tle will in Bri­tain at the mo­ment to defy the re­sult of a ref­er­en­dum that, how­ever much of a shock, is un­con­tested.

But Jolyon Maugham, a Bri­tish lawyer who has launched le­gal ac­tion in Ire­land to force the Euro­pean Court of Jus­tice (ECJ) to rule on whether Bri­tain can re­verse Ar­ti­cle 50, said that could change.

“It is just quite punchy to as­sert that the po­lit­i­cal mood will re­main static,” he said.

“There is quite com­pelling ev­i­dence that peo­ple are chang­ing their minds about the cost of Brexit for them.”

If a de­ci­sion ever does have to be made, it seems cer­tain that it would be the ECJ that de­cides — “even if one of the mo­ti­va­tions for the Bri­tish with­drawal is to se­cure its sovereignty”, said a re­port by French MPs. AFP

AFP PIC

An anti-Brexit pro­tester demon­strat­ing near Down­ing Street in Lon­don on Wed­nes­day.

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