Although the People of the UK had voted to leave the EU, UK still has not left the EU and remains its member.
The main reason for this is misunderstanding of the EU Leave Process by the Government and the Public caused by the wording of Article 50 of the Treaty of Lisbon.
While the UK has fallen the main victim of the drafting defects of Article 50, the irony of it is that Article 50 was not drafted by France, Germany or Poland, but by the UK.
Article 50 of the Treaty of Lisbon was drafted by Lord Kerr of Kinlochard, who was Secretary‐General of the European Convention, which drafted the Treaty of Lisbon.
Article 50 does not state what conditions the parties should comply with if a member state decides to leave the EU, but, instead, says that the parties should agree this issue within 2 years or more.
This is incompetent legal drafting, because instead of defining the obligations of the parties arising out of termination of membership and the procedural steps they should take, it forces the parties to enter into negotiations, the outcome and time‐scale of which are uncertain.
Article 50 also contains a reference to “taking account of the framework for its future relationship with the Union”.
This is clearly wrong, because the purpose of a termination clause of an agreement is to end the agreement, not to continue it subject to some other terms.
Termination of an agreement should not depend on the parties making any other agreements about the future.
Why has Article 50 been drafted in that way?
In a BBC interview, 3 November 2016, Lord Kerr made the following statements:
The [termination of agreement] process “wasn't really necessary” because it has always been possible for a country to quit.
If you stopped paying the bills and you stopped turning up at the meetings, in due course your friends would notice that you seemed to have left.
I thought the circumstances in which it would be used, if ever, would be when there was a coup in a member state and the EU suspended that country's membership.
I thought that at that point the dictator in question might be so cross that he'd say ‘right, I'm off’ and it would be good to have a procedure under which he could leave.
Lord Kerr obviously has no understanding whatsoever of the most basic principles of the Law of Contract, and appears to have no experience of preparation or negotiation of real life agreements.
Because, if he thinks that one can terminate an agreement by “stopping to pay bills”, of, say, a gas company, then, according to the extracts from a Contract of Supply of Services of a [Real World] Gas Company, the following termination terms would be applicable to his situation:
You will give us at least 30 days' notice.
You will be liable for the price until the end of the notice period.
If this agreement terminates before the end date and the termination is not as a result of our failure to comply with the terms of this agreement, we have the right to invoice you for any losses we incur as a result of the agreement ending early. You will pay such invoice in accordance with the payment terms of this agreement.
And if, such simple thing as gas supply to a gas consumer requires a 30 days' notice, would not termination of a treaty between a country and the EU require at least a year to wind up the ongoing transactions?
Why a person with not even minimal understanding of “agreements” had been given the task to draft the Treaty of Lisbon?
The naivety of his train of thought can be clearly seen from the clauses of Article 50:
Q: If a country wants to quit the EU, what will be the future relations between the country and EU?
A: They can agree between themselves, can't they?
Q: What if they don't agree?
A: The agreement will end after 2 years without agreement about the future.
Q: But what if they want to keep negotiation longer than 2 years?
A: They can agree between themselves to do so and keep negotiating as long as they want.
– No provisions for time to terminate the ongoing relationships.
– Concern about “future relationships”, which are totally irrelevant for the termination of the existing agreement.
– Uncertainty of time‐scales and outcome.
As the UK still remains a member of the EU, and as it is responsible for the errors of Article 50 of the Treaty of Lisbon, it is the duty of the UK government to correct the errors of Article 50 and to submit the amended version to the EU for inclusion into the Treaty of Lisbon.
The following table contains proposed amendments to Article 50 of the Treaty of Lisbon:
|Article 50 of the Treaty of Lisbon (amendments)
|Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
|This is obvious and unnecessary.
Can be removed, or left as it is.
|A Member State which decides to withdraw shall notify the European Council of its intention.
|A Member State wishing to withdraw shall give to the European Council a formal written notice of its intention to terminate its membership of the European Union.
|Termination of membership is an unconditional right of any Member State.
The EU cannot refuse a state to leave the EU.
A state can leave the EU at any time by giving a formal written notice.
|In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union.
|Termination of membership can mean only one thing: The state will cease to be member of the EU.
Termination of membership cannot depend on any negotiations about any future relationships.
The only reasonable condition on the cessation of membership is the need to provide a reasonable transitional time.
|It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, …
|As termination of membership should not depend on any agreements, there is no need for any approvals of any agreements.
|… after obtaining the consent of the European Parliament.
|As termination of membership should not depend on any agreements, there is no need for obtaining the consent of the European Parliament.
|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 notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
|On receipt of the Notice of Cessation of Membership of the EU from the leaving state, the European Council must, within 30 days of its receipt, acknowledge the receipt of the notice by a formal written Acknowledgement of Cessation of Membership of the EU by a Member State.
The Date of the Cessation of Membership of the EU by the leaving state will be the date of the Acknowledgement of Cessation of Membership of the EU by a Member State, or 30 days from the receipt by the EC of the Notice of Cessation of Membership of the EU from the leaving state, whichever is the earlier.
The EU and the Leaving State undertake to honour all the outstanding commitments arising out of the membership of the EU in respect of any dealings between the parties which started before the Date of the Cessation of Membership for 1 (one) year from the Date of the Cessation of Membership.
In case of the EU or the Leaving State failing to honour the outstanding commitments, as per clause X, the defaulting party will be financially liable to the other party for any damage or loss caused by such default.
|It is suggested that at least 1 year and no more than 2 years transitional period is required for all the parties affected by the provisions of the EU treaties to re‐arrange their affairs in an orderly way.
At the same time the leaving state can start its independent of the EU existence and introducing the laws required within 30 days of the Notice of Cessation of Membership of the EU.
These new laws will be applicable to all new transactions, but all transactions started before the cessation date will continue for 1 year under the EU laws.
|For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.
A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.
|As there should be no discussions concerning the withdrawal, this clause is redundant.
|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.
|This paragraph has no relevance to the withdrawal process.
This suggestion to amend Article 50 of the Treaty of Lisbon relates to the duties of the UK as a current member of the EU. It does not relate to the current “Brexit” process. Unless the UK government delays with the Brexit process so much that Article 50 is amended before the UK Government notifies the EU, the UK Government, should not wait for such notification, but proceed to notify the EU about the withdrawal as suggested by us earlier in: Sample Notice to Terminate Membership of the EU.
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Sample Notice to Terminate Membership of the EU
Brexit Deal and the Life After
Brexit Mess — How to Sort It Out
Brexit Uncertainties and How to Remove Them
The Practical Consequences of UK Leaving the EU