Consequences to be drawn from the British Brexit vote to prevent repeating the mistakes of the past – Commentary by Rainer Dumont du Voitel, former CESI Vice-President

10 Oct 2016, keywords :

Mr Cameron’s referendum aimed to momentarily serve the cohesion of his own party but has done a disservice to both his country and the EU. The implementation of the British exit will require a great deal of effort and energy. It will have to be planned so as to harm the European citizens as little as possible. Otherwise, the fall of Europe shall be a reality, writes Rainer Dumont du Voitel, former CESI Vice-President, in a guest commentary.

Consequences to be drawn from the British Brexit vote to prevent repeating the mistakes of the past – Commentary by Rainer Dumont du Voitel, former CESI Vice-President

What is responsible: the discrete but decisive actions of the EU, or internal political pressure on the island itself? Whatever the reason, Prime Minister May has recently announced that Article 50 will be triggered at the end of March 2017 at the latest. The final, effective decision to do so can only be made by the Parliament in Westminster, however.

That is why it is still possible (though currently believed to be unlikely) that the British government may not be able to announce its intention of exiting the EU in accordance with Article 50 of the Lisbon Treaty, due to a majority vote in the British Parliament from MPs who never wanted the country to leave the EU, despite the British people’s vote in favour of Brexit. In addition, until then, developments in terms of its relations with the EU could lead to the new British government being unable to justify the country’s exit from the European Union. The EU would then find itself in an even more critical position than before the British referendum. Indeed, if the 27-member union does not want gamble away all its chances at a convincing new beginning with greater acceptance and support for European integration and put its own survival at risk, it will have to clearly define its relations and requirements for our British friends.

In order to prevent the failure of negotiations and under pressure from the British, the secession clause was integrated into the EU Basic Treaty or Reform Treaty on the Functioning of the European Union (TFEU Treaty). The Treaty was thus signed on 13 December 2007 in Lisbon, the city after which the last and currently valid EU Treaty was named.

According to Article 50, an EU Member State “may decide to withdraw from the Union in accordance with its own constitutional requirements”. To activate its withdrawal, the state “shall notify the European Council of its intention”. Once Article 50 has been triggered, the Member State and the Union must negotiate and conclude an agreement “setting out the arrangements for its withdrawal”. The treaties shall cease to apply to the state in question from the date of the entry into force of the withdrawal agreement. If a state which has withdrawn from the Union asks to rejoin again, its request shall be subject to Article 49 TFEU. Those are the legal requirements.

As can be noted, Article 50 does not exclude the scenario described above. It does not set forth whether or when the British government must make its decision to withdraw from the Union following the British people’s vote. Moreover, the 2-year deadline can be extended, thus requiring further interpretation. In other words, the entire EU could be taken hostage by such manoeuvring by the British government.

However, that cannot be the rationale underlying this somewhat half-baked provision. At the time of its conception, Article 50 was a new, psychological concession directed at the British who were fearful for their sovereignty. However, it was not designed to become a lever and licence for them to weaken or compromise Europe’s unification achievements by means of an unlimited period of limbo because the British government must follow through the politically binding albeit de jure not binding popular Brexit vote. This would lead to a lengthy period of uncertainty, finally ending in the conclusion that the negotiation of a withdrawal agreement is too complicated and tiresome to reach, and that it would not be worth the effort anymore due to the fact that the EU has become too weak and incapable of action.

(A new referendum could provide a solution to the de facto non-negotiable withdrawal agreement – and those responsible would be spared. But in that case, the citizens of all European member states would be dupe, and this would be difficult to justify. Once again, the burden of the blame would fall upon the EU in its usual scapegoat role – instead of it being viewed as a beacon of hope.)

In any case, until then, only a handful of large and influential Member States would be in charge of deciding in what direction the EU should head. Article 218 TFEU sets forth the process for the negotiation of a withdrawal agreement. Whether in or out, it would not be as decisive anymore (even in the event of the application of Article 218, Article 207 TFEU shall rule trade agreements, and they would all have to be renegotiated, demanding colossal and completely unproductive efforts). This betrayal of the fundamental values and basic ideas underlying the EU (such as democracy and the equal treatment of all EU members) represents a deathblow. It is also possible that Chancellor Angela Merkel (who means well) is also part of this serious problem because she does not want to offend our British friends.

Whatever the case, the 27-member EU must interpret Article 50 TFEU in line with the European Union’s best interests. Indeed, it is a matter of survival. An exiting state cannot be responsible for determining the future development of European integration, in any form whatsoever.

The following clear guidelines for action for the 27-member EU should be applied immediately:

  • The EU should be responsible for the interpretation of Article 50 TFEU and resolving the legal loopholes therein.
  • In accordance with the options at hand, the EU should call upon the British government to issue its decision to withdraw from the EU as a result of the Brexit referendum, without any further hesitation and by the announced March deadline, notifying the EU of this fact as per Article 50 TFEU or announcing the final and binding decision of the British Parliament and British government not to withdraw from the Union by said deadline.
    In the latter case, the Brexit chapter would come to an end, without legal consequences, and the UK would remain in the EU as a full member. (However, in this case too, the concessions granted by the EU to Mr Cameron prior to the referendum to improve the chances of a “Remain” vote would not be viewed as a British acquis, despite the fact that no conditions were tied to them at the time.)
    The British government would then be in charge of explaining to British voters why it cannot or will not carry out the will of the majority. In that case, it is highly likely that new elections would have to take place in England because the government has repeatedly announced that it would implement the Brexit vote.
  • If Britain does not formalise its intention to exit the EU by March 2017 or does not formally announce its wish to remain in the Union by that same date to the competent bodies of the EU, the latter will decide, acting by a qualified majority, that the withdrawal of Britain shall become effective in law with immediate effect on March 31 2017 as a result of the will of the majority of British voters. From that moment on, from the EU’s standpoint, Great Britain would become a third country which would not be party to a large number of the global agreements and treaties struck by the European Union, despite its own government’s lack of action.

The relations between the EU and England will be the object of a newly-negotiated treaty. If the UK formally notifies the EU of its withdrawal from the Union in accordance with Article 50 by 31 March 2017, a transition period of two years will be granted before the country’s exit from the Union is fully effective (this period may even be prolonged upon the EU’s unanimous decision). This will provide time to negotiate the future relations between Britain and the EU. The country’s exit from the Union, however, will take effect upon the termination of this transition period, whether the negotiations have been successful or not.

In my opinion, in line with the rationale of Article 50 TFEU and the above guidelines, British employees and civil servants working for EU institutions that are involved in paving the ground for political EU decisions or who can influence them should leave their posts immediately, be suspended or take early retirement. Commission President Juncker’s promise would have to be adapted accordingly.

Great Britain’s participation to covering these costs will have to be negotiated. This must definitely remain an obligation for the UK. The required removal should apply to Council members, MEPs and Commission members (the English Commissioner Lord Hill resigned from his position of his own volition following the Brexit vote, but he was substituted by Sir Julian King from the UK for the new Security Union portfolio), as well as to the Committee of the Regions and the Economic and Social Committee. Their expert knowledge may be required in the country’s delegation, however.

A special case is that of the former Portuguese President of the Commission, Mr Barroso, who has recently accepted a top position at Goldman-Sachs: he is supposed to represent the interests of the City of London in the upcoming negotiations. In addition to other matters of concern, his in-depth insider knowledge, network and contacts to individuals involved in the negotiations raise concerns about a conflict of interest benefiting the UK and harming the EU.

Mr Cameron’s referendum aimed to momentarily serve the cohesion of his own party but, as the result of the vote has demonstrated, it has done a disservice to both his country and the EU. The implementation (which is in principle unnecessary) of the British exit will require a great deal of effort and energy. It will have to be planned so as to harm the European citizens as little as possible. Otherwise, the fall of Europe shall be a reality.

This raises new issues about the advantages and disadvantages of direct and representative democracy. We must now hope that those involved will be strengthened by this experience – which could have been spared both at the side of the British and the side of the remaining Member States. No one can say that it is the EU’s fault: the EU can only exist if all those who entered it continue to construct it and participate, as well as grant it the necessary competences for common action. There are sufficient crises as it is.