Article 50 of the Lisbon Treaty
The EU legislators did not expect Article 50 to be used, so it is not very detailed. It leaves room for interpreting how far the ‘future framework’ should be included in the negotiations and the final withdrawal agreement. Article 218(3) requires unanimous agreement on certain elements of the negotiation.
The initial two-year timeframe set out in Article 50 ended for the UK on 29 March 2019. It was extended three times by unanimous agreement of the member states and the UK. The final extension ended on 31 January 2020.
On 10 December 2018, the ECJ ruled that the UK was free to revoke Article 50 unilaterally, provided a Withdrawal Agreement had not been concluded. Such a revocation would have meant that the UK remained in the EU as a member state with the UK’s budget rebate and UK opt outs regarding Schengen and the Euro maintained.
Figure 2.4: Wording of Article 50
Source: Lisbon Treaty
Court of Justice of the European Union, Press Release No 191/18, Luxembourg, 10 December 2018
Article 127 of the EEA Agreement
Article 127 mattered because it can be understood as the Single Market equivalent of Article 50. However, it was not clear whether the UK needed to trigger article 127 to terminate its membership of the EEA.
Article 127 of the EEA Agreement states that:
“Each Contracting Party may withdraw from this Agreement provided it gives at least twelve months’ notice in writing to the other Contracting Parties. Immediately after the notification of the intended withdrawal, the other Contracting Parties shall convene a diplomatic conference in order to envisage the necessary modifications to bring to the Agreement.”
The Single Market Justice (SMJ) campaign, led by Adrian Yalland and Peter Wilding, argued that because the UK is a separate contracting party to the EEA Agreement, it would not leave the Single Market even after it left the EU. They said that to exit the Single Market, the government would have to trigger a separate exit process, as set out in Article 127. SMJ argued that, since the UK’s EEA membership was part of UK law under Parliament’s 1993 EEA Agreement Act, triggering Article 127 would require parliamentary approval.
However there was an opposing view. Jean Claude Piris, former head of the European Commission’s legal service, said:
“The UK’s withdrawal from EU will mean an automatic cessation of its membership of EEA as an EEA-EU member”.
His position derived from Article 126 (1) of the EEA agreement:
“The Agreement shall apply to the territories to which the Treaty establishing the European Economic Community is applied and under the conditions laid down in that Treaty, and to the territories of Iceland, the Principality of Liechtenstein and the Kingdom of Norway.”
In this case, the UK was a member of the EEA only in its capacity as an EU member. Therefore, leaving the EU meant an automatic exit from the EEA, and the UK would not need to have triggered Article 127.
The Government’s position was that even if EU exit did not automatically terminate the EEA agreement in law, any continued signature to the EEA Agreement would not equate to functional Single Market membership. The government did not think it needed to trigger Article 127, nor require parliamentary approval.
Source: Institute for Government, Article 127 and the Single Market, June 2017