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Article 50: can the EU force the pace of Brexit?

Tick tock.

The tussle for power in the aftermath of the UK’s Brexit vote has begun. Now that Britons have voted, the government must decide about negotiating the country’s exit from the European Union. While both the UK prime minister and members of the Leave campaign appear to be stalling, EU institutions are pushing for a speedy conclusion of its divorce with the UK. But can the EU force the UK’s hand?

The key legal issue here is how to interpret Article 50 of the EU Treaty, which sets out the procedure for a member state to withdraw from the European Union. It says that a member state “may decide” to withdraw from the EU “in accordance with its own constitutional requirements”.

That decision “shall” be notified to the European Council (the summit meetings of EU heads of state and government), which then officially triggers the withdrawal process. That process in principle takes two years, although the UK and the remaining EU can agree to a shorter or longer period. It’s not clear if the notification to leave can be rescinded once it is made.

The Article 50 process raises a number of legal issues. For the moment, though, the immediate legal (and political) question is when the process starts – once Article 50 is triggered, negotiations begin in earnest and the two-year deadline kicks into action.

Different takes

The EU side seems anxious for the UK to start the withdrawal process immediately. The initial response to the referendum result by senior EU officials was to ask the UK to notify of its withdrawal “as soon as possible”. This statement also ruled out the prospect of an offer of a further renegotiation of the UK’s EU membership, which some on the Leave side had thought might be forthcoming. However, it seems that Germany may be more flexible.

The initial EU response also confirmed the EU’s belief that the only possible correct legal process to leave the EU is Article 50. Some on the Leave side had suggested that some other (undefined) process might apply.

Putting on the pressure: foreign ministers of EU founding states united to discuss Brexit. EPA/Kay Nietfeld

There were also suggestions that the EU might declare the referendum result itself tantamount to a notification of the intention to leave. This would mean that the EU would consider that the withdrawal process has already started – even though the UK government says it hasn’t. This possibility has receded, however, since an EU spokesman has now said that the UK notification must be made “in an unequivocal manner” with “the explicit intent to trigger Article 50”.

So the EU may be willing to wait – for now – until the election of a new leader of the Conservative Party to replace David Cameron as prime minister, before the process of withdrawal starts. In the meantime, the EU will work on developing its negotiating position.

Best-case scenario

At least temporarily, the best way forward for UK-EU relations may be to follow Norway’s example.

The Norway model would retain the UK’s full access to the EU single market, while still leaving the UK free to sign its own trade deals with non-EU countries. The UK would not be covered by EU agriculture or fisheries policy. However, it would still be covered by most EU environmental and employment law.

While free movement of persons would apply in principle, the Norway model allows the UK to invoke a safeguard to limit it. Norway is part of the open borders Schengen system, but by means of a separate treaty which the UK need not sign. The UK could seek to refuse to apply EU single market rules it disagreed with. Finally, since the Norway model already exists, it can just be taken off the shelf, and amounts to the quickest exit route.

The Norway option isn’t perfect: the UK would still have to make some financial contribution to EU member states. But no other model is perfect either. And despite the bluster around wanting a speedy Brexit, it may be that the EU will not in reality push for one. We can expect the next two years to be dominated by negotiations over the terms of Britain’s exit - if they ever get started.

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