If the choice to leave the Union is a State right and a unilateral decision, this withdrawal, the terms of which are defined by the Treaty of Lisbon, is the affair of both parties, considers, in a tribune to Monde ", Hélène Gaudin, professor of public law.
TheThe spectacle that the United Kingdom gives us leaves each day more perplexed. The Brexit triggered a constitutional and political crisis that is intensifying and becoming increasingly complex, confirming or straining – it depends – the mechanisms of British democracy, proof of if it is not not of the Union as a mere international organization.
In the face of this tumult and confusion, the Union is, for the time being at least, the appearance of an orderly and coherent whole. This stability is amazing. It could have been undermined from the beginning, which the United Kingdom was expecting, not without some pragmatism: pitfall, the negotiations on the withdrawal; the European Councils devoted to Brexit, and in particular the question of the postponement of the British exit.
Against all odds, therefore, the European Union has not shattered what is one of the greatest crises in its history. The first question that can be asked is why? No doubt it is necessary to find a beginning of answer in Article 50 of the Lisbon Treaty, entered into force in 2009, which defines the modalities of a voluntary withdrawal from the Union. Not only in this article as such, but also, in comparison with Article 49, which governs, in turn, the procedure of accession to the Union.
It is the Union that negotiates
If the principle of accession is to be accepted by the Union, on the other hand, the conditions of the Union and the adjustments to the Treaties must be negotiated in the framework of an agreement between the applicant State and the States already members. (Article 49, paragraph 2). The prevalence is therefore that of the states.
Nothing of the sort in Article 50. The choice to leave the Union is, of course, a right of the State, which expresses it in a unilateral decision, which imposes itself on the Union which has neither to discuss it, to refuse it, or to accept it. But this Article 50 Europeanizes the procedure: it is the Union that negotiates and concludes the agreement. The Court of Justice could only see this, if by chance it was seized of the interpretation of this point of Article 50, and thus of the regularity of the procedure – and of the agreement – of withdrawal.
This block of the Union is also about the extension of the unanimous withdrawal period of the European Council, which the British Parliament may not have considered in recent days.
However, what tends to turn into a "permanent" Brexit, a persistent and unstable status for the United Kingdom, is dangerous for the European Union, for its internal structure, for its political legitimacy, its economic efficiency and finally for its diplomatic image. Admittedly, to meet these risks, the treaty provides for the exit in the absence of agreement, past certain deadlines, a solution that no one can reasonably wish.