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Interview with Prof Franz Mayer, European Law.

Can the British simply cancel Brexit? - Süddeutsche

... A nation state can say: we want to leave, we have to ask no one. At the same time, the rule wants to establish clarity. And that's not really compatible with one state controlling the exit procedure unilaterally.

Q: The price of having the option to exit is therefore: one can declare it unilaterally but the decision cannot be revised unilaterally?

That's how I would see it. This is not mentioned explicitly [in A50] but it seems plausible according to how it came about. Anything else would give the exiting member all possibilities. ... to use as leverage. ... Or it could undermine the 2 year span: negotiate for 1 and a half years, then take the exit back and then trigger A50 again. The time limit would be meaningless. ...

... There are people who say that [A50 can't be stopped]. But A50 allows in consensus with the EU members to extend the period. Then it must be legally possible to stop the whole process but in consensus with the remaining member states. ...

Q: Do you expect the ECJ to eventually decide politically - to make the exit from Brexit possible?

ECJ has to make a legal decision while the political situation is unclear. Which makes it even more political. ... could refuse the case because it is still hypothetical. ...a middle way to not give the British unilateral power over the process... E.g. it could say that the initial triggering of A50 had an absence of intent.

Q: That the British were quasi legally of unsound mind?

Something like that ... I believe they don't want to make a possible political avenue [for canceling Brexit] impossible. But if they were to strictly adhere to the formal legal text they'd have to say: there is nothing about Exit from Brexit thus it is impossible.

... If another member were to say: you can stay but without the rebate. I'm not sure it'd go smoothly if the British would say: we didn't mean it like that, we'll stay onboard. Too much has happened for that.



Schengen is toast!
by epochepoque on Thu Nov 29th, 2018 at 02:51:44 AM EST
".. of unsound mind."

Seems plausible! Yet where to draw the line for today's politicians? 😊

Global Warming - distance between America and Europe is steadily increasing.

by Oui on Thu Nov 29th, 2018 at 07:54:51 AM EST
[ Parent ]
If a revocation of Article 50 is deemed legal (unilateral or otherwise) then the Article becomes meaningless. In such case I would expect the Lisbon treaty to be amended to patch the loophole.

You might find me At The Edge Of Time.
by Luis de Sousa (luis[dot]a[dot]de[dot]sousa[at]gmail[dot]com) on Fri Nov 30th, 2018 at 01:05:40 PM EST
[ Parent ]
Why? You could imagine a world in which a country sat down, had a sensible debate, formulated a plan, decided what outcome they wanted and initiated the A50 process to leave the EU perfectly sensibly.

I'm agog at the idea that the current UK clusterfuck would somehow act as an example to be followed by other countries or leaders. It's going to eat two, maybe three PMs, multiple ministers, damage the economy in the medium to long term,  destroy parties and lead to more bloodshed anyway you cut it, even if A50 is withdrawn, for precisely zero benefits from the EU.

If it was a negotiating tactic it was a spectacularly bad one.

It's a cautionary tale.

by Colman (colman at eurotrib.com) on Fri Nov 30th, 2018 at 01:30:52 PM EST
[ Parent ]
I think there is a world of difference between a unilateral right to withdraw and a consensual agreement to withdraw. The EU Council almost always acts by consensus, and anything is doable by consensus provided it is not explicitly disallowed in law.

I am actually quite alarmed by the suggestion in the quote below: "Lenaerts made novel suggestion of a "reverse QMV" decision " whereby the UK could Cancel the A.50 notification and the EU Council could only reject their cancellation by QMV.

I can think of no other instance where an individual member can make a major decision effecting all and the onus is in the EU Council to muster a QMV to prevent it. Again we are in danger of inventing rights and procedures which simply do not currently exist.

In practice, I can see no difficulty with the EU Council and the UK agreeing to cancel Brexit especially if only a QMV is required. But the tradition of action by consensus should be upheld.

I am not an expert on the Treaties and case law which mandate how the EU Council should operate, so perhaps someone can correct me here. However the long term practice has been decision by consensus, and I think that practice should be upheld.

Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Fri Nov 30th, 2018 at 02:47:26 PM EST
[ Parent ]
As a FYI there's currently a High Court case which claims that A50 has no constitutional foundation, because May was well aware of Leave's criminal overspending before the A50 debate, and may have actively suppressed an investigation into it.

This would certainly make the subsequent Parliamentary decision void, and probably also counts as misleading Parliament.

PMs tend to get away with misleading Parliament - see also Blair - but it's not absolutely certain that May would.

by ThatBritGuy (thatbritguy (at) googlemail.com) on Tue Dec 4th, 2018 at 02:22:27 PM EST
[ Parent ]

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