Leaving Room for Second Thoughts Experts Believe Exit from Brexit Would Be Legally Possible

Could the British government pull its Article 50 notification and halt the Brexit process in order to buy more time for negotiations? Legal experts believe that could be possible. The European Parliament has now applied stipulations to ensure that cannot happen.
Members of the European Parliament during their vote on a Brexit negotiations resolution

Members of the European Parliament during their vote on a Brexit negotiations resolution

Foto: VINCENT KESSLER/ REUTERS

The European Parliament is sending a very clear message to London: Before its withdrawal from the EU, Britain has to pay its bills and, ultimately, it cannot be given any deal that would put the United Kingdom in an advantageous situation compared to other EU member states. Otherwise parliament will block an exit treaty, according to a resolution passed Wednesday by a large majority.

But the resolution  also includes a passage that has so far gained little public attention. It limits the ability of the British to withdraw their Article 50 notification that they intend to exit from the EU. "A revocation of notification," the passage reads, "needs to be subject to conditions set by all EU-27."

There are concerns in the European Parliament that the Brits could withdraw their notification only to turn around and resubmit it in order to stretch the extremely tight two-year negotiating deadline for the country's departure from the EU. Revocation of Article 50 "cannot be used as a procedural device or abused in an attempt to improve on the current terms of the United Kingdom's membership," the resolution states.

"We aren't shutting the door," says Elmar Brok, a foreign policy point man for Germany's conservative Christian Democratic Union in the European Parliament who participated in the drafting of the resolution. But the withdrawal of Article 50 "cannot be used as a negotiating trick to win time and then resubmit the notification at a later point. We cannot allow for little games like that," he said.

Can Britain Withdraw Its Brexit Request?

Still, the idea that Britain might simply withdraw its Article 50 notification is highly unlikely -- and not just for political reasons. It's unclear if it would be legally possible given that Article 50 of the Lisbon Treaty doesn't address the possibility. Experts in Germany's parliament, the Bundestag, spent a considerable amount of time reviewing the issue. A 14-page research paper  from the Bundestag's EU Affairs Department underscores division over the question among the parliament's legal experts. But some argue that it is "possible to withdraw the notification."

In an analysis  released in March by the European Parliament's own legal service, lawyers there also concluded that withdrawal of Article 50 notification would be legally possible. Any declaration of intent, they concluded, including an exit from the EU, can be withdrawn. "Any other situation would amount to an expulsion from the EU, which would not have been the purpose of the drafters of Article 50," it states.

At the same time, the experts also noted in the paper that they would consider a unilateral withdrawal of notification to be questionable, because it would open up the possibility of precisely the kind of game-playing that members of the European Parliament warned about in their resolution. Daniel Thym, a professor of law at the University of Konstanz, has a clear opinion about it: "It cannot be done." An extension of the two-year negotiating period, he says, is already clearly regulated in Article 50. It is possible, but only through an agreement between Britain and the other 27 EU member states. A unilateral withdrawal and a renewed submission later for a British exit would run contrary to good faith, Thym says.

EU Court of Justice Would Have Final Say

Ultimately, and here all the legal experts agree, the European Court of Justice would have to rule on whether a unilateral withdrawal of Article 50 notification is possible.

The matter would be a lot easier if there were a political agreement on the United Kingdom's possible exit from Brexit. If the Brits were to give serious consideration to remaining in the EU -- following a change in governments or a second referendum, for example -- "then there would be very good arguments for allowing the withdrawal of the notification," Thym says. In that case, the worries of members of the European Parliament that Britain could somehow negotiate better conditions would be unfounded. The situation would then go back to the existing status quo "as if the intent to exit had never been declared."

Lawyers inside the European Parliament view the situation similarly. "There is wide agreement that the withdrawal process could be suspended if all the other member states agree to this," the paper states. The British House of Commons has also made a similar statement . "Politically, it is likely that if the UK and other member states agreed that the notification should be withdrawn, it could happen."

Some observers are hoping that, in the course of the tough negotiations in the coming months, it will become increasingly clear to the British public what Brexit will mean for it -- namely that nothing good can come out of it -- and that this will also lead to a shift of opinion and position on the government's part.

The question is whether Britain would still be able to find the will among the other EU member states under that scenario to back away from Brexit. In their public statements, practically all leading EU politicians have expressed their regret over the Brits' decision to leave the union. Behind the scenes, however, some are saying that although Brexit is a bitter pill to swallow, it also presents opportunities -- ones that should be pursued.

The prevailing sentiment over Brexit in Brussels, says one EU foreign policy expert, can be summed up as such: "The main thing is that it be over soon."