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Why Article 50?
Publication date: 2016-11-10

Article 50 of the Treaty of Lisbon - Why Wrong?

Article 50 does not state what conditions the parties should comply with if a member state decides to leave the EU, but, instead, says that the parties should agree this issue within 2 years or more.

This is incompetent legal drafting, because instead of defining the obligations of the parties arising out of termination of membership and the procedural steps they should take, it forces the parties to enter into negotiations, the outcome and time‐scale of which are uncertain.

Article 50 also contains a reference to “taking account of the framework for its future relationship with the Union”.

This is clearly wrong, because the purpose of a termination clause of an agreement is to end the agreement, not to continue it subject to some other terms.

Termination of an agreement should not depend on the parties making any other agreements about the future.

Why has Article 50 been drafted in that way?

We have evidence provided by the author of Article 50, Lord Kerr of Kinlochard, who was Secretary‐General of the European Convention, which drafted the Treaty of Lisbon.

In a BBC interview, 3 November 2016, Lord Kerr made the following statements:

The [termination of agreement] process “wasn't really necessary” because it has always been possible for a country to quit.

If you stopped paying the bills and you stopped turning up at the meetings, in due course your friends would notice that you seemed to have left.

I thought the circumstances in which it would be used, if ever, would be when there was a coup in a member state and the EU suspended that country's membership.

I thought that at that point the dictator in question might be so cross that he'd say “right, I'm off” and it would be good to have a procedure under which he could leave.

Lord Kerr obviously has no understanding whatsoever of the most basic principles of the Law of Contract, and appears to have no experience of preparation or negotiation of real life agreements.

Because, if he thinks that one can terminate an agreement by “stopping to pay bills”, of, say, a gas company, then, according to the extracts from a Contract of Supply of Services of a [Real World] Gas Company, the following termination terms would be applicable to his situation:

You will give us at least 30 days' notice.

You will be liable for the price until the end of the notice period.

If this agreement terminates before the end date and the termination is not as a result of our failure to comply with the terms of this agreement, we have the right to invoice you for any losses we incur as a result of the agreement ending early. You will pay such invoice in accordance with the payment terms of this agreement.

And, if such simple thing as gas supply to a gas consumer requires a 30 days' notice, would not termination of a treaty between a country and the EU require at least a year to wind up the ongoing transactions?

Why a person with not even minimal understanding of “agreements” had been given the task to draft the Treaty of Lisbon?

The naivety of his train of thought can be clearly seen from the clauses of Article 50:

Q: If a country wants to quit the EU, what will be the future relations between the country and EU?

A: They can agree between themselves, can't they?

Q: What if they don't agree?

A: The agreement will end after 2 years without agreement about the future.

Q: But what if they want to keep negotiating longer than 2 years?

A: They can agree between themselves to do so and keep negotiating as long as they want.

– No provisions for time to terminate the ongoing relationships.

– Concern about “future relationships”, which are totally irrelevant for the termination of the existing agreement.

– Uncertainty of time‐scales and outcome.

Total nonsense!

Why the UK government failed to understand the absurdity and irrelevance of this would‐be “termination clause”, and, instead of correcting it by agreeing a reasonable transitional time to wind up the ongoing relationships, preoccupied itself with developing a “strategy” for an agreement about the future?

Why did the UK government preoccupy itself with an agreement about the future, which they could not “negotiate” until the UK is out of the EU, and which would affect domestic laws, and thus would require involvement of the Parliament?

Although the Referendum issue had been resolved by the vote, they were still preoccupied with the pre‐Referendum arguments and wanted to prove to the “Remainers” that the UK would not be “isolated” and that the UK can have maximum access to the “Single Market” and have “full control of our borders”.

But, the pre‐Referendum arguments have become irrelevant for the issue of leaving the EU. The vote was cast and the decision made for better or for worse. All what remained was to implement the Referendum Decision.

The negotiations about the post‐leave future were not part of the leave procedure. They could not and should not be done until the leave procedure was over.

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