Erasmus UniversityThe EU27 have agreed to grant the extension requested by the Prime Minister, the terms of which need not be repeated here. Suffice it to say for present purposes that exit day has been moved to 31 October 2019 at the latest, subject to the proviso that an approval of the draft Withdrawal Agreement by the UK and the EU27 would bring the Article 50 period to an end.

The continuing membership of a withdrawing State in the EU for an extended period of time is unprecedented in recent times, as is the triggering of Article 50 itself. This naturally prompts the following question: what would be the status of the UK, as a Member State seeking to withdraw from the EU, within the EU28? This matter becomes even more pressing, since it has been suggested by a few voices in Westminster that the UK could block a number of EU initiatives whilst remaining an EU member, such that it would act as a sort of ‘Trojan horse’ which should not have been allowed to stay inside the EU gates (strictly metaphorically speaking). This post will briefly set out the legal and institutional set-up that would obtain in the EU27+1, as per the EU Treaties, the European Council conclusions, and other EU acts, as they pertain to the current situation.

UK participation in the EU institutions

From an institutional standpoint, it is underlined in the European Council conclusions that ‘the extension cannot be allowed to undermine the regular functioning of the Union and its institutions’ (in para. 3). Accordingly, the UK will have to hold European elections, otherwise the extended Article 50 period would come to an end on 1 June 2019 (unless the UK has agreed the Withdrawal Agreement by 22 May).

The European Council conclusions further foresee the possibility of separate meetings of the EU27 ‘to discuss matters related to the situation after the withdrawal of the United Kingdom’ (para. 8). Such formations are not unusual. For example, the Heads of State or Government of the Eurozone Member States (or the EU19, if you wish) also meet separately in Euro Summits. The Euro Summit is not formalised in the EU Treaties either (but is formalised, as explained elsewhere, in European Council conclusions and a separate intergovernmental treaty).

The UK’s rights and obligations

In rather more general terms, the UK will remain subject to the full range of rights and obligations that flow from its status as EU Member State until its orderly (or perhaps less orderly) withdrawal from the EU. In this connection, the European Council conclusions reiterate in para. 7 part of what is Article 4(3) TEU (known as the principle or duty of sincere cooperation):

‘The European Council takes note of the commitment by the United Kingdom to act in a constructive and responsible manner throughout the extension in accordance with the duty of sincere cooperation and expects the United Kingdom to fulfil this commitment and Treaty obligation in a manner that reflects its situation as a withdrawing Member State. To this effect, the United Kingdom shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives, in particular when participating in the decision-making processes of the Union.’

It should be stressed that Article 4(3) TEU is more powerful than meets the eye. It has been used in areas as diverse as competition law, the implementation of Directives, external relations law, and the conclusion of intergovernmental inter se agreements. It should be regarded as a cognisable legal constraint that would be actionable in the EU Courts. The salient point for present purposes is that, apart from it being politically unrealistic that the UK Government would seek to obstruct the workings of the EU27+1 from within, there are legal limits to such attempts, which would be enforced by the EU Courts.

Other ‘creative’ ideas about bringing the EU’s workings to a grinding halt do not seem to be realistic either, as convincingly argued in a recent blog by Professor Steve Peers. The UK’s participation in major political decisions prior to the currently agreed exit date is rather unlikely. This is partly because EU decision-making is slowing down in the run-up to the European elections, and any ‘unfinished business’ may be discontinued as such (as per the European Parliament’s Rules of Procedure). It is also because some of the major decisions (such as on the EU’s next Multiannual Financial Framework) may also be taken after the UK’s projected exit from the EU. Even more so, the EU27 States themselves could get creative and have recourse to enhanced cooperation (Article 20 TEU), which does not require the participation of all EU Member States. In the vast majority of cases, the UK could not prevent the EU27 (or any subset thereof) from authorising the use of this procedure (Article 329(1) TFEU, taken together with Article 16(3) TEU) or from adopting the relevant measures (Article 330 TFEU). Any enhanced cooperation must fully comply with the rules set out in Articles 20 TEU and 326-334 TFEU. The UK is equally unable to block the Permanent Structured Cooperation (PESCO), whose aim is to deepen defence cooperation among a subset of EU Member States, as per Articles 42(6) and 46 TEU.

Four scenarios for the UK-EU27 negotiations

This leaves, for the moment, four different options to the UK: (1) ratifying the Withdrawal Agreement and moving on to the next stage of the negotiations; (2) leaving the EU without a deal (the domestic implications of which will not be addressed here); (3) revoking the Article 50 notification unilaterally (as per Wightman) and staying in the EU; and (4) shifting its red lines, such that a different agreement with the EU27 could be in sight. A different agreement seems, in light of paras. 4-5 of the European Council conclusions, to be politically in sight only with respect to the Political Declaration on the future relationship and/or the future UK-EU27 agreement(s) to be concluded once the Withdrawal Agreement itself is ratified. Legally, there is nothing to prevent a reopening of the Withdrawal Agreement, under fundamentally different circumstances.

It should be further noted, with regard to option (3) adumbrated above, that revoking the Article 50 notice only to trigger Article 50 again in a manner that would constitute an abuse of the withdrawal process would not be sanctioned by the CJEU. The Wightman ruling may have been silent in this respect, but the prevailing view seems to hold (and my opinion is too) that such an abuse would not be permitted under Article 50 TEU.

I am grateful to Dr René Repasi, Professor Stephen Tierney and Professor Alison Young for their valuable comments.

Menelaos Markakis, Postdoctoral researcher, Erasmus University Rotterdam

(Suggested citation: M. Markakis, ‘A Trojan Horse in the EU? The Curious Case of the EU27+1’, U.K. Const. L. Blog (12th Apr. 2019) (available at https://ukconstitutionallaw.org/))

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