Donald Tusk addressed the European Policy Centre on 13th October
on several issues, one of which was Brexit, but in a wider context
of the current concerns about the Ukraine and its effect upon the
Eastern side of the Union. Let us not forget that the architect of
the issues gluing the nascent Germany post the Conference of
Vienna, including the Franco-Prussian War as a bonding agent, was
Otto von Bismark, a Prussian
The link to his speech, but more importantly to his answers to
the first and last questions will be given at the end of this short
briefing. It is clear that the audience at the European Policy
Centre was placing questions from a platform adverse to Brexit
It is essential to bear in mind that he is the President of the
European Council, that is the Member States in council. He is
therefore not speaking on behalf of the EU Executive - the
Commission or associated advisory bodies, neither is he speaking on
behalf of the European Parliament.
Article 50 lays down the principle for the process of withdrawal
as lying in the communication of a Member State's Decision which is
to be taken according to its internal constitution. That measure is
notified to the Council, not to any other organ of the EU, nor in
fact to the EU itself.
That is where the subtlety lies. Competences retained and
conferred.
The decision to withdraw necessarily is a retained competence of
a Member State. It is not governed exclusively if at all by any
Union law. It is governed by the basic principles of Treaty law in
international law. The type of Decision to withdraw from a
Treaty is also not a final binding one in international law, as no
State can be held to it. Switzerland withdrew its application to
join the EU, although that may no be a useful analogy here.
At this level, although it has developed internally to
adolescence from a foetal state, the European Union is merely
composed of the competences conferred upon it by the Member States,
One of the rôles of the Council is to supervise the exercise of
those conferred competences. Where a given competence is not and
has not been conferred upon the Union in International Law, then
that competence remains with the Member States. The process of
withdrawal for the Treaties , by definition a reserved competence,
is therefore not subject to the EU Treaties as a matter of their
internal operation, although a limited procedure is laid down at
article 50 et seq. That TEU procedure is not a complete legal
definition of the process or of competence at the International Law
level relating to Treaty withdrawals. No Member State in its right
mind would have signed up to any further limitation of its
competence to withdraw.
An elegant review of the legal position on Kompetenz-Kompetenz
and the other issues raised by Aurel Sari, Lecturer in
International Law at Exeter University can be found here.
The Court of Justice of the European Union has acknowledged that
the EU must respect international law in the exercise of its powers
(Case C-286/90, Poulsen and Diva, para. 9). Pursuant to
Article 68 Vienna Convention on the Law of Treaties, a notification
to withdraw from a treaty in accordance with its provisions may be
revoked 'at any time' before the notification takes effect.
That puts the United Kingdom in a very strong negotiating
position before the end of the Two Year period in that it can
withdraw its notice up to the last minute and then renotify it
......
Suffice it to say, that the fact that the Decision is to be
notified to the Member States in Council as States within the
organisation of an international body, does not render the decision
as such subject to an internal form of irrevocability. The EU only
has the competences conferred upon it by the Member States, to the
extent that any exercise of a competence has in fact been regulated
by the Treaty, which may be the case here, then the Member State
remains as free to revoke its decision as it would be in any other
Treaty situation. See the references to such withdrawals from other
Treaties in Aurel Sari's short commentary.
In other words, in this instance we may be" on the cusp" where
general international law of Treaty interpretation, whether as
codified in the Vienna Convention on the Interpretation of Treaties
or not, meets the EU Treaty itself. It is well known that the CJEU
does not consider itself to be bound by the Vienna Convention
within the actual Treaty itself, however that position may well not
be applicable on this "cusp", as a Member State could argue
forcibly that it has only given certain competences to the European
Union, not all.
There have been similar issues raised at the level of the German
Constitutional Court in the Lisbon Case
SO: when Mr Tusk replies that he has not come across one head of
State in Europe that wants Brexit, he is inferring that there could
be support at that level of the Union, the highest, for a
unilateral withdrawal of the article 50 notice once it is lodged.
That is what he infers. That is not their being "nice", albeit that
the older meaning of "nice" is apt, it is their being expedient as
each does not wish to compromise their reserved competences in
relation to the Union
He did not state although this may be inferred that it goes
to each Member State's retained competence, as that inevitably
would have weakened the Council's general negotiating position by
an immediate internal division each State reckoninjg its own
position in the future in relation to its retained competences and
as to their extent.
When he then says that there is no legal or formal obstacle to
allowing a withdrawal of the article 50 Decision, then there is no
legal or formal reason why it cannot.
If everything or at least what he is saying is negotiable, then
it is.
His neat speech can be found at this link his specific reply to the third question
is transcribed here here