The EU decides on the entire British immigration policy

British EU referendum: possible scenarios for a Brexit

The UK's exit referendum from the EU is getting closer, and the outcome of the vote is by no means certain. Europe's room for maneuver to make further concessions to London is extremely limited. At the same time, the fate of EU-friendly Scotland is inevitably linked to the Brexit decision.

Prehistory and general conditions

In the run-up to the 2015 general election, the British Prime Minister had David Cameron announced the holding of the long-discussed referendum on the UK's exit from the EU. On the one hand, this statement was motivated to satisfy the Eurosceptics within the Tories and to prevent voters from migrating to the right-wing populist UKIP. On the other hand, however, it also served the tactical consideration of inducing the EU, with a possible exit scenario by the United Kingdom, to agree to further privileges of the United Kingdom in the EU or at least to retain existing ones. In addition, profound EU reforms are repeatedly called for in order to persuade the United Kingdom to retain its membership in the Union.

“Brexit”, as the fashionable term for the possible exit of the United Kingdom from the Union, is seen by many observers in the European Union as a threat to the cohesion of Europe. It is the symbol of a union that is increasingly facing disintegrative tendencies and is characterized by a lack of solidarity between its members and a certain degree of selfish nationalism (keyword: asylum policy, Greek crisis, free movement of persons).

The British motives for a Brexit are difficult to pin down: there can be no doubt that the United Kingdom will benefit from membership of the Union because it has access to a large internal market - from the specific situation of the banking world in the City of London, too remain silent. The fact that this membership is also associated with burdens, as shown by the example of the free movement of persons, is inherent in the Union. Nor can it be said that the United Kingdom would be excessively burdened compared to other member states of the Union.

"Should the United Kingdom remain a member of the European Union?"

The planned law on the exit referendum (European Union Referendum Bill 2015 - 2016) is currently being discussed in the House of Commons. A meeting of the responsible committee took place on June 19, 2015. The reporting is currently in preparation.

A specific voting date is not specified in the law. It will be the task of the Secretary of State to determine this. The law only sets the framework: According to the proposal, which passed the committee in the House of Commons, the vote may not take place later than December 31, 2017 and not take place on May 5, 2016.

The latter determination results from the fact that regional elections will take place in Scotland, Wales and Northern Ireland on that day. Avoiding a coincidence of the exit referendum with these ballots is a concern that is represented by various sides, both in Cameron's own party and, above all, by the SNP in Scotland.

Another point of contention seems to be the extent to which the government can use funds for a campaign in favor of a British yes. What is clear, however, is the question that will be put to the people on referendum day, namely: "Should the United Kingdom remain a member of the European Union?" Kingdom would be eligible to vote. This means that EU foreigners, even if they have been living in the UK for a long time, are excluded from the vote.

Can a member leave the EU?

The legal question of whether a member state may leave the Union at all is answered relatively easily: According to Article 50 (1) TEU (Treaty on European Union) created with the Treaty of Lisbon, each member state can decide in accordance with its constitutional provisions to leave the Union. Until “Lisbon” it was not entirely clear whether and under what conditions such a process could take place at all.

Art. 50 (2) TEU provides for a specific procedure for withdrawal: a member state that decides to withdraw informs the European Council of its intention. In the case of the United Kingdom, this could only be done after a referendum in favor of the exit. On the basis of the guidelines of the European Council, the Union negotiates an agreement with this state on the details of the withdrawal. The framework for future relations between this country and the Union will be taken into account. The agreement is concluded by the Council on behalf of the Union. The Council acts by a qualified majority with the consent of the European Parliament.

This somewhat cumbersome regulation suggests that the exit of a state from the Union, contrary to the postulate of Art. 50 (1) TEU, is not so easy. After all: the right to withdraw is, as it were, enshrined in Union constitutional law.

However, the exit requires an agreement between the exiting state and the Union. This now gives the impression that the exit can be prevented by the fact that the Union does not conclude such an agreement. However, this is counteracted by Art. 50 (3) TEU, according to which the treaties no longer apply to the state concerned from the date on which the Withdrawal Agreement comes into force or, otherwise, two years after the notification mentioned in paragraph 2. Unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

This means that the Union cannot prevent the Member State's exit by simply delaying the conclusion of the exit agreement, as it must not need more than two years to negotiate the terms of the exit. Conversely, however, the Member State could agree with the Council to extend this period by mutual agreement. This would at least partially undermine the result of the referendum.

Remarkably, it is not entirely clear whether the exit agreement falls within the exclusive competence of the Union or whether it is a mixed agreement that also requires the consent of the other member states or their parliaments. The overwhelming opinion is that the exit agreement falls within the exclusive competence of the Union.

In the exit agreement, the framework for “future relations between this state and the Union” must also be taken into account. This means that the withdrawal agreement can also regulate the continued application of Union law in the state willing to withdraw. However, the withdrawal agreement is only intended to regulate the framework of the relationship between the withdrawing state and the Union, not the details, which would therefore have to be laid down in separate agreements. In view of the clear referendum question, which is limited to a yes or no to the exit, the question of whether only a partial exit would be possible, which has been affirmed on various occasions in the literature, need not be discussed.

The subject of such separate agreements would probably also be a change of the exiting state to a new form of association, for example the admission of the United Kingdom to the EEA (European Economic Area). This follows from the fact that such an expansion of the EEA would have to agree not only to all member states of the Union but also to the three members of the EEA, Norway, Iceland and Liechtenstein.

Brexit and what then?

According to this, the exit agreement enables a somewhat milder overthrow of the state willing to leave the Union by the fact that the continued validity of Union law can be negotiated. Unless such has been agreed, all primary and secondary Union law automatically expires when the withdrawal takes effect. All competences that the member state has transferred to the Union are falling back again.

However, an exception applies to mixed agreements, i.e. those international agreements that were concluded by the Union together with the member state. You stay upright at first. Unless they contained a specific clause that would lead to the termination of these contracts as well. However, the state that has now resigned will not be able to avoid terminating these contracts.

UK domestic law that was used to implement Union law will remain in effect as long as it is not changed. Since it is in principle released from the implementation obligations of Union law, the United Kingdom would, however, be authorized to unilaterally change this right, unless otherwise agreed in the Withdrawal Agreement or in other - separate - contracts.

Regardless of this, Article 50 TEU leaves some ambiguity: Formally, for example, the British MEPs of the European Parliament are still its members. But you will probably no longer be allowed to attend its meetings. The same applies, for example, to the British judges in the ECJ (European Court of Justice) and at the EuG (Court of the European Union). This question cannot be regulated in the Withdrawal Agreement, as it is so-called primary law of the EU. The organizational consequences of the UK's withdrawal would therefore require changes to the TEU and TFEU (Treaty on the Functioning of the European Union).

It is worth mentioning that a state that has resigned can still apply for membership again (Art. 50 (5) TEU). There are neither privileges nor disadvantages: The applicant has to go through the complete accession procedure according to Art. 49 TEU. Of course, such a constellation would be extremely unrealistic.

The case of Scotland

The next question is the fate of Scotland. The country is set to be EU-friendly. A Brexit could give a new impetus to separatist aspirations. Of course, secession from the United Kingdom would not automatically help the Scots to remain in the EU. It is the Member State United Kingdom, which as such is a member of the EU and is leaving it. This is also the difference to the GDR, which became a member of the EU after reunification with Germany without an accession agreement being concluded because Germany was already a member of the EU.

Should Scotland decide on secession after an affirmative exit referendum in the United Kingdom, it would still have to apply for admission to the Union by way of Art. 49 TEU. Since this state has already implemented all Union law, the admission procedure could take considerably less time than is the case with other states. However, this does not change the fact that Scotland cannot remain in the EU as a “rest of the UK” and that this cannot be regulated in the Withdrawal Agreement.

No Brexit and what follows from it

Without a doubt, if the United Kingdom left the EU, it would be a severe blow to the European unification process.

The currently higher probability, however, speaks in favor of the alternative that the British would vote for the United Kingdom to remain in the EU. This would have no legal consequences: the United Kingdom would remain a member of the Union and its legal status would not change. The most likely consequence in realpolitical terms would be to maintain the status quo, including the “British discount”. That would be an at least acceptable position for Europe as a whole.

Another question is whether, in the run-up to the British exit referendum, the major EU reform that Prime Minister Cameron is aiming for, or at least the anchoring of its cornerstones, will come about. According to Cameron's intentions, this would have to amount to a re-nationalization of “communalized” competencies. A fundamental reform of the EU now appears to be factually worth striving for.

In fact, there is an undeniable need for additional Europeanization of tasks (keyword: asylum system) that are currently being carried out by the member states. It is extremely unlikely, however, whether this EU reform would go in the direction Cameron intended, or whether even re-nationalizations as compensation for further Europeanizations would be possible.

Quite apart from that, there are currently no actors in sight who would be prepared to even consider such a fundamental and costly reform of the EU institutions and the distribution of competences between the Union and the member states. The only alternative left is that the United Kingdom negotiate bilateral benefits with the European Union. Prime Minister Cameron could use this as an argument to remain in the EU. But even if the legal options in this regard are quite considerable. The realpolitical leeway for further privileges for the British beyond the “British discount” and the scope of the Charter of Fundamental Rights will inevitably be extremely small. Participation in the European integration process is not a menu that the Member States can put together à la carte.

The author

Univ.-Prof. Dr. Peter Bussjäger is university professor at the Institute for Public Law, Political Science and Administration at the University of Innsbruck and heads the Institute for Federalism in Innsbruck.

Bussjäger published this text as a Policy Brief for the Austrian Society for European Politics (ÖGfE). The ÖGfE is a politically independent association on a social partnership basis. It provides information about European integration and stands for an open dialogue on current European policy issues and their relevance for Austria. It has many years of experience in promoting a European debate and acts as a catalyst for the dissemination of European policy information.