— Ben (@TheScepticIsle) January 14, 2016
Stephen Kinnock MP declared in the House of Commons that the EU will give the UK a “punishment beating” in the event of the UK seeking to secede from the Union. This was echoed in agreement on social media by Wes Streeting MP and lapped up by europhiles. As you can see above I found it impossible not to express my contempt. This is either fear mongering of the worst possible kind, deeply dishonest and deliberately misleading, or so utterly ignorant that you despair of the undeserved prestige such figures have when it comes to this incredibly important debate.
Aside from this fear mongering hypothetical being contrary to practical European politics, such a discriminatory act would also violate EU law, which is further reinforced by international law.
It is a frequently asserted claim designed to promote fear, uncertainty and doubt. Surely the EU look to punish us if we left?
The notion that the EU would refuse to cooperate, or even seek to “punish” the UK in the event of secession – thereby clearly violating EU law as well as failing to comply with international law – is beyond the realm of realistic politics. As Sir David Edward, the first British Judge of the European Court, has said – EU law requires all parties to negotiate in good faith and in a spirit of cooperation.
Article 50 requires the EU to conclude an agreement with the seceding state, “taking account of the framework for its future relationship with the Union“. Notably, Articles 3, 4 8 and 21 of the Treaty on European Union require the EU to “contribute to … free and fair trade” and to “work for a high degree of cooperation in all fields of international relations, in order to … encourage the integration of all countries into the world economy, including through the progressive abolition of restrictions on international trade” and to adhere to the “principle of sincere cooperation […] in full mutual respect” and “assist each other in carrying out tasks which flow from the Treaties.”
EU negotiators must therefore endeavour to reduce trade restrictions in accordance with treaty provisions and, crucially, their actions are justiciable. IF EU negotiators were to veer away from treaty provisions, or indeed if any other EU member sought to impose sanctions or restrict trade, the UK could opt to lodge a formal complaint with the European Court of Justice (ECJ), and block the discriminatory action.
During the Article 50 negotiations the UK remains a member of the EU and enjoys the full rights and privileges of membership. The Commission itself may be legally obliged to step in and begin infringement proceedings against the offending member state.
We cannot be certain as to the exact arrangement concluded after negotiations, nor is it true that Article 50 requires the conclusion of a Free Trade Agreement, but any assertion that the EU would refuse to negotiate on trade or seek to unilaterally impose trade barriers on the UK is simply false.
Another howler doing the rounds is the ludicrous idea that if the UK were to leave it would – according to Article 50 – be excluded from negotiations, and be outside the room as other EU members arranged the terms of its departure.
This is nonsense.
It is based on a misunderstanding/misrepresentation of the wording of Article 50 in the treaty. Paragraph 2 clearly requires the Union to “negotiate and conclude an agreement with that [withdrawing] State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union“. You cannot negotiate and conclude an agreement with a state excluded from the table.
The misunderstood element is paragraph 4, which actually simply states that the discussions between the Member States on the negotiations cannot be attended by the departing state. This is a perfectly sensible measure to prevent the departing state being involved in Council meetings when decisions and discussions related to negotiations with the departing state are taking place. In other words, it would prevent the UK being on both sides of the negotiating table, which is obviously a situation that is impermissible, hence the sensible measure of part-exclusion to prevent it.
It is not a total exclusion. In the rest of the process and in discussions not directly related to negotiations the departing Member State participates fully.
The idea that the EU would, or could, unilaterally decide on an offer to make the UK – negotiating a new relationship with a departing state without the involvement of said state, effectively negotiating with itself – is risible.
The views expressed in this article are that of the author and do not necessarily reflect the views of Conservatives for Liberty