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23 Colum. J. Eur. L. 265 (2016-2017)
Revoking Brexit: Can Member States Rescind Their Declaration of Withdrawal from the European Union?

handle is hein.journals/coljeul23 and id is 277 raw text is: REVOKING BREXIT: CAN MEMBER STATES RESCIND THEIR DECLARATION OF WITHDRAWAL FROM THE EUROPEAN UNION? Jens Dammann Abstract In June 2016, British voters did the unthinkable: by a narrow margin, they voted for the United Kingdom to leave the European Union. While this referendum was not legally binding, the new British Prime Minister, Theresa May, has left no doubt that she will abide by the outcome and declare the United Kingdom's withdrawal in 2017. Such a move is entirely legal. Article 50 of the Treaty on European Union (TEU) explicitly authorizes Member States to declare their unilateral withdrawal from the European Union. By default, the country's membership ends two years after such a declaration. But does-and should a Member State have the right to change its mind and rescind its declaration before the withdrawal takes effect? While the existing literature essentially ignores this issue, I argue that the answer to both questions should be yes. Using insights from game theory, I show that a Member State's ability to rescind its declaration of withdrawal plays an essential role in securing outcomes that are desirable for the European Union as a whole. Moreover, one can also make a strong doctrinal case in favor of such a right. INTRODUCTION .......................................................266 I. A SHORT HISTORY OF ARTICLE 50 TEU...............................271 A. From 1957 to the European Convention .................................. 272 B. From the European Convention to the Treaty ofLisbon ....... ...... 273 II. THE UNITED KINGDOM'S ROAD TO BREXIT............... .....277 III. ARTICLE 50 OF THE TREATY ON EUROPEAN UNION... .........282 A. The Council's Guidelines ............................... ......283 B. The Decision to Extend the Two-Year Deadline .................... 284 C. The Withdrawal Agreement ................................... 285 D. The Actual Potentialfor Hold-ups ................................. 287 IV. LEGAL POLICY . ..................................... .......... 287 A. Preventing Withdrawals Made on the Basis ofMistaken Assumptions .... 288 B. Discouraging Strategic Withdrawal Threats ................. .....289 1. The Existence or Lack of a Surplus ................................ 290 William Stamps Farish Professor in Law, the University of Texas School of Law. For excellent research assistance, I am indebted to Katelin Cox and Andrew Van Osselaer. 265

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