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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