Art 50 of the Treaty on the Functioning of the European Union “sets out the ground rules but is not entirely clear”, according to Mark Hunt and Stephen Levinson, of BNY Mellon and Keystone Law.
First, the departing Member State gives notice of its intention to quit. Second, the European Council conducts negotiations on behalf of the EU.
While there is a “fairly clear obligation” on the part of the Council to try to reach agreement, that obligation is qualified by the need for approval to be given by the European Parliament and then by the Council acting by a qualified majority.
Hunt and Levinson assert that the timing of the notice “is entirely a matter for the leaving state”. Once Art 50 is triggered, all treaties cease to apply to the Member State after two years, unless the European Council unanimously agrees to extend the deadline. “Any concluded agreement would then be placed before the UK parliament for ratification”, raising the intriguing possibility that either House might refuse to ratify it, in which case we are “into the realms of Mystic Meg”.
Hunt and Levinson also speculate about the impact on employment law, while stressing that they can only speculate. The “received wisdom” is, they say, that Working Time and Agency Workers regulations will go, with the Capital Requirements Directive IV. Candidates for amendment are compensation limits in discrimination, compensation for injured feelings, burden of proof rules in discrimination cases, certain aspects of TUPE such as consulting rules, collective redundancy rules and part-time worker and immigration rules.
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