The following article was published on BrexitCentral on 5 July 2017.
In his Week in Westminster interview last weekend, James Chapman, the former special adviser at the Department for Exiting the European Union, was highly critical of what he contended was the Prime Minister’s inflexible stance over any future role for the Court of Justice of the European Union (CJEU) after Brexit.
James particularly criticised the decision to withdraw from Euratom – the European Atomic Energy Community – and said:
“I would have thought that the UK would want to continue welcoming nuclear scientists who are probably all being paid six-figures and paying lots of tax. But we’re withdrawing from it because of this absolutist position on the European Court. I think that she could show some flexibility in that area… I think if she doesn’t shift on Euratom, then Parliament will shift it for her.”
These comments, however, appear to be based on a fundamental misunderstanding of the legal relationship between the European Union and the Euratom Community.
The Euratom Treaty was extensively amended by the Treaty of Lisbon, though it continues to have a separate existence from the EU Treaties. Most significantly, Article 106a of the Euratom Treaty, as amended, now provides that “Article 50 of the Treaty on European Union (the Article that sets out the procedure for EU withdrawal) … shall apply to this Treaty.”
Article 106a goes on to provide: “Within the framework of this Treaty, the references to the Union, to the ‘Treaty on European Union’, to the ‘Treaty on the Functioning of the European Union’ or to the ‘Treaties’… shall be taken, respectively, as references to the European Atomic Energy Community and to this Treaty.”
The position, therefore, is that the Article 50 notice of withdrawal from the European Union would automatically have operated as a notice, under the Euratom Treaty, of withdrawal from the Euratom Community. There was strictly no need to make separate provision for Euratom in the withdrawal notice, though it was sensible to do so, on the “belt and braces”principle.
Withdrawal from Euratom was therefore not a question of stubborn absolutism on the part of the Prime Minister over submission to the jurisdiction of the CJEU. It was, rather, an inevitable legal consequence of the decision of the British people to withdraw from the EU. The only legal means of effecting withdrawal is by serving an Article 50 notice, which, as illustrated above, also has the automatic effect of withdrawing from Euratom.
Article 50 further provides that, upon the expiry of a period of two years from the date of service of the withdrawal notice, or upon the entry into force of any withdrawal agreement, the EU Treaties will cease to apply to the departing member state. It follows that, simultaneously, the departing member state will cease to be subject to the jurisdiction of the CJEU, which derives from those Treaties.
James’s criticism of the Prime Minister was therefore unfounded. However, it will inevitably be seized upon by opponents of both the Conservative Party and Brexit, who seem to regard the process of withdrawal as a kind of smorgasbord, in which you can keep the bits of EU membership you like and leave the rest. If you read the Treaties, you can see that it doesn’t work that way.