Could Article 50 have been triggered already?

The following is a Q&A with Spyros Pappas, a prominent lawyer specializing in EU law and a former director-general in the European Commission. The interview has been edited for brevity and clarity.

Has Article 50 already been triggered?

When the supreme authority in a member state — in other words, the electorate — has already solemnly expressed its will via a referendum, the official results should stand for the [purposes of] notification.

It is true that the referendum is not binding. Nevertheless, the whole process that led to this referendum should be taken into account. That includes [a document titled] “the process for withdrawing from the European Union” published last February by the U.K; the negotiations with the European Union [at a summit in February] that resulted in an agreement that was favorable to the U.K.; and the public debate during this period.

In other words, an entire process was embarked upon by the U.K. government in consultation and coordination with the EU, aiming to enable a definitive decision on the future of the U.K. within or outside the EU directly by the U.K. people.

Therefore the notification already took place when the official results of the referendum were announced on June 24.

U.K. Prime Minister David Cameron repeatedly promised that the referendum was binding and has since stuck to this position.

Surely Brexit can only be triggered by a formal letter from the UK government?

A notification by the government itself is not necessary.

EU case law, when identifying whether there is a final decision or not, always puts the emphasis on substance not on the form [of decisions and other acts].

The referendum results automatically canceled the agreement negotiated with the U.K., according to the terms of the deal. So the results should, therefore, be enough to trigger the notification [of Article 50].

Who could decide it has been triggered?

Primarily the European Council, which is the recipient of the “notification” either on its own or on the recommendation of the European Commission, which is the guardian of the treaty and the natural carrier of the relevant negotiations.

Could anyone take legal action if they thought Article 50 had already been triggered?

Member states or an EU institution could bring an action before the court. There is also a possibility for “natural and legal persons” [i.e. ordinary citizens and companies to bring a case], though the admissibility conditions are quite complicated.

It would be very quick as the action could be done under an expedited procedure.

Why do you think the EU institutions are not saying this already?

In all their statements the EU institutions affirm that “the decision is taken” and that the U.K.’s notification is merely a formality.

By sticking to the formality of the notification it is thought that there is still room for a reversal of this unfortunate development. This is political and psychological rather than legal.

Besides, the EU institutions would like the appearance that the British government has taken all the relevant decisions in this procedure.

In any event, it has to be remembered that until the conclusion of the withdrawal agreement, the treaty gives the member state concerned the right to withdraw its decision to quit the European Union.