Revista Temas de Derecho Constitucional

327 La cuestión preliminar del TJUE sobre la revocatoria del brexit: fortaleciendo el derecho constitucional de la unión europea. which state organ is entitled 42 to initiate the withdrawal process led to the judgment by the Supreme Court in the Miller case. 43 4.3.2. Procedure The procedure by which a state can withdraw is set out in Article 50(2)-(4) TEU. This provision is conclusive and binding upon the parties. Any derogation from Article 50 would therefore be unlawful. The Member State which decides to withdraw it must first formally notify the European Council of its intentions. 44 Upon receipt of the notification, the European Council will examine it and set up guide- lines for subsequent negotiations. 45 On the basis of these guidelines, the Union will then negotiate an agreement , specifying the details of withdrawal and setting out the ba- sics of the future relationship between the Union and the withdrawing state. Pursuant to Article 50(2) TEU which in turns refers to Article 218(3) TFEU, the Commission hasto submit recommendations to the Council, which is to adopt a decision authorising the opening of negotiations and nominating the European Union negotiator or the head of the European Union’s negotiating team. 46 According to the Court, Article 50(2) TEU determines the role of the various institutions in the negotations and conclusion of the withdrawal agreement, which requires a de- cision of the Council, acting by a qualified majority, after obtaining the consent of the European Parliament. 47 The agreement thus only comprises the details of the withdrawal, whereas the future relationship between the Union and the withdrawing state is only cursorily addressed in the agreement. The agreement will be concluded on behalf of the Union by the Coun- cil of Ministers, acting by a qualified majority, after obtaining the consent of the Euro- pean Parliament. Last but not least, while it is likely that a withdrawal agreement will be concluded, the parties involved are not obliged to do so. Article 50 TEU only contains a pactum de negotiando – i.e. a duty to commence negotiations. It does not contain a pactum de contrahendo , i.e. a duty to conclude a withdrawal agreement. This follows from Article 50(3) TEU ( argumentum e contrario ). 48 4.3.3. Legal effects Turning to the legal effects of the withdrawal from the EU, Article 50(3) provides that EU Law shall cease to apply to the State in question (a) from the date of entry into force of the withdrawal agreement or failing that, (b) two years after the notification of the EU 42 Thomas Poole, United Kingdom: The royal prerogative, International Journal of Constitutional Law (2010): 146. 43 R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 is a legal case decided by the United Kingdom Supreme Court on 24 January 2017. 44 See Article 50 (2) TEU. 45 See Article 50(2)(1) TEU. 46 Judgment, para 52. 47 Judgment, para 53. 48 See H. Hofmeister and B. Olmos Giupponi, “It Ain’t Over till It’s Over . . . Legal Aspects of the Brexit Vote”, Georgetown Journal of International Affairs: Winter/Spring 2017.