Abstract
This chapter focuses on legal aspects, respectively the constitutional assumptions of the departure of the Member State from the European Union. It offers an analysis of past debates and theoretical models that preceded the official introduction of the exit clause in today’s Article 50 TEU. It also addresses the question of the nature of the withdrawal and casts doubt on the nature of the “right to withdraw.” Article 50 is working with two alternatives on how to leave the Union—a consensual exit and unilateral withdrawal. Although the authors accept the theoretical extreme possibility of unilateral exit without agreement, they also point to the factual necessity of the agreement (that is necessary from the point of view of legal certainty, economic stability, political accountability, and international status of the outgoing state), which in fact makes the consensual exit the only possible way of terminating membership and therefore casts doubts on the existence of right to withdraw.
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Notes
- 1.
Mehdi (2007), p. 113.
- 2.
For terminological clarity, withdrawal, retreat, and exit will be used as synonyms. We do not believe we can consider in this way the noun secession, which is used to describe a country that acquires independence separating itself from a unitary state.
- 3.
The writers refer to a “Europe at 28” because, as established by Art. 50 TEU, neither any withdrawal agreement has yet been signed, nor have 2 years after the notification of intent by the United Kingdom passed away.
- 4.
- 5.
Vellano (2007 ), p. 503.
- 6.
Wessels (2001), pp. 5–11.
- 7.
- 8.
Amato (2016).
- 9.
Craig (2016), pp. 447–468.
- 10.
Wyrozumska (2013), pp. 1385–1418.
- 11.
Ćapeta (2016), p. 7.
- 12.
Respectively, Art. 312 EC (which replaces the EEC), Art. 208 EAEC, Art. 51 TUE.
- 13.
In this regard, the words of Von Mises (1983, p. 34): ‘No people and no part of a people shall be held against its will in a political association that it does not want’.
- 14.
It is better to remind that this clause does not exempt the withdrawing State from showing the actual change in those conditions, although it is a case of denunciation that is independent of the length of the Treaty and that lives its own ontological and conceptual autonomy. The exceptionality hypothesis, therefore, does not justify in any way the assessment of this option in terms of withdrawal ad libitum, but rather as a case of withdrawal ad nutum, using a dear distinction with regards to the contractual legal tradition.
- 15.
To these assumptions are added the provisions of Art. 54 of the Convention, according to which “the termination of a treaty or the withdrawal of a party may take place: (a) in conformity with the provisions of the treaty; (b) at any time by consent of all the parties after consultation with the other contracting States”. Albeit difficult configurability, given the unanimity of the 28 Member States, it is still a hypothesis possibly workable.
- 16.
In this sense see Tesauro (2012), p. 93.
- 17.
Puglia (2014), p. 339.
- 18.
Vellano (2007), p. 508.
- 19.
The procedure for constitutional amendment is required by the Italian Constitution in the Art. 138.
- 20.
Vellano (2007), p. 509.
- 21.
About this, just see Strozzi (2005), p. 388.
- 22.
Nicotra (2003), p. 453.
- 23.
Costa vs. ENEL, 6/64, ECLI:EU:C:1964:66.
- 24.
To express clearly this idea, the Advocate General Lagrange spoke about “a single market based on the creation of a separate judicial system of the Member States, but intimately and even organically tied to it.”
- 25.
Nicotra (2003), p. 452.
- 26.
Vellano (2007), p. 509.
- 27.
Infringement procedure, respectively, in Art. 226 and 227 TEC.
- 28.
Vellano (2007), p. 510.
- 29.
De Witte (2005), p. 21.
- 30.
Zbiral (2008), p. 306.
- 31.
Ibid p. 307.
- 32.
Ibid p. 308.
- 33.
Snavely (2004), pp. 213–230.
- 34.
Friel (2004), p. 422.
- 35.
Voluntary membership in international organisations was always seen as a basis of state sovereignty. It was the case even with the historically first global integration organisation—League of Nations. Voluntary membership was also in its case the (positive) answer to the question whether states which joined an international organisation and so accepted certain limitations on their sovereignty can still be seen as sovereign subjects (Le Fur 1935).
- 36.
This is the current text of the Art. 50 TEU:
-
1.
Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements;
-
2.
A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament;
-
3.
The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, 2 years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period;
-
4.
For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.
A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union;
-
5.
If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.
-
1.
- 37.
- 38.
For example, Czech Constitutional Court noticed this conceptual change and used the right to withdraw from the Union as an argument in favour of preserving the sovereignty of the Czech Republic when participating on the European integration. It reminded that: ‘[...] the Treaty of Lisbon newly introduces, in Art. 50 of the Treaty on EU, the possibility of withdrawing from the organization. This can take place by agreement between the withdrawing state and the Council as a representative of the member states (i.e., not with the Commission, as a representative of the interests of the Union itself), and if an agreement is not reached, the Treaty itself gives the withdrawing state a notice period. Thus, the manner of termination membership is also typical for an international organization, not a contemporary federative state, and this possibility, on the contrary, strengthens the sovereignty of member states. [...]’ Decision in case Treaty of Lisbon I, Pl. ÚS 19/08, ECLI:CZ:US:2008:Pl.US.19.08.1, point 146.
- 39.
- 40.
Hofmeister (2010), p. 599.
- 41.
Tatham (2012), p. 152.
- 42.
Łazowski (2012), p. 526.
- 43.
Di Paolo (2016).
- 44.
We have just said that the Art. 50 TEU does not consider, itself the concrete procedure of the withdrawal negotiation.
- 45.
Łazowski (2012), p. 530.
- 46.
Some authors (Nicolaides, Athanassiou, Lazowski, Hofmeister) have serious doubts about the practical viability of the withdrawal totally unilateral because of the weight of the legal, political, and economic challenges that such a move concerns.
- 47.
Art. 4, paragraph 3 TEU. This rule introduces the so called “principle of cooperation”.
- 48.
Łazowski (2016), pp. 1297, 300.
- 49.
Kumm (2005).
- 50.
Hamuľák (2016), p. 85.
- 51.
The extreme decision on withdrawal is the part of Member State autonomy even in constitutional structure like EU and therefore state cannot be prevented to do so. See Nicolaides (2013), p. 212.
References
Amato G (2016) Father of EU divorce clause demands tough stance on British exit. World News (21.07.2016). http://www.reuters.com/article/us-britain-eu-amato-idUSKCN1012Q8
Craig P (2016) Brexit: a drama in six acts. Eur Law Rev 41:447–468
Ćapeta T (2016) Brexit and the EU constitutional order: a three act tragedy. Croat Yearb Eur Law Policy 12:1–23
De Waele H (2005) The European Union on the road to a new legal order - the changing legality of member state withdrawal. Tilburg Foreign Law Rev 12:169–189
De Witte B (2005) The process of ratification and the crisis options: a legal perspective. In: Curtin D (ed) The EU constitution: the best way forward? Springer, The Hague, p 21
Di Paolo E (2016) L’uscita dall’euro e dall’Unione Europea: teoria e pratica del Brexit e del Grexit. Department of European Union Law of University of Pisa, Italy
Friel M (2004) Providing a constitutional framework for withdrawal from the EU: Article 59 of the draft European constitution. Int Comp Law Q 53:407–428
Hamuľák O (2016) National sovereignty in the European Union. View from the Czech perspective. Springer, Cham
Herbst J (2006) Observations on the right to withdraw from the European Union: who are the “Masters of the Treaties”? In: Dann P, Rynkowski M (eds) The Unity of the European constitution, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht, vol 186. Springer, Berlin, pp 383–389
Hofmeister H (2010) Should I Stay or Should I Go? A critical analysis of the right to withdraw from the EU. Eur Law J 16:589–603
Klabbers J (2016) Editorial: continent in crisis. Eur J Int Law 27:553–556
Kumm M (2005). To be a European citizen: constitutional patriotism and the treaty establishing a constitution for Europe. In: Eriksen EO et al (eds) The European constitution: the Rubicon crossed? Arena, Oslo, pp 7–63
Łazowski A (2012) Withdrawal from the European Union and alternatives to membership. Eur Law Rev 37:526–530
Łazowski A (2016) Unilateral withdrawal from the EU: realistic scenario or a folly? J Eur Public Policy 23:1294–1301
Mehdi R (2007) Brèves observations sur la consecration constitutionelle d’un droit de retrait volontaire. In: Demaret P, Govaere I, Hanf D (eds) Dynamiques Juridiques Européennes. Peter Lang, Bruxelles, p. 113. Quote in Salmon J (ed) Dictionnaire de droit international public. Bruylant AUF, Brussels, 2001
Nelli Feroci F (2005) L’Unione europea: tra la crisi del Trattato Costituzionale e i dilemmi dell’allargamento. In: Ferrari Bravo L (ed) La Comunità internazionale (LX), trimestrale, organo della Società Italiana per l’Organizzazione Internazionale. Editoriale Scientifica, Naples, p 597
Nicolaides P (2013) Withdrawal from the European Union: a typology of effects. Maastrich J Eur Comp Law 20:209–2019
Nicotra I (2003) Il diritto di recesso e il Trattato che istituisce la Costituzione europea. In: Lucarelli A. (ed) Studi sulla Costituzione europea, percorsi e ipotesi. A. Patroni Griffi. Edizioni Scientifiche Italiane, Naples, pp 452–453
Puglia M (2014) Commento agli artt 49–50 TUE. In: Tizzano A (ed) Trattati dell’Unione europea. A. Giuffrè, Milan, pp 333–339
Snavely AC (2004) Should we leave the backdoor open? Does an agreement Uniting States need a withdrawal provision: the European Union Draft Constitution. UMKC Law Rev 73:213–230
Strozzi G (2005) Diritto dell’Unione Europea. Parte Istituzionale G. Giappichelli, Turin, p 388
Tatham AF (2012) Do not mention divorce at wedding, Darling! EU accession and withdrawal after lisbon. In: Biondi A, Eeckhout P, Ripley S (eds) EU law after lisbon. Oxford University Press, Oxford, p 152
Tesauro G (2012) Diritto dell’Unione europea, Settima Edizione. CEDAM, Padua, p 93
Vellano M (2007) Espulsione e recesso dall’Unione europea: profili attuali e prospettive future. In: Ferrari Bravo L (ed) La Comunità internazionale (LXII), trimestrale, organo della Società Italiana per l’Organizzazione Internazionale. Editoriale Scientifica, Naples, pp 503–510
Von Mises L (1983) Nation, State and Economy: contributions to the politics and history of our time. New York University Press, New York, p 3
Weiler J (1985) Alternatives to withdrawal from an international organization: the case of the European Economic Community. Israel Law Rev 20:282–298
Wessels W (2001) Widening and deepening. Transatlantic Internationale Politik 2:5–11
Wessel RA (2016) You can check out any time you like, but can you really leave? On ‘Brexit’ and leaving international organizations. Int Organ Law Rev 13:197–209
Wyrozumska A (2013) Commentary on Art. 50 TEU. In: Blanke H-J, Mamgiameli S (eds) The treaty on European Union. A commentary. Springer, Heidelberg, pp 1385–1418
Zbiral R (2008) Searching for an optimal withdrawal clause for the European Union. In: Niedobitek M, Zemanek J (eds) Continuing the European constitutional debate, German and Czech contributions from a legal perspective. Chemnitzer Europastudien. Duncker & Humblot, Berlin, pp 306–308
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Circolo, A., Hamuľák, O., Blažo, O. (2018). Article 50 of the Treaty on European Union: How to Understand the ‘Right’ of the Member State to Withdraw the European Union?. In: Ramiro Troitiño, D., Kerikmäe, T., Chochia, A. (eds) Brexit. Springer, Cham. https://doi.org/10.1007/978-3-319-73414-9_12
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