Bartlomiej Kulpa, LLM (London), PhD Candidate (Amsterdam) @KulpaBart
Introduction
The Treaty of Lisbon introduced Article 50 to the Treaty on European Union (TEU), establishing the legal framework for exiting the European Union (EU). This article acknowledges the possibility of withdrawal, a concept many legal experts believed existed even before the Treaty of Lisbon. Article 50 TEU outlines the withdrawal procedure. However, some argue that it contradicts the EU’s fundamental nature and weakens member states’ commitment to European integration, raising questions about the ideal withdrawal mechanism.
The Nature of the EU
The inclusion of a withdrawal clause in the TEU arguably clashes with the EU’s essence. The Court of Justice of the European Union (CJEU) has established the distinct legal character of the EU, notably in cases like Costa v ENEL and Commission v France (Case 7/71). The CJEU consistently emphasizes the EU’s indefinite duration, as stated in the founding treaties, and the irreversible nature of the integration process.
Articles 53 TEU and 356 TFEU establish the unlimited duration of the TEU and TFEU, respectively. This raises the question of whether Article 50 TEU conflicts with these articles. One interpretation is that the “unlimited period” refers only to the treaties’ duration, not permanent membership, and therefore doesn’t preclude withdrawal. Conversely, it could be argued that the treaties’ permanence implies no legal exit route.
However, this alternative interpretation has weaknesses. First, it fails to differentiate between the permanence of the organization and that of its membership. An international organization can be permanent even with an exit clause. Second, member states, as the “masters of the treaties,” can create new treaties or amend existing ones. They even hold the procedural power to prevent the CJEU from overturning treaty amendments.
Regarding the irreversible nature of integration, the EU’s current state differs significantly from 40-50 years ago. Nonetheless, participation in European integration has always been voluntary. EU membership represents the highest level of participation. Countries can opt for alternative forms, like association agreements, joining the European Economic Area (EEA), or establishing bilateral agreements like the EU-Swiss model. Therefore, withdrawal aligns with the voluntary nature of European integration, challenging the notion of its irreversibility. Additionally, Article 48(2) TEU allows for amendments that reduce the EU’s competences.
Loyalty of the Member States
Another point to consider is the impact of Article 50 TEU on member states’ loyalty to European integration. German development economist Albert O. Hirschman’s concept of loyalty suggests that members facing a decline in an organization’s benefits can either exit or attempt to improve the situation (voice).
In practice, loyalty encourages member states to seek improvement rather than withdraw, fostering hope for internal reform. However, Article 50 TEU, by making withdrawal legally and practically feasible, potentially undermines this loyalty.
Eurosceptics might view the withdrawal clause as a justification for leaving rather than pushing for change. This is evident in criticisms leveled at EU bureaucracy, free movement of people, regulatory procedures, costs, and the transfer of power to the EU.
Withdrawal Negotiations
Some argue that the withdrawal clause favors the EU and its institutions by placing the withdrawing member state at a disadvantage during negotiations. Several points support this view.
First, under Article 50 TEU, the EU dictates the withdrawal negotiation timeline. Second, the withdrawing member state is excluded from initial discussions where remaining member states define their negotiating stance. This process unfolds in two phases: first, remaining member states draft a withdrawal agreement, considering proposals from the exiting state; second, this draft is presented to the exiting state’s negotiators for acceptance or rejection.
Third, future trade relations necessitate a separate agreement negotiated either alongside the withdrawal agreement or after departure, as suggested by EU Trade Commissioner Cecilia Malmstrom in the context of a potential British exit. While unlikely to be completely dismissed, this adds complexity. Finally, Article 50(4) TEU excludes representatives of the withdrawing state from EU council discussions and decisions that concern them.
Withdrawal negotiations are crucial for both the exiting state and the EU. They should encompass a range of issues related to a smooth transition, including: (i) the status of EU citizens in the withdrawing state and vice-versa; (ii) unspent EU funds allocated to the withdrawing state’s regions and farmers; (iii) the closure of EU agencies based in the withdrawing state; (iv) interim trade arrangements; (v) exiting EU free trade agreements with other nations and international agreements; (vi) employment law concerning citizens of the withdrawing state employed by the EU; (vii) recognition of CJEU rulings; and (viii) arrangements for CJEU judges and Advocate General from the withdrawing state.
These factors suggest that Article 50 TEU gives the EU an advantage during withdrawal negotiations. This begs the question: what constitutes an ideal withdrawal mechanism? Three theoretical mechanisms exist: (i) state primacy; (ii) federal primacy; and (iii) federal control. State primacy grants an absolute, immediate, and unilateral right of withdrawal, indicating a lack of commitment. Federal primacy deems withdrawal legally impossible based on the principle of permanent membership. Federal control, however, requires approval from both the withdrawing state and the remaining members. To determine a suitable mechanism, the EU and its member states must identify their potentially shared interests. Observing the UK-EU withdrawal negotiations and their outcomes will be crucial.
Conclusion
Articles 53 TEU and 356 TFEU do not preclude the possibility of exiting the EU. A British exit would likely impact other member states’ commitment to European integration. Critically, contentious withdrawal negotiation issues should be resolved before finalizing any agreement. However, Giuliano Amato, former Italian Prime Minister, believed Article 50 TEU was never intended to be used. Whether he is correct remains to be seen.
Further reading:
Athanassiou Phoebus, ‘Withdrawal and Expulsion from the EU and EMU’ (European Central Bank, Legal Working Paper Series 10, December 2009)
Friel Raymond, ‘Providing a Constitutional Framework for Withdrawal from the EU: Article 59 of the Draft European Constitution’ (2004) 53 ICLQ
Hillion Christophe, ‘Accession and Withdrawal in the Law of the European Union’, in Anthony Arnull and Damian Chalmers (eds), ‘The Oxford Handbook of European Union Law’ (OUP, Oxford 2015)
Hofmeister Hannes, ‘’Should I Stay or Should I Go?’ – A Critical Analysis of the Right to Withdraw from the EU’ (2010) 16 Eur LJ
Montero Carlos Closa (ed), ‘Troubled Membership: Dealing with Secession from a Member State and Withdrawal from the EU’ (European University Institute Working Paper RSCAS 2014/91)
Barnard & Peers: chapter 27
Photo credit: openeurope.org.uk