Bartlomiej Kulpa, LLM (London), PhD Candidate (Amsterdam) @KulpaBart
Article 50 of the Treaty on European Union (TEU) outlines the process for a Member State to withdraw from the European Union (EU). While seemingly straightforward, the first paragraph of this article raises questions about its interpretation.
Can a Member State unilaterally decide to withdraw under Article 50(1) TEU?
The primary question surrounding the first paragraph of Article 50 TEU is if it permits a unilateral withdrawal decision. There are two interpretations of this paragraph.
A broad interpretation suggests that a Member State can unilaterally decide to withdraw, but must observe the two-year notice period stipulated in the third paragraph. This interpretation presents two scenarios. The less likely scenario involves a Member State deciding to withdraw, informing the European Council, but having no real intention of negotiating a withdrawal agreement with the EU. This would lead to a unilateral exit after the two-year period. However, this scenario is diplomatically and economically risky, potentially harming future relations and the withdrawing state’s international standing.
The more probable scenario involves the Member State deciding to withdraw, notifying the European Council, and actively engaging in withdrawal agreement negotiations. This could also result in a unilateral exit if the Member State and the EU fail to agree on terms within the two-year period, assuming an extension isn’t granted.
Another interpretation suggests that the opening paragraph grants Member States an unrestricted right to withdraw without a waiting period. However, this interpretation lacks practicality and contradicts the principle of interpreting Article 50 TEU in its entirety.
Is partial withdrawal from the EU possible under Article 50(1) TEU?
Another question concerns the meaning of “to withdraw from the Union.” While the term “withdraw” is not explicitly defined in legal dictionaries or the TEU itself, common dictionary definitions and the context of Article 50 suggest a complete cessation of EU membership.
This raises the question: can a Member State partially withdraw, leaving certain aspects of the EU while remaining a member for other purposes? This notion is challenged by the absence of provisions for partial membership in EU law. Partial withdrawal is currently impossible without amending the Treaties.
Alternatives to EU membership, like Switzerland’s numerous bilateral agreements, and opt-out clauses, like the UK’s exemption from the euro, already allow for participation in selected EU areas. Therefore, withdrawal under Article 50(1) TEU implies a complete withdrawal. However, it might be possible to designate a withdrawing Member State as an “associate” or similar status without Treaty amendments.
Constitutional Requirements for Withdrawal
The phrase “constitutional requirements” in the first paragraph of Article 50 TEU is another point of discussion. Each Member State is free to determine its own constitutional requirements for withdrawal, which could include demanding democratic processes like supermajority votes.
However, these domestic procedures are implicitly bound by the EU’s values outlined in Article 2 TEU. A withdrawal decision during a domestic constitutional crisis, where the rule of law is potentially compromised, could be challenged on the grounds of violating EU values. While this implies that the right to withdraw is conditional upon upholding EU values, it’s important to note that the UK’s situation is not considered equivalent.
While it could be argued that the Court of Justice of the European Union (CJEU) has jurisdiction over the validity of these domestic procedures, several arguments oppose this view. The CJEU lacks the competence to judge internal law procedures as per the founding treaties, Article 50(1) TEU only references domestic law, and granting the CJEU such jurisdiction could negatively impact its relationship with national courts. Additionally, requiring the CJEU to interpret and apply domestic law could lead to inaccuracies.
Furthermore, a Member State might choose to reverse its withdrawal decision, particularly if it was made by a previous government. If a decision hasn’t been formally communicated to the European Council as per Article 50(2) TEU, the Member State can reverse its decision under its internal laws.
In the context of the UK’s in-out referendum, it’s crucial to remember that the referendum vote itself isn’t legally binding for the government. While a “Leave” vote could theoretically be used to initiate renegotiations as long as the decision hasn’t been officially communicated under Article 50(2) TEU, this might not be politically viable. Other Member States might be reluctant to renegotiate after a “Leave” vote, and it could also fuel anger among “Leave” voters expecting a complete withdrawal.
Should Article 50(1) TEU Include Withdrawal Conditions?
Finally, there’s debate on whether Article 50(1) TEU should specify conditions for initiating the withdrawal process.
Including such conditions could prevent situations where Member States threaten to leave to secure concessions from the EU. This tactic can hinder the EU’s decision-making, stability, and the credibility of its institutions. A potential amendment could mandate a binding national referendum with broad participation for withdrawal decisions.
However, imposing conditions could render the withdrawal clause practically obsolete, contradict the principle of Member State sovereignty over treaties, discourage Brussels from addressing Member State concerns, and potentially duplicate existing domestic provisions.
In conclusion, the right to unilateral withdrawal remains a complex issue with significant implications for both withdrawing states and the EU. While partial withdrawal seems legally impossible, the right to withdraw is implicitly bound by the EU’s values. Additionally, the inclusion of specific conditions for withdrawal presents both advantages and disadvantages that require careful consideration.