Is Article Fifty Teu Valid?

Bartlomiej Kulpa, LLM (London), PhD Candidate (Amsterdam) @KulpaBart

Introduction

Article 50 was added to the Treaty on European Union (TEU) past times the Treaty of Lisbon. It forms the legal footing for withdrawal from the European Union (EU). In other words, it confirms the possibility of withdrawal from the European Union that many academics as well as legal practitioners believe too existed earlier the entry into forcefulness of the Treaty of Lisbon. Furthermore, Article 50 TEU regulates the withdrawal procedure. It might, however, endure argued that Article 50 TEU is incompatible with the nature of the EU, every bit good every bit that it undermines loyalty of the Member States towards the thought of European Integration. What is more, 1 may pose the next question: what form of a withdrawal machinery is desired?   

The Nature of the EU

It could endure argued that the inclusion of the withdrawal clause inwards TEU is incompatible with the nature of the EU. There is no incertitude that particular characteristics of the European Union legal order, which were defined past times the Court of Justice of the European Union (CJEU), inter alia, inwards Costa v ENEL as well as Commission v France (Case 7/71), get got affected the nature of the EU. What is more, the CJEU has consistently stressed inwards its judgments ii cardinal aspects of the nature of the EU, namely the unlimited duration of the founding treaties as well as the irreversible nature of the integration process.

In accordance with Article 53 of TEU, the TEU is concluded for an unlimited period. The Treaty on the Functioning of the European Union (TFEU) contains an identical clause. As a result, 1 may pose the next question: is Article 50 TEU incompatible with Article 53 TEU as well as Article 356 TFEU? The starting indicate is an interpretation of the wording of Article 53 TEU as well as Article 356 TFEU. It appears that the phrase ‘an unlimited period’ alone applies to the unlimited duration of the founding Treaties. In other words, Article 53 TEU as well as Article 356 TFEU cannot endure construed inwards such a agency every bit to demand the permanence of membership of the European Union as well as consequently exclude the possibility of withdrawing from the EU. An alternative interpretation mightiness endure that if TEU as well as TFEU are concluded for an unlimited period, thus they must endure permanent. If they are permanent, thus in that place must endure no legal agency of withdrawing from the EU. 

                        

However, the alternative interpretation of Article 53 TEU as well as Article 356 TFEU suffers from ii drawbacks. Firstly, it does non distinguish betwixt the permanence of an international organisation as well as membership of such an international organization. To pose it to a greater extent than simply, the international organisation itself tin endure permanent fifty-fifty if its treaty contains an teach out clause. Secondly, 1 must recall that the Member States are the ‘masters of the treaties’. As a result, they get got the ability to innovate novel treaties, every bit good every bit to amend the existing treaties, including the procedural objection that the CJEU has no jurisdiction to bang downward ordinary treaty amendments.

As far every bit the irreversible nature of the integration physical care for is concerned, it should endure emphasized that the electrical current province of affairs inwards the European Union is non straight comparable to that betwixt the Member States xl or 50 years ago, but in that place is no denying the fact that participation inwards the European integration physical care for has ever been voluntary. Membership of the European Union is the virtually advanced shape of participation inwards the European integration process. If whatever European soil does non wishing to fully participate inwards the European integration process, thus it tin withdraw 1 of the other forms of participation; for example, such a soil tin conclude an association understanding with the EU, bring together the European Economic Area (EEA) or convince European Union to adopt a bilateral human relationship similar to the EU-Swiss model. This leads the conclusion that the possibility of withdrawal from the European Union is compatible with the European integration process. If the possibility of exiting the European Union is non incompatible with the European integration process, thus the thought of its irreversible nature is no longer based on convincing arguments. Moreover, 1 ought recall that, pursuant to Article 48(2) TEU, proposals for the amendment of TEU/TFEU may serve to bring down the competences conferred on the EU. 

Loyalty of the Member States

The side past times side number that has to endure addressed is loyalty of the Member States towards thought of European integration. The starting indicate is the concept of loyalty formulated past times Albert O. Hirschman, a Germany-born evolution economist. In accordance with Albert O. Hirschman’s concept, loyalty is the extent to which members of an organisation are willing to merchandise off the certainty of an teach out against the uncertainties of a pregnant improvement inwards the deteriorated product. To pose it to a greater extent than simply, if the organisation has demonstrated to a greater extent than or less decrease inwards character or do goodness to its members, thus they tin either withdraw from a human relationship (exit) or sweat to repair the impairment (for example, past times suggesting of import changes) done to the human relationship (voice).

From a practical indicate of view, loyalty persuades members of the European Union to run a vocalisation rather than an exit. Moreover, loyalty provides promise that reforms tin endure pushed through from within. Thus, loyalty as well as the vocalisation brand each other stronger. On the other hand, the beingness of Article 50 TEU undermines loyalty of the Member States towards the thought of European integration.

There is no incertitude at all that the inclusion of the withdrawal clause inwards TEU makes withdrawal from the European Union legally available as well as practically feasible. As a consequence, from the indicate of stance of Eurosceptics, the criticism, for example, of European Union scarlet tape, of gratis campaign of persons, of regulatory procedures, of additional costs, as well as of a transfer of huge sum of ability to the European Union is designed to brand a instance for withdrawal rather than to propose of import changes.   

    

Withdrawal Negotiations

It has been suggested that the withdrawal clause advantages the European Union as well as its institutions. In other words, it could endure argued that Article 50 TEU puts a withdrawing Member State, from the real outset of withdrawal negotiations, inwards a worse seat than the European Union as well as its institutions. There are a few potent arguments inwards favour of this view.

Firstly, inwards accordance with the withdrawal physical care for set downward inwards Article 50 TEU, the European Union as well as its institutions volition set out a timetable for the withdrawal negotiations. Secondly, it should endure emphasized that the withdrawing Member State volition non sit down at the same tabular array with the other Member States when they are defining their negotiating position. The physical care for of negotiating a withdrawal understanding tin endure divided into ii phases. During the starting fourth dimension stage all the Member States except the withdrawing Member State volition prepare, taking into consideration proposals submitted past times the latter, a draft withdrawal agreement, whereas during the instant stage that draft withdrawal understanding volition endure given to negotiators representing the withdrawing Member State thus that they tin consider as well as get got or decline it.

Thirdly, whatever sort of futurity merchandise human relationship betwixt the European Union as well as the withdrawing Member State volition get got to endure pose inwards a separate merchandise understanding inwards companionship to brand the withdrawal negotiations less complex as well as politically challenging. That merchandise understanding tin endure negotiated with the withdrawal understanding or after a formal difference from the EU. European Union Trade Commissioner Cecilia Malmstrom has suggested, inwards relation to a British teach out from the EU, that the Britain (UK) cannot get negotiating a merchandise bargain with the European Union until after it has left. It is virtually unlikely that political leaders of the withdrawing Member State would create upwards one's heed non to conclude whatever merchandise understanding with the EU. Lastly, it should endure stressed that the members of the European Council every bit good every bit of the Council of the European Union representing the withdrawing Member State volition non participate inwards the discussions as well as decisions of the one-time as well as the latter concerning it (Article 50(4) TEU). 

                       

The withdrawal negotiations are of crucial importance from the perspective of the withdrawing Member State every bit good every bit the European Union itself. As a consequence, they should cover, inwards the context of managing the transition, diverse issues. For instance, the withdrawal negotiations should include the following: (i) condition of European Union citizens inwards the withdrawing Member State as well as citizens of the latter inwards the EU; (ii) unspent European Union funds due to regions as well as farmers of the withdrawing Member State; (iii) arrangements for the closure of European Union agencies headquartered inwards the withdrawing Member State; (iv) arrangements regarding merchandise with the European Union during the menstruation of transition; (v) transition arrangements for an teach out from European Union gratis merchandise agreements with tertiary countries as well as from other international agreements; (vi) job constabulary issues relating to citizens of the withdrawing Member State who are on the payroll of the EU; (vii) recognition of judgements of the CJEU; as well as (viii) arrangements regarding CJEU judges as well as an Advocate General (if in that place is one) from the withdrawing Member State.     

The aforementioned arguments Pb to the conclusion that Article 50 TEU  advantages the European Union as well as its institutions from the real outset of the withdrawal negotiations. Hence, the interrogation is: what form of a withdrawal machinery is desired? In theory, in that place are 3 withdrawal mechanisms, namely: (i) province primacy; (ii) federal primacy; as well as (iii) federal control. Pursuant to the province primacy mechanism, a province has an absolute, immediate as well as unilateral correct of withdrawal. The adoption of the province primacy machinery shows a lack of commitment betwixt the parties. When it comes to the federal primacy mechanism, an human activity of withdrawal is legally impossible inwards accordance with the regulation ‘once a member, ever a member’. Unlike the latter, the federal command machinery provides for an human activity of withdrawal, which requires the approving of a withdrawing province every bit good as of those states left behind. In practice, inwards companionship to adopt a desired withdrawal mechanism, the European Union institutions as well as the Member States would get got to define what their interests are. They mightiness endure the same or overlapping. Further, the upcoming withdrawal negotiations betwixt the United Kingdom of Great Britain as well as Northern Ireland as well as the European Union (and their outcome) would get got to endure taken into account.        

       

Conclusion

Article 53 TEU as well as Article 356 TFEU cannot endure interpreted inwards such a agency every bit to exclude the possibility of leaving the EU. Influenza A virus subtype H5N1 British difference from the European Union volition sure enough undermine loyalty of the Member States towards the thought of European integration. What is more, virtually controversial questions relating to withdrawal negotiations should endure answered earlier the conclusion of a withdrawal understanding betwixt the United Kingdom of Great Britain as well as Northern Ireland as well as the EU. However, according to Giuliano Amato, a one-time prime number government minister of Italy, Article 50 TEU was never truly meant to endure used. It remains to endure seen whether he is right.                      

Further reading:

Athanassiou Phoebus, ‘Withdrawal as well as Expulsion from the European Union as well as EMU’ (European Central Bank, Legal Working Paper Series 10, Dec 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 as well as Withdrawal inwards the Law of the European Union’, inwards Anthony Arnull as well as Damian Chalmers (eds), ‘The Oxford Handbook of European Union Law’ (OUP, Oxford 2015)

Hofmeister Hannes, ‘’Should I Stay or Should I Go?’ – Influenza A virus subtype H5N1 Critical Analysis of the Right to Withdraw from the EU’ (2010) xvi Eur LJ

Montero Carlos Closa (ed), ‘Troubled Membership: Dealing with Secession from a Member State as well as Withdrawal from the EU’ (European University Institute Working Paper RSCAS 2014/91)

Barnard & Peers: chapter 27

Photo credit: openeurope.org.uk

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