Member States’ Correct To A Determination On Withdrawal From The Eu: A Legal Analysis (Article 50(1) Teu)

  

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

Pursuant to the offset paragraph of Article 50 of the Treaty on European Union (TEU), a Member State may create upward one's heed to withdraw from the European Union (EU) every bit per domestic constitutional requirements. It should live stressed that the opening paragraph of the withdrawal clause is really short; it consists of i sentence. Thus, prima facie, this paragraph seems straightforward. On closer inspection, it might, however, live argued that the opening paragraph of Article 50 TEU raises to a greater extent than questions than it answers.  

Does Article 50(1) TEU permit for a unilateral determination on withdrawal?

The primary number that has to live addressed inwards relation to the offset paragraph of Article 50 TEU is whether it allows for a unilateral determination on withdrawal.  In other words, the enquiry is whether a Member State tin post away take away maintain the unilateral determination to leave of absence the EU. The opening paragraph of the withdrawal clause tin post away live construed inwards 2 unlike ways.    

In accordance alongside the broad construction, the offset paragraph of Article 50 TEU allows for a unilateral determination on withdrawal, but a Member State would take away maintain to await out the two-year notice current set downwards inwards the tertiary paragraph of the withdrawal clause.  From a practical point of view, this interpretation leads to 2 possible scenarios. When it comes to the less probable scenario, which seems diplomatically every bit good every bit economically risky, political leaders of the Member State would take away maintain a determination on withdrawal every bit per domestic constitutional requirements, notify the European Council of their determination but take away maintain no intention of final a withdrawal agreement, nether Article 50(2) TEU, alongside Brussels. That determination on withdrawal would termination inwards a unilateral move out from the European Union (i.e. without the withdrawal agreement) after the move yesteryear of the two-year notice period. From a political viewpoint, it is unthinkable that the Member State could take away maintain the determination on withdrawal, await out the two-year notice current together with after run away without fifty-fifty trying to achieve agreement. What is more, such a divergence would sour time to come relations betwixt the withdrawing Member State together with the European Union every bit good every bit undermine the credibility of the old on the international scene.

The to a greater extent than probable scenario is that the Member State would take away maintain the determination on withdrawal every bit per its ain constitutional requirements, notify the European Council of its determination together with set about negotiating the withdrawal agreement. That determination on withdrawal would termination inwards the unilateral move out from the European Union (i.e. without the withdrawal agreement) if the next atmospheric condition were met: (i) the withdrawing Member State did non concur to price the European Union was willing to offer; together with (ii) the two-year notice current was non extended. 

It could too live suggested that according to the opening paragraph of the withdrawal clause a Member State has the unrestricted correct to the withdrawal itself, ie without a waiting period. Influenza A virus subtype H5N1 serious weakness alongside this interpretation is that it is difficult to interpret this approach into reality. What is more, this structure powerfulness live challenged on the reason that Article 50 TEU ought to live interpreted in toto. Therefore, i has to concur alongside the thought that analysis of all 5 paragraphs separately may atomic number 82 to misleading conclusions. 

Does Article 50(1) TEU permit for a partial withdrawal?

The adjacent number that merits attending concerns the pregnant of the phrase ‘to withdraw from the Union’. In accordance alongside Oxford Dictionary, the give-and-take ‘withdraw’ way ‘to halt taking part in an activity or beingness a fellow member of an organization’ every bit good every bit ‘to halt somebody/something from doing these things’. Legal dictionaries, such every bit Black’s Law Dictionary together with the Longman Dictionary of Law, create non define the term ‘withdraw’.  What is more, the TEU itself does not tell at all what the pregnant of the term ‘withdraw’ is. There are 6 references to the give-and-take ‘withdraw’ (or variations thereof) inwards all 5 paragraphs of Article 50 TEU. It appears that the Definition of the term ‘withdraw’ provided yesteryear Oxford Dictionary is sufficient to interpret the opening paragraph of the withdrawal clause. Hence, an human activity of withdrawal way that a Member State is no longer interested inwards beingness a fellow member of the EU.

Although the phrase ‘to withdraw from the Union’ does non heighten whatever serious doubts, i may pose the next question: does the offset paragraph of Article 50 TEU permit for a partial withdrawal?  To seat it to a greater extent than simply, tin post away a Member State withdraw from sure enough aspects of the EU, but remain a fellow member of the European Union for other purposes? This enquiry tin post away live challenged on the reason that European Union police does non render for partial membership. Therefore, the partial withdrawal is legally impossible, unless the Treaties are amended to this effect. One has to squall back that U.S.A. which are eligible for membership of the European Union but create non desire to bring together the European Union tin post away consider alternatives to European Union membership. For example, Switzerland concluded over 100 bilateral agreements alongside the EU, which line of piece of employment diverse areas, such every bit the gratis motility of persons, air carry together with the participation of the old inwards the European Environment Agency. Furthermore, at that topographic point are Member U.S.A. which create non participate inwards all aspects of the EU; for instance, the United Kingdom of Great Britain together with Northern Ireland was granted an opt-out clause pregnant that it was non required to adopt the euro. The alternatives to European Union membership together with opt-out clauses permit the (Member) U.S.A. to participate inwards selected areas of the EU. Thus, at that topographic point is no incertitude at all that nether the opening paragraph of Article 50 TEU the Member State may withdraw from the European Union solely inwards its entirety.  However, it would live possible to concur to advert to an existing Member State similar the United Kingdom of Great Britain together with Northern Ireland every bit an ‘associate’ Member State (or unopen to similar phrase) without amending the Treaties.

Constitutional requirements

The farther number that has to live addressed concerns the phrase ‘constitutional requirements’. The offset paragraph of the withdrawal clause recognizes the correct of whatever Member State to create upward one's heed to withdraw, nether its ain constitutional requirements. Each Member State is gratis to set out its ain constitutional requirements for the purpose of the opening paragraph of Article 50 TEU. A determination on withdrawal tin post away live discipline to a demanding domestic physical care for inwards price notably of democratic accountability. As a result, inwards accordance alongside the constitutional requirements of a Member State, a super qualified majority, for instance, tin post away live required. The exercise of the correct to the determination on withdrawal tin post away too live circumscribed yesteryear a political stalemate inwards the Member State if inwards lawsuit of a full general election primary political parties are unable to shape a governing coalition.

It powerfulness live argued that the correct to a determination on withdrawal is circumscribed yesteryear European Union police every bit well. The application of domestic constitutional requirements is based on the supposition that they create non violate the values of the European Union (Article 2 TEU). This supposition could live rebutted if, for example, the determination on withdrawal was taken during a domestic constitutional crisis. In Nov 2015, concerns over the solid reason of the dominion of police inwards Poland were raised after the ruling right-wing Law together with Justice Party (PiS) reversed last-minute appointments of the constitutional judges yesteryear the previous government. If the Polish parliament had adopted, at the time, novel constitutional requirements inwards club to take away maintain a telephone commutation determination on withdrawal from the EU, it could take away maintain been argued that the adoption of those novel constitutional requirements violated the dominion of police (another enquiry is whether the European Union should forestall such a Member State from withdrawing, since Article vii TEU assumes that the Member State which does non detect the dominion of police does non fully belong inwards the EU). This leads to the conclusion that the correct to the determination on withdrawal is subject, inwards an implied way, to the values of the EU.  However, it should live noted that no i has suggested that the United Kingdom of Great Britain together with Northern Ireland is inwards an equivalent position.

It could live argued that the Court of Justice of the European Union (CJEU) has jurisdiction over validity of the domestic police procedures. As a consequence, the Luxembourg-based Court would be called on to create upward one's heed whether a Member State has inwards fact made a determination to leave of absence the European Union pursuant to its ain constitutional requirements. This way that the CJEU would deal, every bit the final arbiter, alongside highly sensitive questions relating to the withdrawing Member State. However, this take in suffers from a few drawbacks. Firstly, inwards accordance alongside the founding treaties, the CJEU has no competence to adjudicate upon validity of the internal police procedures. Article 50(1) TEU solely refers to domestic law. Therefore, this affair does non autumn inside its jurisdiction. 

Secondly, such competence would negatively touching on relations betwixt the CJEU together with domestic high courts, such every bit the French Cour de Cassation together with the Supreme Court of the Britain (UK). As a result, the repose betwixt the bespeak to honour autonomy of national courts together with the supervision of the procedures that must live followed to ensure total compliance alongside European Union police would live disturbed. Thirdly, if this affair savage inside its jurisdiction, the Luxembourg-based Court would take away maintain to interpret together with apply domestic law. In practice, this could atomic number 82 to erroneous conclusions. 

Lastly, it should live noted that a Member State that has taken a determination to leave of absence the European Union powerfulness after desire to alter that decision. This powerfulness plough over off if, for example, a determination on withdrawal has been taken yesteryear a previous parliament/government prior to a full general election.  

                

In practice, at that topographic point are 2 possible situations: firstly, the Member State has taken the determination to leave of absence the European Union but has non yet formally notified the European Council pursuant to the 2nd paragraph of Article 50 TEU, together with secondly, the Member State has taken the determination on withdrawal together with has officially notified the European Council of its intention. The offset province of affairs relates to the opening paragraph of Article 50 TEU, whereas the 2nd province of affairs (which is non analysed here; run into the analysis yesteryear Steve Peers) refers to the 2nd paragraph of the withdrawal clause. When it comes to the former, at that topographic point   is no incertitude at all that the Member State tin post away alter its determination on withdrawal yesteryear applying its internal constitutional police provisions.

As far every bit the UK’s planned in-out plebiscite is concerned, i should squall back that the plebiscite vote does non bind the Conservative Government legally. Thus, Boris Johnson’s thought that the ‘Leave’ vote could live the trigger for a fresh renegotiation seems legally feasible, because every bit long the United Kingdom of Great Britain together with Northern Ireland has non officially told the European Council almost the determination on withdrawal (Article 50(2) TEU) solely the United Kingdom of Great Britain together with Northern Ireland constitutional police provisions apply. However, it powerfulness non seek out politically viable to create this, because other Member U.S.A. powerfulness good decline to engage inwards a 2nd circular of renegotiation after the United Kingdom of Great Britain together with Northern Ireland has already voted to leave of absence – whether that determination has been officially notified or not.  It would too anger many 'Leave' voters who would believe they had voted to run into the United Kingdom of Great Britain together with Northern Ireland leave of absence the European Union without whatever farther effort to remain in.     

Conditions for withdrawal

The final number that has to live addressed is whether the opening paragraph of Article 50 TEU should comprise atmospheric condition which a Member State would take away maintain to satisfy inwards club to instigate the withdrawal procedure. The inclusion of the atmospheric condition for withdrawal inwards the offset paragraph of the withdrawal clause would take away maintain its advantages every bit good every bit disadvantages. The atmospheric condition for withdrawal would live especially useful inwards circumstances where political leaders of the Member State seek to obtain concessions from Brussels; the political leaders of the Member State tin post away threaten to move out the European Union inwards club to teach what they want. There is no incertitude that such a threat would not solely brand the EU’s decision-making physical care for less effective but too jeopardize the stability of the European Union together with undermine the credibility of the European Union institutions. Therefore, the offset paragraph of the withdrawal clause should live amended; for instance, it could solid reason that ‘a decision on withdrawal shall live discipline to a binding national plebiscite inwards which all citizens of the Member State aged sixteen together with over are entitled to vote’. In practice, such a status for withdrawal could cut down the possibility of threatening to move out the European Union to almost null since the national plebiscite vote would bind a Member State’s authorities legally.

Yet, the inclusion of the atmospheric condition for withdrawal would endure from a few drawbacks. Firstly, the atmospheric condition for withdrawal would cut down the possibility of withdrawal from the European Union to almost zero. As a result, the existence of the withdrawal clause would heighten serious doubts. Secondly, the inclusion of the atmospheric condition for withdrawal would conflict alongside the regulation that the Member U.S.A. are ‘the masters of the treaties’. Thirdly, Brussels could decline to speak over concerns which the Member State’s authorities would take away maintain almost the surgical operation of the EU, together with fourthly, the atmospheric condition for withdrawal could duplicate unopen to domestic constitutional police provisions.

In conclusion, the number of the correct to a unilateral determination on withdrawal, which is of crucial importance from the perspective of a withdrawing Member State together with the European Union itself, remains problematic, but at that topographic point is no incertitude that a partial withdrawal from the European Union is legally impossible. Furthermore, political leaders of the withdrawing Member State should squall back that the correct  to a determination to leave of absence the European Union is subject, inwards an implied way, to the values of the European Union enshrined in Article 2 TEU.

Further reading:

Hillion Christophe, Accession together with Withdrawal inwards the Law of the European Union, inwards Anthony Arnull together with Damian Chalmers (eds), The Oxford Handbook of European Union Law, (OUP, Oxford 2015);

Lazowski Adam, Withdrawal from the European Union together with Alternatives to Membership, (2012) 37 EL Rev;

Rieder Clemens, The Withdrawal Clause of the Lisbon Treaty inwards the Light of European Union Citizenship: Between Disintegration together with Integration, (2013) 37 Fordham Intl LJ;

Tatham Allan, ’Don't Mention Divorce at the Wedding, Darling!’: European Union Accession together with Withdrawal after Lisbon, inwards Andrea Biondi, Piet Eeckhout together with Stefanie Ripley (eds), EU Law after Lisbon, (OUP, Oxford 2012).                 

Photo credit: www.telegraph.co.uk

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