Tuesday, 5 February 2008

EU Treaty of Lisbon: Better out?

Is the European Union a prison of “We, the People” like the United States of America, where President Abraham Lincoln abolished slavery and secession without express authorisation by the Constitution? Or is the EU a prison of peoples like the former Soviet Union, where both secession and dissent were smothered until the empire imploded?

What if a member state of the European Union wanted to withdraw, and made a democratic decision to stake its future outside the EU?

There is no express provision for the final opt-out in the present Treaties, and they have been concluded for an unlimited period.

International treaties can, of course, be changed by mutual agreement. But failing common accord, could a “Better outside” decision be enforced unilaterally by a member state?

Some campaigners contend, from an internal point of view, that a sovereign nation (at least theirs) can do what it pleases and that a decision by Parliament would suffice (presumably without notification, negotiation or respect for treaty obligations).

Others have studied the matter more closely, taking into account the international community, and have read the law of treaties to find a reasoned response to this vexing question.

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Let us take a look at what the Vienna Convention on the Law of Treaties, concluded 23 May 1969 and entered into force 27 January 1980, has to say about the existing state of international law (de lege lata), especially the doctrine ‘clausula rebus sic stantibus’ (things thus standing). As I understand it, a treaty may be revoked only under strict conditions: There has to be a fundamental change of circumstances, which constituted an essential basis of the consent, and this change causes a radical transformation of the obligations.


Article 62
Fundamental change of circumstances

1. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless:

(a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and

(b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty.

2. A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty:

(a) if the treaty establishes a boundary; or

(b) if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.

3. If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty.

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There will in particular be … an Article on voluntary withdrawal from the Union, said the mandate for the intergovernmental conference (IGC 2007 Mandate, Council document 11218/07, point 16).

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The IGC 2007 proceeded to fulfil its promise, by inserting the following Article 49a into the Treaty on European Union (TEU) in the Treaty of Lisbon (OJ 17.12.2007 C 306/39 and 40):

58) The following new Article 49 A shall be inserted:

‘Article 49 A

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 188 N(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, two 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 205(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.’.

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The current TEU is concluded for and unlimited period, Article 51, and so is the Treaty establishing the European Community, Article 312 (latest consolidated version of TEU and TEC in OJ 29.12.2006 C 321 E). There is no provision on leaving the European Union or the European Community (and there has been no concrete need for one, except for the Danish territory Greenland).

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For the source of inspiration we go to the Convention and its draft Treaty on establishing a Constitution for Europe, Article I-59 (OJ 18.7.2003 C 169/22).

Article 59
Voluntary withdrawal from the Union

1. Any Member State may decide to withdraw from the European Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention; the European Council shall examine that notification. 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 concluded on behalf of the Union by the Council of Ministers, acting by a qualified majority, after obtaining the consent of the European Parliament.

The representative of the withdrawing Member State shall not participate in Council of Ministers or European Council discussions or decisions concerning it.

3. The Constitution shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, decides to extend this period.

4. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 57.

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The IGC 2004 agreed on the following text, which became Article I-60 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/40):

Article I-60
Voluntary withdrawal from the Union

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 III-325(3). It shall be concluded by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

3. The Constitution shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two 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 European decisions concerning it.

A qualified majority shall be defined as at least 72 % of the members of the Council, representing the participating Member States, comprising at least 65 % of the population of these States.

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 I-58.

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We can see that between the draft Constitution and the Constitutional Treaty there is a slight reordering of the text and the qualified majority was defined in the Constitution, but there is no substantial difference between the texts.

The differences between the Constitution and the Lisbon Treaty are only technical.

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Let us take a look at the negotiation procedure referred to in Article 188n(3) of the Treaty on the Functioning of the European Union (TFEU) in the Reform Treaty (OJ 17,12,2007 C 306/96), under Title V International agreements:

Article 188n(3) TFEU

3. The Commission, or the High Representative of the Union for Foreign Affairs and Security Policy where the agreement envisaged relates exclusively or principally to the common foreign and security policy, shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union negotiator or the head of the Union's negotiating team.

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A few comments by your glossator:

The European Union is founded on principles such as democracy and the rule of law, as well as respect for the competences of the member states and their constitutional systems.

It would, in my view, be inconceivable for the European Union to disregard a democratic decision by a member state to secede. In the context of the EU democratic legitimacy constitutes a basic requirement for accession, and a subsequent clearly expressed withdrawal of consent would entail a fundamental change of circumstances (even if it depended on the party itself).

Thus, legally the essence of the Lisbon Treaty Article 49a TEU on voluntary withdrawal from the EU is redundant, since it adds nothing of substance to the existing state of the law.

The Treaty of Lisbon is, in effect, only a codification of law as it stands.

Outside the strictly legal sphere, the provision clarifies matters making it easy to point at the new Article 49a TEU, where the right to withdraw from the EU voluntarily is expressly stated. At least the more level-headed critics will have to admit that there is no Babylonian captivity within the European Union.

Then, one can ask how much the procedural provisions actually achieve.

Notification of the intention is such a basic requirement as to be almost self-evident in international relations.

In practice, the relations between the seceding member state and the EU are so manifold as to require negotiations. The European Council provides guidelines, the Council makes decisions and a team conducts the negotiations. These would resemble ‘reverse engineering’ of an accession process, where potentially the whole ‘acquis communautaire’ would have to be de-negotiated, Chapter by Chapter.

It is hard to believe that the government of a seceding state would approach these negotiations without a clear own idea of how it wanted to shape its future relations with the EU, even if the basic decision to withdraw were the accidental result of a referendum.

Anyway, the negotiated withdrawal is just an option. Failing negotiations the membership would end two years after the notification (if no extension were to be agreed).

I have seen someone rail against the exclusion of the seceding state from the EU decision making on withdrawal (but I cannot recall the exact posting). I must admit that I find it hard to understand how a voluntary secessionist could form part of both teams, its own with the purpose to transform itself into an outsider and the EU team negotiating the future relations with that state as an element of shaping the Union’s relations with the outside world. Here too, one could think of secession as reverse engineering of accession, with each party on its side of the table.

Should the seceded state come to regret its ‘divorce’, it would have to conclude the same prenuptials and nuptials as other accession states. Since the Lisbon Treaty does not offer a right to accede, only to apply, there would be no guarantee of success, just as in the divorce case.


Ralf Grahn