The European Coal and Steel Community (ECSC) was established for a period of 50 years, by the Treaty of Paris in 1951. The ECSC Treaty entered into force the following year and expired in 2002.
All the other communities have been intended to be permanent. The European Economic Community (EEC), the European Atomic Energy Community (EAEC or Euratom) and the European Union (EU), as well as the amending Treaties, have been concluded for an unlimited period.
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The current provisions on unlimited duration are found in the Treaty on European Union (TEU) Article 51 and the Treaty establishing the European Community (TEC), to become the Treaty on the Functioning of the European Union (TFEU), Article 312. (For the latest consolidated version of the TEU and the TEC, go to OJ 29.12.2006 C 321/35 and 180 respectively.)
Since the European Convention proposed a unified Treaty for the European Union, it had only one corresponding provision, Article IV-9 Duration, of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/92).
The same applied to the Treaty establishing a Constitution for Europe, where the corresponding provision was Article IV-446 Duration (OJ 16.12.2004 C 310/191).
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The intergovernmental conference (IGC 2007) in its Article 1, the TEU amendments, jumps from Article 49c on territorial application (point 60) to Article 53 on languages (point 61) without mentioning – or altering – Article 51 TEU (OJ 17.12.2007 C 306/40).
Likewise, after inserting an Article 311a TFEU (point 293) the IGC went on to delete the heading Final provisions before Article 313 (point 313), leaving Article 312 TEC untouched (OJ 17.12.2007 C 306/132).
Article 3 of the IGC 2007 itself states (OJ 17.12.2007 C 306/133) under Final Provisions the unlimited duration of the Treaty of Lisbon:
Article 3
This Treaty is concluded for an unlimited period.
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The conclusion seems to be that we have returned to two separate provisions with the same wording, Article 51 TEU and Article 312 TFEU (before the renumbering to come).
Even if we are back in a situation of two treaties, they are now so interdependent and entwined (including even the main exception CFSP and CSDP) as to make the renouncement of only one of them seem a preposterous idea. Therefore it looks unnecessary to have separate clauses to the contrary, i.e. the unlimited duration of each treaty.
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If the governments (and the parliaments) of the member states are resolved to continue the process of an ever closer union among the peoples of Europe, it would highly consistent to interpret the European Union as unbreakable and eternal.
In spite of that, when discussing the new provision on withdrawal from the EU, Article 49a TEU, I concluded that, even without the new provision, the Union’s democratic values and principles were enough to make legitimate a constitutionally valid decision to secede by a member state.
If we take matters to their logical extreme, I am confident that the present European Union would not and could not go to war to prevent secession. Failing this ‘ultima ratio’, membership is, in the end, voluntary.
With the Lisbon Treaty offering the new express provision on secession, there is not even room for speculation. Any member state may choose to secede.
For the rest of the members, the objective of ever closer union would continue to guide their action. Perhaps the movement forward would even gather speed and force once the most recalcitrant member or members had set out on their own.
Possibly more clearly than before, we can distinguish between the intended permanence of the European Union and the potentially fluctuating nature of its membership. Until this day, the traffic has been in one direction only, increasing the membership from six to 27, with a few more applicants in line.
But the message of the reform treaty is that the number of members could just as well decrease, if one or more countries decided to withdraw.
Ralf Grahn
Sunday, 10 February 2008
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I am concerned at the following statement providing any legal protection for a potentially seceding state in disagreement over the economic terms extended for its right to withdraw:
ReplyDelete"If we take matters to their logical extreme, I am confident that the present European Union would not and could not go to war to prevent secession. Failing this ‘ultima ratio’, membership is, in the end, voluntary."
Your confidence seems to be derived from wishful thinking, rather than explicit clauses.
Economic oppression has always been the preferred method of expansion to 27 members and will no doubt be the chosen method to prevent a reduction in membership with a resultant restoration of democracy to one or more of the presently oppressed member states.
In any event it is simplistic to consider this grave danger in terms of old fashioned warfare between nation states. A corrupt and self-serving section of Europe's elite, solely to further their own selfish interests it would seem, have declared war against the democratic institutions of the ordinary citizens of the European Continent, only by achieving the non-ratification of the Lisbon Treaty may matters start to be redressed.
Martin, I cannot wholly agree with your position.
ReplyDeleteThat the 'ultima ratio' of war is excluded in the case of secession, is not wishful thinking. How could the member states have agreed on an Article on withdrawal in the Lisbon Treaty 2007 with so little fuss?
How could the European Convention in 2003 and the IGC 2004 have agreed on modalities for voluntary withdrawal, if they thought secession a 'casus belli'?
We could say that there is a documented political consesus since 2003.
But at the same time I do not see it as simplistic to draw the conclusion that membership is ultimately voluntary, even without an express clause to the effect.
When you hint at economic oppression, I assume that you mean that it would be hard to enjoy both the benefits of membership and the freedom from the obligations for a secessionist country.
I would rather think that your assumption is correct, that rights and obligations indeed go hand in hand.
Naturally, the EU functions to promote its interests and those of its members and citizens.
Relations with third countries follow their own logic, and treaties are concluded on the basis of mutual consent.
Isn't that what the sovereignty of states is for?
If the Lisbon Treaty does not enter into force, matters are not redressed, but we are stuck with the Treaty of Nice.
The conclusions of the European Convention in 2003 and the outcome of the IGC 2004 have no significance as they were rejected by the people of France and the Netherlands other than now being reborn in the form of the Reform/Lisbon Treaty.
ReplyDeleteThis ratification must somehow be resisted as the EU itself claims Nice is inadequate (in spite of it covering the present 27 member states).
A democratic and accountable EU might then be possible IMO best based on the cantonal governance of Switzerland having a large element of direct democracy using state of the art IT solutions.
Martin, you seem to underestimate the nature of growing reform and increasing consensus.
ReplyDeleteThe Convention produced a draft Constitutional Treaty, in general agreement between members of national parliaments, the European Parliament, the Commission, representatives of the national leaders and a chairman and to vice-chairmen appointed by the European Council.
The member state governments tinkered with the draft and unanimously signed the Constitutional Treaty, which was then approved by 18 or two thirds of the member states, in two by referendum.
The ideas behind the draft Constitution, the Constitution and the Treaty of Lisbon enjoy a considerable amount of democratic legitimacy.
Two negative referendums halted the ratification processes, but offered no constructive alternative.
France has now ratified the trimmed version of the Constitution according to its own constitutional requirements, and so have four other countries.
I agree that further democratic EU reform is necessary, but I would not search them primarily in the direction of direct democracy, preferably in the way of an improved representative democracy at European level.