Thursday, 3 July 2008

EU: Secession (withdrawal)

The European Community and the European Union are based on the principal aim of “an ever closer union among the peoples of Europe”. Both treaties are concluded for an unlimited period (Article 312 of the Treaty establishing the European Community and Article 51 of the Treaty on European Union).

There is no provision in either treaty on the expulsion of or secession by a member state, although the agreed aim and the changed preferences of a member state may come into conflict.

The difficulties surrounding the Lisbon Treaty merit a closer look at fundamentals concerning membership and secession than the mere discussion of a second Irish referendum or not.

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

If a member state finds itself out of tune with the aspirations of the others, it could make its changed resolve clear, and start negotiations to change its relationship with the European Union. International treaties can be changed by mutual agreement, although the level of interdependence is very high and the alternatives uncharted, if the seceding country wanted something else than the European Economic Area model. The task would be demanding, but not impossible, with good will on both sides.

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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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International law

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).

Professor Steve Peers referred to Article 56(1) of the Vienna Convention in the Statewatch analysis ‘Can the Treaty of Lisbon be ratified or implemented? A legal analysis’ (19 June 2008), when he explored the possibility of indirect expulsion of Ireland:

“The legal problem with this option is that the current Treaties do not provide for Member States to denounce them, and so arguably either a provision for denunciation would first have to be added to the Treaties, or the mass denunciation itself would have to take the form of a Treaty amendment. Either way, this would require Ireland’s consent – so Ireland could not be expelled indirectly by this process against its will.

But an alternative argument is that Member States have an implied right to withdraw from the Union, even if this right is not expressly mentioned in the Treaty, by virtue of the general rules of international law. Article 56(1) of the Vienna Convention on the Law on Treaties states that:

1. A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless:

a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or

b) a right of denunciation or withdrawal may be implied by the nature of the treaty.

A leading text on the law of treaties states that ‘the constituent instrument of an international organisation…almost certainly falls within paragraph (b)’. (see Aust, Modern Treaty Law and Practice, 2nd edition (Cambridge University Press, 2007), page 291; and see also page 398).”

Peers’ analysis can be accessed at:

http://www.statewatch.org/news/2008/jun/analysis-lisbon-june-sp-2008.pdf

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On the face of it, the European Union is an international organisation, based on treaties. Withdrawal, both by individual countries and as a ‘mass action’ would seem possible, although the unique complexity and highly integrated nature of the European Union might lead to different lines of reasoning.

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It may therefore be helpful to look at other arguments, 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 Vienna Convention
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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If a number of EU member states find that the agreed aim to achieve an ever closer union among the peoples of Europe is continuously and unreasonably frustrated by one or more member states blocking progress, wouldn’t mass denunciation (and the subsequent establishment of a closer union) be legally warranted to break the deadlock imposed by the proponents of “none-speed Europe”?

Is it unreasonable to believe that continued and only partially successful efforts to reform the European Community and the European Union since the Treaty of Maastricht (1992) offer grounds enough, especially given the last years of complete deadlock?

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Lisbon Treaty

The drafters of the Treaty of Lisbon saw the need for provisions on withdrawal from the European Union and the modalities for such a move:

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 an Article 49a into the Treaty on European Union (TEU) in the Treaty of Lisbon (OJ 17.12.2007 C 306/39 and 40). This was renumbered Article 50 TEU in the consolidated version (OJ 9.5.2008 C 115/43–44):

Article 50 TEU

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 218(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 238(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 proposed Lisbon Treaty provision does not preclude the mass denunciation of the treaties, although it clearly is drafted with one or perhaps more individual secessions in mind. Article 50 explicitly affirms the right to secede, and it tries to bring a semblance of order into the proceedings following a notification.

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Current TEU and TEC

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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Draft Constitution

We can look at the preceding stages of the treaty reform process.

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 Draft Constitution
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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Constitutional Treaty

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), which became Article 218(3) in the consolidated version (OJ 9.5.2008 C 115/145), under Title V International agreements:

Article 218(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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Perhaps even more clearly than before, we can see how the Lisbon Treaty is adapted to the secession of one member state (at a time), but not to a mass escape.

If, for instance, 26 member states were leaving, the one remaining could hardly represent the Council, with all the others on the other side of the table, and if the still existing Council tried to negotiate with one leaving member at a time, the separation of roles would break down.

In other words, while not in force, the Lisbon Treaty gives some guidance on how to deal with an individual secessionist, but not with escape ‘en masse’.

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A few additional comments by your glossator on the right to withdraw:

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, namely popular opinion turned into government action).

Thus, legally the essence of the Lisbon Treaty Article 50 TEU on voluntary withdrawal from the EU is redundant, since it adds nothing of substance to the existing principle of law, only the modalities. On the other hand, withdrawal would have to be negotiated anyway.

The Treaty of Lisbon is, in effect, 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 50 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. 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.

As argued above, the situation would be different if a clear majority of the EU member states found that the existing European Union could not advance, but one or more member states blocked progress. Then the mass secession and the establishment of a new union would have to take place under the general principles of international law.

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