EU future: Member states boon or bane?

The previous blog post covered the opening shots in the renewed, mainly inter-institutional debate about a more parliamentary or an intergovernmental European Union.

Even if the protagonists seem to address each other, the future solutions are far from arcane irrelevancies. They will determine our security and prosperity, the fate of 501 million Europeans in a globalising world.

We have reason to listen to what some protagonists had to say in the European Parliament Wednesday: Herman Van Rompuy, Martin Schulz and Rebecca Harms.

How should we interpret the silence of the European People’s Party (EPP)?

Can a look outside this one EP debate shed more light on Guy Verhofstadt and Daniel Cohn Bendit, and what does the commentator Stanley Crossick add?



Herman Van Rompuy



Two days after his speech in Paris, on 22 September 2010 the president of the European Council, Herman Van Rompuy, reported on the 16 September European Council meeting to the European Parliament. He presented his efforts to get the national governments to cooperate more effectively.

Van Rompuy remarked that the heads of state or government want more ownership by the European Council (themselves) in EU foreign policy.

With regard to economic governance, all heads of state or government want to continue the work and to keep the momentum. Van Rompuy will submit a draft of the global report to the Task Force consisting of the ministers of finance on September 27, with the aim to reach an understanding in the middle of October, so that the European Council can conclude in its meeting of the 28th and 29th October.

Later Van Rompuy returned to the discussion about the “Community method” versus “intergovernmental” coordination:

Dear colleagues, Mr President, meetings of the European Council should not be considered as "summits" but as regular -- even routine -- meetings of a Union institution.

Indeed, allow me to emphasise -- at this time of renewed debate in your Parliament about the "Community method" -- that the European Council is an institution of our Union and not a summit in the manner of the G8 or the G20. It is embedded in the institutional framework of the Union, but it brings to the Union inputs from the highest political level in the member states, and it gives to the member states a sense of ownership and participation in the Union and reinforces their commitment to its success.

Stanley Crossick

Van Rompuy rallied at least one enthusiastic supporter.



According to Stanley Crossick, on Stanley’s blog yesterday, there is no longer any space for an ideological confrontation between the Community method and intergovernmentalism. ‘Our’ approach should be pragmatic and there should be a mixture of the two approaches, depending on the circumstances. Herman Van Rompuy rightly seeks to bring cohesion within the European Council and between the EU institutions.

Crossick also supported Van Rompuy’s idea of downgrading the European Council summits, with EU leaders meeting more regularly in dialogue as an excellent one.



EPP group dilemma



I failed to find anything immediately relevant in group leader Joseph Daul’s or other press releases on the news page of the largest political group in the European Parliament: the 265 member EPP group.



As the centre-right European People’s Party likes to point out in its press releases:

The EPP is the largest and most influential European-level political party of the centre-right, which currently includes 73 member-parties from 39 countries, the Presidents of the Commission, Council, and Parliament, 15 EU and 6 non-EU heads of state and government, 13 members of the European Commission and the largest Group in the European Parliament.

Actually, they forgot to mention the president of the European Council (Herman Van Rompuy).

Mentioning the Council is more complicated: The prime minister of the caretaker government in Belgium, the current EU Council presidency, is the Christian Democratic and Flemish (EPP) Yves Leterme, although it is a coalition government, so representatives of different parties could be expected to chair various Council ‘configurations’.

In other words, it is somewhat uncomfortable for the EPP to come out strongly in public for or against one of the EU institutions, or most of member states’ governments for that matter.



Socialists and Democrats



I failed to find anything in the newsroom of the second largest political group: the Socialists and Democrats.



However, the S&D group leader Martin Schulz has few of the inhibitions of his EPP counterpart. The summary of the debate published by the EP press service tells us:

Socialist Martin Schulz said that…

…the Parliament is calling for the community method in terms of resolving problems. He said his group wanted it to be done at EU level in a community way and that the task of EP is to get the community method through.

Other political groups



The EP press summary was written mostly from the viewpoint of economic governance and the Roma issue, so the extracts concerning Guy Verhofstadt (Alliance of Liberals and Democrats ALDE), Rebecca Harms (Greens/EFA), Timothy Kirkhope (European Conservatives and Reformists ECR), Patrick Le Hyaric(leftist GUE/NGL) and Niki Tzavela (nationalist Europe of Freedom and Democracy EFD) do not enlighten us much in this respect.



I found no press release with more details from ALDE, but co-chair Rebecca Harms for the Green group clearly warned against the growing influence of member states in ‘very European’ issues, while it is the task of the Commission to defend the general interest of Europeans.



We do know that the ALDE group leader Guy Verhofstadt and co-chair Daniel Cohn Bendit (Greens) are among the members of the Spinelli Group for a federal Europe. The Spinelli Group network consists of the signatories of the manifesto, 1052 by now.

Are the member states indispensable for or the bane of an ever closer union?

We are still far from a definitive answer.




Ralf Grahn




P.S. In two days, Sunday 26 September 2010, people all over Europe celebrate the European Day of Languages, organised by the Council of Europe and the European Union as an inspiration to language learning.



For bloggers in Europe there is a special event, which takes place on the Internet: the Day of Multilingual Blogging. The blog post behind the link offers suggestions on how to participate, as well as information about the event, the Facebook page and the Twitter hashtag #babel. For a richer life, please join!

My Europe Week: War and Peace

Today, 8 May 2010 the Western Allies remember Victory in Europe Day 65 years ago, whereas Russia is commemorating (Soviet) Victory Day with a parade in Red Square and other festivities on 9 May.

The war dead and the end of WW2 devastation are worth remembering, but it is just as important to recall how the opportunities offered by peace were utilised and should contribute to a better future.

In Western Europe the phoenix rose from the ashes to mark a new beginning in the form of European integration.



The Schuman Declaration of 9 May 1950 marks a new vision and the start of a new era.

During these 60 years we have made some headway. 27 member states, with a total population of 500 million, have been able to join the European Union.

Although the EU is far from perfect at its current stage of development, its founding values are admirable (Article 2 TEU):

The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

Two major steps are still needed:

We must surpass the present hybrid state of technocratic supranationalism and intergovernmentalism, by giving the new European Union a fully fledged system of representative democracy.

As EU citizens, we must start making room in our hearts for the true solidarity of ever closer union.




Share your Europe



Europe Day 9 May 2010 is a good occasion to start sharing your Europe.



The editors of Bloggingportal.eu invite you, bloggers and non-bloggers, to share your visions for the future of Europe on the My Europe Week blog during this week until tomorrow, Europe Day 9 May 2010. You can read the roundups on My Europe Week, or you can access the posts tagged #myeurope on the special Bloggingportal.eu page.

Twitter away under the hashtags #MyEurope and #EuropeDay.




Ralf Grahn

Key word of European integration: Solidarity

If asked about the key word of European integration and the European Union, my answer is “solidarity”.

I don’t employ it as a term of social policy, or limit it to aid between richer and poorer member states or regions, or call for help in the face of terrorist attacks or natural or man-made disasters, or ask for mutual assistance in case of armed aggression, although they are all part of it.

Solidarity is in one word the main theme of the integration process, from the “de facto solidarity” of the 9 May 1950 Schuman declaration and the “real solidarity” evoked in the 18 April 1951 Treaty establishing the European Coal and Steel Community, to the “ever closer union among the peoples of Europe” echoed in all the treaty versions since the 25 Mars 1957 Treaty of Rome establishing the European Economic Community.

Solidarity is essentially about the peoples of Europe growing closer, in all their diversity, realising that they share a common destiny.

For this to happen, at some stage the leaders of the EU member states have to step back and let the citizens of the European Union take over, by electing their own leaders and by setting the course for government. National politicians with suitable skills can aspire to European level offices.

That day “intergovernmentalism”, “double legitimacy” and “supranationalism” become history, replaced by European level democracy and federation.

It is not the end of our languages, cultures and traditions, or even of our states, although their claim to “sovereignty” is replaced by a more adequate description of their powers.

In a democratic federation certain powers are exercised at federal level. The exact division of labour can take different forms, but the main purposes of the United States of America and the US Constitution were succinctly put by Alexander Hamilton in the Federalist, number XXIII:

“The necessity of a Constitution, at least equally energetic with the one proposed, to the preservation of the Union is the point at the examination of which we are now arrived.

The principal purposes to be answered by the union are these – the common defense of the members; the preservation of the public peace, as well against internal convulsions as external attacks; the regulation of commerce with other nations and between the States; the superintendence of our intercourse, political and commercial, with foreign countries.”

I think that the 21st century citizens of Europe would be as mature in steering their representative democracy as the 18th century Americans were in building theirs.




Ralf Grahn



P.S. Do you find EUSSR myths fascinating? Are we EU citizens worth a better European Union? Read some or all of the 481 Euroblogs aggregated on multilingual Bloggingportal.eu. On most of the blogs you can comment and discuss our common European future.

EU: Far from perfect union

The Philadelphia Convention (1787) made the great leap from the Articles of Confederation to a federal Constitution for a more perfect union, to enter into force between the ratifying states after nine ratifications:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure to Blessings of Liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.


The Europeans, more mired in the past than committed to the future, were able only to start on the road towards an ever closer union among the peoples of Europe.

Small steps have brought the project of European integration forward while enlarging the union.

The German Federal Constitutional Court has ruled on the amending Treaty of Lisbon, and we follow its reasoning fairly closely:


The European Union has a structural problem.

In some fields of policy, the European Union has a shape that corresponds to that of a federal state, i.e. is analogous to that of a state. In contrast, the internal decision-making and appointment procedures remain predominantly committed to the pattern of an international organisation, i.e. are analogous to international law; as before, the structure of the European Union essentially follows the principle of the equality of states.

As long as no uniform European people is the subject of legitimisation, the peoples of the European Union, which are constituted in their Member States, remain the decisive holders of public authority, including Union authority.

In Germany (and elsewhere), accession to a European federal state would require the creation of a new constitution, which would go along with the declared waiver of the sovereign statehood safeguarded by the Basic Law (and national Constitutions).

The European Union continues to constitute a union of rule (Herrschaftsverband) founded on international law, a union which is permanently supported by the intention of the sovereign Member States. The primary responsibility for integration is in the hands of the national constitutional bodies which act on behalf of the peoples.

With increasing competences and further independence of the institutions of the Union, safeguards that keep up with this development are necessary in order to preserve the fundamental principle of conferral exercised in a restricted and controlled manner by the Member States.

With progressing integration, fields of action which are essential for the development of the Member States’ democratic opinion-formation must be retained. In particular, it must be guaranteed that the responsibility for integration can be exercised by the state bodies of representation of the peoples.

The further development of the competences of the European Parliament can reduce, but not completely fill, the gap between the extent of the decision-making power of the Union’s institutions and the citizens’ democratic power of action in the Member States.

Neither as regards its composition nor its position in the European competence structure is the European Parliament sufficiently prepared to take representative and assignable majority decisions as uniform decisions on political direction.

Measured against requirements placed on democracy in states, its election does not take due account of equality, and it is not competent to take authoritative decisions on political direction in the context of the supranational balancing of interest between the states.

It therefore cannot support a parliamentary government and organise itself with regard to party politics in the system of government and opposition in such a way that a decision on political direction taken by the European electorate could have a politically decisive effect.

Due to this structural democratic deficit, which cannot be resolved in a Staatenverbund (Confederation), further steps of integration that go beyond the status quo may undermine neither the States’ political power of action nor the principle of conferral.

The peoples of the Member States are the holders of the constituent power.


***

A more perfect union

As long as (roughly) equal states hold the power in the European Union, the democratically representative bodies (parliaments) of the peoples of the member states have to guard their interests, and the German Federal Constitutional Court is going to rule on each case brought before it.

The alternative is a European people (EU citizens) as the holder of the constituent power.

This requires a federal Constitution, based on the equality of citizens. Naturally, it would have to safeguard the fundamental rights of its citizens.

In a federal union (Federal Republic of Europe) the European Parliament would be directly elected by the citizens, according to a uniform electoral code, and their vote would determine the European level government through European level and regional parties. (A second chamber for the representatives of the states is conceivable.)

The structural problem and the structural democratic deficit would be eliminated by the federal constitution.


***

Is anything to be gained by a federal constitution, a more perfect union?

The interests of EU citizens can be better protected and the European Union can more effectively act as a force for good in the world, if the union conducts our external relations, with all disposable means (foreign, security and defence policy, including our common defence).

“Domestic tranquility” relates to our security, to our individual freedoms and justice. Legitimate lawmaking and accountable government are needed at the European level.

The federal constitution needs to be a living document, subject to needed amendments by the Parliament (Kompetenz-Kompetenz).


Our security and prosperity could be better guaranteed in a federation, but major steps are needed. The Treaty of Lisbon is still far from that more perfect union.



Ralf Grahn

European Parliament reform

Those who think that the European Union should develop according to the agreed and ratified treaty aims of an ever closer union among the peoples of Europe are likely to favour the emergence of a parliamentary system, based on the votes of EU citizens, with European level government.

In this respect, the Treaty of Lisbon is a step forward, because it strengthens the legislative powers of the European Parliament, by extending co-decision (the ordinary legislative procedure) to a number of policy areas or issues.

The importance of the Lisbon Treaty should not be exaggerated. Special legislative procedures remain in many areas, with the Council in a privileged position. Treaty reform is still in the hands of the member states, not the representatives of EU citizens. Foreign, security and defence policy continue to be outside the effective control of the European Parliament, and even the Council’s powers are basically subject to unanimity, ensuring that the European Union remains a relative midget in world affairs. The member states block the resources (taxation) and make the strategic spending decisions (long term budget), although the European Parliament is allowed a wider role with regard to annual budgets.

Regardless of the entry into force of the Lisbon Treaty, an effective and democratic European Union is still a long way off.


***

New European Parliament

The newly elected European Parliament will convene for the first time in about two weeks. It should start to formulate its priorities for the coming five years.

There are questions, where the European Parliament can function as a conscience and a catalyst or debate. There are also matters, where the EP has all the tools to gain the trust of EU citizens by wise internal decisions and practices.


As the only EU institution directly elected by the citizens, the European Parliament has an obligation to keep the question of EU reform alive. This requires the judicious use of own initiative reports on long term institutional reform towards real parliamentary democracy.

In the future, all running political affairs should be decided by simple majorities, abolishing the need for majorities of the component members (and thus the stifling “grand coalitions”).

The European elections 2009 and the political parties at European level (Europarties) showed weaknesses, which demand constructive initiatives and proposals in order to strengthen European level democracy.

The European Parliament needs to take a critical look at itself and its image. As shown by the Westminster expenses scandal, the EP has to change its attitude to openness, transparency and sound financial practices, although it has curbed some of the most flagrant excesses from the beginning of the new parliamentary term.

The European Parliament does a better job than the Council at informing the public about its legislative work (committee agendas, proposed amendments, reports) than the Council, but the same standards should be extended to the EP’s internal bodies, such as the Bureau and the Conference of Presidents, including the meeting documents. They should be made automatically and visibly accessible to the public in the same manner.

Internal audit reports should be made available automatically and followed up by proposals and decisions, including actions taken against wayward MEPs. Whistleblowers should be promoted instead of demoted.

Despite differing views on the ultimate goals of European integration, the European Parliament has many reasons to take on board criticism of its practices, such as Open Europe’s publication The European Parliament - What does it do and how does it affect your everyday life? (April 2009)



For instance, the following proposals by Open Europe (with some modifications by me) merit serious consideration:

• The Parliament should publish the official figures for MEPs’ salary, pension and expense entitlements in one easily accessible document. (This should include information about EU and national taxation.)
• MEPs need to be open and transparent about how they spend their allowances and should publish all this information.
• MEPs should be obliged to produce receipts for all expenses, and receive allowances accordingly, rather than receive flat-rate expenses for office equipment, etc.
• All unused allowances, and allowances not supported with receipts, should be reimbursed back to the EU budget.
• Any MEP who is caught misusing allowances should, after a proper legal inquiry, be suspended and replaced.
• A robust register of MEPs’ financial interests
• The European Parliament should regularly propose to the Council treaty reform leading to an end to the “traveling circus” between Brussels and Strasbourg
• An end to opaque back-room deals with regard to MEPs rights and obligations (Open committee preparation. See also Bureau and Conference of Presidents publicity above)
• Publish full minutes of Committee meetings
• Allow MEPs greater freedom in debates
• MEPs need to make it clear what they stand for (much facilitated, if the need for grand coalitions is scrapped)



Ralf Grahn

Ever closer union

Right after the dignitaries, the first words of the 1957 Treaty establishing the European Economic Community (Treaty of Rome) read like this:

DETERMINED to lay the foundations of an ever closer union among the peoples of Europe, …


***

The United Kingdom refused to join at the beginning, then applied for membership in 1961, and was finally accepted as a member from 1973.

Time enough to read the first two lines of the treaty, I would think.


Ralf Grahn

Open Europe's EU reform

Open Europe lobbies actively on European issues through critical comment, a daily press summary highlighting almost every derogatory news item available, media appearances, op-ed articles and participation in events.



The torrent of negative comment raised my interest to find out what Open Europe is lobbying for, in other words what the “reformed” European Union would look like.

I found a web document called Our vision. When I asked, Open Europe admitted that they do not have one document that sets out their reform agenda in one place. However, for specific reform proposals they recommended Chapter 5 of their publication Out of control? Measuring a decade of EU regulation and The European Parliament – What does it do and how does it affect your everyday life?




***


Finalité

Every member state has signed up to the aim of an ever closer union among the peoples of Europe. This aim is the first one stated in the preamble of the Treaty establishing the European Community (since the Treaty of Rome, 1957, EEC Treaty). Article 1 of the Treaty on European Union sets out that the establishment of the EU marks a new step in the process of creating this closer union among the peoples of Europe.

The process and the direction are clear, but the treaties do not spell out the speed or the ultimate goals (finalité) of European integration.

Since I am primarily interested in the overall vision of Open Europe, Our vision remains the main source for assessing their alternative vision. For systematic reasons, I will choose the order of the issues and the comments.



Main aim

By calling for a flexible European Union, based on voluntary cooperation, Open Europe rejects the basic aim of the treaties, at least for the United Kingdom.

It looks hard to reconcile a repudiation of an organisation’s main aims with continued membership. The logical option would be for Britain to withdraw from the European Union.



Practical alternatives

Withdrawal

Open Europe sees that the current process of integration leads to failure, deadlock and crisis. The UK (and other member states) could seek a looser relationship with the centre - for example replacing their current mode of membership by free trade and single market agreements with the other member states.

Logically, the “looser relationship” would mean secession.

This option would be clear-cut, with participation in the single market through international agreements with the European Union (member states). The models already exist.

Iceland, Liechtenstein and Norway together with the 27 EU member states form the European Economic Area (EEA), which allows them access to the internal market as well as the option to participate in EU programmes of choice. (In addition, they are part of the Schengen area of free travel and common controls at the external borders.)

Then there is the Swiss model, marginally more independent. Switzerland concludes bilateral agreements with the European Union (including Schengen).

The drawback of both models is that the outsiders can mainly accept (or reject) what the European Union has cooked up. They can influence outcomes through consultation and lobbying, but they are not present when the EU institutions reach the internal outcomes.

In my opinion, Open Europe needs to do much more to indicate the course of action to take and to assess the consequences if Britain withdraws from the European Union, which would be the logical option considering its rejection of the basic treaty aims.


Dismantled EU

Open Europe’s other option is that the EU as a whole could be restructured to accommodate different members’ conflicting interests.

Apart from a minimum core of common rules, participation in EU policies should be voluntary. The less integrationist member states should not stop groups of other countries from pursuing deeper integration among themselves within the EU framework.

Countries would be allowed to opt in or out of: the common foreign and security policy; border control; justice and home affairs legislation; the CAP and CFP; cross-Europe emissions trading; external aid and other EU spending policies (e.g. on research). It would also mean allowing member states to take back control of regional aid and to repeal some legislation which is currently tacked inappropriately onto the internal market (like the Working Time Directive).


In my view, Open Europe’s view of the future European Union is incompatible with the aim to achieve ever closer union, under the existing treaties, as expressed by the timid reforms in the Treaty of Lisbon and especially with regard to the global challenges of the 21st century. Beyond the Lisbon Treaty, a unified foreign and security policy, including a future common defence, are prerequisites for Europe as an influential actor on the global stage. Effective powers require democratic government at EU level. Economic policy, resources (taxation) and some internal policies need to be strengthened.

But Open Europe’s vision of the dismantled European Union à-la-carte has one redeeming feature, worth further study.

Open Europe recognises that less integrationist countries should not stop (groups of) other countries from pursuing deeper integration within the EU framework. It does, however, raise a number of questions, which need to be addressed.

The European Union is based on international treaties, concluded between the member states, subject to unanimous agreement and ratification by all member states. The powers (competences) of the EU are laid down in these treaties, in some detail.

The enlarged European Union is almost impossible to reform, as shown by the painful road since the Nice summit in December 2000. The proposed reforms (Lisbon Treaty) are at the level of the least reform-minded countries.

Open Europe’s principles of unhindered progress and voluntary participation require new ground rules. In the near future, as long as intergovernmental conferences (with or without conventions) agree on treaty reform, a qualified majority of member states should be allowed to progress, as long as the minority is allowed to opt out of the policy area and future implementation.

It is hard to believe that anti-integrationist countries would abide by a promise to let the majority progress, or that future treaties would be ratified by all member states. Therefore, the European Union would have to agree on coming treaties entering into force among the ratifying states.

It is more natural that the minority opts out, than that the majority is forced to establish special procedures among itself, such as enhanced or permanent structured cooperation. The participating countries would constitute the Council with regard to each policy area. Governance would be messy, but somehow possible.

The supranational institutions of the European Union would, however, give rise to more serious questions. Should the MEPs of the opting-out nations be allowed to legislate on all matters, if their states of origin are exempt from duties pertaining to important policy areas? Should the fringe nations be given the same weight in the Commission, the Court of Justice, the consultative bodies and agencies?

On the other hand, after massive opt-outs some member states would be quick to demand lower contributions to the EU budget.

Open Europe needs to look closer at the implications of a European Union à-la-carte, if it wants to present it as a credible alternative.

Long term, the EU treaties need to be replaced by a basic law, which can be amended at EU level, by democratically legitimate institutions, by qualified majorities. How does Open Europe envision the situation of fringe countries in this context?



***

Open Europe has been consistently long on critique, but short on constructive proposals. It is high time to set out the alternatives for the United Kingdom (and perhaps some other member states) in much more detail, both secession and some sort of minimal membership, which would satisfy not only British preferences but the aspirations of the European mainstream.



Ralf Grahn

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.

***

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.

***

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.

***

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

***

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.

***

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.

***

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?

***

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).

***

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.

***

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.

***

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).

***

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.

***

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.

***

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.

***

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.

***

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’.

***

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