As nationalism rises, will the European Union fall? This was the question posed by professor Charles Kupchan, of Georgetown University and the US Council on Foreign Relations, in The Washington Post (29 August 2010).
Suddenly, we are offered a contrary view.
Should pro-Europeans and others, discouraged by the European Union’s descent into institutional confusion, intergovernmental bickering and lack of leadership, take heart?
Daniel Hannan, who sits in the anti-integrationist European Conservatives and Reformists (ECR) Group in the European Parliament, sees it differently from Kupchan:
The EU doesn't just bound forward in great treaties. It's confidently moving forward every day, says Hannan according to BBC News.
Tory Daniel Hannan calls for 'in or out' EU referendum (8 September 2010, last update 09:47 GMT), we are told by the BBC.
Hannan, an MEP for South East England, is a high profile critic of the European Union, in the EP and on his Telegraph blog. He has now decided to campaign actively for an ‘in or out’ referendum in Britain, putting his energies behind the EU Referendum Campaign (EURC), which aims to take the United Kingdom out of the EU.
Norway (member of the European Economic Area, EEA) and Switzerland (120 bilateral treaties with the EU) are vaguely used by the EURC as examples of alternative relationships, but in my humble opinion the EU Referendum Campaign needs to do some serious work on what a British future outside the EU means and how it should be organised.
Tactically, Hannan has chosen a good moment. The coalition government between the Conservative Party and the Liberal Democrats has recently made a major breach in the doctrine of parliamentary sovereignty, by introducing the Parliamentary Voting System and Constituencies Bill, which would lead to a referendum on a reform of the outdated system of representation.
Britain and EU
The United Kingdom first applied for membership in the three European Communities in 1961, but was twice vetoed by Charles de Gaulle, an inveterate nationalist himself.
Britain was finally allowed to join in 1973. In 1975 a British referendum endorsed UK membership by a margin of two to one (Wikipedia).
The United Kingdom has four opt-outs from the EU Treaties: the Schengen Agreement on the common travel area, the Eurozone, the EU Charter of Fundamental Rights, and police and judicial cooperation in criminal matters (with an opportunity to opt in). (Source: Wikipedia)
Despite positioning itself squarely outside core Europe, almost half a century since the first membership application and nearly four decades after becoming a member, Britain has not come to terms with its role in Europe or the EU’s needed role in world affairs.
There is little dedication to promoting European integration and fair burden-sharing in the political discourse, the media treatment and public opinion in Britain. The UK level of trust in the European Union is low; uniquely low across the 27 EU member states, according to the latest Eurobarometer opinion poll.
Meaning of democracy?
The United Kingdom is a heavyweight in a European context, but we may ask how useful its reticent membership is for the European Union, given the EU’s weak structures, lack of full democracy and faltering political leadership.
Anyway, each member state is free to leave the European Union. Article 50 of the Treaty on European Union (TEU) explicitly states the right of withdrawal, and the modalities of secession are outlined.
‘In or out’ is consequently an internal issue for Britain.
The dichotomy between official EU membership and negative public opinion leads to the question of political legitimacy.
Is it right for a “wise” political establishment to disregard public opinion, even if withdrawal would be short-sighted and against the national interest?
Are wise decisions the essence of democracy, or is democratic government fundamentally a question of legitimacy?
In a democratic society, people assume the consequences of their collective vote, but they later have the right to try to correct their bad choices.
Is trial and error the right way for Britain?
Ralf Grahn
Showing posts with label secession. Show all posts
Showing posts with label secession. Show all posts
Thursday, 9 September 2010
Saturday, 28 August 2010
From Paint It Black to Moses? UK public opinion on EU
Yesterday’s blog post, UK Eurobarometer score: Euromyths 68 - Trust 20, discussed the media climate and public opinion in the United Kingdom with regard to the European Union. The Eurobarometer findings are in line with what we have reported many times before, for instance the Angus Reid poll published in June 2010.
If we turn from the UK country factsheet of the Spring 2010 Standard Eurobarometer 73, which compares the country only with EU averages, to the full first results, we see the uniqueness of public opinion in Britain.
In May 2010, the general level of trust in the European Union had plummeted from 48 to 42 per cent. Estonia reported the highest trust score, 68 per cent, with 22 per cent tending to be distrustful of the European Union (pages 15 and 16).
Not only did the United Kingdom report almost the reverse numbers – 68 per cent distrusting and 20 per cent trustful – but the second lowest trust score among all 27 member states was the 37 per cent reported from Germany, almost twice the proportion in Britain.
The negativism of the political atmosphere, media climate and public opinion in the United Kingdom are truly exceptional, almost four decades after accession.
The view of European integration and the European Union in the UK is not bleak – it is tainted uniquely black.
Should the UK government (Pharaoh) listen to what the voters (Moses) have to say in “Go Down Moses”?
Namely: Let my people go.
Withdrawal or secession in Eurospeak.
Ralf Grahn
P.S. Comments relevant to the topic discussed in each Grahnlaw blog post are most welcome. However, the number of spam comments has skyrocketed. This is the sad reason for comment moderation, so it may take a while before your valued comment appears.
It is easier to understand a language than to use it correctly. As Eurobloggers we could and should promote interaction among Europeans across borders and between linguistic communities. Grahnlaw has adopted a multilingual comment policy:
I do my best to read comments in Danish, Dutch, English, Finnish, French, German, Italian, Norwegian, Portuguese, Spanish or Swedish, even if the Grahnlaw blog and my possible replies are in English.
Antonia on the Euonym blog (Talking about the EU) tells us that the European Commission in the UK arranges a Day of Multilingual Blogging on 26 September 2010, and the UK Representation has been joined by the multilingual aggregator Bloggingportal.eu and individual Eurobloggers. Join the event page on Facebook, spread the word through social media and personal contacts, begin preparing your blog posts and start learning a new language.
If we turn from the UK country factsheet of the Spring 2010 Standard Eurobarometer 73, which compares the country only with EU averages, to the full first results, we see the uniqueness of public opinion in Britain.
In May 2010, the general level of trust in the European Union had plummeted from 48 to 42 per cent. Estonia reported the highest trust score, 68 per cent, with 22 per cent tending to be distrustful of the European Union (pages 15 and 16).
Not only did the United Kingdom report almost the reverse numbers – 68 per cent distrusting and 20 per cent trustful – but the second lowest trust score among all 27 member states was the 37 per cent reported from Germany, almost twice the proportion in Britain.
The negativism of the political atmosphere, media climate and public opinion in the United Kingdom are truly exceptional, almost four decades after accession.
The view of European integration and the European Union in the UK is not bleak – it is tainted uniquely black.
Should the UK government (Pharaoh) listen to what the voters (Moses) have to say in “Go Down Moses”?
Namely: Let my people go.
Withdrawal or secession in Eurospeak.
Ralf Grahn
P.S. Comments relevant to the topic discussed in each Grahnlaw blog post are most welcome. However, the number of spam comments has skyrocketed. This is the sad reason for comment moderation, so it may take a while before your valued comment appears.
It is easier to understand a language than to use it correctly. As Eurobloggers we could and should promote interaction among Europeans across borders and between linguistic communities. Grahnlaw has adopted a multilingual comment policy:
I do my best to read comments in Danish, Dutch, English, Finnish, French, German, Italian, Norwegian, Portuguese, Spanish or Swedish, even if the Grahnlaw blog and my possible replies are in English.
Antonia on the Euonym blog (Talking about the EU) tells us that the European Commission in the UK arranges a Day of Multilingual Blogging on 26 September 2010, and the UK Representation has been joined by the multilingual aggregator Bloggingportal.eu and individual Eurobloggers. Join the event page on Facebook, spread the word through social media and personal contacts, begin preparing your blog posts and start learning a new language.
Saturday, 23 January 2010
Britain exiting the EU: Norman Tebbit proposes divorce
Norman Tebbit, a former chairman of the UK Conservative Party, has recently written two Telegraph columns where he sees the underlying history and culture which have formed the institutions of the other EU members as deeply different and hostile to British ones.
Tebbit imagines that citizens’ rights guaranteed under European constitutions [and the EU Charter of Fundamental Rights] are less than “rights” for UK subjects under common law (including parliamentary supremacy?).
Tebbit concludes that Britain should leave the European Union and start thinking about the nature of its future relationship with Europe: I used to believe that Britain had a lot in common with Europe. How wrong I was (20 January 2010) and Britain and the EU: time for a divorce (22 January 2010).
A short while ago, the first column had received 396 comments and the more recent one 261, most of them enthusiastic.
Soon a general election will offer Her Majesty’s subjects the opportunity to elect a Parliament prepared to move from Tebbit’s proposal to a filing for divorce. It would, however, require a major shift, because the current leadership of the three major parties is against secession.
Should David Cameron be ousted, or the majority handed to either UKIP or the BNP?
If Britain sorts out its intention to leave, the Lisbon Treaty guarantees the right for each EU member state to withdraw from the union, although most sane persons agree on the usefulness of a negotiated settlement and a deal on the future relationship.
In my humble opinion, the Norman Conquest (1066) and Magna Carta (1215) offer scant advice on the future of Britain in the world and its relationship with the rest of Europe after withdrawal. Some serious thought should go into that ahead of the general election in order to make the divorce case convincing.
Ralf Grahn
P.S. The UK is a heavyweight among EU member states, and Charlemagne’s notebook (The Economist) offers a gateway to some important shades of British thought about European integration.
Charlemagne’s notebook is listed with more than 500 great Euroblogs on growing multilingual Bloggingportal.eu, your useful one-stop-shop for fact, opinion and gossip on European affairs, i.a. politics, policies, communication, economics, finance, business, civil society and law. You can also subscribe to the RSS feed for new blog posts appearing on Bloggingportal.eu.
By the way, I also discuss European issues in Finnish on Eurooppaoikeus and in Swedish on Grahnblawg.
Tebbit imagines that citizens’ rights guaranteed under European constitutions [and the EU Charter of Fundamental Rights] are less than “rights” for UK subjects under common law (including parliamentary supremacy?).
Tebbit concludes that Britain should leave the European Union and start thinking about the nature of its future relationship with Europe: I used to believe that Britain had a lot in common with Europe. How wrong I was (20 January 2010) and Britain and the EU: time for a divorce (22 January 2010).
A short while ago, the first column had received 396 comments and the more recent one 261, most of them enthusiastic.
Soon a general election will offer Her Majesty’s subjects the opportunity to elect a Parliament prepared to move from Tebbit’s proposal to a filing for divorce. It would, however, require a major shift, because the current leadership of the three major parties is against secession.
Should David Cameron be ousted, or the majority handed to either UKIP or the BNP?
If Britain sorts out its intention to leave, the Lisbon Treaty guarantees the right for each EU member state to withdraw from the union, although most sane persons agree on the usefulness of a negotiated settlement and a deal on the future relationship.
In my humble opinion, the Norman Conquest (1066) and Magna Carta (1215) offer scant advice on the future of Britain in the world and its relationship with the rest of Europe after withdrawal. Some serious thought should go into that ahead of the general election in order to make the divorce case convincing.
Ralf Grahn
P.S. The UK is a heavyweight among EU member states, and Charlemagne’s notebook (The Economist) offers a gateway to some important shades of British thought about European integration.
Charlemagne’s notebook is listed with more than 500 great Euroblogs on growing multilingual Bloggingportal.eu, your useful one-stop-shop for fact, opinion and gossip on European affairs, i.a. politics, policies, communication, economics, finance, business, civil society and law. You can also subscribe to the RSS feed for new blog posts appearing on Bloggingportal.eu.
By the way, I also discuss European issues in Finnish on Eurooppaoikeus and in Swedish on Grahnblawg.
Wednesday, 4 November 2009
Britain and EU: Cameron’s exit route
What happens if the probable next Conservative government fails to charm the other EU member states into treaty changes further diminishing the United Kingdom’s patchy contribution to the European project?
What happens if the other EU member states decide to grin and bear it, if Britain turns to political blackmail in order to opt out of additional policy areas?
Sooner or later the Tory leaders would have to report back that they have failed. What could they do?
Would they have any alternative but to decide on the UK’s relation with the European Union (with or without a referendum)?
Is this the reason why some brainy anti-Europeans have remained relatively calm, leading David Cameron down the garden path towards an inevitable referendum on withdrawal?
Exit route
A referendum on the Lisbon Treaty is clearly nonsense, and has been for some time, but the Lisbon Treaty clearly says that the European Union is based on voluntary cooperation, by laying down the modalities for secession. Article 50 of the Treaty on European Union tells us that the exit route is free:
***
No EUSSR
The European Union is no dictatorship, but a voluntary union of states (but with some democratic elements). No occupying forces, secret police or Gulag camps keep the countries or their citizens subdued.
If Britain, or any other member state, wants to leave, the treaty shows where to find the door. Staying or leaving is a British decision, to be taken under British rules.
Like any organisation, the European Union needs constructive and contributing members. Given Britain’s membership history and future prospects, it might be better if the UK left, for the others to get on with the work.
Does David Cameron really want a painful marathon, when he could head for the exit door today?
Ralf Grahn
P.S. Read interesting Euroblogs on multilingual Bloggingportal.eu.
What happens if the other EU member states decide to grin and bear it, if Britain turns to political blackmail in order to opt out of additional policy areas?
Sooner or later the Tory leaders would have to report back that they have failed. What could they do?
Would they have any alternative but to decide on the UK’s relation with the European Union (with or without a referendum)?
Is this the reason why some brainy anti-Europeans have remained relatively calm, leading David Cameron down the garden path towards an inevitable referendum on withdrawal?
Exit route
A referendum on the Lisbon Treaty is clearly nonsense, and has been for some time, but the Lisbon Treaty clearly says that the European Union is based on voluntary cooperation, by laying down the modalities for secession. Article 50 of the Treaty on European Union tells us that the exit route is free:
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.
***
No EUSSR
The European Union is no dictatorship, but a voluntary union of states (but with some democratic elements). No occupying forces, secret police or Gulag camps keep the countries or their citizens subdued.
If Britain, or any other member state, wants to leave, the treaty shows where to find the door. Staying or leaving is a British decision, to be taken under British rules.
Like any organisation, the European Union needs constructive and contributing members. Given Britain’s membership history and future prospects, it might be better if the UK left, for the others to get on with the work.
Does David Cameron really want a painful marathon, when he could head for the exit door today?
Ralf Grahn
P.S. Read interesting Euroblogs on multilingual Bloggingportal.eu.
Saturday, 26 September 2009
A constructive Britain in the EU?
A constructive Britain in the European Union would be a great asset, but this is not about to happen. Read the opinions on Conservative Home to get an inkling of Tory solidarity with the UK’s European partners.
Read the latest interview with Conservative foreign policy spokesman William Hague, who rejects European integration and the Lisbon Treaty, but wants Britain to stay on the inside of the European Union.
***
With a Conservative government, Britain’s engagement in Europe is about to turn from bad to worse.
The UK destroying the Lisbon Treaty while remaining in the European Union would be the worst outcome for the other EU states.
Hague’s disregard for Britain’s European partners is perverse: Causing maximal damage.
If the United Kingdom feels ill at ease in an evolving European Union, it should secede. It can arrange its trade links through the European Economic Area (like Iceland, Liechtenstein and Norway), or bilaterally (as Switzerland). The only defensible referendum is on the basic question: In or Out?
Ralf Grahn
Read the latest interview with Conservative foreign policy spokesman William Hague, who rejects European integration and the Lisbon Treaty, but wants Britain to stay on the inside of the European Union.
***
With a Conservative government, Britain’s engagement in Europe is about to turn from bad to worse.
The UK destroying the Lisbon Treaty while remaining in the European Union would be the worst outcome for the other EU states.
Hague’s disregard for Britain’s European partners is perverse: Causing maximal damage.
If the United Kingdom feels ill at ease in an evolving European Union, it should secede. It can arrange its trade links through the European Economic Area (like Iceland, Liechtenstein and Norway), or bilaterally (as Switzerland). The only defensible referendum is on the basic question: In or Out?
Ralf Grahn
Saturday, 27 June 2009
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
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
Tuesday, 26 May 2009
David Cameron’s Horrorland speech
After reading David Cameron’s article in The Guardian, New politics: We need a massive, radical redistribution of power (25 May 2009), I could hardly wait to hear more about Britain under a Conservative government.
Since this is a blog about the European Union and European integration, I picked two items of interest ahead of today’s speech in the blog post Ailing United Kingdom: Proportional representation and EU membership:
1) People’s courts?
Fundamental rights and the rule of law seem alien to Cameron, who believes in a massive, sweeping, radical redistribution of power from judges to the people.
Does he want direct action by lynch mobs or does he prefer people’s courts to act as instruments in robbing individuals of protection against public authorities?
2) European Union
As Conservative leader Cameron demands a massive, sweeping, radical redistribution of power from the EU to Britain.
Ahead of the European Parliament elections it is only fair to ask which powers under the existing Treaty of Nice he wants repatriated.
If Cameron wants the United Kingdom to secede from the European Union, he should say so, but he would need to indicate the shape of the future outside.
If Cameron wants Britain to stay on in the European Union, he should explain why he believes that the other EU member states are going to accept by unanimity every Tory demand for even less British responsibilities and still keep the UK as a member state
***
Horrorland speech
I have now read Davic Cameron’s Horroland speech, serving generous helpings of indignities of contemporary life in Britain. Did the speech, officially called Fixing Broken Politics (26 May 2009). offer additional information about my questions?
***
Fundamental rights?
To curb the protection given by courts to individuals, Cameron proposes the following:
“And we will introduce a British Bill of Rights to strengthen our liberties, spell out the extent and limit of rights more clearly, and ensure proper democratic accountability over the creation of any new rights.”
The reasoning looks disingenious. Cameron is clearly out to restrict the protection offered by the European Convention for the Protection of Human Rights and Fundamental Freedoms (UK: Human Rights Act), but he describes it as a strengthening of the liberties of the British people.
Naturally, he does not even mention the more modern Charter of Fundamental Rights of the European Union, which the United Kingdom has opted out of together with then Kaczynski Poland, hardly the best proponents of human rights among the 27 EU member states.
Cameron does not go into details, although he should. Does a watered-down domestic Bill of Rights mean that Britain is going to secede from the European Human Rights Convention and leave the Council of Europe?
***
Goodbye, European Union?
Cameron’s offers the following recipe for UK relations with the European Union:
“We will therefore hold a referendum on the Lisbon Treaty, pass a law requiring a referendum to approve any further transfers of power to the EU, negotiate the return of powers, and require far more detailed scrutiny in Parliament of EU legislation, regulation and spending.”
This time around, Cameron seems to promise a referendum on the Treaty of Lisbon regardless of its entry into force.
Every future transfer of powers to the European Union would be bogged down by a national referendum.
A Conservative government would – so it seems – negotiate a return of unspecified powers from the EU to the United Kingdom. We are none the wiser as to my questions: Why he believes that the other EU member states are going to accept by unanimity every Tory demand for even less British responsibilities and still keep the UK as a member state.
The membership of the United Kingdom is already a severe problem for Europe.
I see little reason for the rest of the EU member states to accept reverse integration or permanent immobility in an organisation plagued by the unanimity rules and detailed treaties.
Let the coming UK government make its demands explicit before the European elections. Failure to bring about the tearing up of the Treaty of Nice leaves the option of secession.
A constructive UK would be a loss, but British membership under Cameron would be a greater calamity for Europe.
Ralf Grahn
Since this is a blog about the European Union and European integration, I picked two items of interest ahead of today’s speech in the blog post Ailing United Kingdom: Proportional representation and EU membership:
1) People’s courts?
Fundamental rights and the rule of law seem alien to Cameron, who believes in a massive, sweeping, radical redistribution of power from judges to the people.
Does he want direct action by lynch mobs or does he prefer people’s courts to act as instruments in robbing individuals of protection against public authorities?
2) European Union
As Conservative leader Cameron demands a massive, sweeping, radical redistribution of power from the EU to Britain.
Ahead of the European Parliament elections it is only fair to ask which powers under the existing Treaty of Nice he wants repatriated.
If Cameron wants the United Kingdom to secede from the European Union, he should say so, but he would need to indicate the shape of the future outside.
If Cameron wants Britain to stay on in the European Union, he should explain why he believes that the other EU member states are going to accept by unanimity every Tory demand for even less British responsibilities and still keep the UK as a member state
***
Horrorland speech
I have now read Davic Cameron’s Horroland speech, serving generous helpings of indignities of contemporary life in Britain. Did the speech, officially called Fixing Broken Politics (26 May 2009). offer additional information about my questions?
***
Fundamental rights?
To curb the protection given by courts to individuals, Cameron proposes the following:
“And we will introduce a British Bill of Rights to strengthen our liberties, spell out the extent and limit of rights more clearly, and ensure proper democratic accountability over the creation of any new rights.”
The reasoning looks disingenious. Cameron is clearly out to restrict the protection offered by the European Convention for the Protection of Human Rights and Fundamental Freedoms (UK: Human Rights Act), but he describes it as a strengthening of the liberties of the British people.
Naturally, he does not even mention the more modern Charter of Fundamental Rights of the European Union, which the United Kingdom has opted out of together with then Kaczynski Poland, hardly the best proponents of human rights among the 27 EU member states.
Cameron does not go into details, although he should. Does a watered-down domestic Bill of Rights mean that Britain is going to secede from the European Human Rights Convention and leave the Council of Europe?
***
Goodbye, European Union?
Cameron’s offers the following recipe for UK relations with the European Union:
“We will therefore hold a referendum on the Lisbon Treaty, pass a law requiring a referendum to approve any further transfers of power to the EU, negotiate the return of powers, and require far more detailed scrutiny in Parliament of EU legislation, regulation and spending.”
This time around, Cameron seems to promise a referendum on the Treaty of Lisbon regardless of its entry into force.
Every future transfer of powers to the European Union would be bogged down by a national referendum.
A Conservative government would – so it seems – negotiate a return of unspecified powers from the EU to the United Kingdom. We are none the wiser as to my questions: Why he believes that the other EU member states are going to accept by unanimity every Tory demand for even less British responsibilities and still keep the UK as a member state.
The membership of the United Kingdom is already a severe problem for Europe.
I see little reason for the rest of the EU member states to accept reverse integration or permanent immobility in an organisation plagued by the unanimity rules and detailed treaties.
Let the coming UK government make its demands explicit before the European elections. Failure to bring about the tearing up of the Treaty of Nice leaves the option of secession.
A constructive UK would be a loss, but British membership under Cameron would be a greater calamity for Europe.
Ralf Grahn
Ethelred’s European manifesto (UK-EU)
After knocking on the door for twelve years, the United Kingdom was finally let into the European Economic Community in 1973. About three and a half decades later large parts of the media, the political elites and the population still treat European integration as an endeavour alien to the native spirit. The degree of estrangement from the European Union seems to be on the increase.
Perhaps a few mock historical texts are needed to liberate Europe from this sceptred isle, gliding towards Manhattan.
***
Ethelred
Despite the misfortunes of Ethelred the Unready, his doomed fight against continental invaders is as noble as his words: British serfdom for British serfs. We shall defend our island, whatever the cost may be. We shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills; we shall never surrender.
Declaration of Independence
When in the Course of human events, it becomes necessary for one People to dissolve the Political Bands which have connected them with the EU, and to assume among the Powers of the Earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent Respect to the Opinions of Mankind requires that they should declare the causes which impel them to the Separation.
We have jointly granted us the Laws, the most necessary and wholesome for the public Good …
***
If distortions are detected, you can rest assured that they serve a noble cause, the restitution of Ethelred’s glory.
Perhaps the rest of Europe could get back to business.
Ralf Grahn
Perhaps a few mock historical texts are needed to liberate Europe from this sceptred isle, gliding towards Manhattan.
***
Ethelred
Despite the misfortunes of Ethelred the Unready, his doomed fight against continental invaders is as noble as his words: British serfdom for British serfs. We shall defend our island, whatever the cost may be. We shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills; we shall never surrender.
Declaration of Independence
When in the Course of human events, it becomes necessary for one People to dissolve the Political Bands which have connected them with the EU, and to assume among the Powers of the Earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent Respect to the Opinions of Mankind requires that they should declare the causes which impel them to the Separation.
We have jointly granted us the Laws, the most necessary and wholesome for the public Good …
***
If distortions are detected, you can rest assured that they serve a noble cause, the restitution of Ethelred’s glory.
Perhaps the rest of Europe could get back to business.
Ralf Grahn
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.
***
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
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
Saturday, 28 June 2008
Anti-EU by any other name
By the way, I have wondered at the widespread acceptance of the ‘Euroscepticism’ as the label people use, whose attitude reveals nothing sceptic. No doubts, no uncertainty, no open minds. After reading a lot of these outpourings, I am beginning to think that the ‘Eurosceptic’ in search of truths has yet to be born.
Thus, the label is woolly and misleading. Let’s call a spade a spade.
The early constitutional history of the United States saw the debate between Federalists and anti-Federalists. Let people who identify with Europe be called Europeans, pro-Europeans or pro-EU, and let the people who want to wreck the European Union be called by the most objective term available: anti-EU.
(Some of them, for reasons yet to be verified, deny that they are anti-Europeans. They are only vehemently against Europe’s common institutions and manifestations)
***
Another healthy distinction would be to see EU detractors clearly define what they are against (if a viable programme for anything proves too demanding).
Do they want to dismember the European Union completely, or would they be content to see their own country secede from the EU?
If they have nothing against the vast majority of Europeans deepening European integration, these campaigners could redirect their energies towards secession. With a sharper focus they could perhaps improve their chances of success.
Actually, if their ideals are the ‘free nations of Europe’, why not let the other free nations decide for themselves on cooperation and common action, without insult or injury?
Traders (and nations of shopkeepers) want to keep their customers happy and engage in profitable relations with their providers, don’t they?
Why cause a lot of aggravation, if they only want to live happily ever after behind their moat?
Ralf Grahn
Thus, the label is woolly and misleading. Let’s call a spade a spade.
The early constitutional history of the United States saw the debate between Federalists and anti-Federalists. Let people who identify with Europe be called Europeans, pro-Europeans or pro-EU, and let the people who want to wreck the European Union be called by the most objective term available: anti-EU.
(Some of them, for reasons yet to be verified, deny that they are anti-Europeans. They are only vehemently against Europe’s common institutions and manifestations)
***
Another healthy distinction would be to see EU detractors clearly define what they are against (if a viable programme for anything proves too demanding).
Do they want to dismember the European Union completely, or would they be content to see their own country secede from the EU?
If they have nothing against the vast majority of Europeans deepening European integration, these campaigners could redirect their energies towards secession. With a sharper focus they could perhaps improve their chances of success.
Actually, if their ideals are the ‘free nations of Europe’, why not let the other free nations decide for themselves on cooperation and common action, without insult or injury?
Traders (and nations of shopkeepers) want to keep their customers happy and engage in profitable relations with their providers, don’t they?
Why cause a lot of aggravation, if they only want to live happily ever after behind their moat?
Ralf Grahn
Sunday, 10 February 2008
EU Treaty of Lisbon: Unlimited duration
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.
***
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).
***
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.
***
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.
***
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
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.
***
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).
***
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.
***
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.
***
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
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.
***
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.
***
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 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.’.
***
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).
***
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.
***
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), 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.
***
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
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.
***
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.
***
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 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.’.
***
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).
***
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.
***
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), 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.
***
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
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