european union law

The Oxford Handbook of

EUROPEAN UNION LAW Edited by

ANTHONY ARNULL and

DAMIAN CHALMERS

1

9780199672646_Arnull_EUROPEAN UNION LAW.indb 3

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1 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © The several contributors 2015 The moral rights of the authors‌have been asserted First Edition published in 2015 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2015934489 ISBN 978–0–19–967264–6 Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY Jacket illustration: Castle and Sun, 1928 (no 201), by Paul Klee. Private ollection/Giraudon/Bridgeman Images Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.


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Chapter 6

ACCESSION AND WITHDRAWAL IN THE LAW OF THE EUROPEAN UNION Christophe Hillion*

The Treaty on European Union (TEU) contains two procedures that make it possible for a European state respectively to become, and to cease to be, a member of the EU. Since the establishment of the European Communities, the entry device (currently provided in Article 49 TEU) has been used many times,1 whereas no member has yet initiated the EU exit clause (Article 50 TEU). The provisions outlining how states enter and how they could leave the Union offer some insight into the notion of EU membership, and more generally into the nature of the EU legal order. State-centred mechanisms, located at the intersection of EU and international law, the two procedures are also firmly embedded in the

* Author note: many thanks to Tony Arnull, Steven Blockmans, and Anne Myrjord for all their helpful comments. All mistakes are mine. 1 On successive waves and ongoing processes of EU enlargement: http://ec.europa.eu/enlargement/ index_en.htm; Bart Van Vooren and Ramses Wessel, EU External Relations Law (2014), Ch 5; Allan Tatham, Enlargement of the European Union, (2009).


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accession and withdrawal in the law of the european union 127 system of the EU treaties, normatively determined by the integration goal that the latter pursue, and thus an integral part of the constitutional order they underpin. After an analysis of the EU law of accession and withdrawal (I), this chapter attempts to expound its rationale by reference to the EU’s aspiration to ‘ever closer union’ (II).

I. Accession, Withdrawal, and the EU Legal Order The EU accession and withdrawal provisions govern the state configuration of the Union: they determine which state is in (1), and which state is out (2).

1. EU Accession Process At its heart, the EU accession procedure is a process between states (a). However, it has gradually evolved into an enlargement policy driven mainly by EU institutions (b), a development which has led Member States to reassert their control (c).

(a) The EU Legal Basis for Accession: Article 49 TEU Article 49 TEU establishes a two-stage process whereby a European state may become a member of the Union. The aspirant country must first send its application to the EU Council, which decides by unanimity on the admissibility of the request, after having consulted the Commission and received the consent of the European Parliament. Such admissibility depends on the aspirant’s fulfilment of the condition of statehood, and on its European identity (‘Any European State’), as well as on its respect for and commitment to promote the EU values enshrined in Article 2 TEU. Article 49 TEU also refers to additional ‘conditions of eligibility agreed upon by the European Council [, which] shall be taken into account’. These conditions were codified in 1993, when the EU acknowledged the membership prospect of central and east European countries (CEECs). According to what have become known as the ‘Copenhagen criteria’, EU membership requires the candidate country to demonstrate: (i) the stability of institutions guaranteeing democracy, the rule of law, human rights, and respect for and protection of minorities; (ii) the existence of a functioning market economy, as well as the capacity to cope with competitive pressure and market forces within the Union; and (iii) the ability to take on the


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128 christophe hillion obligations of membership, including adherence to the aims of political, economic and monetary union.2 Subsequently elaborated,3 the Copenhagen criteria have become standard accession conditions,4 and progressively, if only partly, constitutionalized through various treaty revisions.5 They also constitute the normative basis of the EU enlargement policy, which will be discussed below. Should the application be deemed admissible, the accession process may then begin in the form of the negotiation of a treaty between the Member States and the candidate country, the purpose of which is to agree on ‘the conditions of admission and the adjustments to the Treaties on which the Union is founded’ (Article 49(2) TEU).6 The ensuing accession treaty is an international agreement concluded between Member States and the applicant country, and ratified by all states concerned according to their constitutional requirements. It belongs to EU primary law, together with the EU founding treaties, which it is meant to modify to make accession legally possible.7 As such, the accession treaty may be interpreted and enforced by the European Court of Justice, but not declared invalid.8 While occasionally revised by the EU pouvoir constituant, the succinct procedure of Article 49 TEU has been articulated through incremental practice, notably to adapt it to the specific needs of each enlargement episode. In this exercise, EU institutions have played a sizable role alongside Member States.

Presidency Conclusions, Copenhagen European Council, 21–22 June 1993. Further on the Copenhagen criteria: Marise Cremona, ‘Accession to the European Union: Membership Conditionality and Accession Criteria’ (2001) 25 Polish Yearbook of International Law 219; Frank Hoffmeister, ‘Earlier Enlargements’ in Andrea Ott and Kirstyn Inglis (eds) Handbook on European Enlargement (2002) 90; Christophe Hillion, ‘The Copenhagen Criteria and their Progeny’ in Christophe Hillion (ed), EU Enlargement: A Legal Approach (2004) 17. 3 eg Presidency Conclusions, Madrid European Council, 15–16 December 1995; Presidency Conclusions, Helsinki European Council, 10–11 December 1999; ‘Thessaloniki Agenda for the Western Balkans: Moving towards European Integration’, June 2003. Further: Steven Blockmans, ‘Raising the Threshold for further EU Enlargement: Process, and Problems and Prospects’ in Andrea Ott and Ellen Vos (eds) Fifty Years of European Integration—Foundations and Perspectives (2009). 4 eg Commission Opinion on Iceland’s application for membership of the European Union; COM(2010) 62. 5 On the latest formulation of the accession procedure: eg the amendments proposed to Art 57 on the ‘Conditions and procedure for applying for Union membership’ at the European Convention on the future of Europe: http://european-convention.europa.eu/EN/amendments/amendments7b33. html?content=43&lang=EN. 6 Case 93/78 Mattheus v Doego [1978] ECR 2203. On ‘adjustments to the Treaties’ contained in accession treaties and their limits: eg Case C-413/04 European Parliament v Council [2006] ECR I-11221, and Case C-414/04 European Parliament v Council [2006] ECR I-11279; and annotation by Kirsty Inglis, (2009) 46 CMLRev 641. 7 On such treaties: eg Adam Lazowski, ‘And then they were Twenty-seven . . . A Legal Appraisal of the Sixth Accession Treaty’ (2007) 44 CMLRev 401; Christophe Hillion, ‘The European Union is dead. Long live the European Union . . . A Commentary on the Accession Treaty 2003’ (2004) 29 ELRev 583. 8 eg Case C-31 and 35/86 LAISA et al. v Council [1988] ECR I-2285. 2


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accession and withdrawal in the law of the european union 129

(b) From a Member-State-Driven Procedure to an EU Member-State-Building Policy The drafters of the 1957 Treaties of Rome crafted a classic state-centred accession procedure inspired by the canons of international institutional law,9 which appears to endure in its essentials. Thus both the start and finalization of the process still depend on a unanimous approval by the Member States, while the terms of accession to the Union are in principle negotiated between them and the candidate, rather than determined by the EU itself.10 In that, the EU procedure differs from the US accession clause, which provides for a new state being admitted to the Union by the Congress.11 In practice and in law however, all EU political institutions have become more actively involved in the admission of new states to the Union, thus mitigating, at least to some extent, its original inter-state character.12 Legally, the accession procedure was first altered to involve the European Parliament. Since the Single European Act, admission of new states no longer depends solely on the Member States’ will, but equally requires the consent of a majority of the component members of the European Parliament.13 As evoked above, the Lisbon Treaty also codified the role of the European Council, confirming that it may adapt the normative framework of accession and adjust the terms of EU membership. Whilst it represents Member States’ interests in this exercise, the European Council nevertheless acts as an EU institution, whose powers are governed by the rules of the EU legal order.14 In practice too, EU institutions have exerted considerable influence in the operation of the accession procedure. In addition to giving its opinion on the application, an opinion that is procedurally mandatory but non-binding in its substance,15 the Commission has always played an active role notably in the preparation of the negotiations foreseen in Article 49(2) TEU.16 In this respect: Henry G Schermers and Niels Blokker, International Institutional Law (2003) 70ff. Art 98 ECSC however foresaw that the Council as such, and not the Member States, had to ‘determine the terms of accession’ to the ECSC Treaty. Art 116(1) of the stillborn European Political Community Treaty also envisaged accession based on an instrument drawn up by its own institutions. Further: Christophe Hillion, ‘EU Enlargement’ in Paul Craig and Grainne de Búrca (eds), The Evolution of EU Law (2011) 187. 11 See Art IV, section 3, US Constitution, and its interpretation by the Supreme Court in eg Coyle v Smith (1911) 221 US 559. 12 Final Communiqué of the Hague Summit, 2 December 1969. See also Jean-Pierre Puissochet, L’Elargissement des Communautés Européennes (1974). 13 Art 8 SEA, which provided that the European Parliament was to act by an absolute majority of its component members. 14 Art 13(1) TEU. It was the Lisbon Treaty that formally included the European Council in the list of EU institutions. 15 Thus, the initial negative opinion of the Commission on Greece’s application (COM (76) 30 final, 20 January 1976) was ignored, and so was its positive Avis on the first British application for membership. 16 Puissochet (n 12), see also the 1961 exchange of letters between the then President of the Commission and the President of the Council on the technical arrangements for accession negotiations (Ref. P 6323-E). 9

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130 christophe hillion Moreover, the EU ‘pre-accession strategy’ launched in 1994 to prepare for EU enlargement to include the CEECs17 considerably increased the institutions’ involvement.18 In particular, the European Council asked the Commission to elaborate the substance of the Copenhagen criteria,19 and to report back to it on the candidates’ progress in meeting them, so as to decide on their ability to start accession negotiations.20 Through the ensuing enlargement policy, EU institutions have actively contributed to transforming applicant states into operating members of the Union, in constitutional, administrative and judicial terms, thereby articulating the attributes of EU membership.21 This input was further bolstered following the ‘New Consensus for Enlargement’,22 adopted by the European Council in the aftermath of the so-called ‘big bang’ enlargement of 2004, and while the EU was preparing to admit Bulgaria and Romania.23 One of the key features of the New Consensus was the introduction of conditionality in accession negotiations themselves, notably to enhance the candidate’s preparation for membership. Thus, the opening and closing of several chapters of negotiation are dependent on the candidate’s preliminary fulfilment of ‘opening’ and ‘closing benchmarks’, which are pre-defined and monitored by the Commission with the approval of Member States. Of particular significance in the post-‘New Consensus’ practice is the negotiation of two specific chapters headed ‘Judiciary and Fundamental Rights’ (Chapter 23), and ‘Justice, Freedom and Security’ (Chapter 24). Based on lessons learned from Croatia’s accession process, and considering the importance of these chapters for Presidency Conclusions, Essen European Council, 9–10 December 1994. Further: eg Marc Maresceau, ‘Pre-accession’ in Marise Cremona (ed) The Enlargement of the European Union (2003) 9. 19 The Commission already had a significant influence on the elaboration of the Copenhagen criteria: Report by the Commission to the European Council, Edinburgh, 11–12 December 1992, ‘Towards a closer association with the Countries of Central and Eastern Europe’, SEC (92) 2301 final; Communication by the Commission to the Council, in view of the meeting of the European Council in Copenhagen, 21–22 June 1993, ‘Towards a closer association with the countries of central and eastern Europe’, SEC(93) 648 final. Further: Alan Mayhew, Recreating Europe. The European Union’s Policy towards Central and Eastern Europe (1998); Karen Smith, ‘The Evolution and Application of EU Membership Conditionality’ in Cremona (n 18) 105 at 113. Marc Maresceau, ‘Quelques réflexions sur l’origine et l’application des principes fondamentaux dans la stratégie d’adhésion de l’UE’ in Le droit de l’Union européenne en principes—Liber Amicorum en l’honneur de Jean Raux (2006) 69. 20 eg Presidency Conclusions, Luxembourg European Council, 12–13 December 1997 (pt 29). 21 The term ‘Member State building’ was invented by Gerald Knaus and Marcus Cox, ‘The “Helsinki Moment” in Southeastern Europe’ (2005) 14 Journal of Democracy 39; see also Steven Blockmans, ‘EU Enlargement as a Peacebuilding Tool’ in Steven Blockmans, Jan Wouters and Tom Ruys (eds) The European Union and Peacebuilding (2010) 77. Further on Europeanization in the context of EU enlargement: eg Heather Grabbe, ‘A Partnership for Accession? The Implications of EU Conditionality for the Central and East European Applicants’ European University Institute Working Papers RSC no 99/12 [1999]; Frank Schimmelfennig and Ulrich Sedelmeier (eds), The Europeanization of Central and Eastern Europe (2005). 22 Presidency Conclusions, European Council, Brussels, 15 December 2006. 23 Hillion (n 10) 187. 17

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accession and withdrawal in the law of the european union 131 the implementation of the whole EU acquis, the Commission suggested a ‘New Approach’ to invigorate the candidates’ absorption of the norms related to them.24 They are henceforth opened early, and closed late in the negotiations so as to allow maximum time for the candidates to establish the necessary legislation, institutions and track record of implementation,25 and thus demonstrate that new norms are entrenched in their constitutional fabric, prior to admission. In addition, EU ‘screening reports’, which generally establish possible gaps between EU law and the candidates’ legislation over the whole range of accession chapters, now provide specific EU guidance in relation to the two chapters.26 Candidate state’s authorities are thus given explicit tasks, such as the establishment of ‘related timetables and resource implications, setting out clear objectives, quantifiable indicators as appropriate, and the necessary institutional set up’, in the process of adopting EU standards.27 Moreover, the New Approach includes a system of sanctions, in the form of possible ‘corrective measures’. Thus, according to the negotiating framework for Serbia: Given the link between the chapters ‘Judiciary and fundamental rights’ and ‘Justice, freedom and security’ and the values on which the Union is founded, as well as their importance for the implementation of the acquis across the board, should progress under these chapters significantly lag behind progress in the negotiations overall, and after having exhausted all other available measures, the Commission will on its own initiative or on the request of one third of the Member States propose to withhold its recommendations to open and/or close other negotiating chapters, and adapt the associated preparatory work, as appropriate, until this imbalance is addressed. The Council will decide by qualified majority on such a proposal and on the conditions for lifting the measures taken.28

The elaboration of benchmarking following the ‘New Approach’ has entailed further articulation of EU standards, sometimes even beyond the obligations binding Member States themselves.29 The means to achieve their assimilation have also been beefed up, through a considerably strengthened EU monitoring, notably by the Commission. More generally, the development of the EU enlargement policy 24 Communication from the Commission to the European Parliament and the Council, ‘Enlargement Strategy and Main Challenges 2011–2012’, COM(2011) 666 final, 12.10.2011, 5. The ‘New Approach’ was later endorsed by the Council (General Affairs Council Conclusions on enlargement and stabilisation and association process, 5 December 2011, pt 4) and the European Council (Conclusions, European Council, December 2011). 25 eg General EU position—ministerial meeting opening the Intergovernmental Conference on the Accession of Montenegro to the European Union (AD 23/12, 27 June 2012). 26 eg ‘Outcome of Screening on Chapter 23 for Montenegro: Judiciary and Fundamental Rights’ (doc. 17785/12, 14 December 2012). 27 ‘Outcome of Screening’ (n 26). 28 Para 24, General EU Position, Ministerial meeting opening the Intergovernmental conference on the accession of Serbia to the European Union (AD 1/14, 12). 29 On this discrepancy: eg Christophe Hillion, ‘Enlarging the European Union and its Fundamental Rights Protection’ in Inge Govaere, Erwan Lannon, Peter van Elsuwege and Stanislas Adam (eds) The European Union in the World—Essays in Honour of Marc Maresceau (2013) 557.


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132 christophe hillion has meant that accession negotiations proceed not only on the basis of settlements between the parties as regards ‘the conditions of admission and the adjustments to the treaties . . . which such admission entails’, but also, if not primarily, in view of the candidate’s ability to meet the targets set by the Union. Combined with the key accession condition that the candidate has to accept the whole EU acquis (cf third Copenhagen criterion), the extensive use of conditionality and the ensuing involvement of EU institutions have partly eroded the significance of the negotiations of the accession treaty foreseen in Article 49(2) TEU. For the terms of accession are set by the Union, understood as Member States and institutions, and marginally bargained between the parties to the negotiations.30

(c) Nationalization of EU Enlargement Policy The EU member-state-building policy evoked above has become a standard facet of the EU accession process.31 As suggested, the latter is far more than the inter-state bargaining that Article 237 EEC originally envisaged. Yet, faced with the increasing unpopularity of enlargement, partly due to deficiencies in its preparations,32 Member States have reasserted their control over various phases of the accession process, notably when negotiations were being opened with Croatia and Turkey in 2005. At EU level, the role of the Council, as agent of the Member States, has been reaffirmed. In particular, instances of unanimous decision-making, and thus of veto opportunities have multiplied well beyond the requirements of Article 49 TEU. Contrary to what a literal reading of paragraph 1 would suggest, the Council does not automatically transmit the candidate’s application to the Commission. Rather, it first decides to implement the procedure of Article 49 TEU, thereby acquiring the ability to assess the admissibility of the application, before the Commission and indeed the Parliament have had a chance to voice their views. As a result, the Commission does not provide or even prepare its opinion without having first been requested to do so by the Council. While the practice had hitherto been to decide to invite the Commission to start to prepare its opinion by simple majority, it now appears that single Member States feel entitled to block, or at least hold up, the Council’s request to the Commission. For example, the Commission’s invitation to prepare an Opinion on Albania’s application was withheld as a result of the German Government’s intention first to 30 A phenomenon that Marc Maresceau had already pointed out in eg ‘Pre-Accession Strategies: A Political Analysis’ in Marc Maresceau and Erwan Lannon (eds) The EU’s Enlargement and Mediterranean Strategies—A Comparative Analysis (2001) 3. 31 Thus, despite its high degree of integration with the EU, notably through the EEA and the Schengen agreements, Iceland as a candidate has also been subject to the EU pre-accession regime. 32 eg Christophe Hillion, ‘The Creeping Nationalisation of the EU Enlargement Policy’ (2010) SIEPS Report 6/2010.


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accession and withdrawal in the law of the european union 133 consult its parliament on the matter, in application of the revised Lisbon ratification law, adopted following the Lisbon judgment of the German Constitutional Court.33 The procedure of Article 49 TEU was only resumed after the German approval, six months later, when the Council eventually ‘decided to implement the procedure laid down in Article 49 [TEU]. Accordingly, the Commission [was] invited to submit its opinion’ (emphasis added).34 In effect, the duplication of the Council’s unanimous decisions has weakened the role of the other EU political institutions and, de facto, changes the nature of the procedure of Article 49(1) TEU: in principle inter-institutional, in practice intergovernmental. Member States also appear to be tempering the EU fundamental freedoms and principles with domestic concerns, as epitomized by the EU negotiating framework for Turkey.35 The document envisages that the Accession Treaty could include ‘permanent safeguard clauses’ with respect notably to movement of persons, agricultural and structural policies. As suggested elsewhere, such clauses would put at risk the functioning of the internal market and could, more generally, strike at the heart of the EU legal order,36 and particularly at the principle of equality of EU citizens and states.37 At Member States’ level too, control over the procedure has been equally tightened, especially by tweaking the national ‘constitutional requirements’ to ratify accession treaties. The most conspicuous example in this respect is the principle introduced in 2008 in France’s constitution that future accession treaties be ratified by referendum. Parliamentary ratification is the exception, and would require a three-fifths majority in Parliament convened in Congress [ie the meeting of the two chambers].38 The revamped French constitutional requirement thus deliberately makes future accessions to the Union more uncertain.39 Member States have also tightened their control on other phases of the procedure. For example, the amended German ratification law evoked above40 Lissabon-Urteil, Judgment of 30 June 2009 (BVerfGE 123, 267). 16 November 2009; 15913/09 (Presse 328). 35 ‘Negotiating Framework’, 3 October 2005. 36 Christophe Hillion, ‘Negotiating Turkey’s Membership to the European Union—Can Member States do as they Please?’ (2007) 3 European Constitutional Law Review 269. 37 Case 231/78 Commission v UK [1979] ECR 1447, para 9. This principle of equality is enshrined in Art 4(2) TEU. 38 See first paragraph of new Art 88–5 of the French Constitution, which came into effect upon the coming into force of the Treaty of Lisbon, in accordance with Art 2 of Constitutional Act no. 2008-103 of February 4, 2008 and Art 47 of Constitutional Act no. 2008-724 of July 23, 2008. 39 Other Member States have been considering new constitutional requirements for ratifying accession treaties in the form of, eg, a two-thirds qualified majority in parliament (eg The Netherlands, see Kamerstukken TK 30874, nrs 1-3), or referendum (eg Austria, see Government Programme 2007–2010: http://www.austria.gv.at/DocView.axd?CobId=19542 at 8). 40 Gezets zur Änderung des Gesetzes über die Zusammenarbeit von Bundesregierung und Deutschem Bundestag in Angelegenheiten der Europäischen Union (EuZBBG; available at http:// www.bundesrat.de/nn_8396/SharedDocs/Beratungsvorgaenge/2009/0701-800/715-09.html). 33

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134 christophe hillion explicitly requires that the German government seek the Bundestag’s opinion on the opening of accession negotiations.41 Yet, this requirement has been invoked at other stages of the enlargement procedure too, as for instance in the case of the Albanian application, referred to above, in which the law was brought into play prior to requesting an opinion from the Commission. While the government is not bound by the opinion of the Bundestag, in the specific field of enlargement, they are explicitly asked to seek a common position.42 Thus, were the German Parliament to give a negative opinion on the matter, EU enlargement could be stalled. The above analysis of its legal basis and practice suggests that the EU accession mechanism includes both strong (inter-)state and EU components. The relative weight of the two appears to vary depending on the political context, and in particular as a function of Member States’ intentions. The stronger the latter’s political will to allow further accession, the more extensive the EU’s institutions influence over the process. While legally acknowledged by Treaty provisions, Member States’ discretion, bolstered in recent years, remains constrained by the discipline deriving from their EU membership, including in the context of Article 49 TEU. Indeed, excessive national interference with the application of the EU accession procedure43 could in principle be contested before the European Court of Justice. The latter could thus be called upon to restore the delicate balance the procedure foresees between the state and EU dimensions,44 and to preserve its integrity,45 particularly in view of its function in the system of the treaties, as argued below, after a detour through the withdrawal procedure. Prior to the judgment, the Bundestag had already proposed that the German Government seek its approval before the start of new accession negotiations, as recalled in the House of Lords, ‘The Further Enlargement of the EU: Threat or Opportunity?’ European Union Committee, 53rd Report of Session 2005–06, 20. 42 §3(1)2 EuZBBG. This is provided for in §10(2) EUZBBG. This phenomenon is also typified by the increasing impact of bilateral issues on the accession process, noted by the Commission’s recent enlargement reports (see eg COM(2013) 700, 2). A particularly glaring example is the name issue between Greece and (the former Yugoslav Republic of) Macedonia. The dispute has prevented the opening of accession negotiations with Skopje, despite regular favourable recommendations in this sense from the Commission. 44 Christophe Hillion, ‘Enlarging the Constitutional Order of States’ in Anthony Arnull, Catherine Barnard, Michael Dougan and Eleanor Spaventa (eds) A Constitutional Order of States—Essays in EU Law in Honour of Alan Dashwood (2011) 485. The Court’s jurisdiction in relation to EU primary-law-making procedures was confirmed in Case C-370/12 Pringle, judgment of 27 Nov 2012. 45 A new discussion about the scope of application of Art 49 TEU, and its integrity has been triggered by the question of whether an independent Scotland could be Member State of the Union without having to apply on the basis of Art 49 TEU. See in particular: White Paper on Scottish Independence (2013) Annex 5, esp. 86; cf Kenneth Armstrong, Memorandum on Scottish Membership of the European Union, submitted as Written Evidence to the European and External Relations Committee, Scottish Parliament, CELS Working Paper, New Series, No.2/2014. 41

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2. EU Withdrawal Law In contrast to the accession procedure, the EU exit mechanism has not been put to the test. And yet, it has already been subject to considerable scholarly scrutiny.46 This stems not only from its recent (and controversial) inclusion in EU primary law,47 but also from the possible UK referendum on EU membership that could lead to its first ever use.48 A common critique in the literature is that the procedure of Article 50 TEU is formulated in an ‘incomplete’,49 ‘unclear’,50 if not ‘cryptic’51 fashion, thus generating ‘uncertainty’.52 Indeed, akin to the accession procedure, the TEU only sets out the rudiments of the withdrawal process. Hence, if triggered, the procedure would most likely be supplemented by ad hoc arrangements the way the accession process has been elaborated. Having recalled the key elements of the procedure (a), this section will speculate on the way they could be interpreted (b).

(a) The EU Legal Basis of Withdrawal: Article 50 TEU The EU withdrawal procedure set out in Article 50 TEU is activated when a Member State ‘decides to withdraw from the Union in accordance with its own constitutional requirements’ (para 1), and accordingly notifies the European Council 46 eg Raymond J. Friel, ‘Providing a Constitutional Framework for Withdrawal from the EU: Art 59 of the Draft European Constitution’ (2004) 53 ICLQ 407; Laurent Grosclaude, ‘La clause de retrait du Traité établissant une Constitution pour l’Europe: réflexions sur un possible marché de dupes’, (2005) 41 RTDEur; Florentinas Harbo, ‘Secession Right—An Anti-Federal Principle? Comparative Study of Federal States and the EU’ (2008) 1 Journal of Politics and Law 132; Jochen Herbst, ‘Observations on the Right to Withdraw from the European Union: Who are the “Masters of the Treaties”?’ (2005) 6 GLJ 1755; Hannes Hofmeister, ‘ “Should I Stay or Should I Go?”—A Critical Analysis of the Right to Withdraw From the EU’ (2010) 16 ELJ 589; Adam Lazowski, ‘Withdrawal from the European Union and Alternatives to Membership’ (2012) 37 ELRev 523; Susanne Lechner and Renate Ohr, ‘The Right of Withdrawal in the Treaty of Lisbon: A Game Theoretic Reflection on Different Decision Processes in the EU’ (2011) 32 Eur J Law Econ 357–375; Jean-Victor Louis, ‘Le droit de retrait de l’Union Européenne’ (2006) CDE 293; Rostane Medhi, ‘Brèves observations sur la consecration constitutionnelle d’un droit de retrait volontaire’ in Paul Demaret, Inge Govaere, and Dominik Hanf (eds), 30 Years of European Legal Studies at the College of Europe / 30 ans d’études juridiques européennes au Collège d’Europe: Liber Professorum 1973/74—2003/04 (2005); Phedon Nicolaides, ‘Withdrawal from the European Union: A Typology of Effects’ (2013) 20 MJ 209; Jean-Luc Sauron, ‘L’appartenance à l’Union européenne (article 7, 49 et 50 du Traité sur l’Union européenne)’ Gazette du Palais, 19 juin 2008, n°171, 15; Allan Tatham, ‘ “Don’t Mention Divorce at the Wedding, Darling!” EU Accession and Withdrawal after Lisbon’ in Andrea Biondi, Piet Eeckhout, and Stefanie Ripley (eds), EU Law after Lisbon (2012) 128; Alexis Vahlas, ‘Souveraineté et droit de retrait au sein de l’Union européenne’ (2005) 6 Revue du Droit Public 1565. 47 See further Section II. 48 Art 50 TEU has also been evoked in the context of the discussion surrounding Scottish independence and the relation between a potentially independent Scotland and the EU: see eg David Edward, ‘EU Law and the Separation of Member States’ (2013) 36 Fordham International Law Journal 1151 at 1164. 49 50 51 Hofmeister (n 46). Friel (n 46). Lazowski (n 46). 52 Nicolaides (n 46).


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136 christophe hillion ‘of its intention’ (para 2). Once notified, the latter has to agree on the guidelines for the negotiations between the Union and the withdrawing Member State. An agreement is thus to be negotiated by the EU, in accordance with the procedure of Article 218(3) TFEU. It is concluded by the Council, using qualified majority voting in accordance with Article 238(3)(b) TFEU, having obtained the consent of the European Parliament. Article 50(3) TEU then foresees that the EU treaties would cease to apply to the withdrawing state as soon as the withdrawal agreement enters into force, or absent such accord, two years after the European Council has been notified. It is also foreseen that the state having withdrawn would have to apply on the basis of Article 49 TEU, should it want to re-join the Union.

(b) A Tentative Reading Article 50 TEU recognizes the right of any Member State to decide to withdraw, under its own constitutional rules. The terminology of the provision suggests, however, that it is not an absolute and immediate right.53 For, only the decision to depart is taken in accordance with the state’s domestic law, whereas withdrawal itself is determined by EU law.54 The EU procedure is therefore not premised on a ‘state primacy’ conception of the right.55 Indeed, in speaking of ‘any Member State’, rather than using the notion of the ‘High Contracting Parties’ contained Article 1 TEU,56 paragraph 1 embeds the withdrawal process in the EU legal order, rather than outside it. The success of a withdrawal initiative therefore depends not only on the Member State’s intention, but also on the fulfilment of the procedural and substantive requirements of Article 50 TEU, and more generally on its compliance, qua Member State, with rules and principles underpinning the EU legal order, under the control of the European Court of Justice. Indeed, Article 50 TEU indicates that the decision to withdraw, and its notification to the European Council are both subject to conditions. While each Member State is free to set out its own constitutional requirements for the purpose of Article 50(1) TEU, as for ratifying accession treaties, this freedom might be circumscribed in at least two possible ways. First it has been suggested, referring to the literature on secession, that the decision to withdraw ought to be subject to a constraining internal procedure in terms, particularly, of democratic accountability, for instance in the form of a super qualified majority in the national parliament.57 54 Friel (n 46) 425. Lazowski (n 46) 527. Friel (n 46) 422, Tatham (n 46), referring (at 147) to the proposal put forward by the ‘Cambridge group’: A. Dashwood; M. Dougan; C. Hillion; A. Johnson; and E. Spaventa; ‘Draft Constitutional Treaty of the European Union and related Documents’ (2003) 28 ELRev 3. 56 On the notion of Member States, see eg Christopher Bickerton, European Integration: From Nation-States to Member States (2012). 57 eg Tatham (n 46) 149. 53 55


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accession and withdrawal in the law of the european union 137 Secondly, and in connection with this first point, the reference in Article 50(1) TEU to the withdrawing state’s ‘constitutional requirements’ could indicate that EU law has no bearing on the way in which the decision to withdraw is taken, also in view of the provisions of Article 4(2) TEU. The application of domestic constitutional requirements is however premised on the assumption, deriving from that state’s membership, that these conform to the general requirements of EU law, and notably to the EU values of Article 2 TEU.58 If the decision to withdraw was taken in the midst of a domestic constitutional turmoil, that assumption could arguably be rebutted. In particular, the question could be raised as to whether mere compliance with domestic constitutional requirements would suffice to validate the initial withdrawal decision if doubts existed as to the appropriateness of such requirements in relation to EU rule of law standards,59 particularly in view of the implications of such a decision for the state concerned, its people, and for the rest of the Union and other EU citizens.60 It is thus contended that the domestic decision to withdraw is implicitly subject to EU requirements too, notably that it conforms to the values of Article 2 TEU,61 and primarily the rule of law. In practical terms, the European Council, to which the decision has to be notified, should ascertain that such standards are respected to consider the notification valid.62 Indeed, it is only when this notification is acknowledged as such that the process begins and, in particular, that the clock starts ticking for the purpose of terminating the application of the treaties to the withdrawing state in accordance with Article 50(3) TEU. It has even been pointed out that since Article 50 TEU ‘would be justiciable by the ECJ, this insertion [ie constitutional requirements] has catapulted that court into the role of final arbiter of a significant issue of national constitutional law’.63 Recall that, according to Art 49 TEU, membership is based on the respect and promotion of the values of Art 2 TEU. 59 The rule of law is increasingly subject to EU oversight. See, in this respect, the Commission’s Communication, ‘A New EU Framework to Strengthen the Rule of Law’ COM(2014) 158. Also: Carlos Closa and Dimitry Kochenov, ‘Reinforcing Rule of Law Oversight in the European Union’ EUI Working Papers, RSCAS 2014/25; Anthony Arnull, ‘The Rule of Law in the European Union’ in Anthony Arnull and Daniel Wincott (eds) Legitimacy and Accountability in the European Union (2002) 239. 60 The ‘all-affected’ dimension of withdrawal has been underlined by Tatham, (n 46); cf Herst (n 46) and Lazowski (n 46). 61 Tatham, (n 46) is also of the view that the withdrawing state is ‘still bound by Union values in the manner of its withdrawal. In particular, it could be argued that the values of democracy, the rule of law, freedom, solidarity and equality –Arts 2 and 49 TEU– are equally applicable to withdrawal’. 62 In view of Art 7 TEU, there might be an EU interest in seeing a Member State leaving the Union if its constitutional evolution were at odds with the requirements of membership. However, it may be wondered whether a state that violates the values of Art 2 TEU could be sanctioned under Art 7 TEU to the effect that its membership rights, including the right to withdraw, could be suspended. The rationale being again that withdrawal affects not only the state concerned but also other Member States and EU citizens, and may thus only be admissible under EU law if initiated in accordance with EU principles. 63 Friel (n 46) 425. 58


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138 christophe hillion To be sure, a degree of formalism might be warranted, particularly to reduce the Member States’ temptation to instrumentalize the exit threat and acquire bargaining power in the EU decision-making process.64 This point raises another question, namely that of the implications of the notification for the participation of the withdrawing state in the EU decision-making process. The notification does not of itself have a terminating effect.65 Article 50(3) TEU provides that the Treaties ‘cease to apply’ only when the withdrawal agreement enters into force, or ‘failing that, two years after the notification . . . unless the European Council, in agreement with the Member State concerned, unanimously decides to extend the period’. This does not mean, however, that the notification is devoid of legal implications: paragraph 4 stipulates that the member of the European Council or of the Council representing the withdrawing state will not participate in the discussions of these institutions for the purpose of Article 50(2) and (3) TEU, or ‘in decisions concerning it’. Such an arrangement is logical in view of the roles of the European Council and of the Council in the withdrawal process: the former determines the guidelines for negotiating the withdrawal agreement with the state concerned, while the latter concludes it. Conversely, it indicates that citizens of the withdrawing state who work for the same institutions, though at administrative levels, or who are members of other EU institutions, such as the Commission (including the High Representative for Foreign affairs and Security Policy and Vice-President of the European Commission), the European Parliament and the Court, not to mention agencies, bodies and other working groups, would not be immediately affected by this exclusion.66 While this may be justified given that they do not formally represent their state, some of these citizens might nevertheless be more amenable to defending their state’s interests in the extraordinary context of withdrawal, and the ensuing job relocation that it entails. They could use their influence accordingly, for instance within the Commission, if and when taking a legislative initiative that might be of significance to the withdrawing state.67 Indeed, if interpreted a contrario, the phrase ‘in decisions concerning it’ of paragraph 4 could indicate that the withdrawing state is allowed, somewhat paradoxically, to take part in Council and European Council discussions about decisions not ‘concerning it’. While such a participation may be defensible given that the state formally remains a ‘Member State’ until its effective withdrawal under the terms of paragraph 3, it is questionable whether it should nevertheless be entitled to influence EU decisions that might never apply to it, or indeed use its position to 64 eg A. Buchanan, ‘Secession’ in Edward N. Zalta (ed) The Stanford Encyclopedia of Philosophy (2013); Andrew Shorten, ‘Constitutional Secession Rights, Exit Threats and Multinational Democracy’ (2014) 62 Political Studies 99; Harbo (n 46). 65 Herbst (n 46) 1756. 66 Schermers and Blokker (n 9) at 93, footnote 193, Friel (n 46) 426, Herbst (n 46) 1747, Lazowski (n 46) 530. 67 Tatham (n 46) 151.


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accession and withdrawal in the law of the european union 139 obtain concessions in the context of the withdrawal negotiations—even if arguably, its actual influence might have diminished as a result of its precarious position in the system. While Article 50 TEU does not readily provide a legal basis for an outright suspension of the withdrawing state’s decision-making rights as soon as the exit process is formally initiated, the notion of ‘decisions concerning it’ could nevertheless be construed broadly enough so as to limit its weight in the Council and European Council. The ensuing partial suspensive effects of the notification, foreseen in paragraph 4, would thus circumscribe the withdrawing state’s influence on the production of EU norms that would not affect it as Member State.68 After all, the interests of that state’s people would still be taken care of, particularly in the European Parliament, where its MEPs would in principle still be sitting until formal withdrawal.69 Should there be an interval between the signature of the withdrawal agreement and its conclusion, the former could trigger a pre-withdrawal phase which, akin to the signature of a treaty of accession, grants the state concerned ‘observer’ status, notably in the Council and European Council, rather than a fully-fledged voting right, until the entry into force of the agreement.70 Or else, the withdrawing state would have more influence than a state about to become member. The notification, if deemed admissible by the European Council, triggers an obligation to negotiate an agreement with the departing state to carve out the arrangements for its withdrawal. This obligation is only addressed to the Union. By contrast, paragraph 4 allows the candidate to wait until the end of the two-year period for its departure to become effective, even in the absence of an agreement. In other words, Article 50 TEU does not require a negotiated withdrawal,71 but only appears to establish an obligation of conduct.72 The negotiations only depend on the departing state’s willingness to discuss although, as a Member State, it remains bound by the principle of sincere cooperation, and therefore by the duty to help the Union carry out its tasks, including that of negotiating an agreement, until effective departure. Whether the principle could have any bearing on the situation is moot. Indeed, in suggesting that the arrangements be set out with the withdrawing state ‘taking account of the framework for its future relation with the EU’ (paragraph 2), the 68 It should nevertheless not be construed too broadly so as not to make it too difficult for the state concerned to change its mind before the completion of the process, eg following a change of government. 69 Arguably withdrawal would concern not only MEPs of the nationality of, and elected in, the withdrawing state, as well as MEPs of the nationality of a different Member State elected in the withdrawing state, but also MEPs of the withdrawing state’s nationality elected in another Member State. 70 Case C-413/04 European Parliament v Council [2006] ECR I-11221, and Case C-414/04 European Parliament v Council [2006] ECR I-11279, Case C-273/04 Poland v Council [2007] ECR I-8925. 71 Hence it is considered by some as an ‘unfettered right to unilateral withdrawal’: Hofmeister (n 46) 592; also Tatham (n 46) and Herbst (n 46). 72 Medhi (n 46).


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140 christophe hillion procedure recognizes that the terms and implications of withdrawal will depend heavily on the specific circumstances and the atmosphere in which a possible negotiation would take place. In practical terms, the degree of interdependence created by membership would nonetheless push both parties to address the complex implications of their separation in a cooperative fashion, particularly for EU citizens,73 since the absence of an agreed settlement might otherwise open the floodgates to legal claims, especially against the withdrawing state. That a settlement should not be made exceedingly difficult is reflected by the procedural arrangements for the conclusion of the withdrawal agreement. First, in referring to Article 218(3) TEU, Article 50 TEU indicates that exit ought to be arranged by EU institutions through an EU external agreement, rather than through an inter-state process and treaty, as in the accession context. Secondly, the Council has to conclude the ensuing agreement by qualified majority voting, irrespective of whether its content could suggest otherwise. Thus, no Member State is in principle able to veto the conclusion of the EU agreement, in stark contrast to an accession treaty. One may indeed wonder whether the conclusion by the Council, and the absence of any reference to Member States’ ratification of the agreement also entails that mixity is in principle excluded.74 Since the EU treaties are rather explicit about when Member States must ratify specific agreements (eg accession treaties under Article 49 TEU, or an accession agreement to the ECHR, under Article 218(8) TFEU), the silence of Article 50 TEU could indeed be read as precluding their participation, however surprising that may be in view of the possible comprehensive scope of the agreement, and considering the (case) law on EU external competence.75 That the Member States do not have to conclude the agreement would be consistent with the apparent intention to facilitate its entry into force, and to prevent its ratification lingering on in view of the disruptive effects it may have on the functioning of the Union. In short, once agreed, ‘exit’ would be procedurally easier than ‘entry’.76 The procedure envisaged by Article 50(2) TEU could also mean that the agreement might not contain far reaching EU commitments in terms of future cooperation with the withdrawing state, and be limited to setting out the ‘arrangements for [the] withdrawal’ of a technical nature, possibly to areas where the EU has exclusive powers, such as trade. If so, further articulation of the ‘framework of the future relation’ referred to in paragraph 2, would be left for a more comprehensive agreement, to be negotiated at a later date. On the other hand, the arrangements for the withdrawal, however technical, might nevertheless entail policy choices, and thus As pointed out by Lazowski (n 46), Medhi (n 46), and Edward (n 48). cf Lazowski (n 46). 75 eg Allan Rosas, ‘Exclusive, Shared and National Competence in the Context of EU External Relations: Do Such Distinctions Matter?’ in Govaere et al. (n 29) 17. 76 Nicolaides (n 46). 73

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accession and withdrawal in the law of the european union 141 the exercise of a competence. A case in point would be the movement and treatment of citizens from the withdrawing state, and of citizens from other Member States resident in that state.77 One could hardly imagine that the borders would be shut down completely as a result of separation.78 That a Member State’s exit might entail further agreements also results from the fact that the withdrawal agreement, as an EU external agreement, could not in itself modify EU primary law, though such modification would be necessary. For instance, the list of contracting parties included in the Preamble(s) of the Treaties, Article 52 TEU, the geographical references for example in Article 355 TFEU, and, where applicable, protocols may all have to be amended or repealed. The amendments necessitated by withdrawal would thus have to be introduced through, or in the context of, another treaty based on Article 48 TEU, or possibly on Article 49 TEU,79 viz a treaty of accession concluded with another state. It remains the case that Article 50 TEU itself makes it possible to alter the legal borders and territory of the EU, as well as its state composition, without the formal approval of all its Member States. Indeed, if negotiated, the terms of withdrawal would in principle reflect the interests of the Union,80 rather than those of the Member States as such. The reference to Article 218(3) TFEU indicates that, alongside the European Council, the Commission would be involved in drafting the negotiating mandate,81 and possibly entrusted with the task of negotiating the withdrawal agreement. For its part, the European Parliament, representing the interests of other EU peoples, would have to give its consent before the conclusion of the agreement, and could thus influence its content. Incidentally, the question may be raised as to how possible institutional divergence as regards the content and nature of the agreement would be addressed. Given the integration aim of the Union, including in relation to its neighbourhood,82 and out of practical necessity, the Commission and the Parliament might seek an agreement that is more integrative than the Council would wish. The legal nature and basis of the agreement might also raise disputes. The renvoi in Article 50 TEU to Article 218 TFEU opens the possibility of the European Court of Justice intervening, either by way of an advisory opinion based on Article 218(11) TEU, in order to establish the agreement’s compatibility with the Treaty, or by controlling the lawfulness of the decision to conclude it, either through Article 263 TFEU or indirectly through On the possible substance and shape of this agreement, see eg Lazowski (n 46) 528. Further: Edward (n 48) 1164. 79 Bruno De Witte, ‘Treaty Revision Procedures after Lisbon’ in Biondi, Eeckhout, and Ripley (n 46) 107 at 125. 80 cf Nicolaides (n 46). 81 Although the participation of the High Representative should not be excluded at that stage, it is unlikely that s/he would negotiate the agreement as a whole, as it is unlikely to be considered as relating principally or exclusively to the CFSP. 82 See further, Section II. 77

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142 christophe hillion the preliminary ruling procedure (Article 267 TFEU). Indeed, unlike the accession agreement based on Article 49 TEU, the jurisdiction of the Court over the withdrawal agreement does not seem to be restricted. The above discussion confirms that, like the accession procedure, the TEU only sets out the basic elements of the withdrawal process. Much would remain to be clarified if and when it were activated. That the new procedure is not more detailed may seem paradoxical. After all, its very insertion in EU law was meant to establish in advance the specific steps to be taken in the event of a separation, a situation in which ad hoc procedural arrangements are perhaps less easy to agree upon.83 That said, the imperfection of the procedure reflects the uncertainty about the implications of exit, and the necessity of leaving room to cater for the particular needs of the situation. Perhaps the lack of clarity is also a way to avoid making the clause too user-friendly and thereby encouraging its use. To be sure, it appears that, albeit to varying degrees, neither accession nor withdrawal can be approached as state-centred processes. More than international law inspired procedures, they both provide for a significant input from EU institutions, including the Court, and for the application of EU rules. This tends to indicate that both procedurally and substantively, the two procedures are deeply integrated in the system established by the Treaties. This seems all the more the case since, as the next section argues, they both fulfil a function in relation to the EU objective of ever closer union.

II. Accession, Withdrawal, and the European Integration Process The previous section showed that the EU was conceived as an open regional organization. The Treaties on which it is founded may not only be adhered to by third European states, Member States can also leave it. This openness stems from, and epitomizes, the notion that participation in the European integration process is voluntary. While membership is the most advanced expression of such participation (1), the latter may also take other forms. It is perhaps from this perspective that withdrawal, as an EU procedure, may be reconciled with the integration purpose of the Treaties (2).

Medhi (n 46).

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1. Accession as an Instrument of European Integration Enlargement to additional states (and peoples) has been regarded as instrumental to the realization of European integration (a). Yet, the interaction between accession and integration has evolved (b), paving the way for making withdrawal conceptually logical.

(a) The Continental Vocation of the European Integration Process In introducing ‘the first concrete foundation of a European federation indispensable to the preservation of peace’, the 1950 Schuman Declaration spoke of ‘an organization open to the participation of the other countries of Europe’.84 This open-door conception was then couched in legal language, both in the initial Treaty of Paris and in the subsequent Community and then Union Treaties.85 Expounding the accession procedure discussed above, the preamble of the 1957 Treaty of Rome underlined that Member States were ‘Resolved by thus pooling their resources to preserve and strengthen peace and liberty, and calling upon the other peoples of Europe who share their ideal to join in their efforts’ (emphasis added). The persistence of the call may be explained by the function that accession is held to fulfil in relation to the integration process. This function is apparent in the excerpt from the preamble mentioned above, today included in the TFEU: the ‘pooling their resources’ formula is structurally connected to the realization of the primary ambition to ‘strengthen peace and liberty’ and to the ‘call . . . upon the other peoples of Europe’. Membership of additional states is thereby conceived as a means to achieving the essential goal of European integration. As aptly put by Tatham: ‘EEC (and later EU) enlargement is a natural corollary of [the] continent-wide vocation’ of the integration process.86 It is noticeable in this respect that the Schuman Declaration evoked above uses the definite article ‘the’ when referring to ‘other countries of Europe’ to which the organization should be open.87 The continental vocation of the integration process, and the function of enlargement in relation to it, has pervaded the discourse of EU institutions and Member States to varying degrees,88 particularly, since the EU started enlarging to admit CEECs. Hence, on the occasion of the tenth anniversary of the EU’s inclusion of The Declaration can be found here: http://europa.eu/about-eu/basic-information/symbols/ europe-day/schuman-declaration/index_en.htm. 85 86 eg Hillion (n 10). Tatham (n 1) 1. 87 Similarly, the original French version speaks of ‘une organisation ouverte à la participation des autres pays d’Europe’, rather than ‘d’autres pays d’Europe’ (emphases added). 88 Conclusions of the Heads of State or Government meeting in The Hague in 1969. In the same vein see the letter of application for Membership in the EEC of M. Harold Macmillan, Prime Minister of the United Kingdom of Great Britain and Northern Ireland, to M. Ludwig Erhard, President of the EEC Council, August 9th, 1961. Additional explanations of enlargement are explored by Helene Sjursen, ‘Why Expand?’ (2002) 40 JCMS 491. 84


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144 christophe hillion central and eastern Europe, then enlargement Commissioner, Štefan Füle, declared that ‘enlargement is in Europe’s DNA. It is a key EU policy. It is the most powerful instrument of transformation—it serves as a strong incentive for reforms. Enlargement is also the most effective and powerful tool we have for strengthening security. Together—in a united Europe—we can better face the consequences of globalization, the financial crisis or climate change’.89 Marc Maresceau also recalls that ‘it is the EU’s official position that enlargement, after all, is vital to achieving the ideals of prosperity, peace and security in Europe as a whole’.90 In the same vein, the Presentation Speech by the Nobel Peace Price Committee Chairman paid particular attention to successive EU enlargement episodes, and their significance from a peace-making perspective. It notably suggested that ‘The paramount solution [to the remaining unresolved conflict in the Balkans] is to extend the process of integration that has applied in the rest of Europe’.91 In sum, accession of additional European states has been instrumental to furthering the European integration process, and particularly to fulfilling its peace-making objectives.92

(b) Accession and EU Integration Capacity The umbilical link between accession and integration as peace making has however been questioned. In practice, enlargement has not systematically defused tensions among Member States nor prevented them from getting involved in armed conflicts, albeit not among themselves, but domestically, or outside the Union.93 Indeed, recent enlargement episodes have been seen as putting a strain on relations between the EU and its main eastern neighbour: while the accession of the Baltic States did not immediately contribute to pacifying their relations with the Russian Federation, the prospect of closer EU relations with other post-Soviet states, such as Ukraine, has considerably heightened tensions with it. It would thus appear that the contribution of enlargement to the peace-making aims of the European integration process is primarily internal. The instrumental role of accession in relation to European integration has also been challenged in principle. Rather than a contribution to it, enlargement has occasionally been regarded as a hindrance to integration. This view became particularly strong in the context of the EU admission of CEECs in the 1990s. http://europa.eu/rapid/press-release_STATEMENT-14-143_en.htm?locale=en; also eg Council conclusions of 14 December 2010: ‘Enlargement reinforces peace, democracy and stability in Europe’. 90 Marc Maresceau, ‘Foreword’ in Ott and Inglis (n 2) V. 91 http://nobelpeaceprize.org/en_GB/laureates/laureates-2012/presentation-2012/; also http:// ec.europa.eu/enlargement/pdf/publication/2014/infographic_02_en.pdf; Steven Blockmans, ‘The EU as a Global Peacemaker’ inaugural speech accepting the appointment as Professor of EU External Relations Law and Governance, University of Amsterdam (2014). 92 Further: eg Maresceau (n 30) 3. 93 Recall the lingering conflict in Northern Ireland, or the dispute over Gibraltar. Also, France was at war in Algeria when the EEC was created. 89


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accession and withdrawal in the law of the european union 145 Having established the Copenhagen criteria, the European Council insisted that any enlargement was to be decided taking account of ‘the Union’s capacity to absorb new members, while maintaining the momentum of European integration in the general interest of both the Union and the candidate countries’.94 The notion of ‘absorption capacity’ is not entirely new. Even on the occasion of the first expansion of the EEC it was made clear that enlargement should not hamper the objectives of integration.95 Ever since the ‘widening’ of the integration process was effectively envisaged, the notion of ‘deepening’ has emerged to offset its possible weakening effect.96 The constitutive elements of such capacity have however proliferated in recent years, albeit remaining chronically hazy. Initially concerned with the ability of EU institutions to function effectively,97 absorption capacity is also contingent on the degree of public support for enlargement and on the financial sustainability of further EU expansion.98 The most recent definition of the concept was given by the Commission in a special report on the Union’s capacity to integrate new members, annexed to its 2006 Enlargement Strategy.99 According to the report, enlargement should not hamper the EU’s capacity to maintain the momentum of integration, which entails that institutions must continue to act effectively, that policies must meet their goals, and that the budget is commensurate with its objectives and its financial resources. The enlargement–integration nexus has therefore evolved significantly. While conceptually contributing to fulfilling its continental vocation, enlargement is increasingly perceived as a possible threat to the Union’s integration objective.100 This evolution has Presidency Conclusions, Copenhagen European Council, 21–22 June 1993. Aurélien Hassin, ‘La capacité d’intégration de l’UE—prérequis politique ou alibi technique?’ Les Brefs de Notre Europe, 2007/06. 96 The Hague Communiqué (n 12). 97 eg Presidency Conclusions, European Council, Corfu, 24–25 June 1994, Presidency Conclusions, European Council, Luxembourg, 12–13 December 1997. Geoffrey Edwards, ‘Reforming the Union’s Institutional Framework: A New EU Obligation?’ in Christophe Hillion (ed), EU Enlargement: a Legal Approach (2004) 23. See Alexander Stubb, EP Plenary, December 2006 available at http://www. youtube.com/watch?v=0idLHjHhCqM; see also his interview on ‘The EU’s integration capacity’: http://www.euractiv.com/en/enlargement/interview-eu-integration-capacity/article-158959. 98 COM(2006) 649, 2–3 and 5. 99 COM(2006) 649; Annex 1: ‘Special Report on the EU’s capacity to integrate new members’. The report was drawn up at the behest of the European Council, and following various studies from the European Parliament. See eg the Stubb Report on the institutional aspects of the European Union’s capacity to integrate new Member States, A6-0393/2006 (16.11.2006). The report was subsequently endorsed by the European Council: Presidency Conclusions, European Council, Brussels, 14–15 December 2006, pts 6 and 9. 100 See, in this respect, the Coalition Agreement of the previous CDU-CSU-FDP German Government, http://www.cdu.de/doc/pdfc/091215-koalitionsvertrag-2009-2013-englisch.pdf 167. Also: Fabian Amtenbrink, ‘On the European Union’s Institutional Capacity to Cope with Further Enlargement’ in Steven Blockmans and Sacha Prechal (eds), Reconciling ‘Deepening’ and ‘Widening’ of the European Union (2008) 111; Michael Emerson, Senem Aydin, Julia De Clerck-Sachsse, and Gergana Noutcheva, ‘Just What is this “Absorption Capacity” of the European Union?’ (2006); CEPS 94 95


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146 christophe hillion however attracted criticism, for example from the House of Lords EU Committee, which has considered ‘the debate about the absorption capacity . . . harmful since the term is inherently vague and is interpreted by many in the candidate countries as an excuse for closing the Union’s doors’.101 To be sure, the evolution points towards the notion that the number of Member States ought to be controlled, if not limited, if integration is to be pursued. It is against such a backdrop, that the rationale for the inclusion of the express right for Member States to withdraw from the Union may be examined. While it seemingly flies in the face of ‘ever closer union’, it may also be apprehended through the prism of the Union’s integration capacity.

2. Accepting Withdrawal and Maintaining the Momentum of Integration? It is only since the entry into force of the Lisbon Treaty in 2009 that EU primary law has explicitly acknowledged the right of Member States to leave the Union. Finding its origins in Article I-60 of the Treaty establishing a Constitution for Europe, this recent addition to the Treaties raises the question of whether such an exit was previously precluded (a) and if so, whether its introduction into EU primary law alters the nature of the Treaties and of the legal order they establish (b).102

(a) A New Right for Member States? According to one view, leaving the Union had always been conceivable, both legally and practically, despite the Treaties’ silence on the matter. In particular, like any other international treaty, those founding the EU could be left by any of its contracting parties,103 based on the application of public international law, viz the Vienna Convention on the Law of Treaties (VCLT), or customary international norms for those states that have not ratified the Convention. To be sure, the absence of such a withdrawal clause in the statute of an international organization does not in itself prevent withdrawal by its participating states,104 and it is precisely because the EC/ EU Treaties lacked specific provisions to that effect that the above lex generalis would apply. On that view, a Member State could always invoke eg a ‘fundamental Policy Brief nr 113; Adam Lazowski, ‘Treaty of Lisbon and EU’s Absorption Capacity’ (2011) 19 Polish Quarterly of International Affairs 56. House of Lords Report (n 40). In this sense see: Harbo (n 46), who suggests that it ‘gives a new face to the EU’. 103 While the Court of Justice has conceived of the EC treaty as constituting the Constitutional charter of the Community, it has also consistently admitted that it remains an international agreement (notably in Case 6/64 Costa v ENEL [1964] ECR 1251 and Opinion 1/91 EEA I [1991] ECR I 6079). 104 As Lazowski aptly recalls, the absence of such a clause in the UN Charter did not prevent Indonesia from withdrawing (n 46) 526; also Schermers and Blokker (n 9). 101

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accession and withdrawal in the law of the european union 147 change of circumstances’, ie the rebus sic stantibus clause (Art 62 VCLT) to terminate its participation in the Treaties, under the (strict) conditions of Arts 54 and 56 VCLT.105 Indeed, even if conceived as the constitutional charter for the Union, the pre-Lisbon EU primary law’s silence on withdrawal would not necessarily preclude it either. After all, the absence in the Canadian constitution of the right of provincial secession did not prevent the Canadian Supreme Court from considering such secession conceivable, albeit under certain conditions of clarity, and provided it was negotiated with the rest of Canada.106 Even the ‘unlimited’, ‘indissoluble’,107 or ‘perpetual’108 characterization of a Union may not in itself guarantee its everlasting existence. Hence, despite its Article 1 stipulating that ‘the Two Kingdoms of Scotland and England shall upon the 1st May next ensuing the date hereof, and forever after, be United into One Kingdom by the name of Great Britain’ (emphasis added), the 1706 Treaty of the Union between England and Scotland is today deemed reversible. The notion that withdrawal from the Community/Union has always been plausible was epitomized in practice by the nation-wide referendum held in the UK in June 1975. Then, the British people were asked whether ‘the UK should stay in the European Community (Common Market)’, implying that there was no doubt, at least in the UK, that a Member State could always leave.109 It has also been suggested that withdrawal partly occurred in the case of Greenland, though in the specific context of devolution within Denmark’s constitutional system,110 and when Algeria became independent from France, thereby leaving the Community’s territory.111 In sum, the absence of an exit clause in the EU founding treaties, whether approached as international treaties or as the constitutional charter of the Union,

105 This proposition is supported in the literature: eg Mehdi (n 46) who recalls (at 6) that the Praesidium of the Convention made a link between the EU provision and the VCLT); Lazowski (n 46) 525; it was also the view of some of the conventionnels (eg proposal for amendment of Art I-59 by Mr Lopes and Mr Lobo Antunes), though criticized by, eg, Hofmeister (n 46) footnotes 12–14 (and literature mentioned). 106 Reference re Secession of Quebec, [1998] 2 S.C. 217, which led to the adoption of Bill C-20, ‘An Act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference’, 2nd. sess., 36th Parliament, 1999 (first reading, December 13, 1999). 107 The term featured in the defunct Treaty establishing a European Political Community (available at: http://aei.pitt.edu/991/1/political_union_draft_treaty_1.pdf). 108 The notion featured in the Articles of Confederation and Perpetual Union, but not explicitly in the US constitution, which replaced them. However, see US Supreme Court in Texas v White, 74 (1869) US 700. 109 Recall also the ambition of the Labour party for Britain to leave the EC without referendum in 1981 on the basis of international law. The PASOK in Greece had similar intentions in 1981. 110 Interestingly, this was done by relying on Art 48 TEU (OJCE 1985 L29). Further: Friel (n 46) 409ff. 111 Tatham (n 46) 142ff.


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148 christophe hillion did not make withdrawal impossible. It was even contended during the Convention drafting the Constitutional Treaty that this addition might simply be superfluous.112 According to the other view, leaving the Union was not plausible prior to the inclusion of Article 50 TEU, given the specific features of the EU legal order. In particular, the notion that the EC Treaty was concluded for ‘unlimited duration’,113 ‘creating a Community of [equally] unlimited duration’,114 aimed at ‘an ever closer union’, precluded Member States’ unilateral withdrawal, including through the means of international law. It has particularly been questioned whether the strict conditions for termination based on a change of circumstances could ever be met by a Member State in view of the original ‘ever closer union’ purpose of the Treaties to which all had to subscribe, and considering that any significant modifications, for example of the treaties. requires unanimous approval.115 The supremacy of Community law, the enforceable rights it confers directly on Member States and individuals, its institutions endowed with sovereign rights and entitled to deal with economic, social and political issues, and its compulsory system for the judicial resolutions of disputes, have also been invoked to submit that, at the very least, ‘Member States were not entitled unqualifiedly to revoke their membership’116 (emphasis added). The inclusion of an exit clause in the Treaty establishing a Constitution for Europe was thus regarded as contravening the commitment to an ever closer union that States take on when they become members,117 and the underlying general principles of loyalty and solidarity to which they are thereby committed.118

(b) A Logical Move? It may indeed be wondered whether the exit clause now included in EU primary law can be reconciled with the canons of the EU legal order. For it does raise the question of how, legally, an explicit right to depart, even if always conceivable, fits with the system of the Treaties, designed as it is to fulfil the EU’s ‘ever closer union’ objective. The question is all the more acute since the withdrawal procedure involves EU institutions. How could they be empowered by the Treaties to act against the Union’s integration aim, in view of the provisions of Article 13 TEU? To be sure, such a right has a centrifugal force: it represents a risk for the very functioning of the EU in that it becomes a bargaining chip with distorting effects on the EU decision making,119 Suggestion for amendment of Art I-59 DCT by Mr Ernâni Lopes and Manuel Lobo Antunes; http://european-convention.europa.eu/docs/Treaty/pdf/46/46_ArtI%2059%20Lopes%20EN.pdf. 113 Art 53 TEU and Art 356 TFEU. 114 Case 6/64 Costa v ENEL [1964] ECR 1251, 1269–1271. 115 Further: Herbst (n 46) 1755; Jean Paul Jacqué, Droit institutionnel de l’Union européenne (2006) 115. 116 Koen Lenaerts and Piet van Nuffel, Constitutional Law of the European Union (2005) 363. 117 118 Friel (n 46), Harbo (n 46). cf Medhi (n 46) 3, Herbst (n 46) 1756. 119 Friel then speaks of a ‘system of delayed withdrawal [that] threatens both the withdrawing state and the stability of the Union’ (n 46) 427. 112


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accession and withdrawal in the law of the european union 149 particularly in the hands of bigger states.120 And, once used, it could encourage other Member States to leave. The broader (legal and political) context in which the clause was introduced may be of significance in addressing these questions, and in apprehending its meaning and possible function. It should first be recalled that the withdrawal procedure finds its birthplace in the defunct Treaty establishing a Constitution for Europe (TCE). As such, it was an integral part of the EU constitutional(izing) package, rather than an element of the de-constitutionalization course instigated by the 2007 Intergovernmental Conference, following the rejection of the Constitutional Treaty.121 From this constitutional perspective, the inclusion of the clause in the TCE, first, reflects the intention to submit it to the canons of the EU legal order, instead of leaving it to the vicissitudes of international law, should withdrawal ever occur.122 As Article 50 TEU is the lex specialis, any withdrawal of a Member State would henceforth have to take place within the framework of EU law, rather than outside it. Secondly, the acknowledgement of the right to withdraw can be, at least partly, expounded by the constituants’ intention to maintain, if not to bolster the dynamic of the ‘ever closer union’. The right to withdraw was thus understood as a safety valve to reassure Member States123 who would always be allowed to leave, should they be(come) unwilling to pursue the enhanced integration path incarnated in the Constitutional Treaty.124 In the initial context of the constitutionalization of the EU Treaties, and of the strengthened commitment to integration that it arguably entailed, the inclusion of the exit would therefore be a quid pro quo.125 For the Member States’ choice not to leave arguably entails a firm pledge to pursue the ‘ever closer union’ goal, in line with the principle of sincere cooperation, now enshrined in Article 4(3) TEU. Conversely, the latter principle could be construed as enticing, though not obliging, the recalcitrant Member State to consider withdrawal, to allow the Union to fulfil its tasks and pursue its integration objectives—instead of allowing that state to obtain the dilution, or deletion of the aim of ever closer union.126 The right to withdraw may thereby be interpreted as the ultimate elaboration of the constitutional devices, viz the subsidiarity principle, enhanced cooperation, Tatham (n 46), Medhi (n 46) 151, and literature on secession referred to above (n 64). 122 Pt 3 of IGC 2007 Mandate (11218/07, 26 June 2007). Medhi (n 46). 123 See Shorten, ‘a pressure valve that deflates full blown secessionist politics’ (n 64). 124 Jacqué (n 115), Medhi (n 46). 125 eg Harbo (n 46) 42. To be sure, the then president of the European Convention had in mind that withdrawal would be open to those states that would not ratify the constitution, so as not to prevent the latter’s ultimate entry into force. Beyond the question of the legal validity of such an approach, the clause was in the event not used to allow France and the Netherlands to leave the Union, following their rejection of the Constitutional Treaty (CT). In the absence of the CT, the Treaties contained no procedure for withdrawal. 126 ‘UK Keen to Delete “Ever Closer Union” from EU Treaty’, http://euobserver.com/political/121607. 120 121


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150 christophe hillion opt-outs and Article 4(2) TEU, deemed to cater for the needs of less integrationist states. By the same token, it confirms that participation in the European integration process is essentially voluntary, and that the continental vocation of ‘ever closer union’ cannot trump its democratic foundations encapsulated in the notion that only European peoples who ‘share [this] ideal’ may take part.127 Indeed, the preamble’s notions of ‘shar[ing] their ideal’ and ‘join[ing] in their efforts’ may take several forms, of which membership is only but one, particularly in view of the changing conception of the accession-integration nexus evoked above. Hence non-membership does not mechanically result in non-participation in, let alone rejection of, the European integration process. The network of EU association agreements with other European states not seeking membership, such as the EEA, or the EU bilateral arrangements with Switzerland, is a useful reminder of this point.128 The introduction of Article 8 TEU by the Treaty of Lisbon should also be mentioned in this context. Building upon the ad hoc European Neighbourhood Policy,129 the provision establishes a specific mandate for the EU to develop a ‘special relationship’ with neighbouring states, aimed at establishing an area of prosperity and stability based on EU values, and involving ‘the possibility of undertaking activities jointly’.130 Read in the light of Article 21(1) TEU, Article 8 suggests that the post-Lisbon integration goal transcends the legal boundaries of the Union, and of its constituent states.131 By definition, the withdrawing state would become a (European) neighbour of the Union and would fall within the ambit of Article 8 TEU, as a state with which the EU would be bound to engage.132 This provision thus not only bolsters the normative See, in this respect, pt 27 of the conclusions of the European Council of 27 June 2014. Consider Norway’s current position in relation to the EU, as thoroughly exposed in Fredrik Sejersted et al., Utenfor of innenfor—Norges avtaler med EU (2012); contributions in Isabelle Bosse-Platière et Cécile Rapoport (eds), L’Etat tiers en droit de l’Union européenne (2014); consider also the status of ‘associate membership’ envisaged by The Spinelli Group, A Fundamental Law of the European Union (2013) 20 and 93; and Adam Lazowski, ‘Enhanced Multilateralism and Enhanced Bilateralism: Integration without Membership’ (2008) 45 CMLRev 1433. 129 Van Vooren and Wessel (n 2) 536ff, Steven Blockmans, ‘Friend or Foe? Reviewing EU Relations with its Neighbours Post Lisbon’ in Panos Koutrakos (ed), The European Union’s External Relations A Year After Lisbon, CLEER Working Papers 2011/3, 113, Marise Cremona and Christophe Hillion, ‘L’Union fait la force? Potential and Limits of the European Neighbourhood Policy as an Integrated EU Foreign and Security Policy’, European University Institute Law Working Paper No 39/2006. 130 Further on Art 8 TEU: Peter van Elsuwege and Roman Petrov, ‘Article 8 TEU: Towards a New Generation of Agreements with the Countries of the European Union?’ (2011) ELRev 688; Dominik Hanf, ‘The ENP in the light of the new “neighbourhood clause” (Article 8 TEU)’, College of Europe, Research Paper in Law—Cahiers juridiques No 2 / 2011; Christophe Hillion, ‘The EU Neighbourhood Competence under Article 8 TEU’ in Elvire Fabry (ed) Thinking Strategically about the EU’s External Action (2013) 204. 131 eg Sandra Lavenex and Frank Schimmelfennig (eds), EU External Governance. Projecting EU Rules Beyond Membership (2010); Anne Myrjord, ‘Governance Beyond the Union: EU Boundaries in the Barents Euro-Arctic Region’ (2003) 8 EFARev 239. 132 Whether this provision was ever envisaged as a post-membership device is a moot point. Suffice to recall that in its initial formulation in the draft Treaty establishing a Constitution for Europe, 127

128


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accession and withdrawal in the law of the european union 151 basis for a negotiated withdrawal, it also points towards a strong post-withdrawal engagement by the Union with the former Member State. The withdrawing state’s legal system might not be entirely shielded from the influence of EU law as a result. Indeed, while enlargement is an EU foreign policy, aimed at transforming a third state into an operational member, withdrawal too is part of EU foreign policy.133 It is a process whereby a member is to become a third state with which the Union is expected to entertain relations. Withdrawal thus entails the production of new post-membership external devices that are all the more pressing given the degree of interaction and interdependence that is created in the context of membership.134 To be sure, the concerns of Union citizens living and working in the withdrawing state ought to be addressed,135 particularly in view of the first EU mission which, according to Article 3(1) TEU, is to ensure the well-being of its ‘peoples’.

III. Concluding Remarks Accession to, and withdrawal from, the Union primarily involve a choice by (Member) States, thus epitomizing the original international law character of the EU legal order. A close look at the nitty-gritty of the two procedures however reveals that the freedom Member States enjoy in determining the terms of accession and withdrawal of a state, and thus the state composition of the Union as well as the notion of membership, is nevertheless constrained by the rule of EU law. It thereby uncovers the degree to which the EU has been de-internationalized. Both procedures involve EU institutions, albeit in dissimilar ways, and set in motion the norms of the EU legal order in which they are included. Indeed, more than simply governing the entry into, and exit from the Union by states, the accession and withdrawal clauses have a specific function in relation to, and may be explained by, the integration goal of the Union. As such, they are fully embedded in the system of the treaties, and an integral part of the evolving EU constitutional structure they underpin.

the withdrawal clause was inserted in Title IX together with the accession and suspension clauses respectively, which followed Title VIII on the EU’s relation with its neighbourhood. 133 The two processes also have consequences for the rest of the world. Thus, accession entails that the acceding states renounce agreements in areas where the EU is exclusively competent. Conversely, the withdrawing state has to (re)establish agreements both with third states and the EU in those very areas, once outside the Union. 134 Edward (n 48) 1164; Adam Lazowski, ‘How to Withdraw from the European Union? Confronting Hard Reality’ (2013) CEPS Commentary. 135 Herbst (n 46) 1755.


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152 christophe hillion

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