[en] Art. 50 TEU has been criticised because it allegedly grants EU Member States an unfettered right to unilateral secession, which questions the EU’s quasi-federal character and fosters its disintegration. This On the Agenda demonstrates that this widespread pessimism is unjustified, since it is based on an exceedingly formalistic reading of the law. Secession (from States) and withdrawal (from international organisations) is always possible de facto: the relevant question is whether constitutional provisions ensure an orderly secession and discourage casual recourse thereto. Art. 50 TEU arguably constitutes a “well-designed secession clause”, since it ensures the EU’s unity in withdrawal negotiations, limits the discretion of the departing State regarding the activation and termination of the withdrawal procedure, and induces it to reach a compromise with the Union. Art. 50 thus ensures a fair balance between the concern for the EU’s integrity and the democratic and federal principles that inspire it.
Disciplines :
Droit européen & international
Auteur, co-auteur :
GATTI, Mauro ; University of Luxembourg > Faculty of Law, Economics and Finance (FDEF) > Law Research Unit
1 See H.P. Graver, Possibilities and Challenges of the EEA as an Option for the UK After Brexit, in European Papers, 2016, Vol. 1, No 3, www.europeanpapers.eu, p. 803 et seq.; P. Manzini, In caso di Brexit, in Eurojus, 14 June 2016, rivista.eurojus.it.
2 See e.g. F. Casolari, II labirinto delle linee rosse, ovvero: chigiudicherà la Brexit?, in SidiBiog, 27 April 2017, www.sidiblog.org.
3 J. Friel, Providing a Constitutional Framework for Withdrawal from the EU: Article 59 of the Draft European Constitution, in International and Comparative Law Quarterly, 2004, p. 426; H. Hofmeister, “Should I Stay or Should I Go?". A Critical Analysis of the Right to Withdraw from the EU, in European Law Journal, 2010, pp. 594-595; S. Wieduwilt, Article 50 TEU. The Legal Framework of a Withdrawal from the European Union, in ZEuSZeitschrift für EuroparechtHche Studien, 2015, pp. 195-196.
4 P. Athanassiou, Withdrawal and Expulsion from the EU and EMU: Some Refections, in European Central Bank Legal Working Paper Series, no. 10, 2009, p. 25.
5 The ideas of federaiism and federation are of course polysemic, see e.g. M. Claes, M. De Visser, The Court of Justice as a Federal Constitutional Court: A Comparative Perspective, in E. Cloots, G. de Baere, S. Sottiaux (eds), Federaiism in the European Union, Oxford: Hart, 2012, pp. 83-85; R. Schütze, From Dual to Cooperative Federaiism: The Changing Structure of European Law, Oxford: Oxford University Press, 2009. Suffice to say that the present contribution elucidates some similarities and differences between EU law and the law of some federal States in respect of secession/withdrawal.
6 See infra, section II.
7 H. Hofmeister, “Should I Stay or Should I Go?" cit., p. 592. See also J. Friel, Providing a Constitutional Framework, cit., pp. 424-427; J. Herbst, Observations on the Right to Withdraw from the European Union: Who are the “Masters of the Treaties?, in German Law Journal, 2006, pp. 1758-1760; A.F. Tatham, “Don't Mention Divorce at the Wedding, Darling"": EU Accession and Withdrawal after Lisbon, in A. Biondi, P. Eeckhout (eds), EU Law after Lisbon, Oxford: Oxford University Press, 2012, p. 152 et seq.
8 J. Friel, Providing a Constitutional Framework, cit., p. 426. See also A.F. Tatham, “Don't Mention Divorce at the Wedding", cit., pp. 151-152.
9 H. Hofmeister, “Should I Stay or Should I Go?" cit., p. 599.
10 Cf. C. Closa, Interpreting Article 50: Exit and Voice and… What about Loyalty, in EU/Working Papers, no. 71, 2016, p. 5.
11 Cf. S. Mancini, Secession and Self-Determination, in M. Rosenfeld, A. Sajò (eds), The Oxford Handbook of Comparative Constitutional Law, Oxford: Oxford University Press, 2012, p. 495.
12 This definition is borrowed from W. Norman, NegotiatingNationaiism: Nation-Building, Federalism and Secession in the Multinational State, Oxford: Oxford University Press, 2006, p. 175; see further infra, section III.
13 UK Minister of State, Foreign and Commonwealth Office, written answer to Lord Hylton, in UK Parliament, Hansard Report, Written Answers (Lords) of 23 January 1991, hansard.millbanksystems.com. See also J. Crawford, The Creation of States in International Law, Oxford: Oxford University Press, 2007, pp. 394-395.
14 E.g. Croatia, France, Romania, Slovakia, and Spain, see W. Norman, Negotiating Nationalism, cit., pp. 124-126.
15 See also P. Radan, Secession in Constitutional Law, in A. Pavkovic, P. Radan (eds), The Ashgate Research Companion to Secession, Farnham: Ashgate, 2011, p. 333 etseq.
16 Art. 39, para. 1, of the Constitution of Ethiopia.
17 Art. 1 of the Agreement between the Government of Ireland and the Government of the United Kingdom, concluded on 15 November 1985.
18 Supreme Court of Canada, judgment of 20 August 1998, Reference re Secession of Quebec, [1998] 2 S.C.R. 217, para. 82.
19 On the definition of unilateral secession, see ibid., para. 86.
20 See Art. 54 of the 1969 Vienna Convention, cit.
21 Covenant of the League of Nations, adopted on 28 April 1919.
22 N. Singh, Termination of Membership of International Organisations, Southwark: Stevens & Sons, 1958, p. 80.
23 Ibid.; see further R.A. Wessel, You Can Check Out Any Time You Like, But Can You Really Leave? On Brexit and Leaving International Organizations, in International Organizations Law Review, 2016, pp. 201-205.
24 See T. Christakis, Article 56, 1969 Vienna Convention, in O. Corten, P. Klein (eds), The Vienna Conventions on the Law of the Treaties: A Commentary, Vol. 1, Oxford: Oxford University Press, 2011, p. 1275.
25 J. Crawford, The Creation of States, cit., p. 415. The colonial context constitutes an exception to this general rule. Furthermore, a right to secession may allegedly be the last resort for ending oppression (so-called remedial secession), but it is doubtful whether such a right actually exists, see inter alia J. Vidmar, Remedial Secession in International Law: Theory and (Lack of) Practice, in St. Antony's International Review, 2010, p. 37 etseq.
26 T. Christakis, The ICJ Advisory Opinion on Kosovo: Has International Law Something to Say about Secession?, in Leiden Journal of International Law, 2011, p. 73 et seq.
27 International Court of Justice, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, advisory opinion of 22 July 2010, para. 81.
28 Cf. J. Crawford, The Creation of States, cit., p. 414.
29 Supreme Court of Canada, Reference re Secession of Quebec, cit.
30 An exception is provided by the Constitution of Saint Kitts and Nevis, whose Art. 113 gives Nevis the right to unilateral secession.
31 See supra, footnotes 16-19.
32 Supreme Court of Canada, Reference re Secession of Quebec, cit., para. 149. Cf. H. De Waele, The Secession Conundrum - Through the Looking Glass, in European Constitutional Law Review, 2015, p. 614.
33 Supreme Court of Canada, Reference re Secession of Quebec, cit., para. 151.
34 R.L. Watts, Comparing Forms of Federal Partnerships, in D. Karmis, W. Norma (eds), Theories of Federaiism:A Reader, London: Palgrave, 2005, p. 235.
35 See, to that effect, German Federal Constitutional Court, decision of 12 October 1993, 2 BvR 2134/92, 2 BvR 2159/92.
36 Court of Justice, judgment of 9 March 1978, case 106/77, Amministrazione delle Finanze dello Stato v. Simmenthal SpA, para 18. See further J. Hill, The European Economic Community: The Right of Member State Withdrawal in Georgia Journal of International and Comparative Law, 1982, p. 335 et seq.
37 Quoted in A. MacDonald, P. Taylor, Federalists Tried to Kill EU Exit Clause; Now Britain Wants to Dodge It, in Reuters, 28 June 2016, uk.reuters.com.
38 T. Lock, Why the European Union is Not a State, in European Constitutional Law Review, 2009, p. 414.
39 Cf. Proposition d’amendement à l’Article: 46 - Déposée par Madame ou Monsieur: M. Louis Michel, M. Karel de Gucht, M. Elio di Rupo, Mme Anne Van Lancker, membres de la Convention et M. Pierre Chevalier et Mme Marie Nagy, membres suppléants de la Convention ainsi que par Monsieur Patrick Dewael, observateur, annexed Explication éventuelle, web.archive.org.
40 The then German Foreign Minister Joschka Fischer, for instance, declared that “this clause should be struck out. […] So far there has been no need for an exit provision for the Union”, quoted in A. MacDonald, P. Taylor, Federalists Tried to Kill EU Exit Clause, cit.
41 German Federal Constitutional Court, judgment of 30 June 2009, 2 BvE 2/08, para. 329.
42 This is the case of Belgium, Croatia, Estonia, Greece, Ireland, Latvia, Lithuania, and Slovenia.
43 D. Kochenov, M. Van den Brink, Secessions from EU Member States: The Imperative of Union's Neutrality, in European Papers, 2016, Vol. 1, No 1, www.europeanpapers.eu, p. 72.
44 Supreme Court of Canada, Reference re Secession of Quebec, cit., para. 106. See further P. Radan, Secession in Constitutional Law, cit., pp. 341-342.
45 W. Norman, Negotiating Nationalism, cit., p. 194.
46 Ibid., p. 191.
47 H. Aronovitch, Seceding the Canadian Way, in Publius, 2006, p. 558.
48 Ibid.
49 C.R. Sunstein, Constitutionalism and Secession, in University of Chicago Law Review, 1991, p. 633 et seq.; see also C. Closa, Interpreting Article 50, cit., p. 17.
50 I thank an anonymous reviewer for pointing this out.
51 S. Mancini, Secession and Self-Determination, cit., p. 495.
52 This is arguably the case, e.g., of India, Spain, and Belgium, as noted by D. Halberstam, Federalism: Theory, Policy, Law, in M. Rosenfeld, A. Sajò (eds), The Oxford Handbook, cit., p. 583.
53 D. Weinstock, Toward a Proceduralist Theory of Secession, in Canadian Journal of Law and Jurisprudence, 2000, p. 262 et seq.
54 W. Norman, Negotiating Nationalism, cit., p. 175.
55 ibid., p. 180.
56 ibid., p. 175.
57 See Court of Justice, opinion 1/94 of 15 November 1994, para. 108; opinion 2/91 of 19 March 1993, para 36; judgment of 19 March 1996, case C-25/94, European Commission v Council of the European Union, para. 48; judgment of 2 June 2005, case C-266/03, European Commission v Luxembourg, para. 60; judgment of 14 July 2005, case C-433/03, European Commission v Germany, para. 66;judgment of 20 April 2010, case C-246/07, European Commission v. Sweden, paras 87-102.
58 See E. Cannizzaro, Unity and Pluralism in the EU's Foreign Relations Power, in C. Barnard (ed.), The Fundamentals of EU Law Revisited. Assessing the impact of the Constitutional Debate, Collected Courses of the Academy of European Law, Oxford: Oxford University Press, 2007, p. 194. The vertical representation may be fragmented for other reasons, too, notably the impossibility for the EU to participate in certain international organizations and the political resistance of certain Member States against the EU’s ac-torness in multilateral fora, this issue, at any rate, is not relevant in respect of Art. 50. See further J. Santos Vara, EU Representation to international Organisations: A Challenging Task for the EEAS, in L.N. González Alonso (ed.), Between Autonomy and Cooperation: Shaping the institutional Profile of the European External Action Service, Den Haag: CLEER, 2014, p. 65 et seq.
59 This is the case of the so-called mixed agreements.
60 European Council, Guidelines EUCO XT 20004/17 of 29 April 2017 following the United Kingdom’s notification under Art. 50 TEU (hereinafter, European Council, Draft guidelines following the United Kingdom’s notification); Council doc. XT 21016/17 of 22 May 2017, Directives for the negotiation of an agreement with the United Kingdom of Great Britain and Northern Ireland setting out the arrangements for its withdrawal from the European Union (hereinafter, Council Directives for the negotiation of an agreement with the United Kingdom).
61 See Decision 2017/900/EU of the Council of 22 May 2017 concerning the establishment of the ad hoc Working Party on Art. 50 TEU chaired by the General Secretariat of the Council.
62 Court of Justice, judgment of 16 July 2015, case C-425/13, European Commission v. Council of the European union [GC], para. 86; see further ibid., paras 85-93.
63 M. Gatti, P. Manzini, External Representation of the European Union in the Conclusion of International Agreements, in Common Market Law Review, 2012, pp. 1707-1711.
64 See e.g. Arts 34, para. 1, TEU and 219, para. 3, TFEU.
65 See further M. Gatti, P. Manzini, External Representation, cit., p. 1709.
66 European Commission v. Council of the European Union, case C-266/03, cit., para. 62.
67 A.F. Tatham, Don't Mention Divorce at the Wedding, cit., p. 154.
68 P. Nicolaides, Withdrawal from the European Union: A Typology of Effects, in Maastricht Journal of European and Comparative Law, 2013, p. 222. See also C. Curti Gialdino, Oltre la Brexit: brevi note suiie impicazioni giuridiche e politiche per il futuro prossimo dell'Unione europea, in Federaiismi.it, 2016, www.federalismi.it, p. 20.
69 Cf. Court of Justice, judgment of 6 July 1982, joined cases 188/80, 189/80 and 190/80, France etal. v. European Commission, para. 6.
70 Statement after the informal meeting of the 27 Heads of State or Government of 15 December 2016, in European Council Press Release 782/16 of 15 December 2016, para. 3.
71 See Art. 249, para. 1, TFEU. See also the opinion of AG Mengozzi delivered on 29 January 2015, case C-28/12, European Commission v. Council of the European Union, para. 55.
72 The EEAS assists the High Representative, see Art. 27, para. 3, TEU.
73 Probably, these arrangements are not binding, see M. Gatti, European External Action Service: Promoting Coherence through Autonomy and Coordination, Leiden: Brill, 2016, pp. 198-200, 259-260; M. Gatti, Diplomats at the Bar: The European External Action Service before EU Courts, in European Law Review, 2014, pp. 679-680.
74 Commission Secretariat-General and EEAS, Note for the Attention of Director-Generals and Heads of Service: Operational Guidelines for the Preparation and Conduct of Negotiations for Framework Agreements with Third Countries Involving Both the European Commission and the High Representative of the Union for Foreign Affairs and Security Policy (HR). This document is on file with the author, and is neither dated nor published in open sources.
75 See further M. Gatti, European External Action Service, cit., pp. 259-260.
76 Framework agreements are negotiated by the High Representative and the Commission, while the Brexit agreement is negotiated by the Commission and the representatives of the Council and the European Council. Furthermore, one should note that the Framework Agreements addressed by the Operational Guidelines (see above) are only those whose negotiations are led by the EEAS on behalf of both the High Representative and the Commission. The fact remains, at any rate, that the “Operational Guidelines”clarify the relationship between the “Chief negotiator” and the other members of the negotiating team, which is the most relevant element for the purpose of the present analysis.
77 See Statement after the informal meeting of the 27 Heads of State or Government (2016), cit., para. 3.
78 Cf. C. Closa, Interpreting Article 50, cit., p. 5.
79 On the possibility to revoke the notification see infra, section V.2.
80 Cf. European Council, Draft guidelines following the United Kingdom's notification, cit., para. 2.
81 See preamble and Art. 3 TEU.
82 Cf. C. Hillion, Leaving the European Union, the Union Way: A Legal Analysis of Article 50 TEU, in Swedish Institute for European Policy Studies (SIEPS) European Policy Analysis, 2016, www.sieps.se, p. 3; C. Curti Gialdino, Oltre la Brexit, cit., p. 21.
83 On infringement procedures and Art. 50 TEU, see A. Lazowski, Withdrawal from the European Union and Alternatives to Membership, in European Law Review, 2012, pp. 531-532. More generally, one should note that EU Treaties do not allow the Member States to expel another Member State, not even when it violates a primary law provision (such as Art. 4, para. 3, TEU). As repeatedly noted by the CJEU, “a Member State cannot, in any circumstances, plead the principle of reciprocity and rely on a possible infringement of the Treaty by another Member State in order to justify its own default”. See Court of Justice, judgment of 14 February 1984, case 325/82, European Commission v. Germany para. 11; cf. P. Athanassiou, Withdrawal and Expulsion, cit., pp. 31-38.
84 See European Commission v. Sweden, cit., paras 87-104; European Commission v Germany cit., para. 66; European Commission v. Luxembourg, cit., para. 60.
85 Council Directives for the negotiation of an agreement with the United Kingdom, cit., para. 5.
86 UK Government, Policy Paper of 2 February 2017, The United Kingdom's Exit From and New Partnership with the European Union, www.gov.uk, p. 30.
87 J.-C. Juncker, Letter to the Members of the College, 28 June 2016, reported by EU & Democracy, 12 October 2016, euanddemocracy.ideasoneurope.eu. See also A. McSmith, German leaders furious at UK's reluctance to invoke Article 50, in The Independent, 27 June 2016, www.independent.co.uk.
88 R. Merrick, Article 50: EU President Rejects Theresa May's Call for Early Start to Preliminary Brexit Negotiations, in The Independent, 2 October 2016, www.independent.co.uk.
89 P. Craig, Brexit: A Drama in Six Acts, in European Law Review, 2016, p. 465.
90 In principle, it is possible to argue that “the logic and context of Art. 50 suggests that extensions of the time limit are temporary”, see S. Peers, Article 50 TEU: The uses and Abuses of the Process of Withdrawing from the EU, in EU Law Analysis, 8 December 2016, eulawanalysis.blogspot.it. One may doubt, however, whether such a restrictive interpretation of Art. 50 would prevail in practice once all EU Member States had agreed to terminate the withdrawal procedure.
91 See, inter aiia, A. Young, Brexit, Article 50 and the Joys" of a Flexible, Evolving, Un-codified Constitution, in P. Eleftheriadis (ed.), Legal Aspects of Withdrawal from the EU: A Briefing Note, in University of Oxford Legal Research Paper Series, no. 47, 2016, p. 21; D. Wyatt, Supplementary written evidence to the UK Parliament, March 2016, data.parliament.uk, para. 2.
92 Arts 67 and 68 of the 1969 Vienna Convention, cit.
93 C. Streeten, Putting the Toothpaste Back in the Tube: Can an Article 50 Notification Be Revoked?, in UK Constitutional Law Association Blog, 13 July 2016, ukconstitutionallaw.org. See also, to that effect, C. Closa, Is Article 50 Reversible? On Politics Beyond Legal Doctrine, in Verfassungsblog, 4 January 2017, ver-fassungsblog.de; A. Sari, Biting the Bullet: Why the UK Is Free to Revoke Its Withdrawal Notification under Article 50 TEU, in UK Constitutional Law Association Blog, 17 October 2016, ukconstitutionallaw.org.
94 P. Craig, Brexit: A Drama in Six Acts, cit., p. 464
95 Ibid.
96 F. Munari, You Cant Have Your Cake and Eat it Too: Why the UK Has No Right To Revoke Its Prospected Notification on Brexit, in SIDIBIog, 9 December 2016, www.sidiblog.org.
97 See, in particular, European Commission v. Sweden, cit., para. 77; Court of Justice, judgment of 27 February 2007, case C-355/04, Segi and Others v. Council of the European Union [GC], para. 52.
98 See, to that effect, F. Munari, You Can't Have Your Cake and Eat it Too, cit.
99 Cf. T. Tzanakopoulos, Article 56, 1969 Vienna Convention, in O. Corten, P. Klein (eds), The Vienna Conventions on the Law of the Treaties: A Commentary, Vol. 1, Oxford: Oxford University Press, 2011, p. 1564 et seq.
100 P. Craig, Brexit: A Drama in Six Acts, cit., p. 465.
101 Cf. T. Christakis, Article 56, 1969 Vienna Convention, cit., p. 1264: “There is nothing shocking in the idea that States, which are not forced to enter into a treaty regime, may have difficulty leaving it”.
102 Cf. Supreme Court of Canada, Reference re Secession of Quebec, cit., para. 91.
103 Ibid., para. 152.
104 J. Friel, Providing a Constitutional Framework, cit., p. 426.
105 German Federal Constitutional Court, judgment of 30 June 2009, cit., para. 329.
106 Theresa May's Brexit Speech in Full, in The Independent, 17 January 2017, www.independent.co.uk.
107 UK House of Lords, Paper no. 72 of 13 December 2016, Brexit: The Options for Trade, www.publications.parliament.uk, para. 262.
108 Council Directives for the negotiation of an agreement with the United Kingdom, cit., para. 19.
109 UK House of Lords, Brexit: The Options for Trade, cit., para. 210.
110 UK Government Policy Paper of 29 February 2016, The Process for Withdrawing from the European Union, www.gov.uk.
111 Obviously, the withdrawing state would not participate in the vote, see Art. 50, para. 4, TEU.
112 UK Government, The Process for Withdrawing from the European Union, cit.
113 See P. Dominiczak, Theresa May to Decide over Brexit Talks, No 10 Says, after Boris Johnson began Setting Brexit Strategy, in The Telegraph, 23 September 2016, www.telegraph.co.uk.
114 Cf. A. Lazowski, Withdrawal from the European Union, cit., pp. 527-528.
115 See supra, section III.
116 Expression used by Giuliano Amato, quoted in C. Balmer, Father of EU Divorce Clause Demands Tough Stance on British Exit, in Reuters, 21 July 2016, www.reuters.com.
117 Supreme Court of Canada, Reference re Secession of Quebec, cit., para. 88.
118 An amended Art. 50, para. 2, might stipulate, for instance, that a Member State that decides to withdraw must notify the European Council of its intention “not later than six months after having decided to withdraw from the EU”. Some degree of uncertainty would remain because the decision to withdraw would always be taken in accordance with “national constitutional requirements”, pursuant to Art. 50, para. 1. National constitutional law may not precisely define the legal act that embodies a decision to withdraw. Yet, the insertion of a specific deadline in Art. 50 would at least make it clear that the withdrawing State cannot delay the notification of its intentions ad libitum.
119 See supra, footnote 12 and section III.
120 Cf. S. Mancini, Secession and Self-Determination, cit., p. 495.
