Volume 37 – Issue 1 – Twenty-Fourth Annual Philip D. Reed Memorial Issue Fordham International Law Journal

The Withdrawal Clause of the Lisbon Treaty in the Light of EU Citizenship (Between Disintegration and Integration)

The advent of the Lisbon Treaty brought among numerous changes a provision which explicitly now allows member states to (unilaterally) withdraw from the EU. While some scholars have begun to examine the provision, it is surprising that they are analyzing the clause in isolation. Yet if one had to categorize the concept of withdrawal, most likely, it would fall into the camp of disintegrating provisions which therefore are in stark contrast with any provisions which could be considered as integrating norms; an obvious example for this latter category would be EU citizenship. The claim that is made in this paper is that in order to fully understand the application and the functioning of the withdrawal clause it is necessary to accommodate the tensions between integration and disintegration – between ‘citizenship’ and ‘withdrawal’.

The withdrawal clause comes at a time when it seems no longer unthinkable for a member state to ‘reduce’ membership obligations or even completely withdraw from the EU. The case of the UK is interesting in two ways: first, in his speech on Europe Prime Minister David Cameron promised an in or out referendum on EU membership; one can take this as an example of voluntary loss of EU membership. The case of Scotland on the other hand would be an example of involuntary loss of membership; Scotland has announced a referendum about its independence from the UK which is scheduled for 2014.  One aspect in the discussion for and again independence is whether Scotland could remain an EU member state.

Apart from these rather extreme and maybe exceptional cases mentioned above it seems, as Piris points out, that “the time is approaching when the choice will be between the status quo, which might mean a diluted EU, slowly stagnating and becoming irrelevant, and an EU that accepts, as a temporary measure, more differentiation between its Member States;” the withdrawal clause may have its role to play in this process. If this is so and keeping in mind the two above examples, it is necessary to clearly define the (normative and doctrinal) limits of this clause.

The only ‘test case’ of complete ‘withdrawal’ that exists at this point is the rather special case of Greenland, which stems from the mid 1980s. When the Danish electorate decided to accede to the EU, the people of Greenland opposed that move but nevertheless had to follow because they were part of the Danish territory. Yet over the years what was to be observed was a form of devolution that took place, in which powers were transferred from Denmark back to Greenland, culminating in a 1982 referendum concerning whether Greenland was to remain within the EU.  It is worth pointing out that the subsequent request to ‘withdraw’ from the EU was not made by Greenland itself but by Denmark, in order to renegotiate the application of the Treaties to its territory;   needless to say Member States were rather sensitive with regard to Greenland’s wishes, given the colonial context.

Despite the above case, generally there has always been a debate as to whether withdrawal from the EU is possible at all under EU law. Heated discussions also took place in the Constitutional Convention which drafted the withdrawal clause originally for the Constitutional Treaty.  There were delegates who saw withdrawal as acceptable, according to the principles of international law and those who considered withdrawal incompatible with EU law in general. One viewpoint which represented the conservative or traditional sides was expressed by the delegate of the Austrian Government, Hannes Farnleitner, who argued that “[t]he provisions of the Vienna Convention on the Law of Treaties provide a sufficient basis for termination of membership”.  On the other side there were delegates such as the representatives of the Dutch government who pointed out “that facilitating the possibility to withdraw from the Union [was] contrary to the idea of European integration as set out in the preamble of the TEU [which]: ‘[r]esolved to continue the process of creating an ever closer union among the peoples of Europe’.”  Despite that discussion the clause not only made it into the failed Constitutional Treaty but was one of the provisions which was preserved and transplanted into the Lisbon Treaty (Article 50 TEU).

This paper is pragmatic with regard to the question as to whether the withdrawal clause should exist at all in the first place. The question is, ‘Who should stop a member state willing to cut off ties completely with the EU?’ Nevertheless, the argument is normative when it comes to the question how the withdrawal clause has to be understood or applied; this is a question which clearly has implications on a future relationship between the withdrawn member state and the EU. In order to develop the argument, firstly, the principles of the Vienna Convention on the Law of Treaties with regard to withdrawal will be identified; secondly, the withdrawal clause of the Lisbon Treaty itself will be discussed. In the last section the issue of citizenship will be added to the discourse on withdrawal and it will be evaluated whether this has any implications on how withdrawal by a member state can be executed.

 

Full Article Available in:
Fordham International Law Journal
Volume 37, Number 1

 

Suggested Citation:
Clemens C. Rieder, The Withdrawal Clause of the Lisbon Treaty in the Light of EU Citizenship (Between Disintegration and Integration), 37 Fordham Int’l L.J. 147 (2013)

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