Withdrawal from the European Union
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Withdrawal from the European Union is a legal and political process whereby a Member state of the European Union (EU) exercises its right under the Treaty on European Union (TEU) to cease to be a member of the union. Withdrawal is governed by TEU Article 50, which states that: "Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements."
Greenland, part of the Danish Realm, voted to leave the European Union's predecessor, the European Economic Community (EEC), in 1985. Algeria left upon independence in 1962, having been a part of France until then.
The United Kingdom held a referendum on 23 June 2016 to decide whether it should remain a member of the European Union or leave it, which was won by the "Leave" vote. The voting results showed 51.9% voted to leave (a margin of 3.8 percent points above those voting to remain) and a voting turnout of 72.2%. Prior to this referendum, the United Kingdom had held a referendum in 1975 on withdrawal from its predecessor, the EEC; 67.2% of voters chose to remain in the Community with a turnout of 64.62%.
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The Treaty of Lisbon introduced an exit clause for members who wish to withdraw from the Union. Under TEU Article 50, a Member State would notify the European Council of its intention to exit the Union and a withdrawal agreement would be negotiated between the Union and that State. The treaties of the European Union would cease to be applicable to that State from the date of the agreement or, failing that, within two years of the notification unless the Council, in agreement with the State, unanimously decides to extend this period. The two-year period of time in which the terms of the withdrawal agreement are negotiated is known as the sunset period. The agreement is concluded on behalf of the Union by the Council and must set out the arrangements for withdrawal, including a framework for the State's future relationship with the Union, negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. The agreement is to be approved by the Council, acting by qualified majority, after obtaining the consent of the European Parliament. Should a former Member State seek to rejoin the European Union, it would be subject to the same conditions as any other applicant country.
This system gives a negotiated withdrawal, due to the complexities of leaving the EU (particularly concerning the euro). However it does include in it a strong implication of a unilateral right to withdraw. This is through the fact the state would decide "in accordance with its own constitutional requirements" and that the end of the treaties' application in said state is not dependent on any agreement being reached (it would occur after two years regardless).
Before the Treaty of Lisbon entered into force on 1 December 2009 no provision in the treaties or law of the EU outlined the ability of a state to voluntarily withdraw from the EU. The European Constitution did propose such a provision and, after the failure to ratify it, that provision was then included as Article 50 of the Lisbon Treaty.
The absence of such a provision made withdrawal technically difficult but not impossible. Legally there were two interpretations of whether a state could leave. The first, that sovereign states have a right to withdraw from their international commitments; and the second, the treaties are for an unlimited period, with no provision for withdrawal and calling for an "ever closer union" – such commitment to unification is incompatible with a unilateral withdrawal. The Vienna Convention on the Law of Treaties states where a party wants to withdraw unilaterally from a treaty that is silent on secession, there are only two cases where withdrawal is allowed: where all parties recognise an informal right to do so and where the situation has changed so drastically, that the obligations of a signatory have been radically transformed.
TFEU Article 355(6), introduced by the Treaty of Lisbon allows the status of French, Dutch and Danish overseas territories to be changed more easily, by no longer requiring a full treaty revision. Instead, the European Council may, on the initiative of the member state concerned, change the status of an overseas country or territory (OCT) to an outermost region (OMR) or vice versa.
Some former territories of European Union members broke formal links with the EU when they gained independence from their ruling country or were transferred to an EU non-member state. Most of these territories were not classed as part of the EU, but were at most associated with OCT status and EC laws were generally not in force in these countries.
Some current Special Member State territories and the European Union changed or are in the process of changing their status from such, where EU law applies fully or with limited exceptions to such, where the EU law mostly doesn't apply. The process also occurs in the opposite direction. The procedure for implementing such changes was made easier by the Treaty of Lisbon.
Greenland chose to leave the EU predecessor without also seceding from a member state. It initially voted against joining the EEC when Denmark joined in 1973, but because Denmark as a whole voted to join, Greenland, as a part of Denmark, joined too. When home rule for Greenland began in 1979, it held a new referendum and voted to leave the EEC. After wrangling over fishing rights, the territory left the EEC in 1985, but remains subject to the EU treaties through association of Overseas Countries and Territories with the EU. This was permitted by the Greenland Treaty, a special treaty signed in 1984 to allow its withdrawal.
Saint Martin and Saint-Barthélemy in 2007 seceded from Guadeloupe (overseas department of France and outermost region (OMR) of the EU) and became overseas collectivities of France, but at the same time remained OMRs of the European Union. Later, the elected representatives of the island of Saint-Barthélemy expressed a desire to "obtain a European status which would be better suited to its status under domestic law, particularly given its remoteness from the mainland, its small insular economy largely devoted to tourism and subject to difficulties in obtaining supplies which hamper the application of some European Union standards." France, reflecting this desire, requested at the Council of the European Union to change the status of Saint Barthélemy to an overseas country or territory (OCT) associated with the European Union. The status change came into effect from 1 January 2012.
Potential future withdrawals
Several states have political parties and individuals advocating and seeking withdrawal from the EU. In member states, there are political movements of varying significance campaigning for withdrawal: among the more notable of these is the National Front (France).
In 1975 the United Kingdom held a referendum in which the electorate was asked whether the UK should remain in the European Economic Community (EEC), commonly known in the UK as the Common Market. The UK had joined the EEC on 1 January 1973 under the Conservative government of Edward Heath. The general election held in October 1974 was won by the Labour party, who had made a manifesto commitment to renegotiate Britain's terms of membership of the EEC and then hold a referendum on whether to remain in the EEC on the new terms.
On 5 June 1975, the electorate were asked to vote yes or no on the question: "Do you think the UK should stay in the European Community (Common Market)?" Every administrative county in the UK had a majority of "Yes", except the Shetland Islands and the Outer Hebrides. In line with the outcome of the vote, the United Kingdom remained within the EEC which later became the European Union.
|Invalid or blank votes||54,540||0.59|
|Registered voters and turnout||40,456,877||64.03|
In January 2013, British Prime Minister David Cameron announced that the United Kingdom would hold an in-out referendum on EU membership before the end of 2017 on a renegotiated package if the Conservative Party were re-elected in the United Kingdom general election, 2015. The party formed a majority government after that election and passed the European Union Referendum Act 2015 to enable the referendum. The referendum was held on 23 June 2016, and simply asked voters to choose one of the following options: "Remain a member of the European Union", or "Leave the European Union". The vote resulted in 51.9% in favour of withdrawing, making it the only member state where a referendum resulted in a vote in favour of leaving the EU. The United Kingdom is now deciding when to activate the withdrawal clause in the EU treaties - Article 50 of the Lisbon Treaty, which gives a strict 2-year deadline from when withdrawal is notified to the EU until the actual withdrawal.
|Leave the European Union||17,410,742||51.89|
|Remain a member of the European Union||16,141,241||48.11|
|Invalid or blank votes||25,359||0.08|
|Registered voters and turnout||46,500,001||72.21|
|Voting age population and turnout||51,356,768||65.38|
|Source: Electoral Commission; UNDESA (UK VAP); US Census Bureau (Gibraltar VAP)|
| Remain: |
Parties in the EU advocating or considering withdrawal
While no country other than the United Kingdom has voted on whether to withdraw from the EU, political parties criticizing the federative trend of the European Union and advocating its reshaping into a looser cooperation framework have gained prominence in several member states since the last European Parliament election in 2014, similarly to the rise of UKIP in the United Kingdom. Proponents of withdrawal from EU structures have earned significant popular support in Austria, the Czech Republic, Denmark, France (Front National), Greece, Hungary, Italy and the Netherlands. As a result, the European Parliament now includes two official groups of eurosceptic members opposing the EU institutions: Europe of Freedom and Direct Democracy and Europe of Nations and Freedom.
Break-up of a member state
There is no precedent, as stated by the former Irish Minister of State for European Affairs Lucinda Creighton, for the breakup of any existing EU member state, and the continued membership of all or some of the new individual states.
There are numerous secessionist movements within EU member states, some of them with the explicit motivation of leaving the EU.
The Scottish Government, in agreement with the British Government, held a referendum on the independence of Scotland from the United Kingdom, an EU member state, on 18 September 2014. Should a majority have voted for independence, this would have been the first time the European Union would have had to deal with the breakup of any existing EU member state. There are no clear agreements or treaties covering such a scenario. The question that would have arisen is whether one state is a successor (England, Wales & Northern Ireland; also known as RUK) and one a new applicant (Scotland) or, alternatively, both are new states which must be admitted to the European Union. However the UK Government's legal advice on the issue was that 'Since the [remainder of the UK] would be the same state as the UK, its EU membership would continue', while speculating that 'On the face of it, Scotland would be required to accede to the EU as a new state, which would require negotiations on the terms of its membership ...', but that 'Scotland’s position within the EU is likely to be shaped more by any agreements between the parties than by pre-existing principles of EU law.'
Without any formal process for handling the breakup of any member state, the European Commission offered, if requested by a member state, to provide an official view on the EU's position on Scottish EU membership in the event of its independence from the UK. The Scottish Government requested that UK Prime Minister David Cameron place this request, but such a request was not made.
The Yes campaign, led by Blair Jenkins, argued that Scotland would continue as a member state following a Yes vote as Scotland would remain compliant with all EU Principles as outlined in TEU Article 2 and there are no provisions to exclude a state in the existing EU agreements. During the period between a Yes vote and formal independence, the Scottish Government could engage in negotiations, from within the EU, on the terms of their continuing membership in the EU. Several EU heads of state expressed their opinion that this position was reasonable, as did James Crawford, co-author of the UK government's legal advice on the issue. In an interview on BBC Radio, asked if the timescale of 18 months for EU and other treaty organisation was possible, Crawford replied that he felt the timescale was reasonable. However, there was no official comment on this view from the EU Commission. The Scottish SNP Government and the Yes Campaign both declared that continuation of membership in the EU is their preference.
The No Campaign (Better Together), led by Alistair Darling, argued that any vote for independence would have automatically placed Scotland out of the EU as a new state, and Scotland would have had to renegotiate entry. There is no clear legal process for how this exit for Scotland would have been enacted. Comments by several EU officials and other heads of EU member states echoed the No Campaign view, and in mid-February 2014 Jose Manuel Barroso, the President of the European Commission, stated that it would have been 'very difficult' for an independent Scotland to join the EU, 'if not impossible', because of the difficulty of getting the approval of all member states, particularly Spain, which fears a possible secession of Catalonia and has blocked Kosovo's accession to the EU. Spanish Prime Minister Mariano Rajoy, said in November 2013 that after a vote for independence, Scotland "will be left outside the EU", while Spanish Foreign Minister José Garcia-Margallo, having said in February 2012 that Spain would not veto Scottish accession to the EU, provided Scottish independence had UK agreement (thus making it different from Catalan independence), added in early February 2014 that an independent Scotland would have had many hurdles to overcome in a lengthy process of negotiations and ratifications if it was to become an EU member.
EU Commissioner Joaquin Almunia confirmed in 2013 that Catalonia would have to apply for EU membership in the event of secession from Spain. In November 2013, the Spanish Prime Minister, Mariano Rajoy, opined that an independent Scotland's entry to the EU would require the consent of all the existing members and that an independent Scotland or other regions gaining independence, taken as a reference to Catalonia, would end up outside of the EU. This is only an opinion, however, as there is no clear EU legislation or precedent for this.
While a state can leave, there is no provision for it to be excluded. But TEU Article 7 provides for the suspension of certain rights of a member state if a member persistently breaches the EU's founding values (respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities), outlined in TEU Article 2. The European Council can vote to suspend any rights of membership, such as voting and representation as outlined above. Identifying the breach requires unanimity (excluding the state concerned), but sanctions require only a qualified majority. The state in question would still be bound by the obligations treaties and the Council acting by majority may alter or lift such sanctions.
In early 2000 Austria formed a government which included the far right Freedom Party. Invoking Article 7 was deemed excessive so other member states threatened to cut off diplomatic contacts instead. This event led to a desire for an intermediate step to provide a warning sign without full suspension. The Treaty of Nice provided this (termed Article 7.1) whereby the Council, acting by majority, may identify a potential breach and make recommendations to the state to rectify it before action is taken against it as outlined above. In 2014 the European Commission introduced a three step mechanism to identify “systemic threats” to EU values. The mechanism must be complete before Article 7 is discussed.
In June 2015 the European Parliament asked the Commission to present a proposal for starting the mechanism against Hungary over rule of law concerns in the country but in October voted down a similar proposal to begin procedures against Hungary over its treatment of migrants. At the same time, a European Citizens' Initiative called for the start of Article 7 mechanisms against Hungary. The following year the Polish government came under fire over its media and judicial reforms. The European Commission began its mechanism against Poland in January 2016 however Hungary made clear it would block any invocation of Article 7 itself against Poland.
While a state can be suspended, there is no provision to expel a member state outright. The idea appeared in the drafting of the European Constitution and the Lisbon Treaty but failed to be included. There are a number of considerations which make such a provision impractical. Firstly, a member state leaving would require amendments to the treaties, and amendments require unanimity. Unanimity would be impossible to achieve if the state did not want to leave of its own free will. Secondly it is legally complicated, particularly with all the rights and privileges being withdrawn for both sides that would not be resolved by an orderly and voluntary withdrawal. Third, the concept of expulsion goes against the spirit of the treaties. Most available sanctions are conciliatory, not punitive; they do not punish a state for failing to live up to fellow states' demands, but encourage a state to fulfill its treaty obligations - expulsion would certainly not achieve that.
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"6. The European Council may, on the initiative of the Member State concerned, adopt a decision amending the status, with regard to the Union, of a Danish, French or Netherlands country or territory referred to in paragraphs 1 and 2. The European Council shall act unanimously after consulting the Commission."— Treaty of Lisbon Article 2, point 293
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Part I: Executive summary ... 6.1 Since the rUK would be the same state as the UK, its EU membership would continue. Indeed, the EU treaties implicitly preclude ‘automatic’ withdrawal by a state. There might have to be an adjustment to the UK’s terms of membership to reflect its reduction in territory and population, but this could be done without the UK ceasing to be an EU Member State.
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Part I: Executive summary ...6. Within the EU, there is no precedent for what happens when a metropolitan part of a current Member State becomes independent, so it is necessary to speculate. ... 6.2 On the face of it, if Scotland had voted for independence it would have been required to accede to the EU as a new state, which would require negotiations on the terms of its membership, including on the subjects of the UK’s current opt-outs. The EU treaties make no provision for succession to membership. Certain provisions of the EU treaties would require amendment. If Scotland were somehow to become an EU member in its own right automatically, it is not clear how adjustments to the relative positions of Member States could be willed into being without negotiations. Nor would it be clear on what terms it would be a member. 6.3 Some have argued that the rights conferred on individuals by EU citizenship might influence the European Court of Justice (ECJ) to somehow resist this outcome. But this is a matter for speculation and does not have a clear precedent in EU law. It would also require the issue to somehow come before the ECJ, which may be unlikely. 7. In any event, Scotland’s position within the EU is likely to be shaped more by any agreements between the parties than by pre-existing principles of EU law.
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- Withdrawal and expulsion from the EU and EMU - some reflections
- Adrian Williamson, The case for Brexit: lessons from the 1960s and 1970s, History and Policy (2015)