‘Don't Mention Divorce at the Wedding, Darling!’: EU Accession and Withdrawal after Lisbon
‘Don't Mention Divorce at the Wedding, Darling!’: EU Accession and Withdrawal after Lisbon
Abstract and Keywords
Accession to and withdrawal from the European Union may be considered simply as the obverse and reverse of the same coin. Yet the rules relating to these procedures are rather more different and are not a mirror image one to the other. On the one hand, the preconditions and processes for accession are longer established, based on a combination of Treaty Article, European Council conclusions and practice. On the other hand, withdrawal from the Union is an innovation of the Lisbon Treaty, neither tried nor tested. Analysis of both accession and withdrawal consider briefly the historical context of each process before continuing to look at the relevant Article of the Treaty on European Union, post Lisbon, including the criteria and procedure for each issue, as well as providing a short commentary on them.
Accession to and withdrawal from the European Union cannot be regarded simply as the obverse and reverse of the same coin. On the one hand, the conditions and processes for accession are long established, based on a combination of Treaty Articles, European Council conclusions and practice.1 On the other hand, withdrawal from the Union is an innovation of the Lisbon Treaty,2 neither tried nor tested. This analysis will consider briefly the historical context of each process before continuing to look at the relevant Articles of the Treaty on European Union,3 including their own criteria and procedures, as well as a providing a short commentary on them.
A. Historical context
From their very inception, the European Treaties4 proclaimed the endeavour of integration as ‘an ever closer union of the peoples of Europe’, by implication (p.129) enjoining states to participate in this process. The issue of enlargement itself5 has been present on the European integration agenda almost since the establishment of the Communities in the 1950s.6
The three founding Treaties7 each provided8 that any European state might apply to become a member of the Community, addressing its application to the Council which, after obtaining the Commission's opinion, would act by means of a unanimous vote. The conditions of admission and the adjustments to the Treaties (required by reason of accession) were to be the subject of an agreement between the Member States and the applicant state. Such agreement had to be submitted to all the contracting states for ratification in accordance with their respective constitutional rules.
These provisions remained largely unaltered before the Lisbon Treaty entered into force. One technical innovation, achieved through the 1992 Maastricht Treaty,9 was the replacement of the three different accession clauses with one single clause.10 In addition, two textual alterations can be indicated: the first being the need for obtaining the consent (then referred to as the ‘assent’) of the European Parliament for any accession, as introduced by the Single European Act;11 and, secondly, the reference to the then Treaty on European Union, Article 6(1),12 introduced by the 1997 Amsterdam Treaty,13 which paragraph stated: ‘The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.’ The presence of this paragraph required the respect of these (p.130) principles by states as one of the conditions not only of membership but also of an application for membership.14
B. Lisbon Treaty: Article 49 TEU
Building upon previous Articles and practice, the amendments under the 2007 Lisbon Treaty have led to several changes to the accession clause, Article 49 TEU, that now provides:
Any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union. The European Parliament and national Parliaments shall be notified of this application. The applicant State shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the consent of the European Parliament, which shall act by a majority of its component members. The conditions of eligibility agreed upon by the European Council shall be taken into account.
The conditions of admission and the adjustments to the Treaties on which the Union is founded, which such admission entails, shall be the subject of an agreement between the Member States and the applicant state. This agreement shall be submitted for ratification by all the contracting states in accordance with their respective constitutional requirements.
The 2007 Lisbon Treaty has occasioned various textual alterations to Article 49(1) TEU and linked provisions: the list of values (formerly called ‘principles’) has been extended, due to the changes in Article 2 TEU,18 to include human dignity and equality; putative Member States must not only respect these values but also commit themselves to promoting them; and, further, the new list in Article 2 TEU is followed by the statement that ‘[t]hese values are common to the Member States in a society of pluralism, tolerance, justice, solidarity and non-discrimination’.
In addition, any application for membership must be notified to the European and national parliaments, thereby emphasizing their increased visibility in the accession process; the consent of the European Parliament is now by a majority (p.131) rather than the previous absolute majority of MEPs; and, lastly, the European Council's own eligibility conditions are to be observed. Article 49(2) TEU remains unaltered by the Lisbon Treaty.
III. Criteria for Membership
Article 49 TEU remains an imperfect guide to enlargement19 and forms merely the departure point for the principles which have been developed through practical experience and inserted into the enlargement process framework.20 The criteria, which states must satisfy before acceding to the Union,21 have evolved and expanded since the first membership applications.22
A. Copenhagen criteria
Apart from the geographical criterion that the applicant must be a European state and the list of values of the Union in Article 2 TEU (incorporated by express reference into Article 49 TEU),23 various European Councils have added further political, economic, legal, administrative and institutional conditions. The Lisbon Treaty changes have now included the requirement to take into account the conditions of eligibility defined by the European Council, which change was not expressly foreseen in the 2004 Constitutional Treaty. These enlargement criteria, themselves based on previous developments,24 were set out by the European Council at Copenhagen in June 199325 with respect to the eventual accession of the Central and Eastern European countries (CEECs).26 These ‘Copenhagen criteria’, to which the Madrid European Council of December 199527 added a fifth, are: (i) that the candidate country has achieved 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; (iii) the capacity (p.132) to cope with the competitive pressure and market forces within the Union; (iv) the ability to take on the obligations of membership, including adherence to the aims of political, economic and monetary union; and (v) the administrative and judicial capacity guaranteeing the effective implementation of the acquis, the entire corpus of European law and legal practice.28 The 1994 Essen European Council further required that associated countries had to cooperate at the intra-regional level among themselves as well as have good relations with their neighbours.29
While the above criteria referred to the candidate countries, the Union's own capacity to absorb new members,30 while maintaining the momentum of European integration, was also considered in the general interest of both the Union and the candidate countries: this criterion will be further considered later.
A new principle of enlargement, conditionality, also emerged in relation to the CEECs. At the 1997 Luxembourg European Council,31 it was agreed that even though negotiations could be opened with those candidate countries that satisfied the political criteria, conclusion of such negotiations would be conditional on their fulfilment of the economic criteria and satisfactory adoption of the acquis. The Accession Partnerships32—requested by the European Council, drafted by the Commission and enacted by the Council—went a step further and conditioned reception of Union pre-accession aid to the fulfilment of the criteria. Thus the principle of conditionality involves continuous Union scrutiny (particularly by the Commission)33 in all spheres of the candidate country's preparations for membership.
Following the first CEEC accessions in 2004, the Commission developed a new strategy for enlargement policy34 based on consolidation of existing commitments, better communication to citizens to improve the legitimacy of the process, and application of fair and rigorous conditionality to the candidate countries so that they would be ready to fulfil their obligations as Member States and implement Union policies. Such conditionality implied that the Union could both demand (p.133) fulfilment of the accession criteria (duly rewarding candidates making progress) as well as suspend the accession negotiations at any stage where such criteria were not met.35 This has indeed happened both in relation to Croatia36 and Turkey, with the latter's negotiations still suspended at this time.37
IV. Procedure for Membership
The wording of Article 49 EU maintains the traditional outline mechanism for accession thereby permitting further elements to be included, as necessary.38 For example, after the candidate country has lodged its application but before negotiations are opened, the Commission delivers a prior opinion containing an initial analysis of the political, economic, legal and administrative implications of the accession, together with identification of themes that will have to be negotiated.39 Without being bound by this opinion,40 the Council issues a summary assessment of the possibilities for accession and decides whether or not negotiations should be opened. A further opinion is provided once the negotiations are completed which, together with the consent of the European Parliament, allows the Council to decide unanimously whether to conclude the accession process with the necessary treaty.
The procedure for conducting negotiations is contained in a Council Decision41 while the Member States, meeting in the Council, actually conduct them with the candidate country in the form of an Intergovernmental Conference (IGC). The (p.134) Commission also participates in the process: first, it is charged with undertaking a formal process of examination of the acquis, known as ‘screening’,42 in order to assess the state of preparation of the candidate for opening negotiations in specific areas and to obtain initial indications of issues most likely to arise in the negotiations; and secondly in the negotiations it proposes the common positions to be taken by the Council which unanimously adopts them. Although the Member States or other Union institutions are not bound to act in this way, they usually agree with the Commission thereby rendering it the most powerful player in the whole process. The Commission also drafts the Accession or European Partnerships that are issued by the Council.
The Lisbon Treaty amendments to Article 49 TEU concerning the modalities of accession evince incremental change of the mildest nature. Most of the ‘customary’ elements of enlargement43 continue to remain excluded and thus underline the Union's continuing reluctance to codify (in treaty form) such elements. That treaty framework is a strength, allowing customary enlargement practice to be nurtured and to thrive within its interstices, thereby maintaining a necessary flexibility in respect of each enlargement round without having the process ‘set in stone’. In this way, the Union institutions can respond more quickly to developments on the ground and not feel hemmed in by treaty provisions that require unanimity among Member States to change.
For example, in respect of future enlargements and as a way of assuaging various Member States’ concerns regarding the opening of negotiations with Croatia and Turkey (and foreseeing further problems with FYROM and other Western Balkan States in the future),44 the European Council agreed in 200445 on a revised framework for every future round of negotiations. According to the new formulation, a negotiating framework is to be created ‘according to own merits and specific situations and characteristics of each candidate State’. From one perspective, this is clearly a reassertion of the EU's previous practice in relation to candidate countries but which became rather lost in the negotiating processes to the CEEC ‘big bang’ enlargement. From another perspective, it could be seen to represent the EU's abandonment of its classical model of negotiating in groups of countries. This would underline a wariness on the part of the Union and its Member States vis-à-vis the remaining (potential) candidates—particularly (though not exclusively) in such matters as human and minority rights protection, fighting corruption, judicial (p.135) independence and judicial and public administration reform—and the need to ensure a greater level of delivery on these issues before their being considered fit for membership.
As if to underline this necessity of differentiation, the 2010 Negotiating Framework for Iceland,46 already a member of the EEA and linked to the EU through various other legal agreements (for example, participation in the Schengen area, like Norway), has a markedly different content compared to that of Turkey.47
Concerning actual changes in content, the addition of human dignity and equality to Article 2 TEU, and the need for prospective Member States to promote such values (together with freedom, democracy, the rule of law and respect for human rights, including minority rights) may result in significant impacts on the progress towards accession of the (potential) candidate countries. It represents, nevertheless, a clear indication to such countries as well as to Member States, of those EU values to which all Members must not only aspire but also actively practise. Allied to these values is the subsequent phrase in Article 2 TEU, ‘These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.’
The expression of both the values and social concepts through the accession clause, by reference to Article 2 TEU, clearly affect the future dynamics of enlargement, and the evaluation of their fulfilment or otherwise still leaves in the hands of the Union and ultimately the Member States, the power of final arbiter of membership. As veto players in the accession procedure, both Union and Member States have to strike a balance between common core criteria that all candidate countries must satisfy, together with distinct criteria that are peculiar to one candidate country:48 failure to do so could open the Union to charges from the candidates of discrimination and unequal treatment between them.
B. Parliamentary participation
Also of possible significance to (potential) candidate countries is the clear indication that the European as well as national parliaments are expressly included in the accession process from the very beginning. In the context of recent and general trends, the role of the European Parliament in the Union decision-making process has been increased while the information provided to and interaction with national (p.136) parliaments—as a way to reduce the Union's democratic deficit—have improved.49 The indication would appear to be that the parliamentary dimension of enlargement needed to be enhanced, by explicitly including Member State parliaments.
On the one hand, this new wording could broaden the domestic debate on the enlargement process and so bring decision-making closer to the citizens thereby contributing to their understanding of the process, as previously advocated by the Commission in its 2005 Communication, as well as to increase the legitimacy of enlargement.50 On the other hand, however, the Union might be able to pass the responsibility for refusal of entry to a candidate country onto the shoulders of a national representative assembly which—for whatever reason—had voted against that candidate's membership: keeping the unanimity requirement for enlargement in Article 49(2) EU serves to reinforce the likelihood of this happening in an EU of 27 or more Member States. This confirms the existence of a number of veto players at the European and national levels. As a consequence, not only might the European Parliament veto the accession of an applicant, but the Member States each possess a double veto option: first in the context of the Council vote; and second in the need for national ratification.
Two further points should be raised: one concerns the conditions of admission and the adjustments to the Treaties on which the Union is founded; the other concerns ratification by all Contracting Parties in accordance with their respective constitutional requirements.
C. Adjustments to the Treaties
Turning to the first point, the adjustments contained in the accession treaty cover adaptations to EU secondary legislation,51 transition periods and temporary derogations, safeguard clauses, postponement clauses52 and institutional changes.53 Since EU law, in principle, applies completely from the date of accession,54 any transition periods for adopting outstanding acquis must be fixed and limited, and (p.137) any derogations from applying it have to be partial and restricted in order not to impede the evolution of the Union. Yet the 2005 Negotiating Framework on Turkey states:55 ‘Long transitional periods, derogations, specific arrangements or permanent safeguard measures…may be considered.’ The implication seems to be that the Union expects that Turkey's integration into the Union will be a long and exceptional process, probably taking more time than any previous enlargement.
Safeguard clauses come into play after accession and can be requested by any Member State for its protection from the Commission which issues the measures in an emergency procedure. From the first enlargements, such measures have been available for several years after accession in respect of protecting a particular economic sector or particular area against serious deterioration.56 The 2003 and 2005 accession treaties57 extended these measures against new Member States’ failures to meet their commitments in the Internal Market and the Area of Freedom, Justice and Security (formerly Justice and Home Affairs). In a new and important development, the 2005 Negotiating Framework for Turkey mentions permanent safeguard clauses in such fields as free movement of persons, structural policies and agriculture.58 This has the effect of allowing the Union or any Member State, whenever it feels justified after Turkish accession, for example, to suspend permanently the right of Turkish nationals to move freely within the EU. In so limiting their right to move, such nationals would be discriminated against on the grounds of their nationality, thereby infringing a basic value enshrined in the Treaties since the very inception of the integration process in the 1950s. By allowing the Union and its Member States legally to flout their own common European values would be an affront to the state concerned and difficult to justify legally.59
D. Member States’ constitutional requirements
Domestic constitutional arrangements of the parties to the accession treaty may include the need to put such membership to a national referendum, in particular for the acceding country. This has been followed, to some extent, in most accession rounds as a means to gain popular legitimacy for accession60 although such referendums do not always prove to be harbingers for eventual membership: (p.138) for example, domestic referendums, post signature of the accession treaty, resulted in Norway's rejection of membership twice (1972 and 1994).61
More intriguing is the option, only exercised once so far, for a current EU Member State to hold a referendum on the accession of another. This was the case in 1972 when France used a referendum to approve primarily British (as well as Irish and Danish) accession with, domestic political concerns being in fact of paramount concern—for the then French President, Georges Pompidou, it was a way of dealing with political opposition.62 In a more recent example, in 2005, France amended its Constitution63 to require a referendum to be held on any post-2007 accessions, a provision clearly aimed at preventing eventual Turkish accession, unpopular in France. Although subsequently amended,64 it does bear eloquent witness to the severe reservations in some Member States to a possible Turkish accession. There is no EU rule prohibiting a Member State from holding a national referendum to approve membership of the Union by another country. Use of this by some states could effectively derail a state's accession even after the relevant agreement is signed.
Beyond the changes in its wording, the actual operation of Article 49 TEU in the future will have impacts—both direct and indirect—on candidate countries and the EU alike: direct in the sense that the evolution of the concept of ‘European’ and common values are intimately and inextricably linked; and indirect in the sense that the criterion on integration capacity on the part of the Union will likely play a greater role in the decisions surrounding enlargement.
E. European identity and common values
The interconnection between the notion of ‘European’ and Union values is linked to the long-established and inclusive concept of ‘European identity’ dating from 1973:65
The Nine wish to ensure that the cherished values of their legal, political and moral order are respected, and to preserve the rich variety of their national cultures. Sharing as they do the same attitudes to life, based on a determination to build a society which measures up to the needs of the individual, that are determined to defend the principles of representative democracy, of the rule of law, of social justice—which is the ultimate goal of economic (p.139) progress—and of respect for human rights. All these are fundamental elements of the European identity.
It was also observed66 that the originality and dynamism of European identity was derived, inter alia, from the diversity of cultures within the framework of a common European civilization, the attachment to common values and principles, the increasing convergence of attitudes to life and the awareness of having specific interests in common.
This construction of a united Europe has remained open to other European nations who share the same ideals and objectives, and accordingly67 the term ‘European’ combines geographical, historical and cultural elements and its essence is regarded differently by each succeeding generation.68
As European identity is rooted in common values,69 the constitutionalization70 of those values in the body of the TEU is a significant development. The criteria for accession have been extended by the statement which follows the list of values in Article 2 TEU, the implication being that any state wishing to join the Union must also be ‘a society of pluralism, tolerance, justice, solidarity and non-discrimination’. Consequently, these values and societal principles are intrinsically linked to European identity in the early twenty-first century.
Interestingly, in view of future enlargements, the clear absence of religion or belief as a common value in Article 2 TEU may be regarded as indicative of a Union wishing to stay open to the evolution of a European identity that could integrate states and societies where Islam forms the belief of the majority or large numbers of their citizens.71 However, the values in Article 2 TEU derive their origins from a combination of culture, religion and humanism. The Preamble to the TEU (as modified by the Lisbon Treaty) provides: ‘Drawing inspiration from the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law.’ This is said72 to represent a consensus between the Member States that the constitutional values of the Union (p.140) derive from a balance or mix of (largely Christian) religious,73 humanist and cultural influences: such values reflect the ‘value pluralism’74 at the foundations of the Union, according to which conflicts between differing rights or approaches are regarded as normatively acceptable, their resolution being made by means of a balancing between the conflicting elements as opposed to giving priority to one over the other in some sort of hierarchy. Indeed, it is argued75 that forms of religion which are unable to accept certain European cultural norms or to accommodate the humanist and secular elements of European culture—which require significant limitations of the influence of religion over law and politics—will find it difficult to cope with the European way or ways of life. The Union has already indicated, within the context of enlargement, that failure to maintain limits on religious influence over law and politics is incompatible with EU membership, for example, Romania was required to repeal its laws criminalizing homosexual behaviour.76
F. The EU's integration capacity
The Union's capacity to integrate new Member States also looms large over any enlargement, entailing reform of the functioning and decision-making processes of the EU institutions. In all these reforms, Turkey remains the elephant in the enlargement room, not for cultural, religious or political reasons but rather from demographic and socio-economic ones.
The onus is on the EU to achieve the necessary technical adaptations to take account of the new Members. These adaptations, to be found in the Treaties and EU secondary legislation, include the size and composition of the central EU institutions as well as other institutions and organs based in Brussels and throughout the EU; the weighting of votes in the Council; the addition of new official languages; and the extension of the territory of the Union.
Underlining the express issue linkage between institutional innovation and enlargement in an ever larger EU, the June 2006 European Council77 asked the Commission to report to it on the Union's capacity to integrate new Members. In reply, the Commission78 noted that the Union's capacity in this respect was (p.141) determined by two factors:79 (a) maintenance of the momentum to reinforce and deepen European integration by ensuring the EU's capacity to function; and (b) assurance that candidate countries were ready to take on the obligations of membership when they joined by fulfilling the rigorous conditions set. It then stated:80 ‘The capacity of the Union to maintain the momentum of European integration as it enlarges has three main components: institutions, common policies, and budget. The Union needs to ensure that its institutions continue to act effectively, that its policies meet their goals, and that its budget is commensurate with its objectives and with its financial resources.’ Of importance in regard to budgetary issues is the fact that the Negotiating Framework for Turkey81 takes an important step forward by specifying the content of the integration capacity condition, namely, that Turkey cannot accede before the Member States have decided on the EU budget for the period from 2014.
The EU's capacity to integrate new Member States is thus coming to play an increasingly greater role in accession conditionality and remains a condition over which candidate or accession countries can exercise no direct influence. Understandably, in the present economic climate, budgetary matters have assumed a much greater importance and, for example, the problems of funding of regional and common agricultural policies, in an ever larger Union, are particularly stark.
However, it is the link between population and institutional participation, based on the principle of digressive proportionality,82 that appears as Banquo's ghost at the EU feast. Even the modification of the digressive proportionality principle fails to take properly into account the possibility of fluctuating populations: predicted demographics for Europe show most countries will experience a contraction in population during the next 20–50 years while Turkey's will continue to flourish.83 The impact of these changes could have important consequences. In relation to the European Parliament, for example, and despite the new 751-MEP limit in the Lisbon Treaty, the proportionate allocation of seats will remain unstable in the coming years with small countries particularly fearful of losing comparative representation. In fact, with a projected membership to include the Western Balkan States, the remaining EFTA countries and Turkey, the EU could in time have a population of over 585 million: on present figures, a ceiling of 751 MEPs would still result in an approximate average of one MEP representing approximately 779,000 people.84 Based on that, Turkey would become the largest nation in the EU, even surpassing Germany.85
(p.142) VI. Withdrawal
A. Historical context
Until the advent of the 2004 Constitutional Treaty, neither the original founding Treaties nor the succeeding treaties contained a provision allowing Member States to withdraw or secede—either in a negotiated or a unilateral manner86—from the Union.87
In fact, it was arguable whether or not such an inherent right existed under the European treaties in the absence of an express provision. Without entering into detailed discussion on the point, prior arguments had essentially centred on the characteristics that protagonists considered inured to the then Community legal order:88 on the one hand, if Community law were qualified as part of public international law, then writers tended to derive a right of withdrawal from the principles expressed in the Vienna Convention on the Law of Treaties 196989 or under customary international law; while, on the other hand, authors determining the Community as an autonomous legal order90 or attributing to the Community some state-like character tended to regard withdrawal as barred91 or, at the most, its exercise was highly circumscribed and rarely to be undertaken.
Despite these fundamental divergences, the common view before the Lisbon Treaty came into force was that the Community/Union Treaties ‘concluded for an unlimited period’92 did not allow a unilateral or free right to withdraw. (p.143) Nevertheless there was strong evidence to suggest the existence of an inherent right of withdrawal, but rather one conducted in a negotiated manner.93
Thus, no Member State protested against the United Kingdom's right to withdraw,94 when the Labour government was elected in 1974 with a manifesto pledge to hold a referendum on the issue. Although the issue of withdrawal was never put to the test as a large majority voted in June 1975 in favour of staying in the EEC,95 it was assumed on all sides that Britain could have left if she had so wished.96 Since their foundation, only two entities have actually left the Communities, Algeria and Greenland.
The issue of Algeria occurred very early in the life of the Communities, at a time when it was still an integral part of France,97 comprising (on the eve of independence in 1962) 15 départements 98 and which had elected their own representatives to the French National Assembly since 1870.99 As with the overseas départements of France at that time,100 Algeria did not fall within the list of overseas countries and territories (OCTs)101 associated with the EEC under Articles 131–136 EEC. Rather it was included in the EEC102 but only governed by the provisions of the 1957 Treaty to the (p.144) extent listed under Article 227(2) EEC103 as might be extended by unanimous vote in the Council of Ministers on a proposal from the Commission.104
Independence from France on 1 July 1962 and thus secession from the EEC was ultimately concluded through bilateral negotiations (between France and Algerian groups opposed to French rule), culminating in the Evian accords105 and confirmed through separate popular referendums in metropolitan France and Algeria.106 The withdrawal of Algeria did not result in any revision of France's level of participation in Community institutions: in particular, the number of French representatives in the European Parliamentary Assembly was not reduced,107 thus maintaining parity in its number of members (36) with the other large Member States of that time, West Germany and Italy.
Of particular interest, however, was that post independence the relevant provisions of the EEC Treaty108 continued to apply. In fact, the Algerian president Ben Bella sent a letter (dated 24 December 1962) to the President of the EEC Council of Ministers, in which he requested the provisional maintenance of the relevant Articles of the EEC Treaty, pending future definition of EEC–Algeria relations.109 By implication, then, from July to December 1962, the EEC Treaty had continued to apply to independent Algeria without any official overtures either from that state or the Community. The receipt of the letter was acknowledged by the Council on 24 January 1963, setting out the EEC's interest in the problem and its intention to study it.110 The European Commission also answered positively, assuring the Community's respect for former responsibilities, especially in financial matters.111
(p.145) Before the EEC and Algeria eventually concluded their first comprehensive bilateral agreement in 1976,112 it was a moot point as to whether Article 227(2) EEC continued as the legal basis for relations between them113 or that that provision was progressively emptied of its contents in the years after independence due to new rules introduced by Algeria, the EEC or its Member States, particularly regarding the customs union and agri-products.114 From the Algerian example, it might be possible to conclude that neither side wished to see a sudden and complete rupture between them and they thus allowed an indeterminate legal situation to continue due to important political and economic considerations, especially in relation to France.
The situation in respect of Greenland was ultimately a more complex process than that of Algeria. The island had been a colony until 1953 and had then been incorporated into the Kingdom of Denmark and directly ruled from Copenhagen. In the 1972 Danish referendum for EEC membership, the overwhelming majority of the electorate in Greenland had voted against115 and this contributed to the pressure for the eventual creation of home rule, with a Greenlandic parliament and government.116 Denmark reserved one of its seats in the European Parliament for a Greenlandic MEP and, in the Council of Ministers, it became the practice that observers from Greenland would accompany the Danish member where the Council decided on issues concerning Greenland.117
After home rule was eventually introduced in 1979,118 the new Greenlandic government called for a referendum on membership of the Communities which, in 1982, produced a small majority in favour of withdrawal.119 The Danish government, which still represented Greenland in matters of external policy, had announced prior to the vote that it would respect the result of the referendum. It thus acted upon the request of the Greenlandic government and requested the (p.146) Council120 to amend the Treaties in order to allow for the withdrawal of Greenland and its transfer to the status of OCT. The Council asked the Commission and the European Parliament for their opinions on the Danish government's request.121 In spring 1983 both institutions responded favourably: the Commission delivered its opinion122 in which it recommended that Greenland be offered OCT status together with specific additional arrangements; the European Parliament endorsed the Commission's position.123 Little legal debate arose in respect of Greenland's withdrawal, although a minority of MEPs objected to the Communities’ easy acquiescence to such withdrawal.124 The Council then requested the Commission to provide detailed practical proposals in relation to Greenlandic fishery issues, which were duly presented.125
Thereafter, in late 1983, the Danish government entered into negotiations on behalf of the island with the other Member States to decide expediently on Greenland's withdrawal from the EEC and its transformation into an OCT:126 agreement was reached in early 1984.127 This resulted in the necessary consequent amendments to the Treaties128 (passed on the basis of then Article 236 EEC129 according to which the unanimous consent of the Member States could alter or amend the existing Treaties) which took effect—after the last Member State ratification—with the withdrawal of Greenland on 1 February 1985.
Greenland's withdrawal contained a number of unique features130 including the fact that: (a) it is an overseas, non-European territory, disconnected from Europe on the basis of factors, inter alia, geographical, cultural, social, climatic, ethnic and economic;131 (b) it is a former colony linked to a Member State and any attempt to prevent its withdrawal would have smacked of colonialism; and (c) it did not represent a secession of a Member State but rather the redefinition of the Kingdom of Denmark through internal home rule: thus Denmark continued its membership of the Communities and, due to Greenland's small population of about 50,000 inhabitants at that time,132 there was no impact from this population loss, for example, on the number of Danish MEPs or on Denmark's qualified-majority voting strength in the Council of Ministers.
(p.147) Set against these singular features, there are a number of points which allowed some lessons to be drawn for future withdrawals from the Union:133 (a) Denmark did not attempt a unilateral withdrawal for Greenland but rather a negotiated one with its fellow Member States: in making this concession, it avoided or significantly reduced the risk that other Member States might have rejected the application; (b) the Council, before exercising its powers to amend the Treaties, sought the opinion of the Commission and Parliament; (c) the process was agreed to unanimously by the Member States which greatly facilitated the expedited and non-contentious withdrawal of Greenland; (d) Denmark retained its general role during the negotiations with the other Member States in the Council of Ministers, albeit reflecting the limited nature of Greenland's withdrawal as opposed to any possible full Member State secession; and (e) the acceptance of the Greenland Treaty by the Member States was predicated on the introduction of arrangements which permitted the maintenance of close and lasting links between the Community and Greenland134 so that withdrawal appears to infer automatically the need to forge the basis of a new relationship.135 Such issues had, in varying degrees, an impact on subsequent Treaty developments.
D. Introduction of the concept of withdrawal into the Union
The possibility of providing an express treaty basis for withdrawal from the Union was initially broached by the 2002–2003 Convention on the Future of Europe.136 Yet despite the importance of such provision, there was a paucity of submissions made to the Convention on the issue: namely, those of Dashwood;137 Lamassoure;138 and Badinter.139 Nevertheless, those submissions generally reflected the three potential models for withdrawal mechanisms:140 (a) state primacy, where a Member State has an absolute, immediate and unilateral right to withdraw from a federation. This was essentially advocated by Dashwood and meant that the Member State had an unconditional right which did not require permission from EU institutions; (b) federal primacy, where a Member State is absolutely prohibited from withdrawing. Lamassoure did discuss the fact that in a federal141 restructuring (p.148) of the EU, the rule should be ‘once a member, always a member’ but regarded this and the confederal142 model as extremes. He therefore proposed a community option allowing withdrawal but ‘subject to strict and deterrent conditions’; and (c) federal control, where a Member State retains its sovereign right to withdraw, subject to negotiations with and the approval of the remaining states in the federation, thereby emphasizing the process as a mutually negotiated activity. Badinter's proposal, given in a more detailed manner, firmly followed this option and was closer to what was actually drafted for Article I-60 of the 2004 Constitutional Treaty. Although it never entered into force, its contents were later reproduced in the Lisbon Treaty with only minor technical changes.143
VII. Lisbon Treaty: Article 50
The Lisbon Treaty consequently introduced the legal possibility of withdrawal from the Union for the first time, thereby144 underlining the recognition of the Member States as ‘Masters of the Treaty’145 and their continuing sovereignty in this respect. A Member State is now able, according to Article 50 TEU, to ‘decide to withdraw from the European Union in accordance with its own constitutional arrangements’. The Article, as discussed in point 4 below, also outlines the procedure for withdrawal.
VIII. Criteria for Withdrawal
No criteria for withdrawal are set out in Article 50 TEU unlike some of the accession criteria set out in Article 49 TEU. Perhaps the best clue is found in the phrase that a Member State might withdraw from the Union, ‘according to its own constitutional arrangements’. While this means different procedures for each state, the fact that the state is withdrawing from the Union implies that it is still bound by (p.149) 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—Articles 2 and 49 TEU—are equally applicable to withdrawal.146 In this sense, the withdrawal, although occurring in a Member State, impacts on all of them so that compliance with such value criteria would be the optimal means of departure from the Union: moreover, since a negotiated withdrawal from the Union has always been a possibility, this clause merely confirms that fact.
Compliance with such values would probably entail the seceding state to gain the support of its population directly through a popular referendum, before commencing the Union side of the withdrawal procedure.147 It may be contended that a ‘Union-conform’ way would be to proceed by sufficient domestic consensus between government, parliament and electorate before negotiating with the Union to ensure a continuing relationship, post withdrawal. In such circumstances, ‘sufficient’ would probably need more than a mere simple majority of votes since some level of weighted or qualified majority vote would render the outcome of the vote more legitimate and binding, and therefore less open to any subsequent challenge.148
Nevertheless, a referendum is not always considered necessary in this respect and a parliamentary vote on the issue might suffice, especially where the government is elected on a promise of withdrawal and secures a sufficient majority to so act. This was, in fact, the position of the British Labour Party which promised, in 1981, that if it were elected to power then Britain would withdraw from the EEC without even holding a national referendum.149
The possible alternative, a unilateral withdrawal, would encounter problems and run counter to Union values. While theoretically possible for a state to use its own constitutional processes to denounce a treaty (and a matter confirmed by Article 4(2) TEU on the respect for national identity),150 notify the Council and then sit on its haunches waiting for two years to elapse for the withdrawal to become final without negotiating an agreement, its impact would be wholly negative and would almost certainly sour relations between the withdrawing state and the Union.151
(p.150) IX. Procedure for Withdrawal
Article 50 TEU provides that a Member State opting to withdraw from the Union must notify the European Council of its intention to do so. The European Council is to set out the guidelines according to which the Union will negotiate and conclude a withdrawal agreement with that Member State, taking account of the framework for the future relationship between the Union and the state. This agreement would be negotiated in accordance with Article 218(3) TFEU152 with the Commission submitting recommendations to the Council and the latter adopting a decision to open negotiations. The agreement would be concluded by the Council acting by a qualified majority, after having obtained the consent of the European Parliament. The Treaties would cease to apply to the withdrawing state either from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification of its intention to withdraw. Exceptionally, the European Council—in agreement with the Member State concerned—can unanimously decide to extend this period. Finally, the member of the European Council or of the Council representing the withdrawing Member State may not participate in the discussions of those institutions or in decisions concerning it.
Where a former, withdrawn state asks to rejoin the Union, its request would have to follow the same accession procedure under Article 49 TEU as applies to any new candidate country.
In the absence of a detailed procedure and taking Greenland's withdrawal as a partial precedent, the Council could (reflecting the practice too of Article 49 TEU on enlargement) request Opinions of the Commission and the European Parliament before proceeding to commence the withdrawal process at Union level. The Council would therefore garner the views (and possible support) of the main Union institutions before starting negotiations. In addition, the Council could ask for proposals from the Commission which could utilize current models on which to base its advice. Such pre-existing models, as discussed in the Commentary below, could easily be employed to prevent a complete rupture in relations between the Union and the withdrawing state.
The introduction of Article 50 TEU now at least renders the Union institutionally prepared to face the prospective trauma were a Member State to seek to withdraw, without imperilling the continuation of further integration among the (p.151) remaining Member States.153 Nevertheless, this withdrawal clause presents numerous difficulties.
A. Threat of withdrawal as a bargaining chip
From a general point of view,154 the threat to withdraw under Article 50 TEU would be plausible at any time which would allow the exit of the Member State from the Union to be a relevant factor or bargaining chip in every important decision, thereby encouraging strategic behaviour.155
Thus where factors—for example, social, cultural, political, economic—modify the relation of costs and benefits of Union membership156 and reduce the value of such membership, the option of withdrawal becomes relevant.157 The heterogeneity of the Union of 27 Members which, after Lisbon, bases its decision-making processes generally on qualified majorities158 in the Council, greatly increases the likelihood of a Member State being outvoted (and so losing benefits) threatening withdrawal. Such a threat would act as a means of receiving compensatory payments from the Union159 to sugar the pill of swallowing an initially disadvantageous development as a necessary part of the integration process.
Withdrawal must therefore be seen as a potent weapon, if a state were outvoted in Council on a particularly sensitive national issue and were unable or unwilling to fulfil its legal duties under Article 4(3) TEU of sincere cooperation with other Member States and of Union loyalty. In the hands of a large Member State, it is a trump card: where a vital national interest is at stake, to threaten withdrawal to gain more concessions from other states clearly160 evokes memories of de Gaulle's ‘empty chair’ policy of the 1960s which paralysed the operation of the Council of Ministers.161 Yet, while the clause strengthens the hand of a large (p.152) Member State, it weakens that of a small and most medium-sized states; their vulnerability would be exacerbated if they walked away from the EU card table, thereby leaving them politically and economically broke.162
B. Unilateral withdrawal possible
The withdrawal clause, while clearly advocating a negotiated secession as the optimum solution, nevertheless presents the departing Member State with a unilateral right to do so.163 This conclusion is based164 on three particular points: (a) the wording of Article 50 TEU, highlighting the fact that a withdrawal takes place in accordance with a Member State's own constitutional arrangements; (b) the seceding state is under no treaty obligation to conclude an agreement with the rest of the Union and can thus merely sit out two years before its withdrawal decision becomes final; and (c) the right to withdraw is not preconditioned on a change to EU constitutional law that a Member State cannot accept, that is, the right is unrestricted.165
C. The EU's disintegration capacity
As already considered with respect to enlargement and the Union's capacity to integrate new Member States, on withdrawal the Union would need to examine its capacity to cope with secession of a state or states. Even the voluntary withdrawal of certain states could substantially weaken the Union, jeopardizing its survival: for example, in respect of the EMU, French or German withdrawal would place a considerable and unbearable strain on the stability of the common currency;166 or a British withdrawal would seriously undermine deepening cooperation in security or foreign policy matters. However, the withdrawal of a small or medium-sized state would have relatively less impact on the Union as a whole.
The secession agreement would need to address the profound impact withdrawal would have on, inter alia, institutional changes in Union and budgetary matters; as well as the nature of the continuing relationship with the Union.
(p.153) D. Impact on EU institutions and budget
Turning to institutional matters, these in part reflect the issues addressed as a result of enlargement with withdrawal having the reverse impact on the operation of the Union institutions. There are also issues peculiar to withdrawal: with the exception of the withdrawal itself, the seceding state's representative in the Council would seem to be able to continue to participate fully in its discussions and decision-making. Moreover, there is no express prohibition on the seceding state's MEPs from deliberating and voting for the European Parliament's consent to the withdrawal agreement. Similarly, no mention is made of what would happen to seceding Member State nationals employed by the Union institutions,167 neither is there any indication as to how the seceding state's judges in the European courts would continue with their work, especially in respect of new cases arising between notification and the effective date of withdrawal.168 On budgetary matters, for example, it is a moot point as to whether or not the withdrawing Member State would be obliged to pay its outstanding contributions to the Union169 or even reimburse monies to the Union.
E. Continuity of relations
As for continuing bilateral relations, this would depend on the attitude of the seceding Member State and the reasons for its departure. Consequently, it might be offered the possibility of joining the EEA170 or establishing bilateral relations along the lines that Switzerland171 or Turkey172 enjoy. Nevertheless, the premise of all these agreements is to deepen integration with the EU and in particular its internal market, to varying, progressive degrees. Thus the agreements remain models but it is questionable whether or not they would be effective in respect of a state going in the opposite direction, by seceding from the Union. If withdrawal were to last longer than two years, the Council could extend the period; alternatively, as with Algeria, the provisions of the European Treaties (probably beyond budgetary and institutional matters) could be temporarily kept in force in the withdrawing state by mutual agreement.
(p.154) XI. Conclusions
It may be considered somewhat otiose to observe that Articles 49 and 50 TEU are at least similar in the fact that they provide only a general outline as to how and on what basis states may accede to or secede from the Union: for Article 49 TEU, decades of experience have given flesh to the bare bones of the treaty provision while future practice and interpretation will again substantially contribute to the evolving conditionality and procedural requirements; for Article 50 TEU, a rather bare skeleton exists and while academic discourse attempts to add substance to the body,173 it would probably take the actual use or threat to use the provision which would stimulate the EU institutions to outline their understanding of its operation through the means it has already employed under Article 49 TEU, for instance, with European Council Conclusions.
Although the Member States and the main EU political institutions are involved expressly in both Articles, they nevertheless secure slightly different roles. For example, enlargement requires an agreement with every Member State while withdrawal is negotiated only with the Council.
Putting a withdrawal clause into the TEU might allay the worries of some Member States that view its presence at least as a safeguard to any future situation, where they might feel locked into an unstoppable process through which national sovereignty continues to bleed to the Union. The possibility of staunching this flow, even if never used, might have a more psychological impact on domestic political discourse on the Union.
Lastly, the use of both procedures might actually occur where a current Member State loses one of its component parts through secession:174 this would be an Algerian or Greenlandic scenario with the current state retaining its membership (with adjustments, for example, in the number of its MEPs, its budgetary contributions and receipts, etc) but with the prospect of that seceded part applying subsequently to join the Union as a state in its own right. Alternatively, a Member State might disintegrate into its component parts—a possible ‘Czechoslovak Velvet Divorce’175 scenario where two or more new states would wish to accede in the place of one previous state.176 Again, institutional arrangements would need to take into account the relative weighting between the former component parts of the erstwhile state, and their respective budgetary and financial contributions and receipts would need recalibration. In both cases, the Union would be able to ‘contain’ the changes within the institutional and financial limits previously imposed on the pre-truncated Member State.
(2) Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007:  OJ C306/1.
(3) Consolidated version of the Treaty on European Union:  OJ C83/13.
(4) Treaty establishing the European Coal and Steel Community (‘ECSC’), signed on 18 April 1951, entered into force on 24 July 1952: 261 UNTS 141, No 3729. Treaty establishing the European Economic Community (‘EEC’) and Treaty establishing the European Atomic Energy Community (‘EAEC’): both signed on 25 March 1957 and both entered into force on 1 January 1958: 294 UNTS 3, No 4300 and 294 UNTS 259, No 4301, respectively.
(5) A wealth of detailed analysis has already been provided on the legal aspects of enlargement: M Maresceau (ed), Enlarging the European Union (Longman, 1997); G Avery and F Cameron, The Enlargement of the European Union (Sheffield Academic Press, 1998); A Ott and K Inglis (eds), Handbook on European Enlargement: A Commentary on the Enlargement Process (TMC Asser Press, 2002); M Cremona (ed), The Enlargement of the European Union (Oxford University Press, 2003); C Hillion (ed), EU Enlargement: A Legal Approach (Hart Publishing, 2004); and S Blockmans and S Prechal (eds), Reconciling the Deepening and Widening of the European Union (TMC Asser Press, 2007).
(6) In fact, the first approach to the Communities was made by Israel in October 1958, followed by Greece (June 1959) and Turkey (August 1959): D Urwin, The Community of Europe: A History of European Integration since 1945, 2nd edn (Longman, 1995) 116.
(7) The relevant provisions were Article 98 ECSC, Article 237 EEC and Article 205 EAEC.
(8) Article 98 ECSC was slightly different to the other two: ‘Any European State may request to accede to the present Treaty. It shall address its request to the Council, which shall act by unanimous vote after having obtained the opinion of the High Authority. Also by a unanimous vote, the Council shall fix the terms of accession. It shall become effective on the day the instrument of accession is received by the government acting as depository of the Treaty.’
(9) Treaty on European Union:  OJ C191/01.
(10) Through the Maastricht Treaty, the then Article O TEU (now Article 49 TEU) replaced the respective provisions of the three founding treaties (Article 98 ECSC, Article 237 EEC and Article 205 EAEC) thereby permitting a putative Member State to accede simultaneously to all the Treaties on which the EU was then based: K Laenerts and P van Nuffel (R Bray (ed)), Constitutional Law of the European Union (Sweet & Maxwell, 1999) para 6-006, 274.
(11) Single European Act:  OJ L169/1.
(12) According to the Lisbon Treaty numbering, Article 6(1) TEU is now Article 2 TEU, as amended.
(13) Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and related acts:  OJ C340/1.
(15) Treaty establishing a Constitution for Europe:  OJ C310/1.
(16) As laid down in Article I-58 CT.
(17) However, the first sentence of Article I-58 CT was not kept; it read: ‘The Union shall be open to all European States which respect the values referred to in Article I-2.’ This ‘openness’ clause which focuses on the EU's common values might be seen as no more than confirmation of previous practice. After all, the Union has not so far failed to admit any state with which it has entered into enlargement negotiations and has thus always remained ‘open’ to new Member States as part of its vocation.
(18) Article 2 TEU now provides: ‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.’
(20) D Booss and J Forman, ‘Enlargement: Legal and Procedural aspects’ (1995) 32 CML Rev 95, 100.
(22) C Preston, ‘Obstacles to EU Enlargement: The Classical Community Method and the Prospects for a Wider Europe’ (1995) 33 Journal of Common Market Studies 451; Booss and Forman, above n 20 at 100–4.
(24) European Council, ‘Declaration on democracy’, Copenhagen, 7–8 April 1978: EC Bull 3-1978, 6; and European Commission, ‘Europe and the Challenge of Enlargement’: EC Bull, Supplement 3-1992, point 7.
(25) Presidency Conclusions, European Council, Copenhagen, 21–22 June 1993: EC Bull 6-1993, point I.13. See, eg, Tatham, above n 1 at chapter 8, 193, 206–32; and M Maresceau and E Montaguti, ‘The Relations between the European Union and Central and Eastern Europe: A Legal Appraisal’ (1995) 32 CML Rev 1327, 1332–3.
(26) K Inglis, ‘EU Enlargement—Membership Conditions Applied to Future and Potential Member States’ in K Inglis and A Ott (eds), The Constitution for Europe and an Enlarging Union: Unity in Diversity? (Europa Law Publishing, 2005) chapter 10, 225–56.
(27) Presidency Conclusions, European Council, Madrid, 15–16 December 1995, Part A, III.A, para 6.
(29) Presidency Conclusions, European Council, Essen, 9–10 December 1994: EU Bull 12-1994, point I.54. The need for ‘good neighbourly relations’ would thus avoid importing into the EU any conflicts or instability connected with the accession of new Member States and is intertwined with the need for minority rights protection in the Copenhagen criteria. The criterion was partly derived from the EU preference to negotiate with groups of states already enjoying close relationships with each other: Preston, above n 22 at 455–6.
(31) Presidency Conclusions, European Council, Luxembourg, 12–13 December 1997.
(33) The Commission provides annual reports on the progress made by candidate countries in their preparations for accession which requirement was introduced vis-à-vis the CEECs: Presidency Conclusions, European Council, Luxembourg, 12–13 December 1997, para 29. See generally Tatham, above n 1 at chapter 9, 239, 247–8.
(34) European Commission, Communication ‘Enlargement Strategy Paper’: COM(2005) 561. For the latest see European Commission, Communication ‘Enlargement Strategy and Main Challenges 2009–2010’: COM(2009) 533 final.
(35) Negotiating Framework for Turkey, 3 October 2005, Luxembourg: 〈http://www.jeanmonnetprogram.org/papers/01/01380.rtf〉. Visited 8 August 2010. Para 5 states: ‘In the case of a serious and persistent breach in a candidate state of the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law on which the Union is founded, the Commission will, on its own initiative or on the request of one third of the Member States, recommend the suspension of negotiations and propose the conditions for eventual resumption.’ Although equally applicable to Croatia and other future candidates from the Western Balkans, this conditionality was a direct warning to Turkey: C Hillion, ‘Negotiating Turkey's Membership to the European Union: Can the Member States Do as They Please?’ (2007) 3 Eur Constitutional L Rev 269, 270.
(36) Continuing disputes over border demarcations with Slovenia, particularly the maritime boundary between the two nations and Slovenia's access to the Adriatic Sea, prompted Slovenia to block accession talks in December 2008. After the two states had reached an agreement in November 2009, which the Slovene population supported in a referendum on 6 June 2010, the negotiations were revived.
(37) The Commission recommended the suspension of negotiations: European Commission, Communication, ‘Accession Negotiations with Turkey’: COM(2006) 773; EU Bull 11-2006, point 1.25.22. The Council approved it: General Affairs and External Relations Council, Conclusions on enlargement: EU Bull 12-2006, point 1.25.1. This approval was endorsed by the European Council: Presidency Conclusions, European Council, Brussels, 14–15 December 2006, para 10.
(38) This has been the approach used since the first enlargement in 1973: see J-P Puissochet, The Enlargement of the European Communities (AW Sijthoff, 1975).
(39) In order to reinforce conditionality, the European Council at Luxembourg 1997 required the Commission to update its opinions every year until the CEECs’ accessions. These annual updates to the opinions were originally termed Regular Reports but developed in time into Progress Reports.
(40) The Council did not follow the Commission's Opinion in respect of Greece: European Commission, Opinion on Greek application for membership: EC Bull, Supplement 2-1976, 7. Council rejection of Opinion and decision to open negotiations: EC Bull 1-1976, points 1101–11, 6–9.
(43) D Kochenov, ‘EU Enlargement Law: History and Recent Developments: Treaty —Custom Concubinage?’ (2005) 9 European Integration online Papers, no 6, 20: 〈http://www.eiop.or.at/eiop/texte/2005-006a.htm〉. Visited 12 June 2010.
(45) Presidency Conclusions, European Council, Brussels, 16–17 December 2004, para 23.
(46) Negotiating Framework for Iceland, July 2010, Brussels: 〈http://ec.europa.eu/enlargement/pdf/iceland/st1222810_en.pdf〉. Visited 8 August 2010.
(48) Eg, in its 2005 Negotiating Framework for Turkey, above n 35 at paras 4 and 6, in addition to contributing to a favourable climate for a comprehensive settlement on the Cyprus question and normalization of bilateral relations, the Union enjoined Turkey to implement provisions relating to freedom of expression, freedom of religion, women's rights, ILO standards including trade union rights and minority rights.
(49) Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, Protocol No 1 on the Role of National Parliaments in the European Union:  OJ C83/201.
(51) Joined Cases 31–5/86 LAISA v Council  ECR 2285, paras 9–12. Such agreements, while allowing for the necessary adjustments to the European treaties, may not amount to a disguised fundamental amendment of such treaties for which another provision—Article 48 TEU—is to be used. Article 48 TEU, like Article 49 TEU, has a mandatory character: Case 43/75 Defrenne v SABENA  ECR 480, para 58.
(52) Postponing accession was provided for in relation to Bulgaria and Romania for up to one year if there were a serious risk that either state was ‘manifestly unprepared to meet the requirements of membership by the date of accession’ in a number of important areas. It will be interesting to note whether or not the Union will be tempted to increase that period of postponement in relation to future accession countries: Article 39 of the Act concerning the conditions of accession of the Republic of Bulgaria and Romania and the adjustments to the treaties on which the European Union is founded:  OJ L157/203.
(53) Institutional changes will be discussed more fully in relation to integration capacity.
(54) Case 258/81 Metallurgiki Halyps A.E. v Commission  ECR 4261, para 8.
(56) Eg, Article 37 of the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded:  OJ L236/33; and Article 36 of the Act of Accession 2005 (Romania and Bulgaria) (above n 52).
(59) U Becker, ‘EU-Enlargements and Limits to Amendments of the E.C. Treaty’, Jean Monnet Working Paper 15/01: 〈http://www.jeanmonnetprogram.org/papers/01/01380.rtf〉. Visited 10 July 2010; and Hillion, above n 35 at 272–82.
(63) Constitutional Act No 2005-204, s 2 introduced into the 1958 Constitution, Article 88-5 that stated: ‘Any government bill authorizing the ratification of a Treaty pertaining to the accession of a State to the European Union and to the European Communities shall be submitted to referendum by the President of the Republic.’
(64) Article 88-5 is not applicable to accessions that result from an Intergovernmental Conference whose meeting was decided by the European Council before 1 July 2004 by virtue of s 47 of the Constitutional Act 2008-724 of 23 July 2008.
(65) Heads of State or Government Summit Conference, Copenhagen, 14–15 December 1973, Annex II, ‘Declaration on Europe's Identity’: EEC Bull 12-1973, 118.
(67) European Commission, ‘Europe and the Challenge of Enlargement’: EC Bull, Supplement 3-1992, point 7.
(69) Presidency Conclusions, Tampere European Council, 15–16 October 1999, ‘Towards a Union of Freedom, Security and Justice: Tampere Milestones’, para 1: ‘from its very beginning European integration has been firmly rooted in a shared commitment to freedom based on human rights, democratic institutions and the rule of law. These common values have proved necessary for securing peace and developing prosperity in the European Union. They will also serve as a cornerstone for the enlarging Union.’
(70) N Walker, ‘Constitutionalising Enlargement, Enlarging Constitutionalism’ (2003) 9 Eur LJ 365; and C Hillion, ‘The Copenhagen Criteria and Their Progeny’ in Hillion, above n 5 at chapter 1, 1, 10–16.
(71) However, if ‘Europe’ is defined in cultural terms, it has been queried whether religion might still be considered as covered by this cultural reference, especially in modern European society: E de Souza, ‘Enlargement of the EU’, Bruges Political Research Papers, No 4/2007, European Political and Administrative Studies, College of Europe, Bruges (2007), 10, 18.
(72) R McCrea, ‘Religion as a Basis of Law in the Public Order of the European Union’ (2009) 16 Columbia J Eur Law 81, 85.
(73) The importance of the Christian churches to the integration project may be seen in Article 17 TFEU: ‘(1) The Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States. (2) The Union equally respects the status under national law of philosophical and non-confessional organisations. (3) Recognising their identity and their specific contribution, the Union shall maintain an open, transparent and regular dialogue with these churches and organisations.’
(74) J Bengoetxea, N MacCormick and L Morial Soriano, ‘Integration and Integrity in the Legal Reasoning of the European Court of Justice’ in G de Búrca and JHH Weiler (eds), The European Court of Justice (Oxford University Press, 2001) 43, 64.
(76) R McCrea, ‘Restrictions on Religion in a Liberal Democratic Polity: Christianity, Islam and the Partial Secularity of the European Union’ (2008) 27 Ybk Eur L 195.
(77) Presidency Conclusions, European Council, Brussels, 15–16 June 2006, para 53.
(78) European Commission, Communication, ‘Enlargement Strategy and Main Challenges 2006–2007, Including annexed special report on the EU's capacity to integrate new members’: COM(2006) 649 final.
(82) In the absence of an actual ‘mathematical formula,’ the EEC and subsequently the EU used the principle of digressive proportionality, according to which so many seats in the European Parliament are awarded between Member States on the basis of population bands.
(83) S Kurpas et al (eds), ‘The Treaty of Lisbon: Implementing the Institutional Innovations’, CEPS Special Report, Joint Study CEPS, EGMONT and EPC, Brussels, November 2007, 65: 〈http://aei.pitt.edu/11751/〉. Visited 21 July 2010.
(84) A little better than the former limit of 700 MEPs which would have resulted in one MEP on average per 835,714 inhabitants.
(85) European Commission, ‘Opinion on Turkey's Request for Accession to the Community’ 20 December 1989: SEC(89) 2290 final/2, paras 5–6.
(86) On the subject of seceding from international organizations, see the older monographs: N Singh, Termination of Membership of International Organizations (Steven & Sons, 1958); N Feinberg, ‘Unilateral Withdrawal from an International Organization’ (1963) 39 British Ybk Intl L 189; and M Akehurst, ‘Withdrawal from International Organisations’ (1979) 32 CLP 143.
(87) See generally, P Soldatos, ‘Durée et Dénonciation des Traités de Rome’ (1969) 47 Revue de droit international des sciences diplomatiques et politiques 257; PD Dagtoglou, ‘How Indissoluble is the Community?’ in PD Dagtoglou (ed), Basic Problems of the European Community (Basil Blackwell, 1975) 258; C-D Ehlermann, ‘Mitgliedschaft in der Europäischen Gemeinschaft. Rechtsprobleme der Erweiterung, der Mitgliedschaft und der Verkleinerung’ (1984) 19 Europarecht 113; F Götting, Die Beendigung der Mitgliedschaft der Europäischen Union (Nomos Verlag, 2000); and A Waltemathe, Austritt aus der EU—sind die Mitgliedstaaten noch souverän? (Lang, 2000).
(88) Dagtoglou, ibid 261–9; JA Hill, ‘The European Economic Community: The Right of Member State Withdrawal’ (1982) 12 Georgia J Intl & Comparative L 335, 337–41 and 344–55; JHH Weiler, ‘Alternatives to Withdrawal from an International Organization: The Case of the European Economic Community’ (1985) 20 Israel LR 282, 282–8; and T Bruha and C Nowak, ‘Recht auf Austritt aus der Europäischen Union? Anmerkungen zu Artikel I-59 des Entwurfs eines Vertrages über eine Verfassung für Europa’ (2004) 42 Archiv des Völkerrechts 1, 1–6.
(89) Vienna Convention on the Law of Treaties (Vienna, 23 May 1969: 1155 UNTS 331).
(90) Case 6/64 Costa v ENEL  ECR 585, 593.
(91) In Costa, ibid 590, the ECJ stated: ‘The transfer by the States from their domestic legal system to the Community legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail.’ (Emphasis added.) Since a Member State seeking to secede from the Community would have undertaken actions incompatible with Community law and since that law was superior to national law, the latter was overturned: secession was therefore, legally speaking, impossible.
(92) Except the 1951 ECSC Treaty the lifespan of which was limited under Article 97 to 50 years. It entered into force on 24 July 1952 and consequently came to an end on 23 July 2002.
(93) S Berglund, ‘Prison or Voluntary Cooperation? The Possibility of Withdrawal from the European Union’ (2006) 29 Scandinavian Political Studies 147, 150.
(94) K Widdows, ‘The Unilateral Denunciation of Treaties Containing no Denunciation Clause’ (1983) 53 British Ybk Intl L 83, 102.
(96) TC Hartley, ‘International Law and the Law of the European Union: A Reassessment’ (2001) 72 British Ybk Intl L 1, 22.
(97) France had incorporated Algeria in 1848.
(98) French administration for northern Algeria was separated from that in the south: France had made northern Algeria an integral part of France in 1848 and by 1959 this area was made up of 13 départements. The four territories of Southern Algeria (also known as Sahara) had been annexed in 1902. The 1947 Algerian Statute (20 septembre 1947), altered their status and they were divided into départements and in 1957 were further reorganized into two départements. The two Saharan départements were reattached to Algeria by Décret 62-535 (Journal Officiel de la République Française, 3 mai 1962, 4483) and responsibility was transferred from the French government minister in charge of the Sahara to his colleague the Minister responsible for Algerian affairs. Algeria, at the time of independence, thus covered 15 départements.
(99) However, out of a population of nearly 11 million in 1962, only about one and a half million were French citizens with the right to vote (making up about 15% of the total population). Most of the some 6.5 million people of voting age in Algeria were not French citizens and therefore not entitled to vote for National Assembly elections.
(100) The others being: Martinique and Guadeloupe in the West Indies, French Guiana in South America, and Réunion in the Indian Ocean.
(101) The OCTs (listed in Annex IV to the 1957 EEC Treaty) were non-European countries and territories which had special relations with Belgium, France, Italy and the Netherlands (generally colonial possessions). They were to be associated with the EEC, the purpose of such association being the promotion of the economic and social development of the OCTs and the establishment of close economic relations between them and the EEC as a whole (Article 131 EEC).
(102) P Lampué, ‘L'application des traités dans les territoires et départements d'outre-mer’ (1960) Annuaire français de droit international 907, 915. On the case law and statutory rules on the application of international treaties in Algeria while part of France, see Lampué, ibid 918–19 and 922–3.
(103) These were: the free movement of goods; agriculture, with the exception of Article 40(4) EEC; the liberalization of services; the competition rules; the safeguard measures provided for in Articles 108, 109 and 226 EEC; and the institutions.
(104) This was done with regard to the competition rules on cartels and dumping issues by the Commission and the Council as well as the rules on free movement of capital, Articles 67–73 and 106 EEC. See Council Decision (EEC) on the application to Algeria and to the French overseas departments of the provisions of the Treaty concerning capital movements: [1959–1962] OJ Spec Ed 48.
(105) Journal Officiel de la République Française, 20 mars 1962, 3019. These accords had three objectives: providing for a ceasefire between the French and the Algerian forces; the independence of Algeria; and cooperation between France and Algeria after independence. Relations between the EEC and Algeria were not directly raised in these negotiations neither were they mentioned in the accords themselves.
(106) M Flory, ‘La fin de la souveraineté française en Algérie’ (1962) Annuaire français de droit international 905, 915–19. See also the Declaration of President Charles de Gaulle recognizing Algerian independence: Journal Officiel de la République Française, 4 juillet 1962, 6483.
(107) This was probably due to the French constitutional rule according to which deputies of the National Assembly have a nationwide mandate. This was provided for in the first French Constitution (3 September 1791): ‘Representatives appointed in the departments shall not be representatives of a specific department but of the Nation as a whole, and cannot be given a specific mandate.’ It is now contained in the 1958 Constitution of the Fifth Republic, Articles 24 and 25, and it is rather the Senate, indirectly elected, which ensures representation of the territorial communities of the Republic.
(108) As set out in Article 227(2) EEC and including by reference Council Decision (EEC) on the application to Algeria and to the French overseas departments of the provisions of the Treaty concerning capital movements: [1959–1962] OJ Spec Ed 48.
(109) P Tavernier, ‘Aspects juridiques des relations économiques entre la C.E.E. et l'Algérie’ (1972) 8 Revue trimestrielle de droit européen 1, 9–10.
(110) Bulletin de la CEE, 1963/3, 35; and Conseils des Ministres, ‘7e aperçu des activités des Conseils’ (1963) 90.
(111) Commission européenne, ‘6e rapport sur l'activité de la Commission’ 228.
(112) The Co-operation Agreement between the EEC and Algeria and the Interim Agreement on the advance implementation of certain provisions of the Cooperation Agreement were signed on 26 April 1976:  OJ L141/2.
(114) L Ananiades, L'association aux Communautés européennes (LGDJ, 1967) 99–100; M Flory, ‘La succession d'Etats en Afrique du Nord’ (1966) Annuaire de l'Afrique du Nord 21, 21–2; Tavernier, above n 109 at 6–21.
(115) According to the figures, about 70% of voters in Greenland opposed EEC accession, while 63.5% of voters in the whole of the Kingdom of Denmark were in favour: F Harhoff, ‘Greenland's Withdrawal from the European Communities’ (1983) 20 CML Rev 13, 17; and HR Krämer, ‘Greenland's European Community (EC)-Referendum, Background and Consequences’ (1982) 25 German Ybk Intl L 273, 273.
(118) I Foighel, ‘Home Rule in Greenland: A Framework for Local Autonomy’ (1980) 17 CML Rev 91.
(120) EC Bull, Supplement 1/83, 6.
(121) On the basis of Articles 96 ECSC, 236 EEC and 204 EAEC.
(122) COM(83) 66 final.
(123) The report of the Legal Affairs Committee of the European Parliament, EP Doc. 1-264/83, together with a motion for a resolution and an explanatory statement endorsing the Commission's proposal of February 1983, was tabled on 29 April 1983.
(124) EP Doc. 1-264/83, 17.
(125) COM(83) 593 final. Additional proposals were submitted in early February 1984.
(126) F Weiss, ‘Greenland's Withdrawal from the European Communities’ (1985) 10 ELR 173.
(127)  OJ C73/3.
(128) Treaty amending, with regard to Greenland, the Treaties establishing the European Communities (‘Greenland Treaty’):  OJ L29/1.
(129) See also Articles 96 ECSC and 204 EAEC.
(136) See 〈http://european-convention.eu.int/〉. Visited 15 May 2010. Friel, above n 116 at 423–4; and M Jovanović, Constitutionalizing Secession in Federalized States: A Procedural Approach (Eleven International Publishing, 2007) 161.
(137) Submission of Peter Hain, UK Minister for Europe, of draft Treaty on Union by Prof Alan Dashwood, Conv 345/1/02 REV 1: 〈http://register.consilium.europa.eu/pdf/en/02/cv00/cv00345-re01.en02.pdf〉. Visited 14 June 2010.
(138) Contribution from Alain Lamassoure, Conv 235/02: 〈http://register.consilium.europa.eu/pdf/en/02/cv00/cv00235.en02.pdf〉. Visited 14 June 2010.
(139) Contribution from Robert Badinter, Conv 317/02: 〈http://register.consilium.europa.eu/pdf/en/02/cv00/cv00317.en02.pdf〉. Visited 14 June 2010.
(141) Lamassoure, above n 138 at 8. The federal model was rejected as being unlikely to be sufficiently acceptable to the people of Europe: basically while people in Europe are supportive of the component parts of the Union, they may resist a model which would present these parts as a whole.
(142) Lamassoure, above n 138 at 6. The confederal model was rejected as being unworkable in an enlarging EU, as it would tend to exacerbate present difficulties, eg deepening the democratic deficit, reducing accountability, and heightening conflict between states and the Union.
(143) See generally, Friel, above n 116 at 424–7; Bruha and Nowak, above n 88 at 14–24; and J Herbst, ‘Observations on the Right to Withdraw from the European Union: Who are the “Masters of the Treaty”?’ (2005) 6 German LJ 1755.
(144) According to, eg the Spanish Constitutional Tribunal in its ruling on the 2004 Constitutional Treaty, 13 December 2004, DTC 6603-2004:  1 CMLR 981; the German Federal Constitutional Court in the Lisbon Treaty judgment, 30 June 2009:  2 CMLR 712; and the Hungarian Constitutional Court, 14 July 2010, Dec 143/2010 (VII.14) AB.
(145) The German Court had previously ruled that the Member States remained the ‘Masters of the Treaty’ in its 1993 judgment on the constitutionality of the German ratification of the 1992 Maastricht Treaty: Brunner, 12 October 1993:  1 CMLR 57. For the seminal discussion of this point, see U Everling, ‘Sind die Mitgliedstaaten der Europäische Gemeinschaft noch Herren der Verträge? Zum Verhältnis von Europäischem Gemeinschaftsrecht und Völkerrecht’ in R Bernhardt et al (eds), Recht zwischen Umbruch und Bewahrung: Festschrift für Hermann Mosler (Springer Verlag, 1993) 173.
(148) In respect of referendums, Norman has advocated a qualified majority (W Norman, ‘The Ethics of Secession as the Regulation of Secessionist Politics’ in M Moore (ed), National Self-determination and Secession (Oxford University Press, 1998) 34, 53) while Weinstock advocated a supermajority (D Weinstock, ‘Constitutionalizing the Right to Secede’ (2001) 9 Journal of Political Philosophy 182, 197). Jovanović, above n 136 at 193–4, notes the different majorities required in different secession referendums under various domestic constitutions.
(149) ‘European Community: We'll Love You and Leave You’, The Economist, 25 July 1981, 53.
(150) Eg, in the United Kingdom, the British government would merely need a simple majority in both Houses of Parliament to repeal the European Communities Act 1972: AF Tatham, ‘The Sovereignty of Parliament after Factortame’ (1993) 28 Europarecht 188.
(152) Consolidated version of the Treaty on the Functioning of the European Union:  OJ C83/47. Article 218(3) TFEU provides: ‘The Commission, or the High Representative of the Union for Foreign Affairs and Security Policy where the agreement envisaged relates exclusively or principally to the common foreign and security policy, shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union negotiator or the head of the Union's negotiating team.’
(153) J-V Louis, ‘Monetary Policy and Central Banking in the Constitution’ in ECB, Legal Aspects of the European System of Central Banks: Liber Amicorum Paolo Zamboni Garavelli (European Central Bank, 2005) 27, 29.
(154) C Sunstein, ‘Constitutionalism and Secession’ (1991) 58 U Chicago LR 633, 647.
(155) The Article could thus be prone to abuse: J Zeh, ‘Recht auf Austritt’ (2004) 2 Zeitschrift für Europarechtliche Studien 173, 204–5.
(156) S Lechner and R Ohr, ‘The Right of Withdrawal in the Treaty of Lisbon: A Game Theoretic Reflection on Different Decision Processes in the EU,’ CEGE Discussion Papers, No 77, October 2008, Center for European, Governance and Economic Development research, Georg-August-Universität, Göttingen (2008), 4: 〈http://www.uni-goettingen.de/de/60920.html〉. Visited 21 June 2010.
(158) Qualified majority voting, when introduced, was regarded as the exception rather than the rule. With the Lisbon Treaty amendments, qualified majority voting in the Council has become the norm: Article 16(3) TEU. From 1 November 2014, the formula for determining a qualified majority will change to one based on the ‘double majority’ principle, ie, a system based upon (i) number of Member States; and (ii) population: Article 16(4) TEU. See J Fairhurst, Law of the European Union, 8th edn (Pearson Education, 2010) 129–32.
(161) The withdrawal clause thus appears to countenance the resurrection of the spectre of the 1966 Luxembourg Accords: see J Lambert, ‘The Constitutional Crisis 1965–66’ (1966) 5 Journal of Common Market Studies 140; NP Ludlow, The European Community in the Crises of the 1960s: De Gaulle Challenges the Community (Routledge, 2006); and L van Middelar, ‘Spanning the River: The Constitutional Crisis of 1965–1966 as the Genesis of Europe's Political Order’ (2008) 4 Eur Constitutional LR 98.
(162) Moreover, in another twist of the bargaining process, the seceding state—in the absence of express wording to the contrary in Article 50 TEU—is not prohibited from unilaterally rescinding its notice of withdrawal any time before the two-year period has elapsed.
(164) P Athanassiou, ‘Withdrawal and Expulsion from the EU and EMU: Some Reflections’, Legal Working Paper Series, No. 10, December 2009 (Frankfurt am Main: European Central Bank, 2009), 24: 〈http://www.ecb.europa.eu〉. Visited 10 July 2010.
(166) J Emmanouilidis, ‘Withdrawal or Creation of a New Union—A Way out of the EU's Constitutional Dilemma?’ Spotlight Europe 2007/02, June 2007, Bertelsmann Stiftung, Gütersloh/Center for Applied Policy Research, Munich (2007), 3.
(170) On the EEA Agreement generally, see S Norberg et al (eds), The European Economic Area. EEA Law: A Commentary on the EEA Agreement (Fritzes, 1993). For more on the institutional framework, its operation and the need to ensure homogeneity between the EU and EEA–EFTA legal orders: A Łazowski ‘EEA Countries (Iceland, Liechtenstein and Norway)’ in S Blockmans and A Łazowski (eds), The European Union and Its Neighbours (TMC Asser Press, 2006) chapter 4, 95, 108–37.
(171) See generally S Breitenmoser, ‘Sectoral Agreements between the EC and Switzerland: Contents and Context’ (2003) 40 CML Rev 1137; and R Schwok and N Levrat, ‘Switzerland's Relations with the EU after the Adoption of the Seven Bilateral Agreements’ (2001) 6 Eur Foreign Affairs Rev 335.
(174) On this point in respect of Scotland and the dangers inherent in such a move, see M Happold, ‘Independence: In or out of Europe? An Independent Scotland and the European Union’ (2000) 49 ICLQ 15, 33–4.
(175) See generally E Stein, Czecho/Slovakia: Ethnic Conflict, Constitutional Fissure, Negotiated Breakup (University of Michigan Press, 1997).
(176) The main contender for this option, at this time, is Belgium and its splitting into separate entities for the Flemish and Walloon communities (which neglects what would happen in such a scenario to the German community in Eupen-Malmedy, with its own self-government and equality with the other two communities recognized under the Belgian constitution since 1993).