by Professor Alessandra Silveira, Editor
Since Abraham Lincoln faced the hardest constitutional crisis of the USA (War of Secession, 1861-1865) the modern legal theory of federative systems had taken for granted that the hypothesis of secession was repelled. And then the Canadian Supreme Court reframed the data. In the country, in 1995, a referendum was called on the unilateral declaration of secession of Québec. The proposal of separation was reject by a short difference – 50,58% of the votes in a turnout of 94%. Following the referendum the federal government appealed to the Supreme Court to know if a unilateral secession, addressed in a popular consultation not approved by the remaining States, would violate the Constitution. The Supreme Court ruled that a unilateral secession with those features would infringe the Constitution. However, if in a different referendum, when answering a “clear question”, the “clear majority” of the Québécoise casted an unequivocal will of not integrating Canada anymore, then the remaining States and the federal government would be bonded to negotiate with Québec the conditions for its withdrawal because unwritten constitutional principles determined it (Reference re Secession of Quebec,  2 S.C.R. 217). In the aftermath the federal government passed in the Canadian Parliament “clear” rules tending to regulate and calculate the “price” of withdrawal, especially to safeguard the legitimate interest of the remaining States and their population – as a result, Québec still integrates the federation. Punch line: in a federative system there are neither free lunches nor free exits.
In the EU, this “price” has not been calculated yet – it was only instituted the possibility of withdrawing. With the entry into force of the Lisbon Treaty an exit clause was introduced in Article 50 of the Treaty on European Union (TEU), mostly to accommodate the desires of the new Member States from Eastern Europe that were traumatised due to the absence of a similar rule in the soviet regime to which they belonged. Nevertheless, it is predicted a leaving agreement and not a unilateral decision of a Member State, considering the complex linking networking which derives from being part of the EU and that all the other Member States and peoples legitimately trusted in the permanence. The content of what Article 50, TEU commands is significantly distinct from the unilateral leaving decision as in international law of treaties, basically because the EU has always functioned as a federative system. The exit procedure indicated in Article 50, TEU is grounded in the consensus between the Union and the Member State that expresses the intention to leave – and not between the latter and the remaining contracting States, as Article 54 of the Vienna Convention on the Law of Treaties. Such consensual withdrawal does not depend on the acquiescence of all EU Member States. The agreement needs the approval of the European Parliament and the qualified majority of the members of the Council (Article 50, No. 2, TEU), that is 72% of the members of the Council which correspond to 65% of the population of the Member States (Article 238, No. 3, b, TFEU).
Article 50, TEU states essentially that the Member State shall notify the European Council of its withdrawal decision from the EU “in accordance with its own constitutional requirements”. That prevents that a Government of a Member State exercises autonomously the leaving possibility – and that in the present case of United Kingdom, that the about 2/3 of MPs who did not support Brexit follow the referendum decision. After that, the European Council decides what sort of agreement must be offered to the withdrawing Member State in order to establish the conditions of the exit and the future relation with the EU (Article 50, No. 2, TEU). That means the Treaty does not allow a partial withdrawal. It obligates the full pulling out (it is why the President of the European Commission, Jean-Claude Juncker, said after the referendum: “out is out”). The details of the leaving agreement will be negotiated between the Union and the Member State for two years, starting from the notification, except if the European Council decides unanimously to postpone this deadline. Article 50, No. 2, TEU indicates that the settlement is negotiated under the terms of Article 218, No. 3, TFEU (which regulates the process of agreements’ celebration between the EU and third countries or international organisations). The agreement must establish the rights and obligations of the Union, of the Member States and of the withdrawing State. The Treaties´ application cease in the State wanting to leave the EU from the date of the entry into force of the withdrawal agreement on or, in the absence of it, two years after the notification (Article 50, No. 3, TEU). That means that, although the EU suspends for two years the effect of the withdrawal in an attempt to find a consensual solution, if it is not possible, such Member State stays at risk of having to abandon the EU in non-consensual circumstances and perhaps highly unfavourable. In any case, for the effects of the celebration of the leaving agreement, the State that desires to remove itself from the EU does not take part in the deliberations or the European Council and the Council decisions that concern it (Article 50, No. 4, TEU).
The Treaty does not regulate explicitly several issues which will have to be resolved in the light of the principiology of the EU law, in special the principle of European loyalty (Article 4, No. 3, TEU), according to which Member States facilitate the fulfilment of the Union’s mission and refrain from taking any measure susceptible to risk the realisation of the EU’s objectives. For instance, it is not predicted a time limit for the Member State to notify its intention of leaving the EU as a consequence of a referendum, whose delay provokes instability in the financial markets, in the economic operators, in the intervention of the EU institutions, in the remaining Member States that apply the EU law and, mostly, in the life of the European citizens who have exercised their freedom of movement. Therefore, the European Parliament passed a resolution urging the immediate invocation of Article 50, TUE by the UK, in order to prevent an uncertainty situation, pernicious to all and to protect the integrity of the EU (the MEPs expected that the UK´s prime-minister would notify the result of the referendum to the European Council on 28th-29th of June, something that did not happen).
Another issue not completely solved by the Treaty revolves around the extension of the competences of the withdrawing Member State. In theory, as nothing is written otherwise, the representatives of that Member State keep in charge before all EU institutions and all matters, since until its withdrawal the Member State continues tied to the EU law, participating in the adoption of rules that tie it. Yet, the European Parliament has already motioned to the Council regarding the adjustment of the rotating EU´s presidency schedule, so that the British administration, designated to the second semester of 2017, is cancelled. This way the regular governance of the EU is not disturbed by the withdrawal process. Moreover, the Treaty does not tell if the notification of exiting is revocable, probably to impede Member States of using a false leaving threat to influence the destinies of the EU. If this question comes to the surface, it would have to be examined in the light of the European loyalty principle, in line with the Union and Member States respect and assist each other mutually in the fulfilment of the missions arising from the Treaties.
Even though the Treaty does not state it explicitly, it is defendable that the reference to Article 218, TFUE, on the negotiation of the agreement, allows the Court of Justice of the European Union to be invoked to give its opinion about the compatibility of the agreement project with the Treaties – by request of any Member State, the European Parliament, the Council or the Commission (Article 218, No. 11). The agreement may not come into force if the opinion of the Court is adverse unless it is amended or the Treaties are revised. And finally, compliant with Article 50, No. 5, TEU, if a State that has withdrawn from the EU asks to re-join, it is applicable the procedure referred to in Article 49, TEU, without any privileges for having integrated the EU one day, through an agreement celebrated between the asking State and the Contracting States – what endorses the idea that “out is out”.
We shall wait then for the definition of the “price” and its implications. We can, undoubtedly, anticipate that the British are doomed to consume less tomato (90% of the tomato consumed in the UK comes from other Member States), less gourmet cheese, as Gouda and Roquefort (62% of the cheese consumed in the UK is imported, and out of these 98% originates in the EU), and will have to pay an additional tax of 32% on nice Portuguese, Spanish, French or Italian wine – that the EU charges on every wine export. There it goes the Mediterranean diet…
Picture credits: Untitled, by daev.