Article 50 After Brexit: Reforming Withdrawal and Opt-Outs from the EU
Oliver Garner (European University Institute)
On 15thJanuary 2019, the House of Commons is scheduled to finally hold the ‘meaningful vote’ on whether to adopt or reject the UK-EU Withdrawal Agreement. Despite the prevarication of the Prime Minister in delaying the vote that was originally scheduled for the 11thDecember, the lack of political consensus within Parliament regarding the Agreement seemingly remains unchanged. In the most likely event that the House of Commons rejects the Withdrawal Agreement the United Kingdom will be staring down the barrel of exiting by automatic operation of Article 50(3) TEU on 29thMarch 2019. The only options remaining to prevent this chaotic exit would be an extension of the time-period by unanimous consent between the UK and the European Council, or alternatively a unilateral decision to revoke the Article 50 notification which was confirmed as compatible with the Treaties by the Wightman decision in December.
The complete uncertainty regarding the outcome of the Brexit endgame may be regarded as an indictment of the European Union’s withdrawal clause. Article 50 TEU was regarded primarily as a ‘safety valve’ to assuage reticent Member States upon its creation. Although the present Brexit impasse owes much to political choices made by the UK government and the EU institutions, it may also be suggested that the situation casts doubt upon Article 50. If and when the withdrawal of the UK is brought to some form of conclusion, the remaining Member States and EU institutions may decide to take stock of a painful two years and consider whether the withdrawal clause is fit for purpose.
This provides the starting point for my new DCU Brexit Institute Working Paper considering reform of withdrawal via Article 50 TEU, and the partial form of withdrawal embodied in Member State opt-outs from the EU. Opt-outs are included within the scope of enquiry both because of their conceptual connection to withdrawal, and due to the historical context that the only Member State that has activated Article 50 TEU is also the Member State that has been instrumental in creating the Protocols which have enabled opt-outs from areas including Economic and Monetary Union, the Schengen acquis, and the Area of Freedom, Security, and Justice.
The paper adopts the dual-constituent thesisof the legitimacy of the EU to scrutinise opt-outs and withdrawal. First articulated by Jürgen Habermas, this thesis holds that the EU constitutional order ought to be regarded as constituted by individuals exercising a mixed constituent power as both nationals of a Member State and simultaneously as citizens of the EU. Whereas in the former role individuals are represented by their national elected representatives in the Council, in the latter role individuals are represented by directly elected Members of the European Parliament. This dual-constituent power and the constituted powers that represent the interests of individuals can explain how the phenomena of Member State opt-outs and withdrawal have arisen within the European Union.
The creation of Article 50 TEU in the Treaty of Lisbon provided an explicit procedure to positivise the right of Member States to disengage from the process of ‘levelling up’ constituent power. Member States now have an explicit means to make a decision that engagement with the ongoing construction of the supranational constitutional order would no longer vindicate the interests of individuals qua nationals of that Member State. The manifestation of opt-outs is a more subtle exercise of the retained sovereign power to engage in the European Union. Because the constitutional order is still based upon the international law paradigm of Treaties between sovereign states and their consequent amendment, representatives of a Member State may decide to vindicate the interests of individuals qua nationals of that state by creating wholesale derogations from the creation of EU-level norms in the Council and the consequent application of those norms in the territory of that state’s legal order.
If withdrawal and opt-outs may be interpreted as preserving the interests of individuals qua Member State nationals, then equally they undermine the capacity for individuals to exercise self-determination in the creation of norms and to pursue their plans for self-fulfilment in reliance upon those norms in their joint constituent role as citizens of the EU. Whereas opt-outs prevent individuals holding citizenship of the Union from relying upon EU law norms in a particular Member State territory, withdrawal has the far more dramatic consequence of removing this constituent status entirely for individuals who are nationals of the relevant state. Despite the more deleterious consequences of withdrawal, it may be argued that opt-outs are more problematic from the dual-constituent perspective upon legitimacy. The ultimate contingency option to withdraw from the EU functions as the vindication of state sovereignty and the primacy of the role of national of a Member State. The availability of opt-outs in addition serves only to undermine the coherence of the constitutional order within the boundaries of the continuing decision to level up constituent power in the absence of a decision to withdraw.
The paper consequently concludes with consideration of proposals for reform of opt-outs and withdrawal. The argument is put forward that the option for Member States to create opt-outs from EU law should be limited to conditions expressly defined by the EU constitutional order as constructed by the dual-constituent subject. These conditions would limit the possibility of creating opt-outs to a last resort option when a perceived threat to the capacity for individuals to exercise self-determination as nationals is flagged and accordingly assessed by the EU institutions. By contrast, reform proposals to Article 50 TEU that could see the decision to withdraw restricted to conditions established by the EU constitutional order or that would expand the franchise for the decision to all individuals who hold EU citizenship would not be practicable within the auspices of the dual-constituent thesis. The thesis holds that the legitimacy of the European project relies upon the sovereign choice to engage in supranational polity building by each constitutional state; therefore to preserve the role of national of a Member State it must remain possible to retract this levelling up of constituent power. Reform proposals would consequently be limited to the national level and the definition of the ‘constitutional requirements’ of each state in accordance with Article 50(1) TEU. It may be tentatively suggested that the only reform whereby individuals qua EU citizens would be able to insulate themselves entirely from the negative consequences of a potential withdrawal of a Member State would be through emancipating the constituent power of EU citizenship from the status of nationality of a Member State in order to create an autonomous European constitutional order.
Oliver Garner is a Ph.D. researcher in the Law Department of the European University Institute from the United Kingdom. He received his LL.M. from the EUI, and a BA Jurisprudence degree from the University of Oxford (St. John’s College). His areas of interest are European Union law, national constitutional law, and legal and political theory. This piece is drawn from his recent DCU Brexit Institute Working Paper, Reforming Withdrawal and Opt-Outs from the European Union: A Dual-Constituent Perspective
(DCU Brexit Institute – Working Paper N.11 – 2018).