Article 50 of the Treaty on European Union: How to Understand the ‘Right’ of the Member State to Withdraw the European Union?

Mehdi (2007), p. 113.

For terminological clarity, withdrawal, retreat, and exit will be used as synonyms. We do not believe we can consider in this way the noun secession, which is used to describe a country that acquires independence separating itself from a unitary state.

The writers refer to a “Europe at 28” because, as established by Art. 50 TEU, neither any withdrawal agreement has yet been signed, nor have 2 years after the notification of intent by the United Kingdom passed away.

For an historical perspective of the enlargement see Nelli Feroci (2005), pp. 597; for a legal perspective see Puglia (2014), pp. 333–338.

Vellano (2007 ), p. 503.

Wessels (2001), pp. 5–11.

Herbst (2006), pp. 383–389; Friel (2004), pp. 407–428; or de Waele (2005) pp. 169–189.

Amato (2016).

Craig (2016), pp. 447–468.

Wyrozumska (2013), pp. 1385–1418.

Ćapeta (2016), p. 7.

Respectively, Art. 312 EC (which replaces the EEC), Art. 208 EAEC, Art. 51 TUE.

In this regard, the words of Von Mises (1983, p. 34): ‘No people and no part of a people shall be held against its will in a political association that it does not want’.

It is better to remind that this clause does not exempt the withdrawing State from showing the actual change in those conditions, although it is a case of denunciation that is independent of the length of the Treaty and that lives its own ontological and conceptual autonomy. The exceptionality hypothesis, therefore, does not justify in any way the assessment of this option in terms of withdrawal ad libitum, but rather as a case of withdrawal ad nutum, using a dear distinction with regards to the contractual legal tradition.

To these assumptions are added the provisions of Art. 54 of the Convention, according to which “the termination of a treaty or the withdrawal of a party may take place: (a) in conformity with the provisions of the treaty; (b) at any time by consent of all the parties after consultation with the other contracting States”. Albeit difficult configurability, given the unanimity of the 28 Member States, it is still a hypothesis possibly workable.

In this sense see Tesauro (2012), p. 93.

Puglia (2014), p. 339.

Vellano (2007), p. 508.

The procedure for constitutional amendment is required by the Italian Constitution in the Art. 138.

Vellano (2007), p. 509.

About this, just see Strozzi (2005), p. 388.

Nicotra (2003), p. 453.

Costa vs. ENEL, 6/64, ECLI:EU:C:1964:66.

To express clearly this idea, the Advocate General Lagrange spoke about “a single market based on the creation of a separate judicial system of the Member States, but intimately and even organically tied to it.”

Nicotra (2003), p. 452.

Vellano (2007), p. 509.

Infringement procedure, respectively, in Art. 226 and 227 TEC.

Vellano (2007), p. 510.

De Witte (2005), p. 21.

Zbiral (2008), p. 306.

Ibid p. 307.

Ibid p. 308.

Snavely (2004), pp. 213–230.

Friel (2004), p. 422.

Voluntary membership in international organisations was always seen as a basis of state sovereignty. It was the case even with the historically first global integration organisation—League of Nations. Voluntary membership was also in its case the (positive) answer to the question whether states which joined an international organisation and so accepted certain limitations on their sovereignty can still be seen as sovereign subjects (Le Fur 1935).

This is the current text of the Art. 50 TEU:

Herbst (2006), pp. 388; Weiler (1985), pp. 282–298.

For example, Czech Constitutional Court noticed this conceptual change and used the right to withdraw from the Union as an argument in favour of preserving the sovereignty of the Czech Republic when participating on the European integration. It reminded that: ‘[...] the Treaty of Lisbon newly introduces, in Art. 50 of the Treaty on EU, the possibility of withdrawing from the organization. This can take place by agreement between the withdrawing state and the Council as a representative of the member states (i.e., not with the Commission, as a representative of the interests of the Union itself), and if an agreement is not reached, the Treaty itself gives the withdrawing state a notice period. Thus, the manner of termination membership is also typical for an international organization, not a contemporary federative state, and this possibility, on the contrary, strengthens the sovereignty of member states. [...]’ Decision in case Treaty of Lisbon I, Pl. ÚS 19/08, ECLI:CZ:US:2008:Pl.US.19.08.1, point 146.

Klabbers (2016), p. 555; Wessel (2016), p. 2.

Hofmeister (2010), p. 599.

Tatham (2012), p. 152.

Łazowski (2012), p. 526.

Di Paolo (2016).

We have just said that the Art. 50 TEU does not consider, itself the concrete procedure of the withdrawal negotiation.

Łazowski (2012), p. 530.

Some authors (Nicolaides, Athanassiou, Lazowski, Hofmeister) have serious doubts about the practical viability of the withdrawal totally unilateral because of the weight of the legal, political, and economic challenges that such a move concerns.

Art. 4, paragraph 3 TEU. This rule introduces the so called “principle of cooperation”.

Łazowski (2016), pp. 1297, 300.

Kumm (2005).

Hamuľák (2016), p. 85.

The extreme decision on withdrawal is the part of Member State autonomy even in constitutional structure like EU and therefore state cannot be prevented to do so. See Nicolaides (2013), p. 212.