In the December 2021 Issue of the European Law Review, our Rule of Law editor Oliver Garner has published an article ‘Seven Reforms to Article 50 TEU’. This op-ed considers whether such reforms to EU withdrawal that utilise the lessons of Brexit in order to address the possibility of ‘Polexit’ may be helpful in resolving the ongoing values crisis in the EU.
Brexit saw Article 50 TEU – the ‘safety valve’ that was never meant to be used – put into operation. The conclusion of the Withdrawal Agreement and the Trade and Cooperation Agreement means that we can now appraise whether the withdrawal clause fulfilled its purpose to enable a sovereign decision to withdraw through an orderly procedure. Ongoing tensions around fishing and Northern Ireland suggest disorder. In a new article for the European Law Review,
I argue that Article 50 has further failed to fulfil its purpose because its framing and functioning only recognise the Union as the result of an international agreement between sovereign states, rather than also being constituted by individual citizens.
This op-ed engages in tentative speculation as to how a reformed Article 50 TEU could bridge the gap between Brexit and ‘Polexit’ in helping to resolve the EU’s current values crisis.
The tumult of Brexit means that these proposals to reform Article 50 may be regarded as purely academic, as no Member State would consider withdrawing in the immediate future. However, the worsening values crisis between Poland and the EU has raised the spectre of another form of ‘exit’ from the EU legal order. The term ‘Polexit’ has been used to describe the Polish government’s disengagement from EU law and politics; following the 6 October judgment in K 3/21 that EU law on effective legal protection may be incompatible with the Polish constitution, the Polexit argument has been stretched even further to claim that the disputed Polish Constitutional Tribunal’s decision may constitute Poland’s notification of an intention to withdraw under Article 50 TEU.
A reformed Article 50 may be able to bridge the vacuum that has arisen whereby Poland – and Hungary – have exhibited defiance towards EU constitutionalism without expressing any political intention to withdraw officially.
Rather than constructing such an intention to withdraw by stretching judicial dicta, in defiance of the democratic will of the government and citizens, the missing piece of the puzzle may be a political mechanism for the EU institutions to invite an actively recalcitrant Member State government to consider its position in the EU.
The proposal for a new ‘double-decision structure’, whereby a Member State would first notify its intention to withdraw with a final decision to leave or remain then being made at the end of negotiations, would enable the citizenry of backsliding Member States to enter into an existential conversation on European integration without immediately initiating the legal consequences of withdrawal. Furthermore,
the capacity to request a fast-tracking of the final decision to leave or remain, and the removal of the two-year time-limit for negotiations, would limit the amount of time in which ordinary politics is disrupted by the withdrawal debate.
Such a mechanism may enable more brinkmanship by the EU institutions in dealing with violations of values through encouraging such a notification, and forcing a zero-sum game for citizens of that country to choose between supporting the government that is violating EU values or remaining EU citizens. As the reformed withdrawal clause would be explicit that a decision to withdraw is also a decision by all the nationals of that Member State to revoke their EU citizenship, the European Parliament as representative of individuals in this role would be the most appropriate institution to engage with a Member State to encourage a potential notification of intention to withdraw. Such a double-decision structure could afford leverage to the institutions in requesting, for example, that a backsliding Member State will be subject to financial sanctions or suspension of rights under Article 7 TEU if it does not issue an initial notification and commence the internal dialogue on EU membership.
Other reforms can also be utilised to mitigate abuse of the withdrawal clause by a Member State. A time-limit being imposed before a Member State can issue a second notification of an intention to withdraw after a decision to remain would prevent tactical notifications for strategic reasons, a concern raised by the EU institutions in the Wightman litigation on revocation. The reform of cliff edge ‘no deal’ withdrawal into a graduated ‘parachute landing’, whereby the acquis communautaire would be disapplied in stages based on preparedness, would prevent the disastrous consequences of crashing out of the EU if a backsliding Member State were to go rogue and refuse to negotiate with the EU in good faith.
Most significantly,
the proposal to guarantee protection of EU citizenship rights in the text of Article 50, rather than leaving this to the whim of negotiators, would ensure that pro-EU nationals of the states concerned would not have their life-plans disrupted if they have engaged with the individual opportunities of European integration.
At the most ambitious end of the scale, if the other Member States agreed to a fast-track right to naturalisation for nationals of a former Member State as part of their national implementation of the Treaties then these individuals would be able to retain their EU citizenship.
Whereas the UK accepted the constitutional principles of the EU legal order, as evidenced by the Miller judgment, but rejected membership politically, Hungary and Poland challenge EU values whilst maintaining their preference to remain members. In the absence of an expulsion clause in the EU Treaties, attempts to stretch the wording of Article 50 to argue for ‘constructive withdrawal’ would undermine the purpose of the clause to enable voluntary exit as an exercise of sovereignty. Reform of Article 50 TEU would not only serve the intellectual purpose of addressing the shortcomings evidenced during the Brexit case-study, but could also instrumentalise the clause as a tool that is more suitable for confronting governments which pursue a course of resistance to the foundational values of European integration.