Analysis of Article 50 of Lisbon Treaty – The Secession Provision

It is strange that there has been so little analysis of Article 50 of the 2007 Lisbon Treaty, which is being relied on in the UK’s apparently likely request for withdrawal.

I share with you, therefore, this fascinating article by Clemens M. Rieder of the University of Lancashire, published quite recently in the Fordham Journal of International Law.

The key paras for this sub-issue, which raises a fascinating question, are as follows:

Withdrawal from the European Union is regulated in article 50 of the TEU. What is rather obvious to notice is that the matter of withdrawal is dealt with in only one single and rather short provision. This somehow seems surprising given the significance and complexity of a potential withdrawal from the European Union. The wording of the clause can be considered ‘rather broad’ as it allows not only for consensual, but also for unilateral, withdrawal. This section will outline the structure of the provision and highlight some of its problems before it is discussed in the light of EU citizenship in the next section.

According to article 50.1 of the TEU, “[a]ny Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.” The problem one encounters with this provision is that it would seem that it is the European Court of Justice (“ECJ”) which would be called on to decide whether a Member State (rebus sic stantibus) has in fact withdrawn in accordance with its own constitutional requirements. This means, as a consequence, that “this insertion has catapulted that court [ECJ] into the role of final arbiter of a significant issue of national constitutional law.”37 Needless to say, this could embroil the ECJ in questions which are highly sensitive for the withdrawing Member State.

I wonder if that phrase might mean, not that the exit request must be made according to leaving state constitutional procedures, but rather that it must be the result of some requirement that the state’s constitution requires it to ignore to comply with what the EU would require.

The paper raises the fascinating question as to what legal institutions would resolve any questions about withdrawal eligibility.

There is also the question of standing.  I might lose my right to live and work in the rest of the EU.  Would this give me standing?



About richardzorza

I am deeply involved in access to justice and the patient voice movement.
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