EMU AS CONTRACT A Constitutional Law and Economics Analysis [p 41]

by Luc Rochtus, Universität Hamburg – Fachbereich Rechtswissenschaft, University of Haifa – Faculty of Law http://www.emle.org/_data/Luc_Rochtus_-_Emu_As_Contract.pdf

  •  Article 50 of the Lisbon Treaty explicitly makes provision for the voluntary secession of a Member State from the EU.

Specifically, the exit clause provides that a Member State wishing to withdraw from the EU must inform the European

Council of its intention; the Council is to produce guidelines on the basis of which a withdrawal agreement is to be negotiated with that Member State; and the Council, acting by a qualified majority and after obtaining the consent of the European Parliament, will conclude the agreement on behalf of the EU. 

The exit clause, as formulated, raises at least three concerns. First, despite the references in it to a negotiated  agreement on the details of the withdrawing Member State’s departure, the exit clause recognises, effectively, a unilateral right of withdrawal as well as a possibility for a Member State to negotiate its agreed exit from the EU. Second, the exit clause only appears to be appropriate if only one or two Member States were to withdraw at a time, but not if there were to be a mass exit from the EU. 

  • A third, and perhaps the most serious, concern, is that the exit clause contains no special provisions on the requirements for the withdrawal of a Member State which has adopted the euro [EMU].
  • There is no treaty provision at present for a Member State to be expelled from the EU or EMU.

The closest that Community law comes to recognising a right of expulsion is Article 7(2) and (3) TEU, allowing the Council to temporarily suspend some of a Member State’s rights

(including its voting rights in the Council) for a ‘serious and persistent breach by a Member State of the principles mentioned in Article 6(1)’ of the EU Treaty.

  • Marginalising a Member State, although not formally expelling it, would not be impossible, but none of the avenues available for achieving it would be ideal. Persuading a Member State to withdraw, by making use of the proposed exit clause or resorting to the regular Treaty revision procedure, may be the better option.

WITHDRAWAL AND EXPULSION FROM THE EU AND EMU - SOME REFLECTIONS by Phoebus Athanassiou 

[pp 24, 33, 39]

EUROPEAN CENTRAL BANK LEGAL WORKING PAPER SERIES NO 10 / DECEMBER 2009