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Observations on the Right to Withdraw from the European Union: Who are the “Masters of the Treaties”?

Published online by Cambridge University Press:  06 March 2019

Jochen Herbst

Extract

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Discussing the withdrawal provision pursuant to Article I-60 of the Constitutional Treaty (CT), also referred to as the sunset clause, in the morning light of the establishment of a European Constitution is pretty much like talking about divorce on your wedding day. Before I try to start analyzing the text of this new provision, I will briefly outline the status of the legal debate on the right of withdrawal from the current EU/EC Treaty. In this context, I would like to highlight three aspects by making one political and two legal observations.

Type
Part IV: Territorial and Temporal Aspects of Unity
Information
German Law Journal , Volume 6 , Issue 11: The Unity of the European Constitution: 2nd German-Polish Seminar on the Constitutional Law of the European Union , 01 November 2005 , pp. 1755 - 1760
Copyright
Copyright © 2005 by German Law Journal GbR 

References

1 See ECJ, Case C-26/62, van Gend & Loos, 1963 E.C.R. 1. Similarly, in its first opinion on the EEA Treaty, the ECJ held that, in contrast to the European Economic Area, which was established on the basis of an international treaty merely creating rights and obligations between the Contracting Parties and not providing for a transfer of sovereign rights to the respective inter-governmental institutions, the EEC Treaty, albeit concluded in the form of an international agreement, nonetheless constitutes the constitutional charter of a Community based on the rule of law. According to the ECJ, the Community Treaties established a new legal order for the benefit of which the states have limited their sovereign rights and the subjects of which comprise not only Member States but also their nationals; the essential characteristics of the Community legal order which has thus been established are in particular its primacy over the law of the Member States and the direct effect of a whole series of provisions. See Case C-1/91, 1991 E.C.R. I-6079, 6102.Google Scholar

2 To date, all proposals and suggestions for a respective amendment of the sunset clause have been rejected. The documentation of the drafting process and the proposed amendments of Article I-60 Constitutional Treaty are available at http://european-convention.eu.int/amendments.asp?content =46&lang=EN.Google Scholar

3 See Peter Gussone, Das Solidaritätsprinzip in der Europäischen Union und seine Grenzen (forthcoming 2006).Google Scholar

4 In this context, I suspect that the two-year notice period for withdrawal is related to the Union's experience in the Greenland case. In this case, the withdrawal implementation took approximately 2.5 years to take effect.Google Scholar

5 Regarding further issues, see Klabbers, An Introduction to International Institutional Law 126 (2004).Google Scholar

6 For a brief summary of this legal debate, see id., at 28-9.Google Scholar

7 See Orwell, George, The Collected Essays, Journalism and Letters of George Orwell. Volume 4: In Front of your Nose, 1945-1950, 152, 153 (1968). See also Klabbers, supra note 5, at 39-40.Google Scholar

8 For details on this case, see Bast, in this volume.Google Scholar

9 See Weiler, Joseph H. H., Alternatives to Withdrawal from an International Organization: The Case of the European Economic Community, 20 Israel Law Review 282, 287 (1985).Google Scholar