Right now, Europe is holding its breath, its very existence being threatened by a forecoming cataclismic event. I’m not talking about climate change, nor the migrant crisis, the economic crisis, or the invasion of the tiger mosquito. No, I’m talking about the Brexit : after continuous strong polls for the Brexit camp, thanks to the fantasque Boris Johnson, the remain side is gaining momentum, and Britain could vote to stay in Europe ! Which means they will be able to keep annoying us by opposing any sound initiatives, in other words playing their traditional « nevermind the bollocks » game, as the Sex Pistols would say (as you might have noticed, the joke sucks, but I’m only using the word sex to get more people to this article…might work better than using the name of Boris Johnson).
Anyway, let’s get serious again, I’m not even in favour of the Brexit (if Britain leaves, how could we evade French taxes in a less than an hour trip from Paris ?). Let’s ask ourself the only real question : how the hell can a country voluntarily get out of the EU ?
We’re not even a real country anymore !
When people talk about the EU on TV, at least in France, they often talk about sovereignty, about what the EU takes from us (when they don’t talk about the size of salami slices or who is responsible for unemployment, plague and AIDS in the world). People usually admit, even when they are pro-EU, that being part of the EU diminishes our sovereignty. Some think it’s cool, some think it’s not. But they’re actually all wrong !
In fact, as my international relations teacher Alexis Vahlas told us years ago when I was a student in Strasbourg, being sovereign doesn’t mean doing everything alone, it only means being free to determine your own sphere of competence. In other words, a country is sovereign when it decides alone what it does itself, and what it is willing to delegate to another entity, like an international organisation. In any case, it remains free to take back what it delegates.
And this is exactly the case when it comes to the EU ! Indeed, if member States have accepted to share parts of their sovereignty, they did it freely, via a democratic process – every accession to the EU went through a referendum or at least through the national parliament. A country is never forced to enter the EU : Norway has refused twice to get in, via negative referendums in 1972 and 1994.
So, how about getting out ? For a long time, European treaties did not contain provisions on a withdrawal process. Then this is the proof, the evil EU bureaucrats do quash our sovereignty, since they prevent us from leaving ! Alas no, you are wrong my dear eurosceptics friends : the absence of a precise withdrawal process does not mean that it is impossible to get out.
Indeed, in practice, the question has raised itself several times, and several territories did get out of Europe without a problem. For instance, Algeria, which was an integral part of France when the treaty of Rome was signed in 1957, was a part of Europe, but automatically ceased to belong to it when it became independant in 1962.
Also, Greenland, part of Denmark, voted out in 1982 and is now considered a mere Overseas territory which enjoys a large autonomy. And my British friends – or at the least their parents – know that in 1975, a first referendum on the membership of the UK was organised, with a clear majority of 67% voting to remain in what was then the EEC. If the results were in favor of staying in, I don’t think the campaign revolved around the very possibility or right to leave, and I don’t think that the bureaucrats of Brussels had the means or even the intention to force the UK to stay, had the results been different.
How to do a Brexit
Anyway, the possibility of getting out is today explicitly provided for in the treaties. More precisely, article 50 of the Treaty on European Union states the following :
- Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
- A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
- The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
- For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.
- A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.
- If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.
To sum up : the EU can not oppose the will of a State if it wants to get out, it is a unilateral – and therefore sovereign – decision. But the process takes more than a day, since the leaving State is supposed to reach an agreement with the EU so as to make the exit effective : which legislation will still apply, which economic advantage will subside, what will become of the country’s access to EU markets. The process can be short if all goes smoothly, but it can take two years, even more if the parties reach an agreement to prolong the delay.
And if there is no agreement after two years ? Hard to imagine the consequences : the treaties automatically cease to apply (apparently), but what of EU directives and regulations ? Is there a « by default » transitory regime ? Are EU regulations still in force as long as the country doesn’t formally annul them ? Would conflicts be solved by the European Court of Justice, by the House of Lords, by an arbitrary court or by Prince Charles ? A bible would not be enough to answer these questions precisely !
In or out ? In and out ?
Anyhow, the process is anything but fast and straightforward, and the leaving State might have difficulties to negotiate with his ex-partners who could hold a grudge against it, for having created such a legal nightmare ! You may by the way have noticed that the leaving State does not participate in the elaboration of the EU’s position in the negotiations : the EU decides of its position without it, and then the State decides whether it accepts it or tries to renegotiate.
But instead of seeing that as an intolerable limitation of sovereignty, one might ask oneself the following question : is it possible to quit « just like that » an organisation whose legislation has a profound impact on UK’s legal system, and whose members are UK’s main commercial partners ? One must be crazy to think so, even if one thinks that a leaving State should not consider itself bound by such a complicated process.
And let’s also keep in mind that it’s not illogical that a country who decides to get out has no right to have an influence on the position of the organisation he is leaving when it comes to decide how the arrangement will proceed : you need two separate sides to negotiate. Otherwise, it would be like having a cake while eating it too, and finding a naked girl on top of it at the same time : too good to be true !
Let’s just see the choice that the British people will make, aside from practical difficulties : stay inside the tower of Babel and keep suffering that French people cross the Channel everyday ? Or stay between gentlemen and eat wonderful British dishes with mint sauce ? Wait and see…but in any case, let’s remain friends and keep the Entente cordiale, ok ?