Historical Development of the European Union

Question 1

What is the European Union?

Answer 1

The EU embodies an intense form of co-operation between its Member States. It goes beyond ordinary co-operation between international governments, while also preserving the identity of its Member States.

Question 2

What is ‘supranationality?’

Answer 2

A term used to describe the EU’s hybrid character. It reflects the EU’s position between ordinary intergovernmental co-operation (between different international governments) and fully-fledged unitary statehood (operating as one state). It has moved more towards being a quasi-statehood (centrifugal) and away from intergovernmentalism (centripetal).

Question 3

When did feeling for European integration emerge?

Answer 3

Post WWII: there was desire for greater cooperation between Western European states, to lower the risk of inter-state conflict and to ensure a more united front against the Eastern European Soviet Bloc.

Question 4

1. The Council of Europe

Answer 4

The Council of Europe should be distinguished from the EU. The Council is primarily concerned with the protection of human rights, democracy and the rule of law in Europe.

Question 5

When was the Council of Europe established?

Answer 5

By the Treaty of London in 1949.

Question 6

Why was the Council of Europe established in theory?

Answer 6

Article 1(a) of the Statute of the Council of Europe: its aims were to achieve greater unity between its members; to facilitate economic and social progress; and, as stated in the preamble, to bring European States closer together, in the pursuit for peace.

Question 7

Were the Council of Europe’s original aims too ambitious?

Answer 7

Yes; this was exacerbated by strong British opposition against anything other than the intergovernmental format, due to worries over interference with parliamentary sovereignty.

Question 8

What are the Council of Europe’s responsibilities in practice?

Answer 8

Non-binding conclusions: recommendations/ encouragements to the Member States to conclude binding international treaties (known as conventions), by providing a forum for the Members. Conclusions required unanimous agreement from all the states involved in the treaty and ratification according to each Member State’s national constitutional requirements.

The Council’s most effective role has been in protecting fundamental rights; they adopted the ECHR and ensured its enforcement through the ECtHR in Strasbourg.

Question 9

2. The European Coal and Steel Community

Answer 9

Designed to: allow for equal cooperation between France and Germany; allow Germany to develop economically; and settle French fears over the revival of German militarism.

Question 10

When was the ECSC established?

Answer 10

Signing of the Treaty of Paris in 1951; this treaty was the first step towards building what would later be known as the EU.

Question 11

Why was the ECSC established?

Answer 11

To reconcile conflicting objectives:

France wanted to maintain control over industrial production of coal and steel in Germany to minimise the risk of French security being threatened by Germany.

However, USA and GB saw France’s aim as hindering their aim of reconstructing and economically developing West Germany, in order to protect themselves against Soviet expansion.

Germany itself was growing tired of foreign interference and obstruction from their own economic development.

Thus, Robert Schulman, French foreign minister, introduced the High Authority: a common and independent authority that would supervise French and German coal and steel production (the Schulman Declaration). Other European countries could join.

Question 12

What were the economic aims of the ECSC?

Answer 12

The ECSC’ aims were more political. Nonetheless, their economics aims were: economic cooperation in the coal and steel industries; to encourage competition and cross-border trade in these sectors, which would lead to a more efficient production process and cheaper coal and steel, necessary for the post-war period for reconstruction.

Question 13

Who was part of the ECSC?

Answer 13

Germany, France, Belgium, Luxembourg, the Netherlands and Italy.

Question 14

What did the structure of the ECSC look like?

Answer 14

1. High Authority: members appointed by Member States, but independent of them. Power was concentrated here, rendering the remaining bodies mere consultative bodies.
2. Assembly: made up of representatives of national parliaments.
3. Council of Ministers: made up of representatives of national governments. Assent required for important decisions.
4. The Court of Justice: independent of the Member States. One of the most important bodies, alongside High Authority, due to independence.

Question 15

Why was the establishment of the ECSC important?

Answer 15

1. Independence of High Authority and Court of Justice marked departure away from standard intergovernmental model for international organisations.
2. First step towards European integration. Jean Monnet’s (French diplomat; later became first President of High Authority) theory of neofunctionalism underlined that small, gradual steps (rather than one large, ambitious plan) would extend to other sectors once benefits of cooperation became clear, known as ‘spill-over effects’; this would lead to European integration. However, this theory can be insufficient, because it argues that integration is a one-way movement resulting wholly from spill-over effects and fails to account for setbacks, e.g. Eurosclerosis and Brexit. Liberal intergovernmentalism is a theory that highlights the importance of other agents, e.g. role of Member States and desire for integration, not just spill-over effects.

Question 16

3. The proposed European Defence Community

Answer 16

After success of Schulman Plan, France wanted to replicate approach in relation to martial matters. The EDC would be a European army that would bring Germany, France and other Western European countries together, under the control of a European Defence ministry and with a structure inspired by ECSC.

Question 17

Were plans for this successful?

Answer 17

No - objections included: greater political integration should precede military integration; the EDC structure would have weak democratic accountability and while this is not problematic for the ECSC, it would be for defence matters.

Question 18

What was introduced to accompany the EDC, but was also scrapped?

Answer 18

EPC (European Political Community) was developed to accompany EDC. However, political momentum for it was killed, due to detente in East-West relations after Stalin’s death.

Question 19

3. Western European Union

Answer 19

Instead of the EDC, a more modest Western European Union was created by the Paris Agreement in 1954. This brought in the 6 ECSC Member States and the UK and contained a mutual defence provision, in case one of its members was attacked.

Question 20

What was the difference between the WEU and NATO?

Answer 20

NATO essentially undertook WEU’s role more effectively, due to the USA’s participation and as a transatlantic form of cooperation. It did provide an active liaison role between the UK and the ECSC/ EEC states. However, this role was rendered futile when the UK joined the EEC in 1972. It was dissolved in 2011.

Question 21

1. The Beyen Plan

Answer 21

After the failure of the EDC and EPC, the Dutch Foreign Minister, Johan Beyen, introduced the Beyen Plan in 1955. This was focused on economic cooperation,as Dutch circles believed European integration debate had become too political.

Question 22

What were the economic aims of the Beyen Plan?

Answer 22

Integration of transport infrastructure; co-ordination of energy policies; the development of peaceful use of atomic energy; and the realisation of a common market.

Question 23

Was the Beyen Plan ultimately approved?

Answer 23

The foreign ministers of the 6 ECSC countries approved of this in 1955 and its details were fleshed out by a committee of government representatives, headed by former Belgian PM, Paul-Henri Spaak. The UK were invited to this but withdrew, because they favoured intergovernmental cooperation.

Question 24

What was the Spaak Report, April 1956?

Answer 24

This was the basis of the negotiations of two Treaties concluded in Rome in 1957 relating to the Beyen Plan: the Treaty establishing the European Economic Community (EEC) and the Treaty Establishing the European Atomic Energy Community (Euratom).

Question 25

2. The EEC Treaty

Answer 25

Its objectives were focused on economic integration. Its main aim was to fuse national markets into a single, common market.

Question 26

What were the substantive contents of the EEC Treaty?

Answer 26

Provisions of common policies in certain economic sectors, e.g. agriculture and transport.

To aid with the complex aim of having a single, common market, the Treaty provided for a transitional period of 12 years, divided into several stages.

The preamble of the Treaty expressed that its economic ambitions were means to a political end. They wanted to establish the foundations of an ever closer union amongst the people of Europe and strengthen the safeguards of peace and liberty and would so do by establishing a combination of their resources.

Question 27

What were the institutional provisions of the EEC Treaty?

Answer 27

Its institutional framework was similar to the ECSC’s.

1. Commission: body of appointees of the Member States. They had an important legislative function and a general political role, but had limited decision-making powers.
2. Council of Ministers: they had the power to adopt most of the measures in the EEC, but they could only act on the basis of a proposal from the Commission.
3. Assembly: representatives of national parliaments.
4. Court of Justice

The ECSC and EEC were so similar that they were later merged into one single institutional framework, alongside Euratom, in the 1965 Merger Treaty.

Question 28

What were the differences between the EEC Treaty and the ECSC Treaty?

Answer 28

The ECSC Treaty: detailed; specified exactly what the High Authority was obliged to do, e.g. had decision-making power, but were restrained by substantive provisions of the Treaty. They had enough democratic legitimacy to carry out specified tasks.

The EEC Treaty: defined broad objectives but left wide discretionary powers to the institutions on how to achieve such objectives. The Council had to take up decision-making, rather than the Commission, because it was more democratically legitimate as it was made up of members of the governments of the Member States, elected through their national electoral processes.

Question 29

How did the EEC reflect the terms ‘intergovernmental’ and ‘supranationality’?

Answer 29

Intergovernmental aspect: the Council’s role, as it consisted of members of national governments.

Supranational aspect: Commission and their legislative role.

The balance between intergovernmental and supranationality: the Council’s decision-making process. When the Council acts unanimously, any national government, through its representative in the Council, can block the adoption of legislation. However, when the Council makes a decision through a majoritarian process, no single Member State can block the adoption of legislation.

Question 30

(i) The Luxembourg Accords - Decision-making

Answer 30

During the staged transitional period of the EEC, there were changes in substantive rules and decision-making.

In June 1965, there was a disagreement over intergovernmental decision-making and supranational decision-making, leading France to leave Council meetings. However, a compromise known as the Luxembourg Accords was reached, 7 months later.

Question 31

What are the Luxembourg Accords?

Answer 31

France argued that important national interests should act as a wild card to give the Member State concerned the right to veto the adoption of the measure at stake, regardless of the Treaty. The other five Member States agreed that the Council should seek a solution that would be acceptable for all in such a scenario. However, if no agreement could be reached, the majority should go ahead and adopt the measure.

In practice, this has led to decision-making in the Council to be consensual. Efforts are made to accommodate the views of Member States in the minority over an issue as far as possible, but this does not mean no Member State is never outvoted.

While these did impact the culture of decision-making in the Council, it is important to note that they are a purely political declaration with no binding legal character.

Question 32

(ii) European Summits, European Council & European Political Cooperation - Meetings

Answer 32

Another development of the treaty was in 1969, where there were semi-regular meetings between Heads of State and or governments and Foreign Affair Ministers of the Member States. These European summits known as the European Council. This institution was formally recognised in the Single European Act, 1986.

Question 33

What was the purpose of the European Council meetings?

Answer 33

They were used to give broad political direction to the EEC. This can be seen as undermining the role originally given to the Commission in the Treaty and thus, weakening the supranational character of the EEC; political direction is in the hands of national government heads, rather than the Commission. However, given its weak democratic legitimacy, this can be seen as fair and as if government heads would be more effective in giving a stronger sense of political direction.

Question 34

What is ‘European Political Cooperation’?

Answer 34

As a result of regular meetings between Ministers for Foreign Affairs, national governments of the Member States extended their cooperation within the EEC’s economic framework to foreign policy - this development was known as EPC and was also formalised in the SEA 1986.

Question 35

(iii) Eurosclerosis

Answer 35

This is a term used to describe the difficult economic climate and the period of political apathy and poor economic performance in the 1970s. This followed the oil crisis in 1974, slow growth and high unemployment. The malaise within the EEC reflected this, as shown by the difficulty of agreeing on the Council of Ministers passing legislation.

Question 36

What changes were made to the Assembly?

Answer 36

The body referred to as the Assembly in the EEC Treaty would be directly elected by European citizens, rather than being comprised of delegates from national parliaments.

Question 37

3. The Single European Act

Answer 37

This was the first major amendment to the EEC Treaty. It was signed in 1986 and came into force in 1867. This was a more optimistic period after ‘Eurosclerosis’ and a more confident Commission emerged, under Jacques Delors.

Question 38

(i) Institutional Changes

Answer 38

The European Council was formally recognised as an institution.

With the move to direct elections, the European Parliament’s stature was greatly enhanced.

While the final word on the adoption of legislation remained with the Council of Ministers, the introduction of cooperation procedure increased the influence of the European Parliament in regards to the contents of legislation, by requiring a second reading and for the Council to engage in a dialogue with the Parliament, mediated by the Commission, in case of any disagreement at the first reading.

Formalised the possibility for the Council to delegate implementing powers to the Commission.

Changed the mode of voting in the Council, by increasing situations in which the Council could act by QMV, rather than unanimity, e.g. in relation to the completion of the single market.

Question 39

(ii) Substantive Changes

Answer 39

Again, these partly reflected practices that had developed beforehand.

EPC was recognised as an area of European competence, but operated under a different, more intergovernmental decision-making regime than other areas of EEC competence.

Council adopted measures on topics where the EEC’s competence was doubtful, by using wide, empowering clauses. Later, EEC competence in those areas tried to be put on a more solid footing, e.g. environmental protection and social cohesion were added to the list of the EU’s competences.

Question 40

(iii) Completion of the Internal Market

Answer 40

Jacques Delors, was appointed as the new President of the Commission in 1985. He decided to make the completion of the internal market the Commission’s main priority. In 1985, the Commission published a White Paper that listed pieces of legislation needed to make market integration a reality, with a deadline of 1992 (enshrined in Article 8A of the EEC) to adopt said measures.

Before the SEA, negotiations of directives related to the internal market could easily take 7+ years and end up as a dead end, but with the change in the decision-making process, the adoption of measures within a reasonable period of 1-2 years was possible.

Question 41

Timeline of Treaties:

Answer 41

1. Treaty of Rome: 1957.
2. Single European Act: 1987.
3. Maastricht Treaty: signed in 1992; entry into force in 1993.
4. Amsterdam Treaty: signed in 1997; entry into force in 1999.
5. Nice Treaty: signed in 2001; entry into force in 2003.
6. Lisbon Treaty: signed in 2007; entry into force in 2009.

Question 42

1. Maastricht Treaty/ Treaty on the European Union, 1992/ 1993

Answer 42

This underlined the goal of establishing the EMU and introduced a number of new areas of competency.

Question 43

(i) Substantive Changes

Answer 43

The goal of establishing an economic and monetary union (EMU) in three stages over the next 8 years; alongside this, the introduction of a new single currency, the Euro, which would hold back currency fluctuations that would lead to instability and obstruction to trade. The idea of a monetary union was not new.

Introduction of new areas of competence: the field of justice and home affairs; EEC competence in public health or education.

Question 44

(ii) The EEC to the European Community

Answer 44

The epithet ‘Economic’ was dropped, because the areas of competence of the EEC had been extended. The EEC became the European Economic Community and the EEC treaty became the EC treaty.

Another symbol of integration was a new title in the EC Treaty, ‘Citizenship of the Union.’ This signified the move away from entitlement to free movement based on one’s economic status, to being a direct attribute of citizenship.

Question 45

(iii) Three-pillar Structure and other Institutional Changes

Answer 45

Increase in the role played by the European Parliament in the decision-making process.

Changes from unanimity to QMV in some areas.

The introduction of the co-decision procedure, allowing European Parliament to block legislation; this put the Parliament on an almost equal footing as co-legislator with the Council.

Monetary Union had new institutions, e.g. European Central Bank.

The biggest change was the adoption of the three-pillar structure:

1. The first pillar consisted of the European Community, where more supranational decision-making processes prevailed.
2. The second pillar was predominantly intergovernmental and consisted of the CFSP (Common Foreign and Security Policy - the new name for the EPC, which now operated under a more intergovernmental framework, e.g. the jurisdiction of the Court of Justice had been excluded, the Commission had a more limited role, the European Parliament had been excluded and the Member States were in control).
3. The third pillar consisted of the JHA (Justice and Home Affairs), with processes between the Community and the CFSP, but more so the Community.

This structure was referred to as the European Union and there were now two treaties: the Treaty establishing the European Community (EC Treaty) and the Treaty on the European Union (TEU).

Question 46

2. Amsterdam (1997/ 1999) and Nice Treaties (2001/ 2003)

Answer 46

This amended the co-decision procedure its scope was increased, which turned the European Parliament into an increasingly equal co-legislator with the Council. Some competences were added, but not to the extent as the earlier Treaties.

Question 47

(i) Partial transfer of competences from the Police and Judicial Cooperation in Criminal Matter (PJCC, previously known as JHA) pillar to the EC pillar

Answer 47

This transfer of competence shows that the Member States discovered that their objectives would likely not be achieved under a purely intergovernmental framework, thus deciding to use the more supranational first pillar.

Question 48

(ii) Communarisation of the Schengen Acquis

Answer 48

The Schengen Agreement was previously entered into to abolish border controls on the movement of people between their territories, as well as a common visa policy, and operated purely on an intergovernmental basis, outside the EU. However, when it came to the Amsterdam Treaty, all the Member States (minus the UK and Ireland) were part of the Schengen Agreement and decided to integrate it into the EU.

Question 49

(iii) Adoption of EU Charter of Fundamental Rights

Answer 49

The EEC Treaty was not originally focused on fundamental rights. However, the Nice Treaty adopted the EU Charter of Fundamental Rights; although its non-binding nature and opposition from the UK undermined its credibility in the short-term. The adoption process was interesting because rather that negotiations between national governments and the EU institutions, there was a more open debate that allowed for contributions from civil society and national parliaments as well. This ‘Convention’ format was adopted as the default method for amending treaties in the Lisbon Treaty.

Question 50

3. The Draft Constitutional Treaty (Failure)

Answer 50

‘Convention on the Future of Europe’ convened and produced a Draft Constitutional Treaty. This was a blueprint finalising the constitutional structure of the EU for the future. After the draft was approved, the Treaty had to be ratified by its Member States; however, it was rejected in French and Dutch referendums. The Treaty did not significantly alter anything, it consisted of technical improvements to make the EU architecture simpler, more transparent and accountable. It was likely to do with disillusionment with the outcome, as language of the Treaty promised a lot.

Question 51

4. The Lisbon Treaty

Answer 51

Much of the unadopted contents of the Draft Constitutional Treaty found their way into the Treaty of Lisbon. Most of their changes were simply institutional or presentational, but there were a few notable changes.

Question 52

(i) Simplification of EU Structure

Answer 52

Abolishment of three-pillar structure. The term European Union is now used universally throughout the Treaties and older references to the Community/ Community law should be read as references to the Union/ Union law.

However, decision-making under the CFSP remains governed by rules with an intergovernmental character and the Court of Justice is mostly excluded from CFSP.

Question 53

(ii) Two Treaties

Answer 53

Whereas the Draft Constitutional Treaty was to replace the Treaty on European Union and EC Treaty with a single one, the Treaty of Lisbon kept both in place. However, they became the Treaty on European Union (TEU; contains provisions of constitutional importance, e.g. fundamental values of Union) and the Treaty on the Functioning of the European Union (TFEU; also contains important constitutional provisions, such as competences of the Union).

Question 54

(iii) Charter of Fundamental Rights

Answer 54

Article 6(1) TEU: states that the Union recognises the freedoms, rights and principles set out in the Charter of Fundamental Rights; and that the Charter has the same legal value as the TEU and TFEU.

Question 55

(iv) Role of European Parliament

Answer 55

Co-decision procedure: has been generalised as the default legislative procedure for most Acts and renamed the ordinary legislative procedure. This makes the European Parliament an equal co-legislator with the Council in most cases.

Question 56

(v) Competences of the Union

Answer 56

Article 5(2) TEU: under principle of conferral, Union acts only within limits conferred upon it by the Member States in the Treaties to attain the objectives set out. Competencies not conferred upon the Union in the treaties remain with the Member States.

Question 57

1. The Treaty Revision Process

Answer 57

Before the Lisbon Treaty, treaties were amended by an Intergovernmental Conference (IGC), who adopted the amending Treaty Text and then ratification of the amended Treaty by each Member States. To make the treaty amendment process more legitimate and less centred on the executive, this was changed. The government or any Member State, European Parliament or Commission can start the revision process (apart from switches from U to QMV in CoE or from S to OLP under Art. 48(7) TEU - in these cases, initiative belongs to European Council).

Question 58

What changes were introduced to the Treaty revision process?

Answer 58

Article 48 TEU introduced two innovations to the Treaty revision process: it formalises the possibility of convening a Convention prior to an IGC to consider Treaty amendments (3); and introduced simplified procedures, allowing the European Council to amend the treaties without need for convening a Convention or IGC for certain types of amendments:

1. Revisions to part 3 of TFEU: concerned with internal EU policies; do not entail increases in competences of Union (6); subject to ratification by Members.
2. Changes e.g. unanimity to QMV or special legislative procedure to ordinary legislative procedure (7); subject to consent from European Parliament and no opposition from national Parliaments.

Question 59

What are the four difference procedures for Treaty amendments?

Answer 59

1. The default ‘ordinary revision procedure: Convention - IGC - national ratification.
2. Lighter version of ordinary procedure; European Council can opt for this, subject to assent of European Parliament: IGC - national ratification.
3. Simplified revision procedure for substantive changes to EU policies that do not entail increases in EU powers: European Council decision - ratification.
4. Changes from unanimity to QMV in Council or from special legislative procedure to ordinary legislative procedure: European Council decision - consent of European Parliament - non-opposition of national Parliament.

Question 60

2. Evolution of EU Membership

Answer 60

Over 60 years of its existence, the membership of the EU has developed from 6 original Member States to 28.

Accession to the EU is conditional upon complying with the ‘Copenhagen criteria’, which cover political criteria (e.g. rule of law, respect for human rights, democratic institutions), economic criteria (functioning market economy, economic development) and institutional ones (having administrative and judicial capacity to implement and enforce EU law).

Question 61

(i) 1973 Accession

Answer 61

Denmark, Ireland and UK joined the EEC in 1973. Norway was supposed to join, but the people voted against accession in a referendum.

Question 62

Did the UK want to join?

Answer 62

The UK took part in post-WWII discussions promoting cooperation between European countries and some figures advocated for European integration, e.g. Winston Churchill: ‘a United States of Europe.’

However, 1950s: UK tried to distance themselves from ECSC and EEC, because they preferred intergovernmental structures and were uncomfortable with supranationality; also wanted free trade area to a customs union, to keep distinct trading arrangements with third countries, particularly Commonwealth ones; were skeptical of success of EEC.

However, in 1960s, they saw that joining the EEC would be in their interest.

Question 63

(ii) 1981- 1986 Accession

Answer 63

Greece (1981), Spain and Portugal (1986).

Their accessions shared similarities, i.e. had all recently emerged from periods of dictatorship and transitioned to become democratic states in Southern Europe; however, they had lower level of economic development than most EEC Members - this put social cohesion policy at forefront, due to economic imbalances between regions of the Community.

Question 64

(iii) 1995 Accession

Answer 64

Austria, Finland and Sweden.

Rather straightforward; economies were similar to existing Member States and they participated in single market through membership of EEA agreement. Norway applied again during this period, but Norwegians voted against membership.

Question 65

(iv) 2004- 2007 Accession

Answer 65

Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovakia and Slovenia (2004); Bulgaria and Romania (2007).

Most difficult accession, due to disparities in economic development between new and existing Member States. Many new Members used to belong to Soviet Bloc; membership was significant, joining family of European liberal democracies.

Question 66

(v) 2013 Accession

Answer 66

Croatia (2013).

Turkey has been a candidate since 1999 and negotiations on membership started in 2005. However, slow progress implies no future membership.

Question 67

(vi) Withdrawal: Brexit

Answer 67

June 2016: UK referendum on EU membership resulted in narrow majority expressing desire for withdrawal.

Question 68

3. Requirements for Accession to EU

Answer 68

Article 49 TEU: provides framework for accession of new Member State to EU.

Question 69

(i) Conditions of Admissibility

Answer 69

Article 49 TEU/ Copenhagen Criteria (1993):

Any European state that respects values outlined in Article 2 TEU (respect for human dignity, freedom, democracy, equality, rule of law and human rights).

Economic conditions, namely a functioning market economy and capacity to cope with competition and market forces in EU.

Candidate should be able to take on obligations of membership, including adhering to aims of political (aligning their existing rules with EU rules), economic and monetary (politically commit to joining the Eurozone) union.

Question 70

(ii) Admissions Process

Answer 70

1. Unanimous Council decision to open negotiations (which essentially consist of applicant adapting themselves to EU requirements) with applicant country, based on evaluation of applicant by Commission.
2. Commission will start screening process to identify what must be done to satisfy accession criteria, particularly adapting laws. This is done in 35 chapters.
3. When all 35 chapters are closed, agreement is formalised in accession Treaty, to be signed by existing Member States, new Member State and ratified according to their own constitutional requirement. Before this, there must be unanimous Council decision to conclude negotiations and European Parliament will give consent.

Question 71

2. Requirements for Withdrawal from EU - (i) Withdrawal Notification

Answer 71

Article 50: Member States that decided to withdraw from the Union must notify the European Council of their intention. The conditions, form or timing of this notification are at the discretion of the Member State. However, constitutional requirements must be fulfilled - e.g. R v Miller: Secretary of State for Exiting European Union could not put notification into effect based on prerogative; had to be effected by Act of Parliament.

In R v Miller, Supreme Court also said notification could not be withdrawn. However, Article 50 does not mention withdrawal of notifications at all. Possibility of revocation of notification remains an open question.

Question 72

(ii) Withdrawal Negotiations

Answer 72

Even after notification, Member State will remain part of EU. Thus, during negotiation stage, it can continue to exercise its rights under the EU and is subject to obligations of Members.

Article 4(3) TEU: obligation upon both parties to negotiate subject to general duty of sincere cooperation, meaning there’s an obligation to negotiate in good faith and try their best to achieve agreement, but not necessarily to reach one.

Article 50(4) TEU: Member State can no longer take part in Council/ European Council discussions regarding withdrawal negotiations.

Article 218(3) TFEU: negotiations for EU are carried out by negotiator on basis on Council mandate, while Council concludes agreements. Withdrawal negotiations mirrors this, but it is the European Council that nominates the Commission, in practice, as the negotiator. E.g. Brexit negotiator in the Commission: Michael Barnier.

Article 50(3) TEU: time-limit of two-years for negotiations. However, deadline can be extended if withdrawing Member State and European Council agree to extension.

Question 73

(iii) Process of Withdrawal Agreement

Answer 73

Concluded between withdrawing Member State and the EU itself (not the existing Member States like with Accession treaties).

Withdrawal agreement concluded by council acting by QMV. No individual Member can veto the conclusion of withdrawal agreement like they can with accession.

European Parliament’s consent to withdrawal agreement is required.

If at end of expiry period, no agreement is concluded, then withdrawing Member State will automatically cease to be a part of EU and EU Treaties will not apply to them.

Question 74

(iv) Contents of Withdrawal Agreement

Answer 74

Article 50: relatively silent on its contents. It simply says that the agreement has to take account of the framework for the future relationship of the withdrawing Member and the EU. This can be difficult, given the two-year period and the fact that the agreement would go beyond competences of the EU and would encroach upon Member States’ competences. This means the Member States would also need to conclude the agreement (mixed agreement), but Article 50 only sees an agreement between Union and departing Member State.

One would expect withdrawal agreement to cover factors such as treatment of nationals from the withdrawing Member State working for EU institutions and living elsewhere in the EU and settlement of liabilities arising out of commitments entered before withdrawal.