Brexit and the need for a Treaty revision by Diane Fromage

brexitLes débats sur le Brexit se sont, jusqu’à présent, concentrés sur des aspects liés au futur des relations entre l’UE et le Royaume-Uni ou sur la nécessité, ou non, pour le parlement britannique d’approuver le déclenchement de la procédure de retrait. Toutefois, les conséquences du Brexit pour l’UE ont été largement négligées, et ce alors même qu’il requerra, tôt ou tard, une réforme des Traités. C’est cette nécessité, et les conditions de sa mise en œuvre, qui sont étudiées ici.

Since UK Prime Minister (PM) Theresa May’s speech last Tuesday 17 January especially, media’s and people’s attentions have been focused on the future of the (hard) Brexit negotiations and the United Kingdom’s future relationship with the European Union. Many of us are sad, scared or horrified at the thought of PM May’s plans becoming true. Yet, little attention has been paid to the consequences Brexit will have for the rest of the 27 Member States and for the EU’s architecture as a whole. Current debates mostly regard questions such as the future of EU citizens living in the UK (or that of the UK citizens living in the EU) or future economic relations. However, the need to reform the Treaties that will inevitably follow from a Brexit is not often addressed.

At a time when the EU is facing a deep democratic legitimacy crisis visible in the UK’s decision to leave the bloc but also in the electoral success of several euroskeptic parties during the latest elections to the European Parliament, probably what it needs least is to engage in lengthy treaty reform procedures. It is hard to believe that calling up for a new Convention would really contribute to enhance the EU’s legitimacy; it would most probably rather comfort those who already believe that ‘Brussels’ means bureaucracy and distance from citizens’ true concerns.

It could admittedly be argued that the divorce between the EU and the UK is of such depth that a treaty reform would anyway be needed, if only to show the rest of the EU citizens that the EU is capable of reflecting critically upon itself.  Nevertheless, for better or for worse, this a not only a matter of politics but it is a question of applying the Treaties.

The difference between accession and withdrawal procedure

First of all, as rightly pointed out by Federico Fabbrini, there is a fundamental difference between what the Treaties foresee in cases of accession and what they state for cases of secession. According to article 49 TEU, when a new Member State joins the bloc, ‘The conditions of admission and the adjustments to the Treaties on which the Union is founded, which such admission entails, shall be the subject of an agreement between the Member States and the applicant State. This agreement shall be submitted for ratification by all the contracting States in accordance with their respective constitutional requirements’. This means that the necessary treaty amendments can simply be contained in the accession agreement which will then only be submitted for ratification to Member States. This is why, for instance, the treaty revision procedure contained in article 48 TEU did not have to be activated when Croatia entered the EU in 2013. By contrast, the now famous article 50 TEU does not contain any similar provision as it reads: ‘A Member State which decides to withdraw shall notify the European Council of its intention […after which] 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.’ Here, no mention is made to the possibility to kill two birds with one stone, ie to settle the future relationships and to amend the Treaties in one single agreement. Article 50 TEU’s silence in this regard could be explained by the fact that it was never meant to be used. Several treaty provisions, such as article 52 TEU and article 355 TFEU on the territorial scope of application of EU law or the protocol 15 on certain provisions relating to the UK will however have to be amended after Brexit; in fact, the UK is mentioned no less than 120 times in the Treaties and their protocols.

The form of the future Treaty revision

The next question is obviously how such a treaty reform can take place; many of us would certainly agree that following the simplified treaty revision procedure contained in article 48-6 TEU would be the most desirable option. However, this is not an option for the scope of this procedure is strictly limited to Part III of the TFEU and so the ordinary procedure foreseen by article 48-6 TEU must be applied. Luckily for Member States perhaps, this does not mean automatically that a new Convention will have to be convened. In fact, ‘The European Council may decide by a simple majority, after obtaining the consent of the European Parliament, not to convene a Convention should this not be justified by the extent of the proposed amendments. In the latter case, the European Council shall define the terms of reference for a conference of representatives of the governments of the Member States.’ (art. 48-3 TEU). Afterwards, ‘A conference of representatives of the governments of the Member States shall be convened by the President of the Council for the purpose of determining by common accord the amendments to be made to the Treaties. The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements’ (art. 48-4 TEU). There is therefore still an easy way out available to Member States to erase the provisions referring to the UK; it is likely that a majority of them could agree that the extension of these amendments do not require to convene a Convention. What the European Parliament’s position will be is less clear however since the establishment of a Convention could be in its advantage.

What content for this Treaty revision?

In the light of the growing distrust vis-à-vis the EU that exists among its citizens, and bearing in mind the important shortcomings the EU’s institutional architecture still features, Brexit may represent a unique opportunity to tackle these issues. Indeed, crucial questions such as the lack of collective responsibility of the Council and the European Council, shortcomings of the EMU framework or asymmetries in the powers of national parliaments to approve international agreements or rescue funds should urgently be tackled so that the EU finally has all the means it requires to function properly and democratically. It is of course risky and uncertain whether such a deep revision procedure would end up well for the EU, as it is equally doubtful whether any of our current heads of State and government will have the political courage and the vision such a move would take. In fact, they could seek to delay the beginning of a revision procedure. The 60th anniversary of the Rome Treaties could and should however serve as momentum to reflect upon and plan seriously the future of our Union if we want it to continue to exist in the future.

Diane Fromage, Assistant Professor, University of Utrecht Netherlands

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