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THE STATE OF THE EUROPEAN UNION
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ways simply represents the final act of Britain’s
already very limited participation in the con-
struction of a shared European home.
Instead, our study will focus on how Brexit
ushers in a series of political changes for the EU,
and we will consider these changes from the per-
spective of the European political process. This
process has worked in two directions: “deepen-
ing”, as a result of which member states transfer
competencies to the EU; and “widening”, as the
EU incorporates new member states.
3
Seen in
this context, Brexit can be said to represent a pro-
cess of shrinkage, leading to a fall in the number
of member states for the first time in the history
of the EU. This is a new political phenomenon
and, as such, requires further analysis.
4
This study is, however, only a preliminary at-
tempt to define the issues, as negotiations be-
tween the UK and the EU had not even begun at
the time of writing (February 2017). Our aim here
is to identify the rules that have developed and
been consolidated during the ongoing process of
European constitutional change, and to use
these rules as a basis for analysis of the upcoming
negotiations on the UK’s exit from the EU.
The withdrawal process: article 50 of
the Treaty of the European Union in the
context of EU constitutional policies
The withdrawal of a member state is governed
by article 50 of the Treaty of the European
3
Aldecoa Luzárraga, F.:
La integración europea. Vol. II. Gé-
nesis y desarrollo de la Unión Europea (1979-2002),
Ma-
drid, Tecnos, 2002, pp. 50-52.
4
Although there have previously been cases where the
territory covered by European Treaties has become smaller,
such as when Algeria gained independence from France
(1962) or when Greenland withdrew from the EEC (1985),
there has never been a fall in the number of Member States.
Union. This Treaty was drafted and agreed by
the European Convention as one of a number
of changes to the European Constitution, and
the procedure it establishes in article 50 is not
simply the reverse of the process by which states
become members.
5
Instead, it contains a num-
ber of significant differences, raising several
problems that will need to be addressed during
the negotiation process.
The first point to make is that article 50 was
drafted as a means of allowing member states
to leave the EU as part of a broader transition
towards the constitutionalisation or federalisa-
tion of the EU, a transition that did not ultimate-
ly occur. The European Convention’s desire to
move towards a more federal EU included, by
way of compensation, the option for all mem-
ber states to decide whether to remain within
this more political and more federal Europe.
However, although this federal process did not
develop as planned, the withdrawal mechanism
was retained.
The members of the European Convention
decided to facilitate the withdrawal of member
states and to enshrine this as a unilateral deci-
sion. In particular, it was argued that participa-
tion in the integration project should be pre-
sented as an ongoing democratic choice by all
5
For analysis of article 50, with reference to the context
within which it was drafted, see among others: Louis, J. V.:
“Union membership: accession, suspension and member-
ship rights and unilateral withdrawal. Some reflections”,
The treaty on a constitution for Europe. Perspectives after
the IGC,
Nomos, Baden-Baden, 2005; Grosclaude, L.: “La
clause de retrait du Traité établissant une constitution pour
l’Europe: réflexions sur un possible marché des dupes”,
Re-
vue trimestrielle de Droit européen
, vol. 6, no. 11, 2005,
pp. 533-548; Guinea Llorente, M.:
La Convención Europea:
la génesis del Tratado de Lisboa
, Monografías del Congreso
de los Diputados, Madrid, 2011, pp. 597-600; Hillion, C.:
“Leaving the European Union, the Union way. A legal analy-
sis of article 50 TEU”. SIEPS,
European Policy Analysis
, no.
8, 2016.