Select Committee on European Union Eighteenth Report


PART 2: ANALYSIS OF ARTICLES 43-46

Article 43: Criteria to be eligible for Union membership
The Union shall be open to all European States whose peoples share the values referred to in Article 2, and who respect them and are committed to promoting them together. Accession to the Union implies acceptance of its Constitution.

Explanatory note

"This provision establishes the criteria which any European State must fulfil in order to apply for Union membership. The first sentence of this Article reproduces Article 1(3) of the Constitution, specifying that the values referred to are those in Article 2 of the Constitution."

COMMENTARY

6.  This Article derives in part from the first sentence of Article 49 TEU and largely reiterates what is said in the new Article 1(3): "The Union shall be open to all European States whose peoples share the same values, respect them and are committed to promoting them together". "European States" is nowhere defined. The absence of any such definition leaves the position of countries to the east of the Union as soon to be enlarged decidedly ambiguous.

7.  As we noted in our first Report on the Treaty Articles, the criterion for membership would be defined by reference to "peoples sharing" the same values as the Union rather than "States respecting" those values.[8] Article 43 underlines the importance of the definition of the "values" to be set out in Article 2 of the Constitution. Further, the reference to 'promoting' these values, an active stance beyond mere 'respect', may demonstrate the ambition of the Union not just to be an area of freedom, security and justice but also to have a strong external dimension.

8.  Neither the text of Article 43 nor the Praesidium's Explanatory note refers to the so-called Copenhagen criteria. In June 1993, the European Council, meeting in Copenhagen, recognised the right of the countries of central and eastern Europe to join the European Union when they had fulfilled three criteria: "stability of institutions guaranteeing democracy, the rule of law, human rights and respect for protection of minorities; … a functioning market economy, as well as the capacity to cope with competitive pressure and market forces within the Union; [and] the ability to take on the obligations of membership, including adherence to the aims of political, economic and monetary union". It is for consideration whether Article 43 might include a statement of these criteria in the new Treaty.

Article 44: Procedure for applying for Union membership

Any European State which wishes to become a member of the Union may address its application to the Council. The European Parliament and the national parliaments shall be notified of this application. The Council shall act unanimously after consulting the Commission and after receiving the assent of the European Parliament, which shall act by an absolute majority of its component members. The conditions and arrangements for admission shall be the subject of an agreement between the Member States and the applicant State. That agreement shall be subject to ratification by all the contracting States, in accordance with their respective constitutional requirements.

Explanatory note

"This provision establishes the procedure for accession to the Union. The procedure corresponds to that laid down in Article 49 of the TEU. However, it introduces a new provision that the European Parliament and the national parliaments should be informed concurrently of any application for accession as soon as it has been received by the Council."

COMMENTARY

9.  This Article is based on Article 49 TEU. The requirement to inform national parliaments and the European Parliament is new. It would remain the position that accession agreements would be entered into between the Member States (and not the Union, though it will have legal personality) and the applicant State.

Article 45: Suspension of Union membership rights

1.  On a reasoned proposal by one third of the Member States, by the European Parliament or by the Commission, the Council, acting by a majority of four fifths of its members after obtaining the assent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values mentioned in Article 2. Before making such a determination, the Council shall hear the Member State in question and, acting in accordance with the same procedure, may address recommendations to that State.

The Council shall regularly verify that the grounds on which such a determination was made continue to apply.

2.  The European Council[9], acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the assent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of values mentioned in Article 2, after inviting the Member State in question to submit its observations.

3.  Where a determination under paragraph 2 has been made, the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of this Constitution to the Member State in question, including the voting rights of that Member State in the Council. In doing so, the Council shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons.

The obligations of the Member State in question under the Constitution shall in any case continue to be binding on that State.

4.  The Council, acting by a qualified majority, may decide subsequently to vary or revoke measures taken under paragraph 3 in response to changes in the situation which led to their being imposed.

5.   For the purposes of this Article, the Council shall act without taking into account the vote of the Member State in question. Abstentions by members present in person or represented shall not prevent the adoption of decisions referred to in paragraph 2.

This paragraph shall also apply in the event of voting rights being suspended pursuant to paragraph 3.

6.  For the purposes of paragraphs 1 and 2, the European Parliament shall act by a two thirds majority of the votes cast, representing a majority of its Members.

Explanatory note

"This provision reproduces the content of Article 7 of the TEU, with the technical adjustments needed to take account of the merger of the Treaties. It replaces Article 7 of the TEU and Article 309 of the TEC. The only change in relation to those Articles is that the possibility for the Council to request a report from independent persons is not mentioned: self-evidently so."

COMMENTARY

10.  Article 45 consolidates provisions currently found in the TEU and TEC. Article 6 TEU reaffirms the importance of the fundamental principles of democracy and human rights[10] for the Union and its Member States. Article 7 TEU enables sanctions to be taken against a Member State that seriously and persistently breaches these principles. Following the Austrian episode in 2000 (the proposed coalition to form a government between Austria's People's Party and Mr Jorg Haider's Freedom Party sparked widespread protest and criticism within the Union and also outside Europe[11]), discussions in the IGC held later that year included consideration of the introduction of an early warning mechanism to forestall any breach of Article 6. This led to the amendment of Article 7 TEU by the Nice Treaty.

11.  Two points are noteworthy. First, it would remain the case that a four fifths majority in the Council of Ministers is needed to find a risk of a serious breach. Second, while Article 7 TEU currently refers to breaches of the "principles" in Article 6 TEU (ie liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law), Article 45 refers to a breach of the "values mentioned in Article 2". Article 2 contains two sentences. The first sentence lists values identical or similar to those currently in Article 6 TEU. The second sentence states that the Union's "aim is a society at peace, through the practice of tolerance, justice and solidarity". Reactions to the draft Article 2 in the Convention suggest that the list of "values" in the first sentence may be extended and that the function of the second sentence (whether its content will constitute "values" for Article 45 purposes) is uncertain.[12] The definition and content of the Union's values must be clear (for instance, is "solidarity" to be a value?) so as to avoid proceedings being initiated unjustifiably against a Member State.

Article 46: Voluntary withdrawal from the Union

1.  Any Member State may decide to withdraw from the European Union in accordance with its own constitutional requirements.

2.  A Member State which decides to withdraw shall notify the Council of its intention. Once that notification has been given, 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 concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the assent of the European Parliament.

The withdrawing State shall not participate in the Council's discussions or decisions concerning it.

3.  This Constitution shall cease to apply to the State in question as from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2.

Explanatory note

"This provision does not appear in the current Treaties. It establishes the procedure to be followed if a Member State were to decide to withdraw from the European Union. The procedure laid down in this provision draws on the procedure in the Vienna Convention on the Law of Treaties.

The Convention's attention is drawn to three points:

—while it is desirable that an agreement should be concluded between the Union and the withdrawing State on the arrangements for withdrawal and on their future relationship, it was felt that such an agreement should not constitute a condition for withdrawal so as not to void the concept of voluntary withdrawal of its substance;

—the legal consequences of withdrawal where there is no agreement between the Union and the withdrawing State have to be examined and, if appropriate, provisions on this question could be added to this Article;

—the decision-making procedures for the conclusion of a withdrawal agreement (and above all the Council's voting method) need further consideration. The text foresees a qualified majority procedure within the Council. However, another solution might be to adopt the voting rule corresponding to the substantive content of the agreement. It is likely that if this withdrawal clause were currently in force, the Council's decision would require unanimity."

COMMENTARY

12.  Article 46 is new and enshrines, for the first time in the Treaties, a procedure for withdrawal. The inclusion of such a provision is controversial and concerns have been expressed about the possible abuse of the procedure.[13]

13.  Withdrawal by a State from the EC/EU is unprecedented.[14] Article 46 makes clear the autonomous right of a State to leave the Union. The title of this Article makes clear that withdrawal would be "voluntary" (ie it is not dependent on the consent of the other Contracting Parties). Withdrawal would not necessarily require the conclusion of an agreement between the withdrawing Member State and the Union. This is clear from Article 46(3) which contemplates withdrawal after two years if no agreement can be reached. In practical terms it is difficult to envisage withdrawal without an agreement as to the future relationship between the withdrawing State and the Union.

14.  It is noteworthy that the Council would act by qualified majority voting (QMV) in this context. The Praesidium offers "another solution", "to adopt the voting rule corresponding to the substantive content of the agreement". It is unclear what this means and therefore what would be its implications for Member States.


8   See footnote 1 above, 9th Report, Session 2002-03, HL Paper 61, at paragraph 11. Back

9   Depending on the articles on the European Council in the section on the Institutions. Back

10   Compliance with these principles is a precondition for membership of the Union-see Article 49 TEU which would be replaced by Article 43 above. Back

11   EC Bull. 1/2-2000, point 1.10.18. Back

12   Docs CONV 601/03 and CONV 574/1/03 Rev 1. Back

13   See Giscard forum set to unveil controversial EU 'exit clause'. European Voice, 3-9 April, p 1. Back

14   The "departure", for example, of Algeria and Greenland did not involve the withdrawal of a Member State, rather the definition of the territorial application of the Treaties. The membership of France and Denmark respectively continued. Back


 
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