Guest Post: You Can Check Out Any Time You Like, But Can You Really Leave? On ‘Brexit’ And Leaving International Organizations

Ramses A. Wessel, Professor of International and European Law and Governance, University of Twente, The Netherlands,

Unlike the Hotel California — as described in the famous Eagles song to which the paraphrased title of this post refers[1] — it is possible to leave international organisations. This is generally true, and even seems to work for ‘regional integration organisations’ such as the European Union (‘EU’). However, in this case the question is whether decades of close legal and political cooperation ­— resulting in an entanglement of the EU and domestic legal orders, and involving governments, businesses and citizens alike — can really be undone.

The UK has not yet formally ‘notified’ the European Council of its intention to leave in accordance with Article 50(2) TEU. However, in the special session of the European Council (composed of the Heads of States or Governments of the Member States) that was convened on 28–29 June, it was decided that the 27 Member States would already start to meet without UK’s presence during the second day of the summit.

It is interesting to note that, prior to the required formal notification, legal consequences are already attached to an ‘intention’ of a Member State to leave the EU. Indeed, the UK has not even ‘checked out’ yet, but already its position has changed and some EU institutional rules are being adapted. Perhaps most notably the Decision of the Council (of Ministers) of 29 July 2016 (No. 2016/1316) adapts the schedule for the EU’s rotating Presidency, for which the UK was on the list for the second half of 2017. In the new schedule, the UK is simply deleted and Estonia will hold the Presidency in that period.

The procedure for withdrawal described in Article 50 TEU is particularly interesting when read in conjunction with Article 49 TEU that provides for the accession procedure.  In the latter, the EU (and in particular the Commission) is the key negotiator. But the final agreement on the basis of which a new State joins the EU is concluded ‘between the Member States and the applicant State’, and it is ‘submitted for ratification by all the contracting States in accordance with their respective constitutional requirements.’ Accession agreements are thus not concluded by the Union while withdrawal agreements are (although the UK’s withdrawal agreement may very well become a ‘mixed agreement’, concluded between the EU, the 27 Member States and the UK; and — not unimportant these days — subject to ratification procedures in each of the Member States). Hence, to join the Union a legal relationship with the current Member States needs to be established, but to leave the Union a State will have to settle the issue with the organisation of which it has become a member.

The UK may have been a reluctant Member State that never supported the European integration process wholeheartedly. The main message UK government officials usually conveyed when they returned from Brussels was that they succeeded in winning a battle and keeping the EU at a distance. In that sense, the result of the referendum should not come as a surprise. At the same time, as rightfully noted elsewhere, the UK has been the driving force behind many of the EU’s integration projects.[2] Indeed, and despite the popular rhetoric, the UK has been as much a part of the EU’s integration process as any other Member State, and once ‘checked-out’ will realise that leaving is perhaps less easy than it thought. It also remains to be seen whether, as is so often experienced in other international organisations, leaving will serve as a reminder of the need for membership in the first place.

* The full, longer, contribution will be published as Editorial in International Organisations Law Review, 2016, Vol. 13, No. 2. A draft can be downloaded from here

[1] It is tempting to look for more parallels in those song lyrics. The final verse goes like this: “Last thing I remember, I was running for the door / I had to find the passage back to the place I was before / Relax, said the night man / We are programmed to receive / You can check out any time you like / But you can never leave!”

[2] ‘Editorial Comments’, (2016) 53 Common Market Law Review pp. 875–886.