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BEST Summary - European Union Law
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- Tilburg University (UVT)
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Bundle 1 European Integration - Drivers and PhasesC-621/18 (Wightman), 10 Is a state allowed to The court of justice ruled that the notification b
a Member State of its intention to leave the EU
December 2018. unilaterally revoke a was unilaterally revocable by the MS. In doing
ECLI:EU:C:2018:999 – covers notification of intention to so, the Court emphasised that the sovereignty o
aspects of the UK’s withdrawal withdraw from the the MS concerned was a key element to this
that fall within the scope of EU European Union? decision, and to decide otherwise would interfe
with the freedom that MS enjoy to either apply
law to join or leave the EU in accordance with the
procedures set out in the treaty on the EU.
The full-court judgment has a Member State is
free to revoke unilaterally a notification of
intention to withdraw from the EU made under
Article 50(2) TEU. Indeed, the final judgment
has recognised a right to revoke that is even
more receptive to the sovereign discretion of th
withdrawing Member State than in the Opinion
What is the European Union? The EU is an International Council of Europe (CoE, 47
Organization (IO), like the States while EU only 27)
United Nations or the World
Trade Organisation: they are all
creatures of international law.
Created by States by means of
an International Treaty
(International Law)
What is the relation between the → is another IO with a European Convention on Human
EU and the CoE? regional nature Rights (ECHR, 1950) is the
- Council of Europe all EU Member States (MS) are relevant treaty behind the
creation of the CoE
member of the CoE
What is the Both are catalog of CFR: ECHR: RELATION?
relationship between rights, which can be
the European used to protect ○ Early stages: there ○ The ECHR is not a direct ○ The CFR is meant
Convention on Human individual rights was no Bill of Rights for source of EU Law but rights not to introduce new
,Rights and the Charter within the EU. the EU. FRs interpreted included in the ECHR be rights but to CODIFY
of Fundamental Rights as general principles used indirectly as general existent rights: so clos
of the European ● ECHR (and (indirect source of principles. (MSs are all parties link with the ECHR as
Union? What are their ECtHR case law) interpretation: to the ECHR) interpreted by the
(legal) effects as INDIRECT constitutional traditions ECtHR (see preamble
regards EU law? SOURCE/CFR of MSs and International ○ The Lisbon Treaty indicates of the CFR).
DIRECT SOURCE Treaties signed by EU that the EU will accede to the
(EU LAW, MSs) ECHR, see art 6 (2) ○ Art 52 (3) CFR Art
interpreted by the TEU. However, this accession 53 CFR: the charter w
CJEU) ○ 2000: CFR was is currently not negotiated and not lower the standard
introduced, but not will not happen in of protection available
binding the near future. under the constitutiona
system and ECHR. So
○ LISBON TREATY ○ The ECHR is always the standard of
see art 6(1) TEU: CFR is applicable to MSs’ actions protection set by the
now binding, EU (when violations occur in their ECtHR on the basis of
Primary law jurisdiction) but not directly to the ECHR is also the
actions of the EU institutions minimum standard of
○ The CFR is applicable and EU agencies protection for EU law.
only when EU law is
applicable (art 51 CFR).
Can EU Member States expel one Member State ● No, in principle expulsion is not possible
from the Union? Explain! ● But based on art 7(3) TEU the Council voting on
qualified majority may suspend rights
(including voting rights) deriving from EU treaties...
● ...when there has been a determination based on
art 7(2) TEU that there is a serious and
persistent breach by MS of the values listed on art 2
TEU (on which the Union is based) and which are
also mentioned as conditions for new member who
want to join the EU (art 49 TEU)
Why is Article 10 TEU SUI GENERIS = of its own kind → Not really Based on art 10 TEU not only MSs
important to understand the a (federal) state ... but also an atypical IO but also individuals shall be
'Sui generis nature' of the EU? considered constituents of the EU.
● Art 10 TEU is important to understand the Citizens are also directly
sui generis nature of the EU since it represented (and vote their
establishes that the EU is an international representative at EU level) in the EP
organisation that shall function as a
representative democracy. (Usually, IOs EU citizens are also represented
are founded by states and only states’ indirectly by the representatives of
their own States (who sit in the
, interests are directly represented). Council and in the European
Council) and are accountable to
citizens at the national level.
Which theory is the most successful in explaining ● The theory of neofunctionalism
how market integration can lead the EU Member ● One of its main tenets is the so called “spillover
States to gradually achieve political integration? effect”:
What are the central tenets of this theory? Please,
○ Integration in one sector necessitates integration in
explain them briefly.
another sector to secure that the advantage in the first
sector is maximised
Any Member State can withdraw from the EU based on Art 50 TEU. Without this
explicit withdrawal clause included in the EU treaties, it would not have been
possible for a European Member to leave the Union → Do you agree or not with
this statement? Please, explain your choice.
● To answer this question is important distinguishing between consensual and unilateral
withdrawal...
○ In general, consensual withdrawal (agreement of all EU MSs) would have always
been possible (even without art 50 TEU) based on art 54 VCLT.
○ So, the Union and the leaving MS could have reached an agreement to allow a MS to
leave even without explicit withdrawal clause in the Treaty.
○ About unilateral withdrawal, the issue is debated...
○ Some scholars consider that states (are sovereign) and therefore have always the
prerogative to (unilaterally) withdraw from any international organization.
○ But, in contrast, some other scholars argue that there is not a right to unilateral
withdrawal from IOs which purport to be established in perpetuity or whose
characteristics presuppose that permanent membership is necessary (see pa 851) ...
Think about peace agreements..
● Based on the last position ... I would (partially) agree with the statement proposed:
○ In my view, on the basis of international law, a MS would not have been allowed
to unilaterally withdraw from the Union without art 50 TEU.
○ That is because art 56 VCLT generally establishes that a treaty that does not
include a denunciation or withdrawal clause does not allow for withdrawal.
Unless one of the 2 exceptions provided in art 56 VCLT would apply.
, ○ The first exception is about consensual agreement (so again MSs should have
reached an agreement with the leaving MS).
○ The second exception allows unilateral withdrawal from Treaties from which a
right to withdrawal can be indirectly assumed based on the nature of the Treaty and
from the intention of the parties. But this last exception is not applicable to the EU
treaties since they have been established to create an even closer Union (so
presupposing permanent membership) and have an unlimited duration (with States
having agreed to a permanent limitation of their sovereignty with the view of
establishing a new and autonomous legal order. This special nature of the EU has been
acknowledged by the CJEU, for instance in Van Gend en Loos, ss p 853.)
In Case C-621/18 (Wightman), what central question was asked to the CJEU? What did
the CJEU conclude? Choose and explain ONE of the arguments used by the CJEU to
reach its conclusion.
● In the case C-621/18 (Wightman) the main question asked to the court was whether the UK’s
Article 50 (2) TEU notification could be unilaterally revoked as a matter of EU law.
● The EU Treaties do not expressly prohibit or allow unilateral withdrawal of the notification of
the intention to withdraw. So, the Court had to derive the answer to the question from general IL
rules on treaties’ interpretation and from the fundamental characteristics of the EU legal order.
● The Court answered positively: based on EU law the notification of the intention to
withdraw can be unilaterally withdraw for the following reasons (3 alternative correct answers)
● Zooming on the COURT’s ARGUMENTS
○ Purpose of art 50 TEU – twofold aim (para 56)
■ The first purpose of art 50 TEU is to enshrining States’ sovereign right
to leave the Union. Since this is a sovereign right, a state cannot be
forced to leave against its own will (para 65): and an obligation to leave
would be the practical result of not allowing a MS to withdraw its own
notification of the intention to withdraw.
■ The second purpose of art 50 TEU is to set a procedure to withdraw in
an orderly fashion. And based on this procedure, pending withdrawal,
the withdrawing state is still a MS and can therefore reverse its decision
to withdraw (para 66).
○ Rules of International Law
■ Since the Lisbon Treaty is an international treaty the general rules to interpret international
treaties apply: Rules of the VCLT apply (Para 71).
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