What if the Constitutional Treaty is not ratified?

In a paper for the Brussels-based European Policy Centre, researcher Lucia Serena Rossi has explored the legal implications of a rejection of the EU constitutional treaty. She has outlined five scenarios ranging from the co-existence of the new legal system with the old treaties, to the dismantling of the current framework and the creation of a new union.

As has this Blog, she agrees that the treaty can only come into force following its ratification by all Member States, and concedes that this is "less and less theoretical problem". But she also argues another point, that if the treaty was dropped, and we were left in the framework of the system currently in force (including the Nice Treaty and the enlargement treaties), some flexibility would still be possible.

She then argues that enhanced co-operation could still be used (with the participation of at least eight member states), “to promote experimental forms of co-operation open to all other member states. Moreover, agreements could be concluded among member states in a similar fashion to the Schengen Agreements, as long as they did not infringe the basic treaties.

With this, she postulates five different scenarios for the eventuality that the constitutional treaty is not ratified:

 the coexistence of the Constitutional Treaty with the present system;
 the "opt-out" or "opt-in" clauses;
 the conclusion of separate agreements providing "exit" or "entry into force" mechanisms;
 the clause of "voluntary withdrawal"; and
 breaking the present system, by unilateral denunciation

Interestingly, Rossi confirms that it would be possible for a group of nations to go ahead with the constitution but states adhering to the new treaty would also be bound by previous agreements with those states that had not adopted it. This, she writes, would lead to an unsustainable situation.

As to her next offering, the "opt-in - opt-out" scenario, with a group of member states concluding a separate protocol outwith the treaty, this also seems to create unresolvable complications.

But Rossi believes that separate agreements independent of the treaty, providing termination, "exit" or "entry into force" clauses, could be a partial solution, although they would have to be ratified by all 25 member states. Adoption would be very difficult from a political point of view.

Rejecting the idea that any member state could be forced out of the EU, Rossi comes up with the "less elegant solution" of inserting a "voluntary withdrawal" clause in one of the next Accession Treaties (e.g. with Romania or Bulgaria).

But, if none of these solutions were to prove feasible, and the constitutional treaty was brought to a halt, Rossi agrees that the EU would face a very serious political crisis. This situation "could justify… breaking the current system", with one or more member states exiting the treaties currently in force.

This happened in 1985 when Greenland left the EC following a consultative referendum and it negotiated an agreement to become an OCT (Overseas Countries and Territories). Furthermore, in this context of the 1975 referendum, nobody seemed to doubt the sovereign right of the United Kingdom to withdraw.

The German Constitutional Court said (in the 1993 Maastricht Urteil), the states are still "the Masters of the Treaties" and they can always decide to abandon the EU revoking the previous act of accession to the EU by a contrary with a unilateral denunciation.

The International Court of Justice, in its 1980 opinion on the interpretation of the agreement between the WHO and Egypt, stated that the possibility of denunciation is implicit and is accompanied by an obligation of consultation and negotiation.

Rossi adds that an additional possibility would be to invoke the "rebus sic stantibus" clause to withdraw from the current Treaties. This clause, which belongs to general international law and is also codified in Article 62 of the Vienna Convention on the Law of Treaties, could be invoked by a state claiming a radical change in the circumstances that originally caused it to join the Union, leading to a drastic modification of the existing obligations. According to Article 54 of the Vienna Convention, it could be argued that, by agreeing to conclude a new Treaty, some parties also agree to allow other parties to withdraw.

This solution, Rossi concludes, would of course be highly traumatic, entailing an unparalleled political crisis. But, from it would emerge a new Union.

To read the full report, click here.