‘Should I Stay or Should I Go ?’—A Critical Analysis of the Right to Withdraw from the EU

• DOI: http://doi.org/10.1111/j.1468-0386.2010.00524.x
• Date: 01 September 2010
• Author: Hannes Hofmeister
• Published date: 01 September 2010

eulj_524589..603

‘Should I Stay or Should I Go ?’

—A Critical Analysis of the Right to

Withdraw from the EU

Hannes Hofmeister*

Abstract: This article seeks to answer one of the key questions facing the EU in the

future: what effect will the new right to withdraw have on the EU? Will it lead to a gradual

fragmentation of what was supposed to be ‘an ever closer union of unlimited duration’? Or

will it even mark the beginning of the end of the Union? In order to answer these complex

questions, this article f‌irst brief‌ly analyses the pre-Lisbon situation regarding withdrawal.

It then critically examines the newly inserted Article 50, which codif‌ies the right to

withdraw. Having done so, it will then examine whether non-legal considerations, such as

political and economic reasons, will render withdrawal a theoretical rather than realistic

option.

I Introduction

Three years after the adoption of the Constitution for Europe, and two years after its

rejection by Dutch and French voters,1the continent’s leaders managed the impos-

sible: they saved ‘large parts of the old text and stitched them together into a new

treaty’,2the so-called Lisbon Treaty. In essence, the Lisbon Treaty will bring about

major institutional changes, such as the creation of the post of President of the Euro-

pean Council or High Representative for Foreign and Security Affairs. Yet it also

contains another key amendment which has hardly received any media attention

despite its potential to shake the very foundations of the EU: the unilateral right to

withdraw from the EU.

For the f‌irst time in its history, EU law now provides for an express right to withdraw

from the Union. EU membership is thus no longer a ‘marriage for life’, but rather a

so-called ‘Lebensabschnittspartnerschaft’.3

* Research Fellow, Lauterpacht Centre for International Law, University of Cambridge. The author would

like to thank Professor Marise Cremona, European University Institute, Florence and the anonymous

referees for their helpful comments.

1In popular referenda held in May/June 2005; for details see G. Amato and J. Ziller, The European

Constitution (Edward Elgar, 2007), at 56–60.

2‘Tailoring a Compromise’, The Economist, 24 June 2007.

3ie ‘A partnership for a certain phase in one’s life’.

European Law Journal, Vol. 16, No. 5, September 2010, pp. 589–603.

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