To withdraw or to be withdrawn

But, the Presidium's wording can also be understood as a new super state's right to control the participating states and dictate the consequences for a leaving state.

Art. 46 states that a Member State can leave by notifying the Council. After 2 years, the EU Constitution will not apply to the leaving state.

EU law will then prevail in the leaving state over the national constitution after the sovereign Member State has officially stated that it will not be bound by the EU Constitution.

It is better the other way around. If the EU shall be a cooperation among sovereign Member States, the EU Constitution cannot prevail from the moment where the sovereign Member State has notified its decision to withdraw.

From that moment, all obligations under the treaties must be judged according to international law, e.g. the Vienna Convention on International Treaties.

The conditions for leaving and the new arrangements to be negotiated must be agreed on between the EU and the withdrawing Member State. If they cannot agree, a compromise must be found, eventually with the help of the International Court in The Hague.

The Presidum now proposes that a qualified majority in the Council shall decide the settlement of existing obligations and the new agreement. In a previous draft, they proposed 2/3 majority among the Member States, and I have tabled that amendment because a vote by a qualified majority leaves the blocking power with 3 big Member States, even in an EU with 25 Member States.

The withdrawing country can neither take part in the negotiations nor the vote. Why not? If the perspective is another kind of co-operation, it is bad to exclude the country from influence over its own affairs.

The withdrawing country will be bound by all EU rules but have neither talking nor voting rights in the 2 year period after notification.

Either the notifying country is a full member and takes part in the negotiations of normal EU policy, or it is a sovereign nation negotiating with the remaining Member States and not bound by the Constitution.

How to divorce the EU

A divorce with the EU is not an easy affair. If a country should decide to leave, a lot of problems will have to be settled. Who shall pay the pension rights for civil servants from the Member State withdrawing?

Shall all civil servants from the withdrawing country leave the European institutions, or may some of them continue under their new masters?

Spending from the many EU funds are decided for one year and imply payments for many years to come. Many projects and agricultural spending are paid by advances.

It is not an easy account to draw up technically, but simply a task of calculations. It is not politically difficult to find the fair deal.

The new conditions for trade have to be based on the existing mutual arrangements and international law.

No country can unilaterally take away concessions given to others without paying compensation. This is the basic rule under WTO. All WTO rules will exist before and after a country leaves, obliging both the EU and the withdrawing Member State.

It should be explicitly stated that the EU respects international law and the WTO when negotiating a new deal with a withdrawing country.

If a withdrawing country breaches the WTO rules, the EU should be able to raise a case - not before the EU Court - but before the International Court in The Hague.

If it is the EU not respecting the law, the withdrawing state should have the right to demand an arbitration or settlement in The Hague.

The existing acquis may partly continue to exist also in the withdrawing country, but it will have to be decided by the withdrawing country in negotiation with the EU.

A new deal may decide how future legislation is dealt with between the withdrawing country and the remaining EU Member States. If the withdrawing country will go for the EEA, it is easy.

Should the withdrawing country prefer a new "neighbourship agreement", then it may take at least one year to negotiate the deal.

Then, the proposed 2-year deadline fits in.

Unanimity on Treaty Change

The proposed exit clause can also be looked upon as a less voluntary clause of withdrawal.

The Presidium questions (but does not yet propose a formal change) the most fundamental rule, that treaty change needs unanimity.

If 80% of the Member States has ratified a new treaty, and one or more countries fail to ratify within 2 years, the European Council is called for a meeting to discuss a "political solution".

It can be read as the right for the ratifying countries to say to the not ratifying: Please, read Art. 46 and leave voluntarily.

Ratify or withdraw

That is how President Giscard d`Estaing presented his view in an interview with Der Spiegel. The Commission Penelope draft opens the possibility to continue with 5/6 majority and expel those who do not want to take the Constitution.

The hard-liners did not win the game in the first round in the Presidium. The term political solution may be their joker to be used when they want.

They can claim that this wording means that no one can any longer have the right to block a future treaty.

Every country shall now be obliged to find a political solution within 2 years.

Here, we need crystal clear clarification. Treaty changes need unanimity. If there is no unanimity for a new treaty or constitution there cannot be one - unless an agreement is found with the support of all Member States in a unanimous decision.

To make it clear, I will suggest the following wording of the withdrawal article.

An alternative to Art. 46

Every Member State may withdraw from the EU after its own decision.

A decision on withdrawal is sent to the Council by the Member State with at least one-year's notice.

From the moment of notification, all obligations for the withdrawing country are judged according to international law.

The settlement and the future relationship are decided in an agreement between the withdrawing country and the Council deciding by 2/3 majority.

If a compromise cannot be found, the settlement is judged upon by the International Court in The Hague, eventually through arbitration.

In the search for a fair deal, the EU will follow obligations under the WTO and treat a withdrawing country as a good neighbour having the right for a neighbourship agreement according to Art. 42.