Constitutional disintegration and disruption : withdrawal and opt-outs from the European Union

Abstract

This thesis analyses constitutional disintegration and disruption in the European Union. These phenomena take the form of Member State withdrawal and opt-outs. The supranational constitutional order of the European Union is legitimated by individuals as Member State nationals and citizens of the European Union. Its construction and reconstruction are exercises of constituent power by the representatives of the Member States. Withdrawal through Article 50 TEU functions as a guarantee to nationals of the Member States that constituent power can be repatriated. The process of disintegration is subject to an orderly process in the interests of all EU citizens under the withdrawal clause. Opt-outs are reservations of constituent power by individual Member States made possible by the executive dominated process of treaty amendment. Opt-outs take effect through ad hoc Protocols addended to the Treaties that disapply EU law in certain sectors. The origins and development of withdrawal and opt-outs are analysed through the Brexit case study of disintegration, and the narrative of disrupted integration concerning the United Kingdom, Denmark, and Ireland. Disintegration through withdrawal has more dramatic consequences for individuals. The constituent status of EU citizenship is terminated for former Member State nationals and the territory of application for EU law contracts. Opt-outs disrupt supranational constitutionalism and the symmetry between individuals as democratic subjects and juridical objects qua Member State nationals and EU citizens. The thesis concludes with reform proposals for a dedicated constitutional clause that would subject the creation and maintenance of opt-outs to supranational constraints. Amendments to the text of Article 50 TEU are proposed to realise its telos to provide a sovereign right of withdrawal for Member State nationals whilst ensuring an orderly process for all EU citizens.