National constitutional limits to withdrawing from the EU

Unlike art. 23 of German GrundGesetz or art. 88-1 of French Loi Fondamentale, Italian Constitution does not have a full-fledged “European Clause“. Traditionally, Art. 11 Cost. has been interpreted as the legal basis for the European integration. Furthermore, new provisions, such as Art. 117 (as amended in 2001) and Art. 97 (as amended in 2012), contain explicit reference to the EU. However, which constitutional requirements should be activated in case of withdrawal? Does the Constitution enclose limitations to withdrawing from the EU? The Italian constitutional architecture, characterized by a certain degree of rigidity, protects the most noble principles from any amendment through entrenchment and eternity clauses. These mechanisms are guaranteed by the Constitutional Court (see judgment no. 1146/1988), a meaningful and ever active veto player. This paper will investigate on the nature of the principle of European integration and its possible functioning as a shield from Italexit.

In Germany, the political demand to leave the EU has hardly been relevant so far. Nevertheless, the development in the UK shows that one cannot rely on European integration always going in one direction. Therefore, it seems worthwhile to examine whether such a disengagement from the EU would be permissible at all under current German constitutional law. This line of questioning leads to the long-standing controversial questions about the relationship between national sovereignty and European integration. A stocktaking shows that the wording of the Basic Law does not contain any direct statements. From the German point of view, the constitutional provision in the sense of Article 50 (1) TEU is Article 23 GG. The central rulings of the Federal Constitutional Court do not bring clarity either. A withdrawal of Germany from the EU is, according to the conclusion of this contribution, especially after a look at the constitutional history, only permissible after a constitutional amendment.

Belgian constitutional law has always taken a EU-friendly approach. It used an efficiency strategy to accommodate access to the EU and the smooth implementation of EU law in the Belgian legal order. Hence, few constitutional barriers exist to enter EU Treaties. The other side of the coin is that even fewer barriers exist for a withdrawal. In principle, the federal executive (formally the King) can retract from the EU treaties in accordance with the executives of the federated entities. The European Union and the European Parliament, however, are mentioned in the constitution. An examination of these provisions will reveal whether they allow for a withdrawal without prior revision of the constitution. In the end, a voluntary withdrawal is unlikely. However, should current disintegrative dynamics lead to the split of Belgium, Belgium would probably cease to exist and the remaining parts would automatically become third states to the EU Treaties.

The Spanish Constitution does not contain any provision that directly prevents the withdrawal of Spain from the EU. There is no European clause in the constitution, although references to the EU were incorporated into art. 135 due to the 2011 reform. In that article, section 2 states that “Neither the State nor the Autonomous Communities shall enter into a structural deficit beyond the limits stipulated, if applicable, by the European Union for its Member States“ and the last paragraph of section 3 reads that “The volume of public debt [...] shall not surpass the benchmark figure set forth in the Treaty on the Functioning of the European Union“. Technically, these references do not imply a mandate to remain in the European Union because they would simply be without effect if a withdrawal were to take place. However, they are a manifestation of the specific difficulty that leaving the European Union would have for Spain, being, as it is, a Member State also of the Euro Zone.

The basis for Poland's accession to the European Union is Article 90 of the Constitution, which defines the “scope and essence of integration“. As the Constitutional Tribunal has stressed many times in the past, the procedure of Poland's accession to the EU thus complied with the standards of constitutionality and the requirements related to the democratic legitimacy of such actions. However, Article 90 did not make a reference to the possible procedure of denouncing such an agreement. In the face of growing tensions between the Polish government and EU bodies, it is worth asking whether and under what conditions and under what procedure the Polish Constitution allows for the possible withdrawal of Poland from the EU? In which way the constitutional principles and limits of Poland's EU integration process were established? In this respect, do the provisions of the Polish Constitution protect against a possible Polexit through the “back door“?