Reforming Withdrawal and Opt-Outs from the European Union: A Dual-Constituent Perspective

Abstract

This paper engages in a normative critique of the phenomena of Member State withdrawal and opt-outs from the European Union from the perspective of the dual-constituent thesis. Opt-outs from the EU legal order are conceptualised as the retention of the constituent power of Member States to derogate from the norms of the EU constitutional order. By contrast, Article 50 TEU functions as the pooling of the ultimate sovereign authority for nationals of a a Member State to withdraw their consent to engage in the exercise of constituent power at the European level. It is argued that reform should be enacted to limit the power to opt-out to strict conditions established by the EU constitutional order. By contrast, although withdrawal may have more extensive consequences for individuals, the sovereign right to withdraw is a prerequisite for the exercise of the mixed constituent power shared by individuals in their dual roles as nationals of the Member State and citizens of the EU. Therefore, reform of withdrawal could only legitimately be enacted at the domestic level of the 'constitutional requirements' necessary under Article 50(1) TEU.