Leaving the Euro

B. Indirect avenues of expulsion?

If expulsion from the EU is not an option under the treaties, does that mean that leaving an obstructive Member State behind would be impossible? Are there no indirect avenues for achieving much the same result? In the following there is a brief examination of these possibilities and the likelihood of their application. One possibility would involve the extensive use by the errant Member State's partners of the 'enhanced co-operation procedure'.

The purpose of this procedure, which is set out in Articles 43 to 45 TEU (now replaced by Article 20 of the TEU), is to ensure the asymmetric participation of a group of no fewer than eight Member States in a Treaty-based cooperation mechanism capable of enhancing integration between the Member States that are willing and able to prosecute European unification to its logical conclusion. While promising, as the least 'isolationist' alternative for a recalcitrant Member State, and more advantageous than intergovernmental cooperation outside the EU, the enhanced cooperation procedure has its share of drawbacks. The most obvious of these are that: (i) enhanced cooperation has never been used since its introduction by the Treaty of Amsterdam; (ii) it is not available in all areas of EU policy-making and activities (with Common Foreign and Security Policy being excluded); and (iii) the substantive and procedural conditions provided for its use in the EU Treaty are fairly strict. If it were supplemented by additional measures including extra-EU treaties or other informal action, the enhanced cooperation procedure could represent a genuine alternative to the treaties' decision-making mechanisms, helping marginalise more 'minimalist', less 'integrationist' or otherwise 'uncooperative' Member States.

An alternative and somewhat more radical possibility would be for the mainstream Member States to agree on a new, treaty-based partnership with 'an independent institutional 38 ECB Legal Working Paper Series No 10 December 2009 structure outside the framework of the "old EU"' (effectively, a 'new Union') to be 'worked out, approved and ratified solely by the states participating in this new entity'. While, on the face of it, this alternative might appear ingenious, it would not be ideal. One obvious disadvantage of 'recreating' the treaties with one member fewer is that the new 'replacement' treaty would exist in parallel with the existing treaties, even though these would be no more than empty shells. There would inevitably be appreciable scope for competition between the 'old' Union and the 'new', and the risk of a division within Europe as a result of their rivalry. Besides, the alternative of a new treaty being entered into after its signatories have renounced the existing treaties could only work if all mainstream Member States agreed to leave the errant Member State out of the EU. In all likelihood, such a decision would be thwarted not only by the threatened Member State but also by some of its more Euro-sceptic partners. Ultimately, the likelihood of a 'new' Union coming into being is fairly small, requiring 'a massive political effort on the side of the participating states' and entailing 'yet another Treaty adventure, the outcome of which is totally unpredictable'.

Thus, marginalising a Member State, even if not formally expelling it, would not be impossible, but none of the avenues available for achieving it would be ideal. Persuading a Member State to withdraw, by making use of the proposed exit clause or resorting to the regular Treaty revision procedure, may be the better option.