European and international law
Preparation 1 – Member states
Articles
- Article 1 TEU Establishes the European Union as a union of states that act together
to organize relations democratically and effectively, creating a new stage in European
integration.
- Article 2 TEU Sets out the EU’s core values, including human dignity, freedom,
democracy, equality, the rule of law, and respect for human rights, with emphasis on
pluralism, non-discrimination, tolerance, justice, solidarity, and equality between
women and men.
- Article 3 TEU Defines the Union’s main objectives, such as promoting peace,
well-being of peoples, sustainable development, an internal market, a highly
competitive social market economy, environmental protection, social justice, equality,
and protection of cultural diversity.
- Article 7 TEU Provides a procedure to address and, if necessary, sanction Member
States that seriously and persistently breach the EU’s fundamental values.
- Article 49 TEU Sets out the procedure for a European state that respects EU values
and commits to them to apply for membership in the Union.
- Article 50 TEU Establishes the right of any Member State to withdraw from the EU
and outlines the negotiation process for withdrawal.
C-621/18, Wightman and Others (10 December 2018), ECLI:EU:C:2018:999
Background
- After the UK government triggered Article 50 TEU in March 2017 to leave the EU,
questions arose about whether the UK could unilaterally revoke (take back) its
notification of withdrawal if it changed its mind before actually leaving.
- A group of UK politicians and campaigners (including Mr. Wightman, a Scottish MP)
asked the Scottish courts, which then referred the question to the Court of Justice of
the EU (CJEU) for a preliminary ruling.
Legal Question
- Can a Member State that has notified its intention to withdraw under Article 50 TEU
unilaterally revoke that notification before the withdrawal takes effect?
The Court’s Ruling
- Yes — the CJEU ruled that a Member State may unilaterally revoke its article 50
notification, as long as:
1. The revocation happens before the withdrawal agreement enters into force
OR before the 2-year Article 50 period (or its extension) expires.
2. The revocation is decided in accordance with the Member State’s
constitutional requirements (e.g., parliamentary approval).
3. The revocation must be “unequivocal and unconditional”, showing genuine
intent to remain in the EU.
,Significance
- This judgment meant the UK had the legal option to stop Brexit unilaterally
without needing the EU’s permission, as long as it did so before the Article 50
process was completed.
- Politically, it strengthened the argument of those in the UK who supported a second
referendum or halting Brexit altogether.
Paul Craig – EU Membership: Formal and Substantive Dimensions (2020)
Introduction
Craig argues that while much has been written about differentiated integration (the idea that
Member States participate at different speeds or levels), the concept of EU membership itself
has been less thoroughly analyzed.
He distinguishes between:
● Formal dimensions: accession and withdrawal according to the Treaties.
● Substantive dimensions: the actual rights and obligations of states and individuals
flowing from membership.
His goal is to show how these dimensions shape both EU law and the political reality of the
Union.
1. Formal Dimensions
a) Accession (Article 49 TEU)
● A state wishing to join the EU must respect the values of Article 2 TEU (democracy,
rule of law, human rights, equality).
● The procedure is formal:
o Application by the candidate state.
o Negotiations with the EU.
o Approval by the Council (unanimity).
o Consent of the European Parliament (majority).
o Ratification by all Member States according to their constitutions.
● Importantly: even if a state respects EU values, it has no automatic right to join — it
remains a political decision.
b) Withdrawal (Article 50 TEU)
● A Member State may sovereignly decide to leave the EU.
● Conditions:
o The decision must comply with the state’s constitutional rules.
o The EU and the departing state negotiate a withdrawal agreement (adopted
by qualified majority in the Council).
o This agreement governs separation and transitional matters.
o Future relations (e.g. trade deals) are negotiated separately → causing delays
and uncertainty.
● Withdrawal is therefore less predictable and more negotiation-driven than accession.
c) Comparison
● Accession = “prix fixe”: a state takes over the entire acquis (with possible opt-outs).
● Withdrawal = “à la carte”: the terms are bespoke and negotiated each time.
,2. Substantive Dimensions
a) Member States
Membership entails that states:
1. Primary obligations → comply with EU law: internal market, competition,
environment, state aid rules, etc.
2. General values and objectives → respect Articles 2 and 3 TEU.
3. Are subject to enforcement → via infringement procedures (Articles 258–260
TFEU), the duty of loyal cooperation (Article 4(3) TEU), and the role of the CJEU
(Article 19 TEU).
The rule of law crisis in Poland and Hungary illustrates how these obligations and
enforcement mechanisms operate in practice.
b) Individuals
● Since Van Gend en Loos (1963), EU law has direct effect: individuals can invoke
EU rights before national courts.
● Since the Maastricht Treaty (1992), there is also EU citizenship, providing
additional rights:
o Free movement and residence,
o Non-discrimination,
o access to social benefits in other Member States.
● The CJEU has expanded these rights in cases such as Martínez Sala and Trojani,
though their scope remains contested.
c) Differentiated Integration
Not all Member States participate in every policy area (e.g. eurozone, Schengen). Craig
identifies three limits to differentiation:
● Formal: there must be a clear legal basis for opt-outs.
● Functional: deviations must not undermine the functioning of the Union.
● Normative: deviations must not erode common values or allow free-riding.
3. Substantive Dimension of Withdrawal
Craig also considers the substantive meaning of Article 50 TEU:
● It reflects sovereignty and voluntarism → each state decides for itself.
● At the same time, it produces bilateralism and fragmentation → each exit must be
negotiated ad hoc.
● The cases Miller (UK Supreme Court) and Wightman (CJEU) show the interplay
between national constitutions and EU law:
o Miller: Parliament must consent to trigger Article 50.
o Wightman: a state may unilaterally revoke its withdrawal notification,
provided it acts before departure and according to its constitutional rules.
4. Conclusions
Craig highlights three overarching themes:
1. Membership obligations evolve over time → through Treaty changes, opt-outs, and
new policy areas.
2. The EU Treaties are an “incomplete agreement” → requiring interpretation and
supplementation by institutions and courts.
3. Responsibility must be clearly attributed → whether to Member States
(non-compliance), EU institutions (weak enforcement), or the Treaties themselves
(structural limits).
, Lecture 1- member states
How do you (legally) become a member state?
- Article 49 TEU
- There are conditions (Copenhagen criteria 1993) like rule of law, economics, and
human rights.
- The Copenhagen criteria are the political, economic, and legal conditions that
candidate countries must meet to join the European Union (EU). These criteria,
established in 1993, require a country to have stable democratic institutions, a
functioning market economy, respect for human rights and minorities, and the ability
to take on the obligations of EU membership, including adherence to EU law.
- The European union itself needs to have the capacity to integrate new members
(2006).
- Any European state = complicated because it isn’t clear what a European state is
- The council will make a framework what conditions there are to let the country, that
did the application, become a member state.
How to withdraw from the union?
- Article 50 TEU
- The withdrawing member states has less rights than the member states that stay in the
EU.
Wightman Case (C-621/18)
- All the judges were present at the hearing (full court)
- Preliminary reference hearing The Scottish court (national court) asks a question to
the CJEU.
- The interpretation of EU law by the courts is binding to make sure EU law is applied
the same in the member states.
- 44: member states ‘have limited their sovereign rights, in ever wider fields’
- 64: any withdrawal of a member states from the EU is liable to have a considerable
impact on the rights of all Union citizens
- 65: given that a state cannot be forced to accede to the EU against its will, neither can
it be forced to withdraw from the EU against its will.
What does it (legally) mean to be a member state?
Rights Duties
Rules, commitment, and enforcement Implementation of EU law
‘Seat at the table’ have people from Compliance with EU rules, values and
your country to represent the county in principles
the EU
Funding Paying into the budget
Can a member be expelled, or can membership be suspended?
- The voting rights can be taken away, but they can’t be expelled.
- Article 7 TEU article 2 TEU (values)
- Certain rights can be suspended.
- Poland (2021) They changed their government in 2023 and are doing okay now.
- Hungary is still in breach with article 7 TEU.
Preparation 1 – Member states
Articles
- Article 1 TEU Establishes the European Union as a union of states that act together
to organize relations democratically and effectively, creating a new stage in European
integration.
- Article 2 TEU Sets out the EU’s core values, including human dignity, freedom,
democracy, equality, the rule of law, and respect for human rights, with emphasis on
pluralism, non-discrimination, tolerance, justice, solidarity, and equality between
women and men.
- Article 3 TEU Defines the Union’s main objectives, such as promoting peace,
well-being of peoples, sustainable development, an internal market, a highly
competitive social market economy, environmental protection, social justice, equality,
and protection of cultural diversity.
- Article 7 TEU Provides a procedure to address and, if necessary, sanction Member
States that seriously and persistently breach the EU’s fundamental values.
- Article 49 TEU Sets out the procedure for a European state that respects EU values
and commits to them to apply for membership in the Union.
- Article 50 TEU Establishes the right of any Member State to withdraw from the EU
and outlines the negotiation process for withdrawal.
C-621/18, Wightman and Others (10 December 2018), ECLI:EU:C:2018:999
Background
- After the UK government triggered Article 50 TEU in March 2017 to leave the EU,
questions arose about whether the UK could unilaterally revoke (take back) its
notification of withdrawal if it changed its mind before actually leaving.
- A group of UK politicians and campaigners (including Mr. Wightman, a Scottish MP)
asked the Scottish courts, which then referred the question to the Court of Justice of
the EU (CJEU) for a preliminary ruling.
Legal Question
- Can a Member State that has notified its intention to withdraw under Article 50 TEU
unilaterally revoke that notification before the withdrawal takes effect?
The Court’s Ruling
- Yes — the CJEU ruled that a Member State may unilaterally revoke its article 50
notification, as long as:
1. The revocation happens before the withdrawal agreement enters into force
OR before the 2-year Article 50 period (or its extension) expires.
2. The revocation is decided in accordance with the Member State’s
constitutional requirements (e.g., parliamentary approval).
3. The revocation must be “unequivocal and unconditional”, showing genuine
intent to remain in the EU.
,Significance
- This judgment meant the UK had the legal option to stop Brexit unilaterally
without needing the EU’s permission, as long as it did so before the Article 50
process was completed.
- Politically, it strengthened the argument of those in the UK who supported a second
referendum or halting Brexit altogether.
Paul Craig – EU Membership: Formal and Substantive Dimensions (2020)
Introduction
Craig argues that while much has been written about differentiated integration (the idea that
Member States participate at different speeds or levels), the concept of EU membership itself
has been less thoroughly analyzed.
He distinguishes between:
● Formal dimensions: accession and withdrawal according to the Treaties.
● Substantive dimensions: the actual rights and obligations of states and individuals
flowing from membership.
His goal is to show how these dimensions shape both EU law and the political reality of the
Union.
1. Formal Dimensions
a) Accession (Article 49 TEU)
● A state wishing to join the EU must respect the values of Article 2 TEU (democracy,
rule of law, human rights, equality).
● The procedure is formal:
o Application by the candidate state.
o Negotiations with the EU.
o Approval by the Council (unanimity).
o Consent of the European Parliament (majority).
o Ratification by all Member States according to their constitutions.
● Importantly: even if a state respects EU values, it has no automatic right to join — it
remains a political decision.
b) Withdrawal (Article 50 TEU)
● A Member State may sovereignly decide to leave the EU.
● Conditions:
o The decision must comply with the state’s constitutional rules.
o The EU and the departing state negotiate a withdrawal agreement (adopted
by qualified majority in the Council).
o This agreement governs separation and transitional matters.
o Future relations (e.g. trade deals) are negotiated separately → causing delays
and uncertainty.
● Withdrawal is therefore less predictable and more negotiation-driven than accession.
c) Comparison
● Accession = “prix fixe”: a state takes over the entire acquis (with possible opt-outs).
● Withdrawal = “à la carte”: the terms are bespoke and negotiated each time.
,2. Substantive Dimensions
a) Member States
Membership entails that states:
1. Primary obligations → comply with EU law: internal market, competition,
environment, state aid rules, etc.
2. General values and objectives → respect Articles 2 and 3 TEU.
3. Are subject to enforcement → via infringement procedures (Articles 258–260
TFEU), the duty of loyal cooperation (Article 4(3) TEU), and the role of the CJEU
(Article 19 TEU).
The rule of law crisis in Poland and Hungary illustrates how these obligations and
enforcement mechanisms operate in practice.
b) Individuals
● Since Van Gend en Loos (1963), EU law has direct effect: individuals can invoke
EU rights before national courts.
● Since the Maastricht Treaty (1992), there is also EU citizenship, providing
additional rights:
o Free movement and residence,
o Non-discrimination,
o access to social benefits in other Member States.
● The CJEU has expanded these rights in cases such as Martínez Sala and Trojani,
though their scope remains contested.
c) Differentiated Integration
Not all Member States participate in every policy area (e.g. eurozone, Schengen). Craig
identifies three limits to differentiation:
● Formal: there must be a clear legal basis for opt-outs.
● Functional: deviations must not undermine the functioning of the Union.
● Normative: deviations must not erode common values or allow free-riding.
3. Substantive Dimension of Withdrawal
Craig also considers the substantive meaning of Article 50 TEU:
● It reflects sovereignty and voluntarism → each state decides for itself.
● At the same time, it produces bilateralism and fragmentation → each exit must be
negotiated ad hoc.
● The cases Miller (UK Supreme Court) and Wightman (CJEU) show the interplay
between national constitutions and EU law:
o Miller: Parliament must consent to trigger Article 50.
o Wightman: a state may unilaterally revoke its withdrawal notification,
provided it acts before departure and according to its constitutional rules.
4. Conclusions
Craig highlights three overarching themes:
1. Membership obligations evolve over time → through Treaty changes, opt-outs, and
new policy areas.
2. The EU Treaties are an “incomplete agreement” → requiring interpretation and
supplementation by institutions and courts.
3. Responsibility must be clearly attributed → whether to Member States
(non-compliance), EU institutions (weak enforcement), or the Treaties themselves
(structural limits).
, Lecture 1- member states
How do you (legally) become a member state?
- Article 49 TEU
- There are conditions (Copenhagen criteria 1993) like rule of law, economics, and
human rights.
- The Copenhagen criteria are the political, economic, and legal conditions that
candidate countries must meet to join the European Union (EU). These criteria,
established in 1993, require a country to have stable democratic institutions, a
functioning market economy, respect for human rights and minorities, and the ability
to take on the obligations of EU membership, including adherence to EU law.
- The European union itself needs to have the capacity to integrate new members
(2006).
- Any European state = complicated because it isn’t clear what a European state is
- The council will make a framework what conditions there are to let the country, that
did the application, become a member state.
How to withdraw from the union?
- Article 50 TEU
- The withdrawing member states has less rights than the member states that stay in the
EU.
Wightman Case (C-621/18)
- All the judges were present at the hearing (full court)
- Preliminary reference hearing The Scottish court (national court) asks a question to
the CJEU.
- The interpretation of EU law by the courts is binding to make sure EU law is applied
the same in the member states.
- 44: member states ‘have limited their sovereign rights, in ever wider fields’
- 64: any withdrawal of a member states from the EU is liable to have a considerable
impact on the rights of all Union citizens
- 65: given that a state cannot be forced to accede to the EU against its will, neither can
it be forced to withdraw from the EU against its will.
What does it (legally) mean to be a member state?
Rights Duties
Rules, commitment, and enforcement Implementation of EU law
‘Seat at the table’ have people from Compliance with EU rules, values and
your country to represent the county in principles
the EU
Funding Paying into the budget
Can a member be expelled, or can membership be suspended?
- The voting rights can be taken away, but they can’t be expelled.
- Article 7 TEU article 2 TEU (values)
- Certain rights can be suspended.
- Poland (2021) They changed their government in 2023 and are doing okay now.
- Hungary is still in breach with article 7 TEU.
