Remaining: On Exiting and (Re-)Entering the European Union

The European Union’s membership provisions mostly address admission, but recent events – Brexit, the Scottish referendum, the Catalan crisis – have focused attention on the problems of exit and re-entry. The dominant view is that secession from a member state requires exit from the EU. Seceding territories have to apply for admission. Many observers see this as normatively preferable, viewing secession as antithetical to Europe’s democratic values. Brexit complicated this view, dragging pro-EU Scotland out of the Union. And on technical grounds, would-be secessionist territories mostly meet EU standards. But the dominant view provides no clear solution to the 'Scottish problem,' or a pathway to retain membership. There have been proposals for fast-track re-entry, but one could go further, imagining default re-admission or even presumptive continuation of membership. This paper argues for re-imagining the membership procedures of the EU to allow regions the possibility of remaining. Drawing on doctrinal perspectives from international law, in particular rules of treaty succession, it demonstrates the possibility of identifying in the EU treaties a presumption of state succession for seceding territories. Beyond the plausibility of such an interpretation, this paper argues for its advisability. Drawing on subsidiarity theory, the paper argues for the coherence of more generous re-entry provisions with the architecture of EU decision-making, and with European norms of integration. Secession can be compatible with the European treaty regime and with Europe’s democratic values.