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The ‘internal’ enlargement of the European Union – is it possible?

By Phoebus Athanassiou and Stéphanie Laulhé Shaelou

European Union (EU) enlargement is both a policy and a process describing the expansion of the EU to neighbouring countries. The process of EU enlargement, first with the creation of the European Economic Community and, later, with that of the European Union, has resulted in today’s EU membership of 28 member states.

EU membership is open to any European country that will satisfy the conditions for accession as set out in Article 49 of the Treaty on European Union (TEU). The position in EU law of countries aspiring to become member states of the EU has been well covered in multiple publications throughout the years.

As a corollary to the ‘right of accession’ of states to the European Union, the EU Treaties have recently provided for the member states’ right to withdraw from the European Union. This right has been enshrined in Article 50 TEU, formally introduced by the Treaty of Lisbon. The formal recognition of the member states’ right to withdraw warrants, in itself, special attention as regards its scope and the concrete consequences of its exercise, all the more so since there are, today, signals that this newly attributed right could be exercised in the foreseeable future.

The newly attributed right of withdrawal opens up new lines of enquiry relevant to other distinct scenarios, with no less of an impact on the EU’s composition. One such scenario is that of the separation or ‘secession’ of part of the territory of an EU member state, motivated by a desire for national independence. Recent months have seen a flurry of activity and academic debate on the likely implications of secession of part of the territory of certain member states, followed by the creation of newly independent states.

European Union flags in Brussels

While secession within the European Union may be within the realm of the possible, several questions spring to mind when reviewing such a scenario, starting with the future of a newly created independent state in the EU. Would this future lie ‘in’ or ‘out’ of the European Union? This would be up to the newly created state to determine, as a sovereign state in international law. In case the newly created state decides to tie up its future to the one of the other members of the European family, the next question would be ‘how’ this is to be achieved? As newly created states wishing to join the EU would originate in an existing (rump) member state they would be familiar with the various EU principles, rules and procedures. Taking into consideration the ‘roots’ of a newly created state within the European family and its previous compliance with EU policies and practices (albeit in a different legal form and capacity) could an ‘automatic’ right to EU accession for the newly created state be envisaged? And, even if there is no such right of automatic accession to the European Union, what would be the parameters for an eventual ‘internal’ enlargement of the EU? To what extent would this differ from the stated policy and process of EU enlargement as enshrined in Article 49 TEU? The debate is on-going in various member states, while views on the matter have also been expressed at the European level.

These are only a few of the very fundamental and valid points raised by a secession scenario within the European Union. Many more questions spring to mind regarding, in particular, the future of the people living in the newly created states. Their people would normally find themselves outside the territorial scope of the EU, even if for a limited period of time only, with all the implications that this will have with respect to their rights as EU citizens. It is clearly in the interest of such citizens that their rights deriving from EU citizenship are maintained and/or protected during any transitional period from independence to full EU membership, so that they do not end-up being treated as third country nationals would. Is it at all possible to ensure the continuing enjoyment of their rights as (former) EU citizens? But this is yet another story.

Phoebus Athanassiou and Stéphanie Laulhé Shaelou are the authors of “EU Accession from Within?—An Introduction” (available to read for free for a limited time) in the Yearbook of European Law. Phoebus Athanassiou is Senior Legal Counsel with the European Central Bank, specializing on EU financial law and issues of relevance to the ECB and EMU. He holds a PhD and an LLM from King’s College, London, and an LLB from Queen Mary, London. He is a Member of the Editorial Boards of the ECB Legal Working Papers Series and of the International In-house Counsel Journal. He is the author of Hedge Fund Regulation in the EU (Kluwer, 2009), and the editor of the Research Handbook on Hedge Funds, Private Equity and Alternative Investments (Edward Elgar, 2012). Stéphanie Laulhé Shaelou is an Assistant Professor at the School of Law of the University of Central Lancashire Cyprus, specialising in EU constitutional law and governance, EU integration and EU external relations. She holds a PhD and an LLM from the University of Leicester, a First Class LLB from the University of Paris and a BA in English and German for lawyers from the international language school I.S.I.T in Paris. Dr Shaelou has written extensively in internationally refereed publications on multiple aspects of EU law, including related to Cyprus. She is the author of The EU and Cyprus: principles and strategies of full integration (vol. 3, Studies in EU External Relations, Brill/Martinus Nijhoff Publishers, Leiden, 2010) and of ‘Market Freedoms, EU fundamental rights and public order: views from Cyprus’ (2011) 30(1) Yearbook of European Law 298.

The Yearbook of European Law seeks to promote the dissemination of ideas and provide a forum for legal discourse in the wider area of European law. It is committed to the highest academic standards and to providing informative and critical analysis of topical issues accessible to all those interested in legal studies. It reflects diverse theoretical approaches towards the study of law.

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