Constitutional Disintegration and Disruption: Withdrawal and Opt-Outs from the European Union

by Oliver Garner

Overview

The United Kingdom's unprecedented withdrawal from the European Union in 2020 may be regarded as the first example of European 'disintegration'. This moment, however, was preceded by decades of 'disruption' as the UK, Ireland, and Denmark pursued opt-outs from the supranational constitutional order. Constitutional Disintegration and Disruption: Withdrawal and Opt-Outs from the European Union provides the first comprehensive analysis of these two phenomena.

The book presents the European Union as an order that is legitimated by individuals playing a dual role as both nationals of Member States and citizens of the European Union; in turn, individuals are both democratic subjects and juridical objects within this order.

The EU Treaties have instituted a 'triptych' for the exercise of 'constituted constituent power' by these individuals: Article 49 TEU allowing accession, Article 48 TEU enabling amendment, and Article 50 TEU as a mechanism for the repatriation of power through withdrawal. Opt-outs are an iterative anomaly that have arisen through the retention of amendment power by representatives of Member State nationals. Reservations of constituent power have been operationalized in Protocols to the Treaties. By contrast, the withdrawal clause was proactively inserted into the Treaties as a sovereign right for Member State nationals subject to an orderly supranational procedure for the benefit of all EU citizens.

The book presents narratives of disruption and disintegration that provide comprehensive historical overviews of how opt-outs and withdrawal arose and developed.

Constitutional Disintegration and Disruption concludes with criticism of the consequences of these phenomena for individuals, and proposes reforms to the EU Treaties that would enable citizens to more fully realize their dual role in the European constitutional space.

Product Details

ISBN-13:	9780198914105
Publisher:	Oxford University Press
Publication date:	05/27/2025
Series:	Oxford Studies in European Law
Pages:	336
Product dimensions:	6.42(w) x 9.51(h) x 0.98(d)

About the Author

Oliver Garner is a Research Leader in European Rule of Law at the Bingham Centre for the Rule of Law, British Institute of International and Comparative Law. He is also the Managing Editor of the Central European University Democracy Institute Working Paper series and the Co-Managing Editor of the Review of Democracy and co-Head of Section for Rule of Law. He was a re:constitution fellow in 2022-23 and held visiting researcher positions at Dublin City University and the London School of Economics. He completed his LLM and PhD at the European University Institute and a BA Jurisprudence at the University of Oxford.

Table of Contents

1. Introduction2. Constituent Power, the Treaty Triptych, and the Role of Individuals3. Opt-Out Protocols: Telos, Form, and Function4. Pre-Brexit: A Narrative of Disruption5. Article 50 TEU: Telos, Form, and Function6. Brexit: A Narrative of Disintegration7. The Normative Failings of Opt-Outs and Withdrawal8. Reforming the Opt-Out Protocols and Article 50 TEU9. Conclusion