Steve Peers

The UK is about to begin renegotiating its European Union membership, a process some call “EU reform.” However, several member states have already rejected the idea of treaty changes. So, is a renegotiation or reform package even possible?

While amending secondary EU legislation (or convincingly promising to do so) without altering the treaties is possible, there’s always a risk that such changes won’t happen or could be reversed later. One suggestion is the “Danish solution”: a decision by EU leaders within the European Council that acts as the EU’s response to the renegotiation request, potentially alongside secondary legislation adjustments.

Similar decisions were used in the past for Denmark and Ireland to address their treaty ratification challenges. In Ireland’s case, EU leaders agreed on the decision’s broader legal and political framework, stating it was legally binding but not a treaty amendment and would be outlined in a Protocol attached to future treaties. This Protocol was eventually signed and ratified as promised. The UK could be offered a similar arrangement.

To illustrate how this renegotiation might work, Annex I proposes potential wording for such a decision, modeled after the 2009 Irish decision but adapted to the Conservative party’s negotiating goals. (This has been updated from a previous post).

Going a step further, it’s possible to make changes to secondary EU law that have a similar effect as a treaty amendment. Currently, a separate decision exists on Council voting rules, allowing a group of member states, even if short of a “blocking minority,” to delay a Council position. Originally a Polish demand during the Lisbon Treaty negotiations, this could be modified to address two UK concerns: the non-eurozone states’ position compared to eurozone members and individual member states’ concerns about specific EU proposals (e.g., economic competitiveness or national parliament objections).

Amending Council voting rules directly would require a treaty change. However, revising this separate decision could still ensure a delay before a vote. Rules could also be added for scenarios where disagreements persist after the delay, potentially leading to “enhanced cooperation” where some states proceed without others. While only a treaty change could mandate the Council to use enhanced cooperation, member states can agree on their Council voting through a separate treaty, as demonstrated by Article 7 of the “Fiscal Compact” treaty.

Annex II suggests amendments to the Council Decision to address the UK’s concerns, with member state voting addressed in the parallel decision by EU leaders.

This approach has several benefits: The Council can adopt it without Commission or Parliament involvement or member state approval. Member states can guarantee the decision’s permanence by requiring unanimous support for any future amendments. The EU avoids issuing a “post-dated check” by potentially adopting the decision before the UK referendum, contingent on a positive “stay” vote. Since the changes wouldn’t be UK-specific, other member states have reason to approve them. The amendments could address business and other concerns. Finally, enhanced cooperation would still follow existing treaty rules, safeguarding the interests of non-participating member states.

Annex III proposes an amendment to the Council’s rules of procedure, specifically addressing the review of EU court judgments on secondary legislation where a member state has particular concerns. Again, member state voting on this is addressed in the separate decision by EU leaders.

This post does not delve into the crucial issue of EU “immigration,” meaning the free movement of EU citizens. That will be addressed in the future.

Annex I

The leaders of the 28 EU member states, whose governments signed the Treaties,

Acknowledging the concerns of the British people as identified by the UK Prime Minister,

Wishing to address these concerns within the Treaties’ framework,

Considering the European Council’s conclusions of [xx date 2016],

Have agreed on the following Decision:

Section A

Enlargement and the movement of persons

For all future EU enlargements, current member states agree that the free movement of people from a new member state will depend on a unanimous Council decision, made once the new member state’s income reaches 75% of the EU average, at the latest.

Section B

Free movement of persons and social benefits

The leaders confirm that, following EU Court of Justice rulings, member states can deny benefits to citizens of other member states who aren’t employed or self-employed.

[Further provisions addressing Cameron’s agenda]

Note: see the CJEU judgment in the Dano case, discussed here, as well as the Cameron proposals on EU free movement, discussed here.

Section C

Powers of national parliaments

The leaders acknowledge the Commission’s firm commitment to withdraw any proposal opposed by one-third of member state parliaments, building upon the Protocols on national parliaments and on subsidiarity and proportionality attached to the Treaties.

Section D

Economic reform

The leaders will [make specific commitments regarding free trade agreements and amendments to EU legislation, or reference existing agreements and treaties].

Section E

Policing and criminal law

The leaders reaffirm the UK’s sovereign right to not adopt new criminal law or policing legislation under the Protocols and Treaty provisions respecting each member state’s national identity and legal system.

They strongly support the ongoing reform of the European Convention on Human Rights system.

Note: if ECHR reform concludes before the UK renegotiates its EU membership, a more concrete commitment could be made to implement the results, such as ratifying a new ECHR protocol.

Section F

Reduction of EU competences

The leaders reaffirm that under Article 48 TEU, the EU’s powers can be reduced. According to Articles 2 and 4 TFEU, the EU can choose to exercise its powers less forcefully in areas where it shares competence with member states.

Note: this could be accompanied by specific commitments to repeal or limit existing EU legislation.

Section G

‘Ever Closer Union’

The leaders confirm that the Treaties’ commitment to “ever closer union” has no specific legal impact. It doesn’t require transferring more powers to the EU or that the EU must exercise its existing powers. As per Section D, it doesn’t prevent member states from adopting treaty amendments reducing the EU’s powers or the EU choosing to exercise its powers less forcefully.

“Ever closer union” allows different integration paths for different countries, allowing those who want to integrate to proceed while respecting those who don’t.

Note: the second paragraph is from the June 2014 European Council conclusions.

Section H

Economic and Monetary Union

The leaders confirm that the Treaties’ reference to the euro as the single currency only means it’s the currency of some, not all, member states. It doesn’t affect the Protocols allowing the UK and Denmark to not adopt the euro, nor does it change the rules for extending the euro to other member states.

Section I

Member States’ voting in Council

If Section 3 of the [decision on voting in Council] is applied and no agreement is reached within six months, the leaders agree not to vote in favor of the proposed act. Instead, they may consider requesting the Commission to propose enhanced cooperation on the act, following the Treaties. They agree this constitutes a “last resort” scenario under Article 20(2) TEU.

Member states pledge not to vote for any amendment to the [decision on voting in Council] unless all member states agree.

Member states commit to supporting a request by a member state under [Article x] of the Council’s rules of procedure.

Annex II

Amendment to Council Decision on voting

(new) Section 3

Other provisions

Article 6a

If Council members representing a qualified majority of members not using the euro, as defined by Article 238(3)(b) TFEU, oppose a qualified majority vote on an act because it would discriminate against or hinder the free movement of financial services from those member states, the Council will discuss the matter.

Article 6b

If any Council member opposes a qualified majority vote on an act based on one or more of the following:

(a) that member state’s parliament has raised serious concerns about the act violating the principle of subsidiarity, as per the Protocol on subsidiarity and proportionality;

(b) the act wouldn’t respect member states’ national identity, per Article 4(2) TEU;

(c) the act would severely impact the EU’s goals within that member state, as outlined in Article 3(2) TEU, such as creating a competitive social market economy, aiming for full employment and social progress, ensuring high environmental protection, or promoting scientific and technological advancement; or

(d) the act, in the area of social policy, wouldn’t consider the diversity of national practices within that member state, the need to maintain economic competitiveness (Article 151 TFEU), would hinder the creation and growth of small and medium-sized enterprises, or negatively affect the core principles or financial stability of social security systems (Article 153 TFEU),

the Council will discuss the issue.

Article 6c

Articles 5 and 6 will apply to this section.

Note: Articles 5 and 6 provide for attempts to settle the dispute.

Annex III

Amendment to Council rules of procedure

Article x

If a member state raises concerns about an EU Court of Justice judgment on secondary EU legislation based on the grounds outlined in [Article 6b of the Decision on Council voting], the Council will request a report from the Commission within six months on whether to propose changes to the legislation in question.

Note: there could be a corresponding change to the Commission’s rules of procedure or an inter-institutional agreement on this.

Barnard & Peers: chapter 2, chapter 5, chapter 13, chapter 25