Steve Peers

Experts in EU law see Treaty amendments as a monumental event. After the Treaty of Lisbon, significant changes to the Treaty seemed improbable in the near future. However, this prospect is becoming more likely due to David Cameron’s push to renegotiate free movement regulations within the EU, a sentiment somewhat shared by the UK Labour party.

This brings us to the crucial question of what form such a Treaty amendment would take. Before the Treaty of Lisbon, Article 48 of the Treaty on European Union (TEU) outlined a single method for amendment. However, modifications were also possible through accession treaties, and other minor amendment procedures were scattered throughout the Treaties, like those for the EU Court’s Statute.

Since the Treaty of Lisbon came into effect five years ago, the process has become more complex. The previous single procedure, now referred to as the ‘ordinary revision procedure,’ has been revised and split into two variations. Additionally, two completely new ‘simplified revision procedures’ have been introduced. Minor amendment possibilities still exist within the Treaties, and amendments via accession treaties remain a possibility.

These distinctions are crucial. If Cameron’s goals could be achieved through a simplified revision, the process would be expedited at the EU level, though not necessarily at the national level.

The changes were intriguing enough to warrant over 100 pages of analysis in an article for the Yearbook of European Law. I won’t delve into the entire analysis here, but it forms the foundation for my following assessment of which amendment process applies to Cameron’s proposed reforms.

Legal framework

With no EU accessions planned for the next five years, utilizing an accession treaty to address Cameron’s demands is not feasible within his referendum deadline of 2017. This holds true even if such a treaty could accommodate his requests, which is unlikely. Similarly, the minor amendment processes are irrelevant to his renegotiation objectives.

This leaves the ordinary revision procedure and the two simplified revision procedures defined in Article 48 TEU. These have been the subject of recent discussions, notably on the ‘Boiling the Frog’ blog. I’ll address some of the points raised there.

The ordinary revision procedure involves convening a ‘Convention’ comprising representatives from national parliaments, Member State governments, the European Parliament, and the Commission. This Convention meets to propose Treaty amendments, the specifics of which are determined on a case-by-case basis. Subsequently, an Inter-Governmental Conference (IGC) of Member State representatives convenes to deliberate on the suggested changes. Unanimous agreement from all Member States during the IGC necessitates ratification of the amendment by each Member State, adhering to their respective constitutional requirements.

A variation of this procedure allows for bypassing the Convention stage if a simple majority (15/28) of Member State governments deems it unnecessary due to the limited scope of the proposed amendments. However, an IGC (necessarily brief) and a Treaty ratification process are still mandatory. Bypassing the Convention requires consent from the European Parliament.

Concerning the simplified procedures, only the first, as defined in Article 48(6) TEU, holds relevance to Cameron’s proposed amendments. This procedure empowers the ‘European Council’, consisting of Heads of State and Government, to adopt a Treaty amendment Decision through unanimous agreement. This Decision then requires approval from all Member States following their respective constitutional procedures. This process applies to amendments within Part Three of the Treaty on the Functioning of the European Union (TFEU), the second of the two primary EU establishing treaties. It’s important to note that this procedure cannot expand the EU’s competences.

Article 48(7) outlines the second simplified procedure, which involves transitioning from unanimous Member State voting to qualified majority voting, or modifying the legislative procedure for most of the two primary EU Treaties. Similar to the first procedure, the European Council adopts the decision unanimously. However, instead of national parliament ratification or approval, the Decision is adopted unless a national parliament raises an objection within six months.

Given Cameron’s stance on qualified majority voting, the second procedure is clearly inapplicable to his proposed amendments. Contrary to the Boiling the Frog blog’s assertion, this means the diminished role of national parliaments in the second procedure would not apply to Cameron’s desired changes.

Since the Treaty of Lisbon’s enactment, Article 48 has been utilized four times for Treaty amendments, alongside one instance of an accession treaty and several minor amendments. The ordinary revision procedure was employed three times: for a Protocol temporarily increasing European Parliament members, a Protocol addressing Irish concerns regarding the Treaty of Lisbon, and a Protocol limiting the EU Charter of Fundamental Rights’ impact in the Czech Republic. The first Protocol took effect in 2011, the second is currently undergoing ratification, and the third’s ratification halted after a new Czech government withdrew its request, opting not to limit the Charter’s impact.

The remaining Treaty amendment employed Article 48(6). A Decision was made to add a paragraph to the TFEU, enabling Member States to establish a treaty for a European Stabilisation Mechanism (ESM), a bailout fund for Eurozone members. This Decision became effective in 2013.

Two key questions arise regarding the feasibility of applying the simplified Treaty amendment procedure under Article 48(6) to Cameron’s proposed changes. First, how much simpler is it compared to the standard process? Second, under what specific circumstances can it be employed? Let’s examine these procedural and substantive issues in turn.

Procedural simplification

The simplified procedure forgoes the Convention to discuss amendments and allows skipping it without the European Parliament’s consent, merely requiring consultation with the Parliament regarding the amendment. While an IGC is not required, discussions among Member States within the European Council framework regarding the Decision’s text are inevitable.

Regarding transparency, while recent IGCs have been relatively open, the drafting of an Article 48(6) amendment in 2010 lacked published drafts, and the European Council staff disregarded requests for document access. It’s hoped that this obstructive approach won’t be repeated, particularly since disregarding such requests was unlawful, as EU access to document rules apply to European Council documents. These rules, while allowing refusal based on institutional decision-making efficiency, can be overridden in the interest of greater public good. Clearly, public scrutiny and debate regarding proposed Treaty amendments should take priority.

The notion that a European Council Decision can be enacted discreetly and presented as a fait accompli is legally and politically inaccurate. Legally, Article 48(6) explicitly mandates ratification at the national level. For the UK, this implies that the Conservative party, under Cameron’s leadership, would need a majority in the next election or an agreement with other parties to govern. In this scenario, an Act of Parliament enabling a ‘Brexit’ referendum would likely be in place before membership renegotiations occur.

A Labour (or Labour-dominated) government would not be bound by a Brexit referendum commitment unless their stance changes. Therefore, the Treaty amendment would fall under the 2011 European Union Act, mandating an Act of Parliament for its ratification (as per s. 3; such an amendment is not listed as requiring a referendum according to s. 4).

Politically, Cameron securing a Treaty amendment without a Brexit referendum would likely result in his immediate removal as Conservative party leader. Moreover, with the referendum Act likely in effect, it’s improbable that a Conservative-majority House of Commons would repeal it. Similarly, the Labour party, supportive of the European Union Act 2011, would likely have sufficient votes to pass the Treaty amendment if they can form a government.

While it’s assumed that Treaty amendments necessitate referendums in some Member States, notably Ireland, this isn’t universally true, as demonstrated by the post-Lisbon amendments. According to Irish constitutional law (refer to the Crotty case), the deciding factor is whether a fundamental shift in Ireland’s EU participation is involved. While restricting free movement of workers might seem like such a change, the favorable immigration status of Irish citizens in the UK stems from UK domestic law, not EU Treaties. However, a Treaty amendment could allow the UK greater flexibility in modifying this domestic law.

Substantive issues

Article 48(6) is only applicable if a Treaty amendment revises Part Three of the TFEU without expanding the EU’s competences. Part Three, the largest section of the TFEU, lays out the internal market’s ground rules along with other internal EU policies like Justice and Home Affairs and the environment. This implies that the amendment cannot modify the separate TEU Treaty or the remaining six parts of the TFEU.

What are the precise implications of these two legal limitations? A notable aspect of Article 48(6) is the CJEU’s authority to judge the validity of European Council Decisions. This stems from these amendments being decisions of an EU institution, unlike the ordinary revision procedure, which results in acts of the Member States. The CJEU can assess the former but not the latter.

Challenges to the European Council Decision could arise from the European Parliament, potentially arguing for the ordinary revision procedure, or national courts requesting a CJEU ruling on validity. This latter process was indeed employed in a previous case involving Article 48(6). In the Pringle case, the CJEU assessed the validity of the ESM treaty-related amendment.

The Court upheld its validity, and its judgment provides insights into the boundaries of Article 48(6). It examined whether the amendment solely impacted Part Three of the TFEU. While the amendment, a new paragraph added to Article 136 TFEU (within Part Three) regarding economic and monetary policy, made this a straightforward question, the CJEU went further. It investigated potential indirect amendments to other Treaty provisions. This is crucial to prevent an amendment within Part Three from limiting an EU competence described in Part One or altering the amendment procedure outlined in the TEU.

This point’s significance lies in its potential relevance to Cameron’s planned amendment. Limiting EU workers’ rights, while seemingly confined to modifying Article 45 TFEU (which governs free movement of workers), might indirectly impact EU citizenship and non-discrimination rules outlined in Part Two. It could also affect the EU’s objectives, including the free movement of workers, as stated in Article 3 TEU. Some might argue that it infringes upon the EU Charter of Rights, a separate but equally important document.

Furthermore, Cameron’s desire for changes beyond free movement rules, confirmed in his speech referencing his January 2013 Bloomberg address, poses further challenges. While changes like weakening the ’ever closer union’ rule and altering EU regulation might not necessitate a Treaty amendment, as previously suggested, seeking one would be problematic. The ’ever closer union’ rule features in the preamble, unamendable by Article 48(6) TEU directly or indirectly. Any curtailment arguably affects the entire Treaties. Addressing regulatory issues through Article 48(6) TEU might be simpler as rules on the internal market and employment policy fall under Part Three. However, it could be argued that such changes indirectly impact Article 3 TEU’s objectives or the Charter.

Framing the amendments as a Protocol might be ineffective. It’s arguable that Article 48(6) cannot add, modify, or remove a Protocol, even if its content pertains solely to Part Three. This interpretation stems from Protocols being attached to both primary EU Treaties rather than a specific TFEU Part.

The issue of expanding EU competences remains. In Pringle, the CJEU deemed the amendment acceptable as it merely reaffirmed existing Member State competences. Applying this to Cameron’s plans, they likely cannot grant the EU institutions power to restrict free movement, as this might be construed as a new competence allowing the institutions to impose greater limitations than currently possible.

Therefore, amendments would need to empower Member States to curtail free movement rights. This should be legally sound, as the Article 48(6) prohibition on increasing EU competences implies the possibility of decreasing them. However, in Pringle, the CJEU emphasized that the amendment was valid because it confirmed existing Member State powers. Granting Member States new powers to restrict free movement, while seemingly within Article 48(6)’s scope, might face challenges given the CJEU’s history of unconventional interpretations.

Conclusion

A simplified Treaty amendment addressing Cameron’s free movement goals is feasible, but only under strict conditions. Amendments must be confined to Part Three TFEU, empower Member States rather than EU institutions, and likely avoid the Protocol format. Regardless, legal challenges are anticipated, either from opponents of the changes or those who deem them insufficient. While surviving such challenges is possible, the political ramifications might be undesirable.

Barnard & Peers: chapter 2