Steve Peers
British Prime Minister David Cameron has surprised many by securing concessions from the EU, such as a smaller EU budget and a Conservative majority in the House of Commons. However, his goal of renegotiating the UK’s EU membership raises the question: are his demands even achievable?
This question arises from Cameron’s recently confirmed intention to secure not immediate Treaty changes, but rather a “legally binding” and “irreversible” agreement that would commit to future Treaty changes. While the content of these potential changes has been explored elsewhere (see links provided in the original text), this piece will focus on the potential format of a deal that could satisfy Cameron’s demands.
The EU has a history of promising Treaty amendments to member states. In 1992, a Decision addressed Danish concerns about the Maastricht Treaty, later becoming a Protocol upon subsequent Treaty amendments (Treaty of Amsterdam), even though this was not explicitly guaranteed initially.
Similarly, in 2008, a Decision addressed Irish concerns about the Treaty of Lisbon. This Decision was legally binding and effective upon the Lisbon Treaty’s enactment. Importantly, it included a commitment to incorporate the Decision’s provisions into a Protocol attached to the EU and EU Functioning Treaties during the next accession process. This Protocol was later drafted and entered into force last year.
A similar promise for Treaty amendment was made to the Czech Republic in 2009, this time presented as the agreed text for a Treaty Protocol. It stipulated that the Protocol would be attached to the EU and EU Functioning Treaties during the next accession process, subject to each country’s constitutional requirements. Although drafted, this Protocol’s ratification was halted when the Czech government retracted its request.
Given these precedents, what would a “legally binding” and “irreversible” commitment to Treaty changes for the UK entail? Several options exist, but one possibility involves combining the Irish and Czech approaches. This could involve a Decision by the Heads of State and Government, accompanied by an agreed-upon Protocol. This Decision could cover other matters beyond Treaty amendments, such as changes to EU secondary law. If the Heads of State and Government agree on the Decision’s legally binding nature, as in the Irish case, it would fulfill one of Cameron’s criteria. The Decision’s legal force could be stated explicitly within the main text, though this wouldn’t be strictly necessary as the Heads of State and Government could express their intent separately.
Regarding “irreversibility,” this could be enshrined in the Decision’s nature itself. A Decision by EU Heads of State and Government can only be altered through unanimous agreement by the same body. While this doesn’t require the same individuals to agree, as they represent states, not personal interests, this point could be explicitly included in the Decision’s main text or accompanying documents.
To address concerns about the UK government changing its stance, the European Union Act 2011 could be amended. This amendment could either require a referendum before the UK government can agree to any changes to this specific Decision, or mandate parliamentary approval (through an Act of Parliament or a resolution) for the UK government to alter its position.
These measures would render the agreement “irreversible.” However, is a more concrete guarantee of the intended Treaty amendment necessary? Cameron’s statement didn’t explicitly go this far, and a text like the one described above would fulfill the “legally binding” and “irreversible” conditions under international law. Many treaties do not have further provisions for practical enforcement. It’s improbable that Cameron implied anything beyond this, given his tendency to speak without prior legal consultation. Especially considering that the current Minister of Justice, like the previous one, lacks any legal background.
That said, strengthening the Decision’s enforceability is possible. For instance, the EU Court of Justice (CJEU) could be granted jurisdiction to issue binding rulings on some or all aspects of the Decision. Although the Decision wouldn’t inherently constitute EU law, Article 273 of the Treaty on the Functioning of the European Union allows member states to grant the CJEU dispute settlement authority on issues related to EU law. This power has been invoked numerous times recently, with the CJEU demonstrating a flexible approach in its interpretation of this clause, as seen in the Pringle case.
This clause could be utilized to ensure the enforceability of the Decision’s commitments. This approach is exemplified in the fiscal compact treaty, where the CJEU can issue binding decisions on whether a member state violated the treaty and subsequently order the imposition of fines to ensure compliance.
To illustrate a Decision that satisfies these criteria, Annex I provides a revised text from a previous blog post about economic reform. The key additions are Sections J and K, along with the proposed future Protocol.
Annex I
The Heads of State or Government of the 28 Member States of the European Union, whose Governments are signatories of the Treaties,
Taking note of the concerns of the British people identified by the Prime Minister of the United Kingdom,
Desiring to address those concerns in conformity with the Treaties,
Having regard to the Conclusions of the European Council of [xx date 2016],
Have agreed on the following Decision:
Section A
Enlargement and the movement of persons
In every forthcoming enlargement of the European Union, the current Member States agree that the free movement of persons from a new Member State will be dependent on a unanimous decision of the Council, which will be taken at the latest once the income of the new Member State concerned is 75% of that of the other Member States of the European Union.
Section B
Free movement of persons and social benefits
The Heads of State and Government confirm that, in accordance with the jurisprudence of the Court of Justice of the European Union, Member States may deny benefits to nationals of other Member States who are not workers or self-employed persons.
[Further provisions addressing Cameron agenda]
Section C
Powers of national parliaments
The Heads of State and Government take note of the Commission’s firm commitment that, building upon the Protocols on national parliaments and on subsidiarity and proportionality attached to the Treaties, it will withdraw any proposal which is opposed by one-third of Member States’ parliaments.
Section D
Economic reform
The Heads of State and Government [make specific commitments as regards free trade agreements and amendments to EU legislation, or refer to such agreements and treaties which have already been agreed].
Section E
Policing and criminal law
The Heads of State and Government reaffirm the United Kingdom’s sovereign power not to opt in to proposals for new legislation on criminal law or policing pursuant to the Protocols attached to the Treaties, and the provisions of the Treaties which require respect for the national identity and legal system of every Member State.
They confirm their strong support for the ongoing process of reform of the system established by the European Convention on Human Rights.
Section F
Reduction of EU competences
The Heads of State and Government reaffirm that In accordance with Article 48 TEU, the competences conferred upon the Union can be reduced. In accordance with Articles 2 and 4 TFEU, the European Union can choose to exercise its competences less intensively in those areas where it shares competence with its Member States.
Section G
‘Ever Closer Union’
The Heads of State and Government confirm that the commitment in the Treaties to ‘ever closer union’ has no specific legal effect. It does not require that further competences be conferred upon the Union, or that the Union must exercise its existing competences. Nor, in accordance with Section D, does it constrain the Member States from adopting Treaty amendments which reduce the Union’s competences, or constrain the Union from choosing to exercise its competences less intensively.
The concept of ‘ever closer union’ allows for different paths of integration for different countries, allowing those who want to integrate to move ahead, while respecting the wish of those who do not want to deepen any further.
Section H
Economic and Monetary Union
The Heads of State and Government confirm that the reference to the euro as the single currency in the Treaties only means that the euro is the currency of some, not all, Member States. It does not in any way prejudice the Protocols which give the United Kingdom and Denmark the possibility of not adopting the euro, or alter the rules governing the extension of the euro to other Member States.
Section I
Member States’ voting in Council
In the event that Section 3 of the [decision on voting in Council] is applied, and agreement is not found within six months, the Heads of State and government undertake that they will not vote in favour of the proposed act. They may instead consider requesting the Commission to propose enhanced cooperation as regards the proposed act, in accordance with the Treaties. In that context, they agree that this constitutes a case of ‘last resort’ in accordance Article 20(2) TEU.
Member States undertake not to vote in favour of any amendment to the [decision on voting in Council] unless all Member States are in favour of that amendment.
Member States undertake to support a request by a Member State in accordance with [Article x] of the Council rules of procedure.
Section J
Treaty amendment
Within one year of the notification by the United Kingdom that the electorate of the United Kingdom has voted to remain a member of the European Union, the necessary steps shall be taken, in accordance with the Treaty on the European Union and the Treaty on the Functioning of the European Union, to incorporate the Protocol attached to this Decision into the legal framework of the European Union.
Note: This text is adapted from Article 16 of the fiscal compact treaty.
Section K
General provisions
This Decision is legally binding and will take effect on the date of its adoption, except where it provides otherwise.
It can be amended only by consensus of the Heads of State and Government.
Where a Member State considers that another Member State has failed to comply with any provision of this Decision, it may bring the matter to the Court of Justice. The judgment of the Court of Justice shall be binding on the parties to the proceedings, which shall take the necessary measures to comply with the judgment within a period to be decided by the Court of Justice.
Note: the final sub-paragraph is based on Article 8(1) of the fiscal compact treaty. It would be possible to limit the Court’s jurisdiction to certain provisions of the Decision only, as is the case in that treaty. It would also be possible to provide for fining Member States which breach a court order, as Article 8(2) of that treaty provides.
PROTOCOL ON [INSERT TITLE]
The Heads of State or Government of the 28 Member States of the European Union,
Having regard to the Conclusions of the European Council,
Have agreed on the following Protocol:
Article 1
Notwithstanding Article 45 of the Treaty on the Functioning of the European Union or any other provision of the Treaties, Member States may provide for a waiting period of up to four years for workers from another Member State to have access to work-related benefits.
Note: Cameron’s requests relating to the free movement of EU citizens might also require other Treaty amendments, as discussed here. So this is just by way of example.
Article 2
1. The Protocol on national parliaments is amended as follows:
2. The Protocol on subsidiarity and proportionality is amended as follows:
Note: Text to be inserted. This would enshrine in the Treaties the agreed changes relating to powers of national parliaments.
Article 3
The provisions of the Treaties referring to ‘ever closer union’ have no legal effect upon the United Kingdom.
Article 4
The following text shall be attached as a Protocol to the Treaty on European Union and the Treaty on the Functioning of the European Union:
“Protocol on voting in the Council of the European Union
Article 1
If members of the Council, representing (a) at least 55% of the population; or (b) at least 55% of the number of Member States necessary to constitute a blocking minority resulting from the application of the application of Article 17(4), first subparagraph of the Treaty on European Union or Article 238(2) of the Treaty on the Functioning of the European Union indicate their opposition to the Council adopting an act by qualified majority, the Council shall discuss the issue.
Article 2
If Members of the Council representing a qualified majority of Members not applying the euro as their currency, defined in accordance with Article 238(3)(b) TFEU, indicate their opposition to the Council adopting an act by qualified majority, on the grounds that it will discriminate against the financial services industry of those Member States, or create an obstacle to free movement of financial services from those Member States, the Council shall discuss the issue.
Article 3
If any Member of the Council indicates its opposition to the Council adopting an act by qualified majority, on one or more of the following grounds:
(a)the national parliament of that Member State has expressed serious concern that the proposed act would breach the principle of subsidiarity, in accordance with the Protocol on subsidiarity and proportionality;
(b)the proposed act would not respect Member States’ national identity, in accordance with Article 4(2) TEU;
(c)the proposed act would severely impact, in that Member State, upon the Union’s aims of creating a highly competitive social market economy, aiming at full employment and social progress, a high level of protection of the environment, or the promotion of scientific and technological advance, as set out in Article 3(2) TEU; or
(d)the proposed act, in the field of social policy, would not take account, in that Member State, of the diversity of national practices, or the need to maintain economic competitiveness, set out in Article 151 TFEU, or would impose a constraint that would hold back the creation and development of small and medium-sized undertakings, or affect the fundamental principles or financial equilibrium of social security systems, as set out in Article 153 TFEU,
the Council shall discuss the issue.
Article 4
The Council shall, in the course of the discussions referred to in Articles 1 to 3, do all in its power to reach, within a reasonable time and without prejudicing obligatory time limits laid down by Union law, a satisfactory solution to address concerns raised by the members of the Council referred to in Article 1.
Article 5
To this end, the President of the Council, with the assistance of the Commission and in compliance with the Rules of Procedure of the Council, shall undertake any initiative necessary to facilitate a wider basis of agreement in the Council. The members of the Council shall lend him or her their assistance.
Article 6
In the event agreement is not found within six months of discussions held pursuant to Article 4, the Council shall not hold a vote on the proposed measure. A group of Member States may instead consider requesting the Commission to propose enhanced cooperation as regards the proposed act, in accordance with the Treaties. The application of this Article shall constitute a case of ‘last resort’ in accordance with Article 20(2) TEU.”
Note: this would enshrine in the Treaties the suggested changes to the rules on Council voting, discussed in the previous blog post, which would give a form of opt-out to Member States with major objections to EU proposals. These suggestions also address relations between the Eurozone and non-Eurozone countries.
Article 5
This Protocol shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union.
Barnard & Peers: chapter 3
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