Steve Peers

The draft agreement regarding the UK’s EU membership has sparked significant debate. While some, mostly within the UK, believe it doesn’t go far enough, others, primarily from the remaining EU member states, argue it grants excessive revisions to EU law for a single member state. These are primarily substantive concerns. While I have previously addressed some immigration-related issues within the draft, I will delve into other substantive matters later. This piece focuses on the legal nature of the deal and whether it’s “legally binding and irreversible,” as promised by David Cameron.

The draft deal comprises six legal documents: a decision draft from EU Heads of State and Government, a statement from the same group containing a draft Council Decision, a European Council declaration, and three declarations from the Commission. It also implies three upcoming EU legislative proposals regarding EU citizen movement, including an “emergency brake” on benefits, non-EU family members of EU citizens, and child benefit export. These are referenced within the texts. The UK government is also expected to introduce domestic legislation related to the renegotiation deal, a prospect I will briefly examine below.

Before proceeding, it’s important to note that while the deal’s title mentions only the UK, the text applies to all member states. This means a proposal supported by the UK could be blocked by other member states through the proposed “red card” system. However, the UK might be the sole member state aiming to implement certain aspects, particularly the “emergency brake” on benefits. Additionally, some existing opt-outs mentioned in the draft only apply to the UK and a few other member states.

Let’s start with the most straightforward aspect: the planned EU legislation. The legal impact of adopted EU legislation is clear: it’s binding and directly applicable, as in the case of the two planned regulations. Alternatively, it’s binding in terms of the intended outcome, allowing national authorities to choose the form and methods, like with the planned directive. The complexity lies in the process. Can we guarantee that these proposals will be made, adopted, withstand potential overturns by the Court of Justice of the European Union (CJEU), and remain unrevoked?

The responsibility to initiate proposals rests with the Commission. While the Member States’ decision draft doesn’t bind the Commission, the draft deal includes two Commission declarations expressing their intent to make these proposals. Adoption requires approval from the Council by a qualified majority and the European Parliament through a majority vote under most EU legislative processes. Again, the Member States’ decision draft cannot obligate the Council or the European Parliament. However, since the Council consists of Member States’ ministers, and the draft deal sees them committing to supporting two of the three proposals, it’s peculiar that a parallel commitment doesn’t exist for the third proposal concerning non-EU family members of EU citizens. This could potentially be an oversight. The timeline hinges on the adoption speed, although the Commission indicates these proposals will be tabled after a “Remain” vote.

The deal anticipates that the legislation establishing an “emergency brake” on in-work benefits for EU workers would require implementation following a UK request to use it. This would necessitate a Commission proposal and a qualified majority vote in the Council, with no involvement from the European Parliament at this stage. A draft Commission declaration signals their willingness to present this implementing proposal, though there’s no guarantee from the Member States to support it. This, again, could be an oversight. The timing would be contingent upon the adoption of the legislation on this matter, likely taking at least a month for the UK’s request to be greenlit.

This brings us to the question of trust in the Commission and Council (meaning the Member States). Notably, the Member States haven’t pledged to support every aspect of the draft deal in this area, only some. I’ll revisit this trust issue later concerning the deal. However, it’s irrelevant for the European Parliament and the CJEU as they aren’t bound by the deal. Whether the European Parliament will object to any of the legislative plans remains unclear and might become more apparent closer to the referendum date. The CJEU’s stance would only be revealed if a legal challenge, most likely from an individual contesting the new legislation’s implementation through national courts, reaches them, placing it years away. I have provided an initial assessment of the planned changes’ validity in a separate post and summarized my views in the table below.

Beyond potential court challenges, could the legislation be revoked or amended after adoption? In principle, yes, using the same legislative procedure: a Commission proposal, a qualified majority in the Council, and support from the European Parliament. This means the UK wouldn’t hold veto power. However, the Commission’s implicit commitment to making these proposals and the Member States’ pledge to support at least two suggest this is unlikely. Again, it boils down to trust.

The draft deal also outlines the Commission’s plans to issue guidance on aspects of EU free movement law. This pertains to the rules surrounding non-EU family members of EU citizens, while a new law would cover some of these regulations. Guidance would also be provided on the criminality of EU citizens. For the latter, the Commission’s declaration states their intent to “examine the threshold” for deporting criminal EU citizens when the EU citizens’ directive is revised in the future. However, this statement lacks the necessary specificity to be considered a commitment.

Moving on, let’s look at the draft Council decision on Eurozone governance. The Council itself can adopt this measure within its powers to govern its activities, without requiring a Commission proposal or European Parliament approval. It mirrors an existing Council decision that allows for vote delays if enough member states express reservations. Protocol 9 of the treaties states that any changes to such rules must be discussed by consensus. This arguably implies that the decision couldn’t be amended or revoked without the UK’s consent. Technically, the draft decision should amend the existing decision to ensure that Protocol 9 applies to it. Since the draft decision wouldn’t alter the treaty rules regarding the adoption of legislation but only provide for a delayed vote, it’s highly unlikely that the CJEU would annul it.

In fact, it’s unclear who would even challenge it. The Commission and Member States would support it as part of the deal, and there seems little reason for an individual to contest it in national courts. It would also be challenging for them to find a procedural avenue to challenge it in court, as the CJEU has ruled that procedural rules of the Council don’t generate individual rights. This leaves the European Parliament, which doesn’t seem to prioritize this decision among its concerns about the draft deal. Finally, regarding timing, the draft deal aims to adopt the decision once a “Remain” vote is notified, with no further action needed. The draft deal calls for a potential future Treaty amendment on this point.

Finally, we arrive at the heart of the deal: the draft decision from the Heads of State and Government. This document consists of five sections. The first four address the UK’s main negotiation points: the Eurozone, competitiveness, sovereignty, and EU free movement. Section E outlines rules for dispute resolution and enactment.

It’s crucial to understand that the draft decision isn’t technically EU law but rather international law. While often described as a proposed act of the European Council (the EU institution composed of Heads of State and Government), it’s more accurately a proposed act of the Heads of State and Government themselves, not the European Council or any EU institution. This distinction, though seemingly trivial to non-lawyers, carries practical legal implications.

Although not labeled as a treaty, the draft decision could be considered a “treaty in simplified form.” Indeed, the intention is to register it as an international treaty. This legal instrument is not new to the EU; it was employed in 1992 to encourage Denmark’s ratification of the Maastricht Treaty and again in 2008 to do the same for Ireland regarding the Lisbon Treaty. This is why I anticipated its use in this instance.

How does this draft decision differ from EU law? Firstly, while binding upon adoption (as confirmed by the draft conclusions of the European Council), its binding effect stems from its status as a treaty under international law, not EU law. Secondly, it wouldn’t directly alter EU law, although other elements of the deal, such as the planned legislation on free movement and the Eurozone decision, would. The draft decision also outlines rules for applying EU law (specifically, Member States’ voting in the Council after a “red card” from national parliaments) and a commitment to future Treaty amendments regarding Eurozone governance and the “ever closer union” principle. The latter commitment, enclosed in brackets, indicates ongoing discussion.

Modifying EU law without following the formal procedures is impossible, as highlighted by the draft decision’s clarification that it interprets existing EU law rather than changing it. This applies to both secondary and primary EU law (the Treaties). Previous decisions couldn’t and didn’t alter the EU Treaties because, as the CJEU ruled in the Defrenne II judgment, Treaty amendments require adherence to the procedure outlined within them.

However, the draft decision can impose legal obligations on member states under international law as long as it doesn’t clash with EU law. In case of conflict, EU law takes precedence due to its primacy. This raises the question of whether such conflicts exist. While this is a substantive issue, in cases where the draft deal requires the adoption of EU secondary law (free movement legislation, Eurozone Decision), the real question is whether those measures themselves would violate the Treaties. I’ll examine potential conflicts with the Treaties concerning competitiveness and sovereignty in a subsequent post. For now, I’ll address one: the Member States’ commitment to block Council decision-making if national parliaments issue a “red card,” provided national parliaments’ concerns aren’t addressed.

Some argue that this violates EU law by infringing upon the European Parliament’s powers in decision-making. I disagree. The Council’s decision to halt discussions on proposed EU legislation doesn’t affect the Parliament’s role. The Council retains the right to stop discussing legislation due to insufficient interest or other reasons, a practice they exercise frequently. The Commission withdraws proposals annually due to a lack of anticipated Council agreement. The European Parliament can also block proposed legislation under the ‘ordinary legislative procedure,’ albeit less frequently than the Council.

A more nuanced argument suggests that this clause effectively amends the Treaty (rendering it unenforceable due to conflicts with EU law) by introducing a new voting rule in the Council without amending the Treaty accordingly. This is more problematic than the new rule on delaying Council votes on Eurozone matters since the latter doesn’t block a proposal’s adoption and follows existing secondary law precedent. However, as with a similar clause in the “fiscal compact” treaty, an agreement among Member States to coordinate their Council votes doesn’t constitute a Treaty amendment, regardless of whether it takes the form of an informal agreement (as is more common) or a formal treaty.

Even if this rule contradicted EU law, enforcing EU law primacy in this context is unclear. Would a national court or the CJEU instruct a Member State to vote against its wishes in the Council? Such an action would be an unprecedented intrusion into the relationship between national governments and parliaments, which, as the Treaty (specifically the Protocol on national parliaments) recognizes, is solely governed by national law.

Regarding Treaty amendment processes, it’s accurate that the Treaty assigns roles to the Commission and European Parliament. However, let’s not overstate their influence: neither can block Treaty amendments in most cases. The only exception involves amendments dealing solely with increased majority voting or expanded European Parliament powers. While the European Parliament can block these specific amendments, such an event is highly improbable.

Otherwise, the European Parliament’s only power is to demand a full-fledged ‘Convention’ involving representatives from EU institutions, national parliaments, and governments to debate proposed Treaty amendments. However, they cannot dictate the Convention’s agenda or outcome. Ultimately, the Convention’s outcome isn’t legally binding on Member States, who then hold an Inter-Governmental Conference to negotiate the final text, which the European Parliament cannot reject. In essence, the European Parliament’s most impactful action is forcing additional meetings.

What would transpire if a ‘Convention’ were convened? The previous one in 2002-2003 had a broad scope, and the European Parliament could steer it toward a highly integrationist conclusion. However, any Convention convened in (for instance) 2017 would include significantly more EU-critical national parliamentarians from diverse viewpoints. They might advocate for a stronger “red card” mechanism and repatriating powers from the EU. Notably, the Treaty’s language implies that the Convention’s agenda is confined to the issues initially tabled for Treaty amendment.

Therefore, the true obstacle to Treaty amendments lies not at the EU level but in the risk of rejection by national parliaments (and occasionally, referendums), with a further possibility of rejection by national constitutional courts. Predicting the fate of the Treaty amendments proposed in the draft decision at the national level is currently impossible. Consequently, there’s no legal certainty that these amendments would be approved.

On the other hand, the draft decision itself doesn’t require national parliamentary approval, at least not under EU law. Whether the laws of specific member states might mandate it is a separate issue. Similarly, it doesn’t need approval from any EU institutions, although the planned legislation mentioned in the decision does. Since it falls outside the purview of EU law, the draft decision’s validity couldn’t be challenged directly in the CJEU, although a national court might inquire whether national implementation based on the draft decision conflicts with EU law.

Regarding the timeline, the goal is to adopt this draft decision before the referendum, after which it would automatically take effect once a “Remain” vote (if any) is officially communicated. Amending or repealing the decision would require the UK government’s consent, as explicitly stated in the draft European Council conclusions. Since the document lacks provisions for denunciation by a member state or any indication that such an action is possible, it adheres to the general rule outlined in Article 56 of the Vienna Convention: a treaty cannot be denounced without an explicit clause permitting it.

The distinction between the draft decision and EU law does create an enforcement gap. Section E proposes referring disputes between member states regarding the decision’s application to the European Council. However, unlike the fiscal compact treaty, it doesn’t include provisions for referring disputes to the CJEU, which could impose fines. Consequently, despite its binding nature, the draft decision lacks a clear enforcement mechanism, bringing us back to the issue of trust, which we’ll explore further below.

Lastly, some commentators on previous blog posts have questioned whether Heads of State and Government can act outside the framework of the EU Treaties, considering the Treaty of Lisbon’s elevation of the European Council’s status. In my view, this change in EU law didn’t transfer the capacity to act solely to the European Council, except where Treaty amendments explicitly stated so (for example, appointments to the European Central Bank). This aligns with the principle of “conferred powers” outlined in the Treaties: the European Council cannot adopt something like the draft decision without explicit power granted by the Treaties.

Enhancing the Legal Certainty of the Draft Deal

Some have expressed doubts about the draft renegotiation deal’s implementation. Several measures could increase the likelihood of its success.

Regarding the draft legislation, the Commission could present their draft comments before the referendum or, at a minimum, release informal drafts of their proposed proposals for feedback. The European Parliament could hold a preliminary vote indicating their willingness to approve legislation as outlined in the draft deal. Additionally, the draft deal could commit to Treaty amendments on more issues, particularly the ‘red card’ clause and the proposed legislation most susceptible to legal challenges: the “emergency brake” on benefits for migrants. The Council Decision on Eurozone governance could be adopted before the referendum, with the caveat that it automatically comes into force once a ‘Remain’ vote is confirmed. As mentioned earlier, it should amend the existing Council decision on voting to guarantee Protocol 9 of the Treaties applies.

Concerning planned Treaty amendments, drafting the potential text of the new amendments in advance is possible, although their approval would hinge on the EU Treaty amendment procedure. Again, the European Parliament could preemptively indicate whether they would insist on a ‘Convention.’ Finally, regarding ‘competitiveness,’ the Commission could compile a list of legislation they intend to propose, repeal, or amend. However, this pertains more to increasing precision than enhancing legal certainty, as any proposals for new legislation, repeals, or amendments would still be subject to the EU legislative process.

Can the EU Be Trusted?

The EU has twice agreed to similar draft decisions for Ireland and Denmark. They promised Ireland a Treaty amendment and delivered it as a protocol several years later. While not explicitly promising a Treaty amendment to Denmark, they provided one as part of the Treaty of Amsterdam, which has since been amended. Some argue that the EU misled Denmark because the CJEU later disregarded the Danish opt-out of EU citizenship. This is a misconception: Denmark never opted out of EU citizenship. The 1992 Decision on Denmark merely clarified the meaning of EU citizenship, not an opt-out.

Another Treaty amendment (in protocol form), concerning the legal impact of the EU Charter of Fundamental Rights, was promised to the Czech Republic if they ratified the Treaty of Lisbon. This case lacked a formal decision from the Heads of State and Government; instead, the draft protocol and the promise were outlined in the European Council conclusions. The protocol was formally proposed but wasn’t pursued after a new Czech government retracted the previous government’s request. The European Parliament’s vote against the draft protocol might have influenced the Czech government’s decision. However, as noted earlier, the European Parliament lacks veto power over Treaty amendments. Even after their objection, the Council recommended proceeding with the Treaty amendment process.

The European Parliament’s most impactful action to halt Treaty amendments is to demand a ‘Convention.’ However, this doesn’t grant them a veto; it simply mandates meetings. The final decision on the Treaty amendment text rests with a subsequent Inter-Governmental Conference. While the prospect of endless meetings might seem tedious, if the Czech government had been determined to implement their Protocol, they would have ultimately succeeded.

For those who distrust the EU’s commitment to the renegotiation package, a final option exists, which brings us to the topic of domestic legal changes within the UK.

Domestic UK Law

Last year, David Cameron suggested introducing new UK legislation to limit the EU Charter of Fundamental Rights’ impact and safeguard UK sovereignty. I previously commented on his plans, although a thorough assessment was impossible without a concrete text. According to press reports, he remains committed to these changes. Again, commenting further without a draft text is premature.

However, I propose two suggestions for additional domestic law changes. The first is substantive and will be elaborated upon in a future post. Currently, the European Communities Act serves as the legal basis for enacting secondary UK legislation to implement EU law. However, these measures often exceed the minimum legal requirements of EU law, a practice known as ‘gold-plating.’ Some oppose regulating beyond what EU law strictly mandates.

I advocate for amending the Act to prevent ‘gold-plating’ entirely. The EU shouldn’t be unfairly blamed (or credited) for regulations they don’t require member states to adopt. If the UK government wants to implement stricter regulations than the EU mandates, they should introduce a bill for a new Act of Parliament or utilize the secondary legislative powers granted by a different Act of Parliament.

Secondly, can the UK unilaterally ensure the EU fulfills its promises? While they can’t pass laws dictating other Member States’ actions, they can outline their response if these commitments aren’t met. Therefore, any new Act of Parliament addressing the renegotiation deal could include provisions for the UK government to report regularly on the deal’s implementation. If key aspects of the deal remain unimplemented for any reason, without any prospect of future implementation, it would be reasonable to advocate for another referendum, as I have previously argued.

These suggestions, or variations thereof, might resonate with Conservative politicians struggling to balance support for the “Remain” campaign with appealing to their party’s Eurosceptic wing. It represents a way for them to potentially have their cake and eat it too.

Overview: Assessing the Legal Security of the Draft Deal

The following table lists the binding elements within the draft deal and summarizes their binding force from various angles. This analysis assumes the February 2, 2016, draft will be adopted as is and might require updating if amended before adoption.

Decision of Heads of State and Government (in general)

• Binding: In international law
• In force: After the Remain vote is officially communicated
• Further approval needed: No, unless national law requires parliamentary approval in some states
• CJEU vulnerability: Zero; although CJEU might disagree with certain interpretations of EU law
• Reversible without UK consent: No

Commitment to amend the treaty

• Binding: In international law
• In force: After the Remain vote is officially communicated
• Further approval needed: Yes, from national parliaments and possibly electorates; the Commission and European Parliament have a non-binding role in treaty revision
• CJEU vulnerability: Zero; although challenges under national constitutions are possible
• Reversible without UK consent: No

Commitment to apply ‘red card’

• Binding: In international law
• In force: After the Remain vote is officially communicated
• Further approval needed: No
• CJEU vulnerability: Low
• Reversible without UK consent: No

Council Decision on voting on financial issues

• Binding: In EU law
• In force: After adoption, on the date the Remain vote is officially communicated
• Further approval needed: The Council has to adopt it; no role for anyone else
• CJEU vulnerability: Low
• Reversible without UK consent: No (arguably)

Legislation on free movement issues (3 measures)

• Binding: In EU law
• In force: After proposals are tabled and adopted
• Further approval needed: Yes. Commission proposals (political commitment to make them); Council approval (political commitment from Member States to support two proposals); European Parliament (position unknown)
• CJEU vulnerability: Low-medium for two proposals (family members, child benefit); high for the emergency brake
• Reversible without UK consent: Yes

Photo credit: www.ukrep.be

Barnard & Peers: chapter 2, chapter 3