The Cameron express: could there be a ‘fast-track’ Treaty amendment on the free movement of workers?

 

Steve Peers

For EU law geeks, the Treaty amendment process is the World Cup, the general election and the second coming of the Millennium Falcon rolled into one. Following the Treaty of Lisbon, it seemed unlikely that there would be another significant Treaty amendment for years. But following David Cameron’s demand to renegotiate EU free movement rules (which was echoed to a lesser extent by the UK Labour party), it has become rather more likely.

So we must move on to the next question: what type of Treaty amendment would it be?  Before the Treaty of Lisbon, there was only one form of Treaty amendment set out in Article 48 of the Treaty on European Union (TEU). However, it was also possible to amend the Treaty by means of accession treaties, and there were sundry forms of minor Treaty amendment (such as amendments to the EU Court’s Statute) scattered around the rest of the Treaties.

Since the Treaty of Lisbon came into force five years ago today, this situation is considerably more complicated. The previous Treaty amendment process has been revised, and there are two variations of it; it’s now called the ‘ordinary revision procedure’. There are two entirely new ‘simplified revision procedures’. Furthermore, there are additional possibilities for minor Treaty amendment scattered around the rest of the Treaties, and it’s still possible to amend the Treaties via means of an accession treaty.

These distinctions are important because if Cameron’s plans could be put into place by using a simplified revision procedure, the process would be speeded up at EU level – although not necessarily at national level.

The changes were so fascinating that, in an explosion of EU law geekiness, I took over 100 pages to analyse them in an article for the Yearbook of European Law. I won’t subject you to all of my analysis there, but it’s the basis for my following comments on which Treaty amendment process would apply to Cameron’s reforms.

Legal framework

There’s no accession to the EU planned for the next five years. So even if an accession treaty could address David Cameron’s renegotiation demands (and I don’t think it could), that prospect is irrelevant, since they couldn’t be addressed by this route before the deadline he has set for a referendum on the UK’s membership of the EU (end of 2017). The minor Treaty amendment processes aren’t relevant to any of his renegotiation demands either.

That leaves us with the ordinary revision procedure and the two simplified revision procedures set out in Article 48 TEU. These have been discussed in posts on other blogs over the weekend, in particular the 'Boiling the Frog' blog. I’ll respond below to some of the points made there.

The ordinary revision procedure requires a ‘Convention’ to be called, consisting of representatives of national parliaments, Member State governments, the European Parliament and the Commission. The Convention meets for a while (the details have to be worked out on a case-by-case basis) and recommends Treaty amendments. An Inter-Governmental Conference (IGC) of Member State representatives then convenes to consider the proposed amendments. If the IGC reaches agreement by the ‘common accord’ (ie the positive support) of all Member States, then the resulting Treaty amendment must be ‘ratified by all Member States, in accordance with their respective constitutional requirements’.

As a variation on this procedure, it’s possible to skip the Convention stage if a simple majority (15/28) Member State governments think that it’s unnecessary, in light of the limited extent of the proposed amendments. But an (inevitably short) IGC and Treaty ratification process is still necessary. If governments want to skip the Convention stage, they must convince the European Parliament to consent to it.

What about the two simplified procedures? The first simplified procedure, set out in Article 48(6) TEU, is the only one that might be relevant to Cameron’s proposed amendments. It provides that a Decision to amend the treaties can be adopted by the ‘European Council’, ie the EU body consisting of Heads of State and Government (Cameron, Merkel, et al), acting unanimously. This Decision then has to be ‘approved by all Member States, in accordance with their respective constitutional requirements’. This procedure applies to amendments of ‘all of part of Part Three’ of the Treaty on the Functioning of the European Union (TFEU), the second of the two main Treaties establishing the EU (more below on what’s in Part Three of the TFEU). This process ‘shall not increase the competences conferred on’ the EU.

The second simplified procedure, set out in Article 48(7), provides for a shift away from unanimous voting of Member States to qualified majority voting, or for changes in the type of legislative procedure, as regards most (but not all) of the two main EU Treaties. Again, the decision concerned would be adopted by the European Council, acting unanimously. But instead of ratification or approval by national parliaments, the Decision could be adopted if no national parliament objected within six months.

Obviously the second procedure couldn’t apply to Cameron’s proposed amendments, since increasing qualified majority voting in the EU is the last thing on his mind. This means that the curtailed role for national parliaments in the second procedure would not apply to the amendments which Cameron is seeking. The Boiling the Frog blog post gets this point wrong.

Since the entry into force of the Treaty of Lisbon, Article 48 has been used four times for Treaty amendments. (There’s also been an accession treaty and some minor Treaty amendments). The ordinary revision procedure was used on three occasions, as regards: a Protocol increasing the number of Members of the European Parliament temporarily; a Protocol on the concerns of the Irish people about the Treaty of Lisbon; and a Protocol limiting the effect of the EU Charter of Fundamental Rights in the Czech Republic.  The first of these Protocols entered into force in 2011; the second Protocol is still being ratified; and the ratification of the third Protocol stopped after a new Czech government withdrew its request, because it no longer wanted to limit the effect of the Charter.

The other Treaty amendment was based on Article 48(6). It consisted of a Decision adding a single paragraph to the TFEU in order to provide for Member States to adopt a treaty establishing a European Stabilisation Mechanism (ESM), ie a bailout fund for Eurozone Member States. This Decision entered into force in 2013.

The key questions about the possible use of the simplified Treaty amendment procedure set out in Article 48(6) for Cameron’s suggested changes are twofold. Firstly, how much easier is it to use than the usual Treaty amendment process? And secondly, when exactly can it be used? I’ll address these procedural and substantive questions in turn.

Procedural simplification

The simplified procedure doesn’t require a Convention to discuss the Treaty amendments. Furthermore, it allows a Convention to be skipped without the European Parliament’s consent; the Parliament only gets to be consulted on the Treaty amendment. There’s no IGC either, although inevitably there is some discussion among Member States, within the framework of the European Council, about the text which the European Council should adopt.

What about transparency? The last few IGCs have been fairly transparent, but when the European Council drew up an Article 48(6) amendment in 2010, no drafts of the Decision were published, and the European Council staff simply ignored my requests for access to the documents. Let’s hope this obnoxious attitude wouldn’t be applied to future cases. For a starting point, it was illegal to ignore my requests for access, since the EU’s access to documents rules apply to documents of the European Council. Furthermore,  while those rules allow for access to be refused in the interest of the institution’s decision-making efficiency, that interest can be overridden in the greater public interest. Obviously the public interest in scrutinising and debating planned Treaty amendments should take precedence.

While it's been suggested that a European Council Decision can be quietly adopted and presented as a fait accompli, that isn’t legally accurate or politically realistic. On the legal side, Article 48(6) expressly makes clear that the Decision will have to be ratified at national level. For the UK, if Cameron is doing the negotiating, that would also necessarily mean that the Conservative party either had obtained a majority at the next election or had done a deal with one or more parties to allow it to govern. In the scenario, an Act of Parliament providing for a ‘Brexit’ referendum would surely be on the statute books by the time the renegotiation of membership takes place.  

In the event of a Labour (or Labour-dominated) government, there would be no commitment to a Brexit referendum (unless that party changes its current policy). So the Treaty amendment in question would be subject to the European Union Act 2011, which requires an Act of Parliament for its ratification (see s. 3 of that Act; such a Treaty amendment is not among the list of changes which would require a referendum, according to s. 4 of that Act).

On the political side, if David Cameron secured a Treaty amendment and said he would not hold a Brexit referendum after all, he would not remain as Conservative party leader for more than 24 hours.  Anyway, since the referendum Act would presumably be on the books already, it’s hard to imagine a scenario in which a Conservative-dominated House of Commons would vote to rescind it. Equally, the Labour party says that it supports the European Union Act 2011, and if it has enough votes in the House of Commons to form a government, it should probably have enough votes to pass an Act of Parliament approving the Treaty amendment.

It’s often thought that all Treaty amendments require referendums in some other Member States, at least in Ireland. But that isn’t the case: the post-Lisbon Treaty amendments mentioned above didn’t require one. The crucial issue, according to Irish constitutional case law (see the Crotty case), is whether there is a fundamental change in the basis of Irish participation in the EU. It might be argued that a cut back in the rights of free movement of workers would constitute such a change; but the favourable immigration status of Irish people in the UK derives originally from UK domestic law, not the EU Treaties. On the other hand, an amendment to the Treaties would leave more flexibility for the UK to change that domestic law if it wished to.

Substantive issues

As a reminder, Article 48(6) can only be used if a Treaty amendment would revise Part Three of the TFEU, and would not increase the EU’s competences. Part Three of the TFEU is the biggest part of that Treaty, and sets out the main rules on the internal market, along with other EU internal policies on issues such as Justice and Home Affairs and the environment. Obviously, this means that the Treaty amendment could not be used to amend the separate TEU Treaty, or to amend the other six Parts of the TFEU.

What do these two legal constraints mean exactly? An interesting feature of Article 48(6) is that the CJEU has jurisdiction to rule on whether the European Council Decisions are valid or not. That’s because these particular Treaty amendments take the form of decisions of an EU institution, whereas the ordinary revision procedure results in acts of the Member States. The CJEU can rule on the validity of the former, but not the latter.

Challenges to the European Council Decision could come from the European Parliament (which might want to argue that the ordinary revision procedure should have been used), or via the national courts, which would send a question on validity to the CJEU. The latter process was indeed invoked when the Article 48(6) process was used before. In the case of Pringle, the CJEU was asked (among other things) whether the Treaty amendment relating to the ESM treaty was valid.

According to the Court, it was; and its judgment gives us some insight into the limits of Article 48(6). First of all, the Court assessed whether the Treaty amendment only amended Part Three TFEU. Formally speaking, that was an easy question to answer, since the amendment took the form of a new paragraph added to Article 136 TFEU concerning economic and monetary policy, and Article 136 is within Part Three. But the CJEU went further than that, and examined whether there was an indirect amendment to other provisions of the Treaties. This is surely the right approach, because otherwise it would be possible for an amendment placed in Part Three of the TFEU to limit the scope of an EU competence described in Part One of the TFEU, or to alter the Treaty amendment procedure as set out in the TEU (a separate Treaty).  

The importance of this point is that it could crop up again in respect of Cameron’s planned Treaty amendment. It could be argued, for instance, that a limit on EU workers’ rights might take the form only of an amendment to Article 45 TFEU (which sets out the basic rules on free movement of workers), it might impact upon the rules on EU citizenship and non-discrimination, which are set out in Part Two of the TFEU. Arguably, it might also impact upon the objectives of the EU, which include the free movement of workers, as set out in Article 3 TEU. Someone might also argue that it violates the EU Charter of Rights, which is separate from the Treaties but has the same legal value.

Furthermore, it’s clear that Cameron still wants to make changes to EU law besides the free movement rules. He confirmed this in his speech, when he said that he stood by every word of his Bloomberg speech of January 2013. The other changes he wants, such as a weakening of the ‘ever closer union’ rule and some changes relating to EU regulation, might not require a Treaty amendment, as I suggested earlier this year. But if Cameron did seek one, that would be problematic. The ‘ever closer union’ rule appears in the preamble, and Article 48(6) TEU cannot be used to amend the preamble either directly or indirectly. Arguably, any curtailment of the ‘ever closer union’ rule affects the entirety of the Treaties anyway. It would be easier to use Article 48(6)TEU as regards regulation issues, since the rules on the internal market and employment policy both appear in Part Three TFEU. But again it might be argued that such amendments have an indirect impact upon the objectives set out in Article 3 TEU, or the Charter.

What if the amendments took the form of a Protocol? Arguably Article 48(6) cannot be used to add, amend or repeal a Protocol, even if the content of that Protocol relates only to Part Three TFEU. The reason for this interpretation is that Protocols are attached to the entirety of both of the main EU Treaties, rather than to any Part of the TFEU as such.

That still leaves the issue of increasing EU competences. In Pringle, the CJEU ruled that the relevant Treaty amendment was acceptable on this point, since it simply confirmed the existence of competences that the Member States already had. Applying this to Cameron’s planned Treaty amendments, they could probably not take the form of permitting the EU institutions to pass legislation to curtail the free movement rules, since that might be described as a new competence for the EU, given that the institutions would be able to provide for more limits than they can at the moment.

So the amendments would have to take the form of a new power for the Member States to curtail workers’ free movement rights. In principle this should be acceptable legally, since the prohibition on increasing EU competences set out in Article 48(6) surely implies that this process can be used to decrease such competences. But remember, in Pringle, the CJEU stressed that the Treaty amendment was acceptable because it confirmed existing powers of Member States. The amendments to the rules on the free movement of workers would be giving Member States new powers. While this also seems to fall within the scope of Article 48(6), the CJEU sometimes takes unusual approaches to the interpretation of Treaty rules.

Conclusion

A simplified Treaty amendment for Cameron’s free movement plans is possible, but only if they remain tightly restricted to amending rules set out in Part Three TFEU, provide for powers for Member States (rather than the EU institutions), and (probably) do not take the form of a Protocol. In any event, there would likely be a legal challenge, either from those who do not like the proposed changes or who think they do not go far enough (or both). It’s possible that they would survive such a legal challenge, but it might be politically unhelpful.

Barnard & Peers: chapter 2