The renegotiation of the UK’s membership of the European Union – or ‘EU reform’, if you prefer – is about to begin in earnest. But already several Member States have ruled out the prospect of amending the Treaties. Is it still possible to deliver a package of renegotiation or reform despite this?
It is, of course, possible to amend EU secondary legislation (or to credibly promise to do so) without a Treaty amendment. But there is always the risk that such legislation will not be amended after all as promised, or that the amendments will be overturned in future. So some have suggested the ‘Danish solution’: namely a decision of the EU Heads of State and Government, meeting within the European Council, which constitutes the EU’s response to the renegotiation request, probably in conjunction with amendments to EU secondary legislation.
Such Decisions have been adopted in the past, as regards Denmark and Ireland, in order to address the former Member State’s difficulties ratifying the Maastricht Treaty and the latter Member State’s difficulties ratifying the Treaty of Lisbon. In the latter case, the European Council (ie Member States’ Presidents and Prime Ministers) also agreed the broader legal and political context of this decision: the decision was ‘legally binding’, it did not constitute a Treaty amendment, and its content would be set out in a Protocol to be attached to the Treaties in future. Indeed, the latter protocol was subsequently signed and ratified as promised. The UK could be offered a similar commitment.
In order to indicate more clearly how the renegotiation would work, Annex I to this post suggest a possible wording for such a decision, based upon the 2009 Decision concerning Ireland, adapted to the Conservative party’s negotiating demands. (I’ve updated this from a previous post on this issue).
But I think it is possible to go further alongside this, and to make changes to EU secondary law which have a similar impact to a Treaty amendment. How would this work exactly? At the moment there is a separate Decision on voting rules in the Council. This provides that where a number of Member States falling short of the usual 'blocking minority' are outvoted, they can insist on a delay before the Council adopts its position. In fact this text was agreed as part of the Lisbon Treaty negotiations (it was a Polish ‘red line’) and set out originally as a Declaration to that Treaty. I believe that this text could be amended to deal with two UK concerns: (a) the position of the non-eurozone Member States as compared to the eurozone Member States; and (b) the very serious concerns of individual Member States about specific EU proposals on certain grounds, such as economic competitiveness or objections by national parliaments.
It wouldn’t be possible to amend the voting rules in the Council as such without a Treaty amendment. But amending this separate Decision could ensure a delay before a vote is taken. I believe it would also be possible to include rules on what happens if there is still no agreement after the delay – namely the use of ‘enhanced cooperation’ (some Member States going ahead without the others) if the disagreement still persists. Again, only a Treaty amendment could require the Council to move to enhanced cooperation at this point. But it is possible for Member States to agree how they will vote in the Council, by means of a separate treaty. There is a precedent for this, in Article 7 of the ‘Fiscal Compact’ treaty between a group of Member States. (It’s understood that the Council legal service agreed that this was acceptable).
So in Annex II, I have suggested some amendments to this Council Decision, to address the UK’s two concerns. The issue of Member State voting is addressed in the parallel Decision of Heads of State and Government.
I believe that such an approach has a large number of advantages. First, it can be adopted by the Council, without needing the participation of the Commission or European Parliament, or approval by Member States. Second, Member States can secure the continued existence of this Decision by agreeing that it can only be amended following a unanimous vote. Third, it is possible to avoid the risk that, for these changes at least, the EU is offering a ‘post-dated cheque’. The Council could already adopt the Decision before the referendum vote, with the simple proviso that it will enter into force as soon as the UK notifies the Council that the UK public has voted to stay in the EU. Fourth, the changes will not be specific to the UK, so that other Member States also have a positive reason to approve these amendments. Fifth, the amendments could address both the concerns of business and other concerns as well. Sixth, any use of enhanced cooperation would still be subject to the rules in the Treaty, ie it could not discriminate between Member States or distort the internal market. So the interests of non-participating Member States would be respected.
I have also suggested (in Annex III) an amendment to the Council’s rules of procedure dealing with the specific issue of reviewing CJEU judgments on EU secondary legislation, where a Member State has a particular concern about those judgments. Again, the issue of Member State voting is addressed in the parallel Decision of Heads of State and Government.
Finally, I’m not addressing in detail the key issue of ‘immigration’ within the EU, ie free movement of EU citizens, in this blog post. I will come back to that in the near future.
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:
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.
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]
Note: see the CJEU judgment in the Dano case, discussed here, as well as the Cameron proposals on EU free movement, discussed here.
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.
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].
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.
Note: if the process of ECHR reform is completed before the UK renegotiation of its EU membership, there could be a more specific commitment to give effect to the results of that process, for instance ratifying a new protocol to the ECHR.
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.
Note: this could be accompanied by specific commitments to repeal or reduce the scope of some existing EU legislation.
‘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.
Note: the second paragraph is taken from the wording of the June 2014 European Council conclusions.
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.
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.
Member States undertake to support a request by a Member State in accordance with [Article x] of the Council rules of procedure.
Amendment to Council Decision on voting
(new) Section 3
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.
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.
Articles 5 and 6 shall apply to this section.
Note: Articles 5 and 6 provide for attempts to settle the dispute.
Amendment to Council rules of procedure
If a Member State invokes concerns about a judgment of the Court of Justice of the European Union on EU secondary legislation, on the grounds set out in [Article 6b of the Decision on Council voting], then the Council will ask the Commission to report within six months on whether to propose a change to the legislation concerned.
Note: there could be a parallel change to the Commission’s rules of procedure, or an inter-institutional agreement on this point.
Barnard & Peers: chapter 2, chapter 5, chapter 13, chapter 25