Friday 22 May 2015

Is it possible to reform the EU without amending the Treaties?


Steve Peers


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.



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]


Note: see the CJEU judgment in the Dano case, discussed here, as well as the Cameron proposals on EU free movement, discussed here.


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.


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.


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.


Note: this could be accompanied by specific commitments to repeal or reduce the scope of some existing EU legislation.


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.


Note: the second paragraph is taken from the wording of the June 2014 European Council conclusions.


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.




Annex II

Amendment to Council Decision on voting


(new) Section 3

Other provisions


Article 6a


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 6b


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 6c


Articles 5 and 6 shall apply to this section.


Note: Articles 5 and 6 provide for attempts to settle the dispute.


Annex III

Amendment to Council rules of procedure


Article x


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


  1. Interesting update to your previous post. However, I remember from the discussion of the previous post there was debate on whether or not this route is even possible post-Lisbon:

    "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."

    And having double checked some of the articles of the Lisbon Treaty and the dates of these referred to Decisions for Denmark and Ireland, I am beginning to wonder if this proposed solution is still possible after December 2009.

    The Decision for Denmark and the Decision for Ireland were adopted by the European Council (the Heads of State or Government) in 1992 and July 2009 respectively. The Treaty of Lisbon became effective in December 2009 though, and it formalized the European Council as Robert Zbíral noted.

    As Zbíral pointed out, Art 15/1 TEU states: "

    The European Council shall provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof. It shall not exercise legislative functions."

    This would imply that at best any European Council decision would be a promise of future legislative changes rather than any actual changes, but these promises may not be binding.

    But then Art 15/4 TEU states:

    "Except where the Treaties provide otherwise, decisions of the European Council shall be taken by consensus."

    Which would imply that the European Council can still make Decisions which can be legally binding. Indeed Art 31 TEU also supports this:

    Art 31/1:

    "Decisions under this Chapter shall be taken by the European Council and the Council acting unanimously, except where this Chapter provides otherwise. The adoption of legislative acts shall be excluded."

    Art 31/2:

    "By derogation from the provisions of paragraph 1, the Council shall act by qualified majority:

    — when adopting a decision defining a Union action or position on the basis of a decision of the European Council relating to the Union's strategic interests and objectives, as referred to in Article 22(1),................."


    "If a member of the Council declares that, for vital and stated reasons of national policy, it intends to oppose the adoption of a decision to be taken by qualified majority, a vote shall not be taken. The High Representative will, in close consultation with the Member State involved, search for a solution acceptable to it. If he does not succeed, the Council may, acting by a qualified majority, request that the matter be referred to the European Council for a decision by unanimity."


    "The European Council may unanimously adopt a decision stipulating that the Council shall act by a qualified majority in cases other than those referred to in paragraph 2."

    Might it not be better then if something like what is proposed in this blog post be adopted as a Decision by the European Council, directing the Council of the European Union (which does have legislative functions) to adopt a Decision along these lines as well with specific legal effect?

    [As an aside, I've always found it odd that the names "European Council" and "Council of the European Union" have coexisted as the possibility of confusion is much easier as a result. Maybe if they ARE going to have treaty change one of the first orders of business should be to change the name of the "European Council" to the "European Conference" or "European Congress" as in a Conference/Congress of Heads of State or Government]

    1. Thanks for your comment. In my view the Heads of State and Government are legally distinct from the European Council, so the Lisbon Treaty had no effect upon their capacity to adopt decisions. Some see their decisions as international treaties in simplified form, which is a type of treaty known in international law.

    2. Hmm...I don't know...that doesn't seem right. If what you are saying is true then it would mean that the Heads of State and Government is a separate, parallel and informal institution to the European Council. But that seems at odds with the European Council's history itself where it originally was a non-institution of the European Community/Union from 1987 until 2009 when it became a formal institution and started out as an entirely informal affair in 1961.

      If they do meet and adopt decisions (which I guess should not be confused with EU Decisions and the former Heads of State and Government Decisions that you referred to in the blog article) or essentially simplified treaties, there is the problem that such treaties would most certainly not be legally binding as the CJEU would be in no way obliged to consider the agreements adopted by the Heads of State and Government outside of the EU framework as being binding on the legal system of the EU itself until a treaty amending the TEU and TFEU was concluded to put these agreements into effect (much as how the ESM was formalized as part of the EU system by a treaty amending article 136 TFEU).

      Given that unlike the ESM, this simplified treaty would basically touch on a lot of aspects of the EU itself, then to bring it into effect and not have it remain as potentially empty promises, quite a few changes would have to be made to the TEU and TFEU since an agreement reached outside of the treaty would not necessarily be binding and enforceable through the CJEU under the treaties.

    3. I wouldn't call the Heads of State and government an 'institution', if you mean by that an EU institution. They are an emanation of the Member States collectively exercising their power in public international law. The Lisbon Treaty dropped some references to Member States acting collectively but left in others (ie the seats of the institutions, and the appointment of CJEU judges). I can't see how it follows from upgrading the European Council that the Treaty curtailed the possibility of Heads of State and Government adopting decisions. On the contrary the fact that the EU institutions now do things which the Heads of State did before (like appointments to the ECB) confirms a contrario the powers of Heads of State and Government in other areas, subject as before to the constraint that they cannot amend the Treaties, only clarify and supplement them.
      In my view therefore a Decision by Heads of State and Government post-Lisbon would indeed be very similar to the pre-Lisbon Decisions. And it would be possible to give the CJEU jurisdiction by special agreement as regards the Heads of State and Govt decision (as in the case of the ESM treaty, which the CJEU approved in the Pringle judgment). In fact it would be best to ask the CJEU in advance of the UK referendum vote to rule on the legality of the Decision. .
      The ESM treaty example in fact supports my argument, not yours, because in Pringle the CJEU said that the Treaty amendment to Article 136 TFEU was superfluous.
      Having said this it is possible that some part of the Decision would have to consist of promises to amend the Treaty in future, as in the Irish example, particularly as regards free movement issues. UK voters would then have to decide if that promise is credible or not (and it proved to be credible in the Irish case).

  2. I can see why the Council Legal Service would say that a Treaty binding the Member States to vote a certain way in Council is lawful; this solution is politically expedient and the Council Legal Service probably fancies its chances defending it.

    But I'd still put the odds of the Court accepting it at 50/50, at best. It's judgements like Opinion 2/13 that give me pause. I.e., quite aside from the Court's alleged pro-federalism bias, I don't think it's in the mood for any shenanigans that jeopardise the ability of the Institutions to fulfil their duties as envisaged in the Treaties.

    1. Thanks for your comment. I think one could equally argue that the CJEU supports convoluted legal stratagems that keep the EU afloat, cf the Pringle judgment.

    2. ...only if they come up with them themselves.

    3. Really in Pringle it was the Member States who came up with the ESM treaty, and the Court that approved it.

  3. Steve,
    Your posts here are excellent as they help to give a clear understanding as to EU law (forgive the sycophancy). From my previous questions you can see that I am anti EU, and I understand you are pro EU. However I like to take an objective view point when it comes to matters of EU law. Your above post, particularly these words gives me some cause for concern-
    “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.”

    I wonder if you can, objectively, clarify some of this for me. Treaty change is going to be impossible, which leaves us with the EU secondary legislation. As you say these can often be overturned, and in my experience promises are often broken. The TFEU, or TEU, is a legal minefield as it seems to mean that there are so many safeguards which favour the EU in such situations. What can Cameron do, legally, to ensure that any concessions he gets are not going to be overturned?
    Would he be able to limit free movement and open borders, even though the Polish have ruled this out? (Benefit cuts are not enough)
    What realistically can he do to prevent the UK from further political integration into the EU?
    If he can protect our right to set our own corporation tax, can he get this written in law, never to be overturned, as the EU has already stated its’ aim for across the board corporation tax rates?
    In my, humble, opinion without assurances that these things can be ratified in law, he will have big problems in convincing the eurosceptics to change their opinions.
    In your legal and objective opinion what will he really achieve that will affect the way the EU operates?
    Thanks, in advance

    1. Thanks, Nicusha. I am pro-EU but strive to be objective about its flaws, although of course I believe that there are fewer of these than the anti-EU side do. I'll address your points separately. (a) To protect the UK against closer integration in general and harmonised taxes in particular, there are already safeguards. The Treaties already say that there must be unanimous voting on tax, so the UK can veto any proposal. Some or all Member States can go ahead without it, but they could do that anyway outside the EU framework. It's not even certain that the Commission is planning to propose harmonised corporate tax rates: the Express said it is, but the FT said it isn't. As for closer integration in general, the UK can veto any Treaty amendment and any transfer of powers from the UK to the EU in a Treaty amendment would need approval in a referendum. So would any major change like joining the single currency, Schengen or the European Public Prosecutor. It is possible that other changes can be made without Treaty amendment, but you will notice that the UK avoided participation in new EU measures on banking supervision and resolution funds, or Eurozone bail-outs. The changes to EU secondary law which I suggest in this post would actually ensure that the UK or any other Member State would be able to opt out of any EU measure that it had very strong objections to, without having to amend the Treaties to this effect. It would probably be better to test their legality in advance (Member States could ask the EU court to give a ruling by special agreement), so that British voters know that they are legally sound before the referendum date. As I say, these measures could be drafted to come into effect automatically after an 'In' vote.
      This deals in part with the issue of breaking promises, but I would add that the EU kept the specific promises it made to Ireland in return for voting for the Lisbon Treaty (a new Protocol, also changing the number of Commissioners). Also the EU agreed to a new Protocol relating to Denmark. This issue works both ways, too: the OUT side might promise to uprate pensions to Brits living in the EU, and to make good shortfalls in farm support, research funds, and regional funding that would result from EU withdrawal. Can you trust that promise? And the OUT side could not guarantee to sign all the treaties with the EU on trade and other issues which they will say they want after a withdrawal, since the EU side has to agree to those too.
      On free movement, I will come back to that issue, but Cameron has not asked to reduce free movement as such, only primarily for benefit cuts. I think part of his plan would need Treaty amendment for reasons I have set out elsewhere on this blog, but maybe the July budget will cut back in-work benefits across the board and so reduce the relevance of this issue.

    2. Thanks Steve. Apart from the businessmen who are pro-EU the consensus is that the main worry for people is free movement. I have my own wide ranging, logical (not racist) opposition to free movement, but that is not for here. The real issue for many is not the benefits that the migrants receive (in work or out of work). Restrictions on these will not deter economic migration in any great way. I have arguments to support that but that is for other blogs as this is a purely legal blog. I suppose my question should have been- Is it legally possible within the EU treaties for the UK to take back control of who does and does not migrate to this country?
      One other question. If the EU does become closer and more integrated, is there anything within the legal framework to prevent us from becoming isolated and looked upon less favourably by the states that have been more integrated? We all know how clubs work, and eventually if you do not go along with the majority you could be left out in the cold. Obviously that is conjecture as to whether that could happen, but a distinct possibility. Can we prevent this legally, or is it a matter of just hoping for the best? We all know that politics is nasty and devious.

    3. It's often overlooked in the immigration debate that the UK already has full control over the number of non-EU citizens who come to this country, leaving aside the small proportion who are family members of EU citizens or asylum-seekers (since the UK is bound by the first phase EU asylum laws). That's not a minor point since the number of non-EU citizens coming to this country is quite significant. The 'net migration' figures also include returning UK citizens (not a lot of people know that, or consider them migrants) and we would not have 'control' over these numbers even if we left the EU. That leaves us with citizens of other EU countries. I agree with you that even if Cameron gets all his demands, the numbers of EU citizens coming or staying here would probably only drop quite modestly; and that there would not be 'control' over those numbers in the sense of the UK determining the overall numbers that come in. It wouldn't be possible to have that under the current Treaties, and I don't think it's politically realistic to imagine that other Member States will agree amendments to that effect. The biggest question for the 'In' side in the referendum is therefore whether to argue that free movement of EU citizens is a necessary evil, or a positive good.

    4. Thanks. My main point was on the legal issue, and it seems that we as a member cannot overturn the open border policy. As I say, I have logical and rational arguments against free movement and the same with non eu migrants, but this is a legal forum and I am certain your readers do not wish to hear my witterings.Keep up the good work.