Friday, 26 June 2015

A legally binding commitment to Treaty change: is it humanly possible?




Steve Peers

Prime Minister David Cameron has already achieved some feats that some thought impossible: a cut in the EU budget, and a majority in the House of Commons for the Conservative party. But are his plans for renegotiation of the UK’s EU membership genuinely impossible for any human to achieve?

The context of this is yesterday’s confirmation that his intention in the forthcoming renegotiation is not an immediate Treaty change, but a ‘legally binding’ and ‘irreversible’ text that (apparently) commits to Treaty change. I have blogged before on the content of possible Treaty changes (see here on economic reform, and here on migration of EU citizens), but I will focus today on the form which a deal might take to satisfy Cameron’s demands.  

There is an EU history of promising Treaty amendments to its Member States. Back in 1992, the Member States’ Heads of State and Government adopted a Decision addressing Danish concerns with the Maastricht Treaty. This was later transformed into a Protocol next time the Treaties were amended (in the form of the Treaty of Amsterdam), although this was not formally promised as such when the original decision was adopted.

Then, in 2008, a similar Decision was adopted to address Irish concerns about the Treaty of Lisbon. Apart from the Decision itself, look closely at point 5 of the European Council (summit) conclusions on that date, which specify that:

‘(iii) the Decision is legally binding and will take effect on the date of entry into force of the Treaty of Lisbon; (iv) they will, at the time of the conclusion of the next accession Treaty, set out the provisions of the annexed Decision in a Protocol to be attached, in accordance with their respective constitutional requirements, to the Treaty on European Union and the Treaty on the Functioning of the European Union;’

A Protocol amending the Treaties to this effect was indeed later drawn up, and entered into force last year.

In 2009, another promise of Treaty amendment was made to the Czech Republic. This time it took the form of the full text of an agreed Treaty Protocol, along with the following text:

‘the Heads of State or Government have agreed that they will, at the time of the conclusion of the next Accession Treaty and in accordance with their respective constitutional requirements, attach the Protocol (in Annex I) to the Treaty on European Union and the Treaty on the Functioning of the European Union.’

A Protocol amending the Treaties to this effect was again drawn up, but the ratification of this Protocol did not go ahead because the Czech government withdrew its request for this amendment.

So with these precedents in mind, what would a ‘legally binding’ and ‘irreversible’ commitment to Treaty change as regards the UK look like? There are various ways it could be done, but here’s a suggestion, based on a combination of existing precedents. It would be possible to combine the Irish and the Czech approaches, and have a Decision of Heads of State and Government with an agreed Protocol attached.  The Decision could also address other issues (changes to EU secondary law) besides the planned Treaty amendment. If the Heads of State and Government agreed at the same time that the Decision was legally binding, as they did in the Irish case, that would suffice to meet one of Cameron’s criteria. The legally binding nature of the Decision could also be set out in the main text (although this wouldn’t be necessary as such to make it binding; the intention of the Heads of State and Government to this effect could be expressed separately, in a linked text, as in the Irish case).

What about ‘irreversible’? In fact the irreversibility of the commitment would be enshrined in the very nature of the Decision: a Decision of EU Heads of State and Government could only be amended by the unanimity of the Heads of State and Government which drew it up in the first place. (Note that this does not mean that the same individuals have to agree, since they are acting on behalf of States, not signing a personal contract). This could be explicitly set out in the main text of the Decision, or in a connected text, if that’s deemed to be desirable.

To reassure those who may worry that the UK government would change its mind, the European Union Act 2011 could be amended to state that the UK government could only agree to amend some or all of this particular Decision after a referendum took place. Or it would also (or additionally) be possible, by amending the same Act, to ensure that parliamentary approval (in the form either of an Act of Parliament, or a resolution in favour) would be needed before the UK government changed its position.

So in that way, the agreement would be ‘irreversible’. But would it be necessary also to build in a more specific guarantee that the intended Treaty amendment would take place? Cameron’s statement did not go that far, and a text in the form as described above would meet the criteria of being ‘legally binding’ and ‘irreversible’ from the perspective of international law. Many treaties go no further in providing for their enforceability in practice. It’s unlikely that Cameron meant more than this: he has a habit of opening his mouth before consulting lawyers. And it’s not as if he could get legal advice from the Minister of Justice – who, like his predecessor in that role, has no legal background whatsoever.

Having said that, it would be possible, if it were deemed desirable, to go further to ensure the enforceability of the Decision. It could be provided, for instance, that the EU’s Court of Justice has jurisdiction to give binding rulings as regards all or some of the Decision. Although the Decision would not constitute EU law as such, Article 273 of the Treaty on the Functioning of the European Union specifies that Member States may agree to give the Court dispute settlement powers as regards issues related to EU law. This power has been used several times in recent years, and the CJEU took a flexible approach to using this clause in its judgment in Pringle.

The clause could be used to ensure the enforceability of commitments in the Decision, as seen in the case of the so-called fiscal compact treaty, where the Court can issue binding decisions on whether part of that treaty was breached by a Member State, and then order the imposition of fines to enforce those binding decisions.

To give an idea of what a Decision meeting all these criteria would look like, I have provided a text in the Annex, which is a new version of the text I discussed in the prior blog post on economic reform. The new points are Sections J and K, and 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
Image credit: DailyMail.co.uk


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