ORIGINAL PUBLISHED ON EU LAW ANALYSIS (Wednesday, 10 February 2016)
by Steve Peers
The draft deal on renegotiation of the UK’s EU membership has already caused great controversy: both from those (mostly in the UK) who think it does not go far enough, and those (mostly in the rest of the EU) who think it goes too far in revising EU law to satisfy the objections of one Member State. These issues are mainly substantive, and I have addressed some of them in an earlier post about theimmigration aspects of the draft deal. I’ll write later about the remaining substantive issues, although I will touch on some in this blog post. There’s already an analysis of the proposed ‘red card’ for national parliaments by Katarzyna Granathere.
Yet in addition to concerns about the substance of the deal, there are doubts about its legal nature. In particular, is the deal ‘legally binding and irreversible’, as David Cameron had pledged? The answer is complicated, because there are several different parts of the deal, taking different legal forms. For each part, the legal status depends on several different factors: when the text would be adopted; who would have to approve it; whether the EU courts have power to overturn it, and whether they are likely to do so; and whether the text could be repealed or amended in future. (I am assuming throughout that by ‘irreversible’, David Cameron meant irreversible without the UK’s consent).
This blog post answers that question, looking first at the legal form of the agreement. Next, I suggest ways in which the draft deal could be made more legally secure. Then I examine, based on prior experience, whether the EU can be ‘trusted’ to implement the draft deal. Finally, I provide, in one table, my assessment indication of the extent to which each of the parts of the draft deal are ‘legally binding and irreversible’, based on the factors mentioned above.
Legal form of the main deal
The draft deal takes the form of six draft legal texts: a Decision of the EU Member States’ Heads of State and Government (the ‘draft Decision’); a Statement of the Heads of State and Government (which consists of a draft Council Decision); aDeclaration by the European Council: and three declarations by the Commission. Implicitly, it also includes three planned EU legislative proposals, all dealing with the free movement of EU citizens (the emergency brake on benefits, EU citizens’ non-EU family members and export of child benefit), which are referred to in these texts. The UK government is also likely to table some domestic legislation linked to the renegotiation deal: I consider that prospect briefly (and propose some further national laws which the UK might consider) below.
The basic legal form of the deal, and even some of the proposed text, corresponds with suggestions I made back in May 2014, as supplemented in May 2015 and June 2015. However, the text falls short in some respects of what I suggested there; that’s a substantive issues, so more on that in a later blog post. I’ve integrated the main relevant points from those previous posts into this one, for the reader’s convenience.
One important point before we continue: while the title of the deal refers to the UK only, none of the actual text of the deal applies solely to the UK. So it would apply to all Member States. That means it’s possible, for instance, that a proposal which the UK supports could be stymied by other Member States’ national parliaments (via the Council), using the proposed new ‘red card’. It is possible, however, that the UK would be the only Member State aiming to implement some parts of the proposed deal, in particular the ‘emergency brake’ on benefits; and of course some of the existing opt-outs referred to in the draft deal only apply to the UK and one or two other Member States.
Let’s begin with the easiest parts of the draft deal: the planned EU legislation. We know the legal effect of EU legislation, once it’s adopted: it’s binding and directly applicable (in the case of the two planned Regulations), or binding as to the result to be achieved, leaving national authorities the choice of form and methods (in the case of the planned Directive). (See the definitions of EU legislation set out in Article 288 TFEU). The more difficult question here is the process. Can it be guaranteed that the proposals will: (a) be made; (b) be adopted; (c) not be struck down by the EU Court of Justice (CJEU); and (d) not revoked?
It’s up to the Commission to make proposals. The draft Decision of Member States can’t bind the Commission (more on that below), but the draft deal includes two declarations by the Commission, announcing its intention to make these proposals. For those proposals to be adopted, they must be approved by the Council (by a qualified majority) and the European Parliament (by a majority of the vote, under most variants of the EU legislative process). Again, the draft Decision of Member States can’t bind the Council or the European Parliament. But the Council is made up of Member States’ ministers, and in the draft deal the Member States commit themselves to supporting two of these three proposals (on child benefit and the emergency brake). It’s odd that there’s no parallel commitment as regards the third proposal (on EU citizens’ non-EU family members), but this may be a drafting oversight. The timing of these measures depends on how soon they would be adopted, although the Commission declares that it will table them after a ‘Remain’ vote.
The deal foresees that the law creating an ‘emergency brake’ for EU workers’ in-work benefits would subsequently have to be implemented following a UK request to use it. This would need a proposal from the Commission and a vote by the Council (by qualified majority). There would be no role for the EP at that stage. A draft Commission declaration states that the Commission is willing to make this implementing proposal; there is no commitment from the Member States to support it. Again, this might possibly be a drafting oversight. The timing would follow the adoption of the legislation on this topic: it would likely take at least one month for the UK’s request to be approved.
So the real question is whether to trust the Commission and Council (ie the Member States); although it’s also notable that the Member States haven’t committed themselves to support all aspects of the draft deal in this area, but only some of it. I’ll return to that question of trust below, as regards the deal in general. But it doesn’t even arise as regards the European Parliament (EP) or the CJEU, as they are not bound by the deal. It remains to be seen whether the EP will object to some or all of the legislative plans (this might become clearer closer to the referendum date). The position of the CJEU would only be clear if a legal challenge reached it. That would most likely follow from a challenge by an individual to the implementation of the new legislation, after it’s adopted, via the national courts. So it would be some years away. I made an initial assessment of the validity of the planned changes in the separate post on free movement issues; I have summarised my views in the table below.
Leaving aside the question of Court challenges, could the legislation be revoked or amended, after it was adopted? In principle, that is possible, using the same legislative procedure: proposal from the Commission, qualified majority in the Council, and support from the EP. So the UK could not veto this taking place. But implicitly the Commission’s commitment to make these proposals, and Member States’ commitment to support at least two of them, suggest this is not going to happen. Again, this comes back to a question of trust.
The draft deal also refers to Commission plans to issue ‘guidance’ on aspects of EU free movement law. This concerns part of the rules on EU citizens’ non-EU family members (part of those rules would be covered by a new law). There would also be ‘guidance’ on the issue of criminality of EU citizens. For the latter point, the Commission’s declaration states that it will ‘examine the threshold’ relating to expulsion of criminal EU citizens when the EU citizens’ Directive is revised in future. This is too imprecise to regard as a commitment.
Next, the draft Council decision on Eurozone governance. This measure can be adopted by the Council itself, as part of its powers to govern its own activity. It does not need to be proposed by the Commission, or agreed by the European Parliament. It is similar to an existing Council decision, which provides for delays in the vote if a sufficient number of Member States have qualms about them. Protocol 9 to the Treaties says that any changes to such rules must be discussed by consensus; arguably that means that the Decision could not be amended or repealed without the UK’s consent. Technically the draft Decision should take the form of an amendment to the existing Decision, to make sure that Protocol 9 applies to it too. Since the draft Decision would not amend the rules of the Treaty on the adoption of legislation, but only provide for a delayed vote, it seems very unlikely that the CJEU would annul it.
In fact, it’s not even clear who would challenge it: the Commission and Member States would support it as part of the deal; there seems little reason why an individual would challenge it in the national courts; and it would be hard for an individual to find a procedural route to challenge it in the courts anyway (the CJEU has ruled that procedural rules of the Council don’t give rise to individual rights). That only leaves the European Parliament, and this Decision doesn’t appear to be at the top of their concerns about the draft deal. Finally, as for timing, the intention in the draft deal is to adopt the Decision once a ‘Remain’ vote was notified, with no further action necessary. The draft deal calls for a possible Treaty amendment in future on this point.
Finally, the main part of the deal: the draft Decision of Heads of State and Government. It takes the form of five sections, dealing first of all with the UK’s four main negotiating objectives: the Eurozone (section A); competitiveness (section B); sovereignty (section C); and EU free movement (section D). Section E includes rules on dispute settlement and entry into force.
First of all, it should be noted that the draft Decision is not EU law as such; it’s international law. It’s often described as a proposed act of the European Council, which is the EU institution consisting of Heads of State and Government. But that’s simply not correct: it’s a proposed act of the Heads of State and Government as such, not the European Council (or any other EU institution). That distinction might sound like hair-splitting to non-lawyers, but it has practical legal consequences.
While the draft Decision is not described as a treaty, it could be regarded as a ‘treaty in simplified form’ (see the broad definition of a treaty in Article 2(1)(a) of theVienna Convention on the Law of Treaties). Certainly the intention is to register it as an international treaty (see Articles 77-80 of that Convention). This form of legal act is not new to the EU: it was used in 1992, to encourage Danes to ratify the Maastricht Treaty, and in 2008, to encourage Irish people to ratify the Lisbon Treaty. That’s why I predicted that it would be used again in this case.
What are the distinctions between this draft Decision and EU law? First of all, while the draft Decision would be binding if adopted (as confirmed by the draft conclusions of the European Council), since binding effect inherently follows from its status as a treaty, it would be binding under international law, not EU law. Secondly, the draft Decision would not as such change EU law, although otherelements of the overall deal would: the planned legislation on free movement issues, and the Council Decision on Eurozone issues. The draft Decision also contains rules on the application of EU law in practice (namely, Member States’ voting in Council after a ‘red card’ is issued by national parliaments) and a commitment to amend the Treaties in future, as regards the Eurozone governance and ‘ever closer union’ issues. (The latter commitment is in square brackets, indicating that it is still a topic of discussion).
Indeed, the draft Decision could not change EU law as such, without following the formal procedures to that effect. I have discussed the issue of amending EU secondary law above, but the same is true of EU primary law (the Treaties). The prior Decisions did not change the EU Treaties, and they could not, because the CJEU had ruled that the Treaties could only be amended using the procedure set out within them, in the Defrenne II judgment. Like the prior decisions, the draft Decision specifies that it does not amend EU as such, but interprets it.
However, the draft Decision can include legal obligations for Member States as a matter of international law, as long as this does not conflict with EU law. In the event of any conflict, the primacy of EU law means that the latter takes precedence over the Decision. But is there any conflict? This is a substantive question, and in any event where the draft deal calls for EU secondary law measures to be adopted (the free movement legislation, the Eurozone Decision) the real question is whether those measures would themselves breach the Treaties if adopted. I will examine whether there is any conflict with the Treaties as regards competitiveness and sovereignty in a subsequent post, but I will comment on one here: the commitment of Member States to block Council decision-making if a ‘red card’ is pulled by national parliaments, on the condition that national parliaments’ concerns are not addressed.
Andrew Duff has argued that this breaches EU law, because it infringes the powers of the European Parliament in decision-making. In my view, this is clearly incorrect. A decision by the Council to stop discussing proposed EU legislation does not alter the Parliament’s role. It’s always open to the Council to stop discussing proposed legislation if there is insufficient interest in a proposal or for any other reason, and it’s not rare for it to do so. Every year, the Commission withdraws proposals because it has given up hope that the Council will ever agree to them (for the most recent such decision, see here). The EP can block proposed legislation too, where the ‘ordinary legislative procedure’ applies; it just does so less frequently than the Council.
A subtler argument is that this clause in the Decision in effect amends the Treaty (and so is therefore inapplicable due to the conflict with EU law) because it introduces a new voting rule in the Council without amending the Treaty to that effect. It’s more problematic than the new rule on delaying Council voting as regards Eurozone issues, since that latter rule doesn’t block the adoption of a proposal, and follows an existing secondary law precedent. However, as with a comparable clause in the ‘fiscal compact’ treaty, an agreement by Member States to coordinate their voting in Council does not amend the Treaties, whether it takes the form of an informal agreement (as it more often does) or a formal treaty to that effect. Even if this rule did breach EU law, how could the primacy of EU law beenforced in this context anyway? By a national court, or the CJEU, telling a Member State to vote a way it didn’t want to vote in the Council? This would be an unprecedented incursion into the relationship between national governments and national parliaments, which the Treaties recognise (in the Protocol on national parliaments) is a matter for national law alone to regulate.
As for the Treaty amendment process, it’s correct to say (as Andrew Duff does) that that the Treaty gives a role to the Commission and EP. But let’s not overstate that role: neither of them can block Treaty amendments, in most cases. The only exception is Treaty amendments which solely concern more majority voting, or more powers for the EP. Yes, the EP can block those Treaty amendments; but that’s about as likely as the Pope opening an abortion clinic.
Otherwise, the EP’s sole power is to insist that there has to be a fully-fledged ‘Convention’, with delegates from the EU institutions, national parliaments and national governments, to discuss proposed Treaty amendments. But the EP can’t set the agenda for the Convention, or determine its outcome. Anyway, that outcome is not binding upon the Member States, which then hold an Inter-Governmental Conference to negotiate the final text – which the EP cannot reject. In short, the most the EP can do is to force everyone to hold more meetings.
What would actually happen, if a ‘Convention’ is established? The last Convention, in 2002-3, had a broad agenda, and in practice the EP was able to steer it toward a highly integrationist conclusion. But any Convention convened in (say) 2017 would now include a lot more national parliamentarians critical of the EU, from every perspective. They might well want to drive the Convention towards a stronger version of the proposed ‘red card’, as well as repatriation of powers from the EU. Anyway, the wording of the Treaty suggests that the agenda of the Convention is limited to the issues originally tabled for Treaty amendment.
So the real impediment to Treaty amendments is not at the EU level. Rather, it’s the risk of rejection in national parliaments (and occasionally referendums), with a further long-stop risk of rejection by national constitutional courts. It’s impossible to guess at this point what would happen to the Treaty amendments foreseen by the draft Decision at national level. So there is no legal certainty that those Treaty amendments would definitely be approved.
On the other hand, the draft Decision itself does not need national parliamentary approval, at least as a matter of EU law (whether some Member States’ law might require it is a separate question). Nor does it need any sort of approval from any of the EU’s institutions – although the planned legislation referred to in the Decision does, of course, need those institutions’ involvement. Since it’s not part of EU law, the validity of the draft Decision could not be challenged directly before the CJEU, although it is possible that a national court could ask whether national implementation of EU based on the draft Decision was in conflict with EU law.
As for the timing, the intention is to adopt this draft Decision before the referendum, and then it would come into force automatically as soon as a ‘Remain’ vote (if there is one) was notified. The Decision would be irreversible in the sense that the UK government would have to consent to amend it or repeal it; this is explicitly confirmed by the draft European Council conclusions. There is no provision for a Member State to denounce it, or any other indication that it’s possible to do so; therefore it is subject to the general rule in Article 56 of the Vienna Convention that a treaty cannot be denounced in the absence of a clause to that effect.
The distinction between the draft Decision and EU law does mean that there is a gap in the Decision’s enforceability. Section E refers to bringing a dispute between Member States about the application of the Decision before the European Council. But unlike the fiscal compact Treaty, there is no provision on bringing a dispute before the CJEU, which could then impose fines. So despite the binding nature of the draft Decision, there would not be a clear mechanism for making it stick. This brings us back to the issue of trust, discussed further below.
Finally, some commentators on the previous blog posts raised the question of whether Heads of State and Government could still act outside the framework of the EU Treaties, given that the Treaty of Lisbon upgraded the status of the EU institution in which they meet – the European Council. In my view, that change in EU law did not transfer the capacity of Heads of State and Government to act to the European Council, except where the Treaty amendments did that expressly (for instance, as regards appointments to the European Central Bank). This follows from the principle of ‘conferred powers’ set out in the Treaties: in the absence of any power for the European Council to adopt anything like the draft Decision, it can’t adopt it.
How can the draft deal be made more legally secure?
Some comments on the draft renegotiation deal expressed doubt that it would go ahead. There are several possibilities for increasing the likelihood that it would do so.
As regards the draft legislation, the Commission could agree to propose its draft comments before the referendum, or at least publish drafts of its planned proposals informally for comment. The European Parliament could vote in principle on whether it would be prepared to agree to legislation as described in the draft deal. The draft deal could commit to making Treaty amendments on more issues, particularly the ‘red card’ clause and the planned legislation which is most vulnerable to legal challenge: the ‘emergency brake’ on migrants’ benefits. The Council Decision on Eurozone governance could be adopted before the referendum already, with the proviso that it comes into force automatically once a ‘Remain’ vote (if there is one) is notified. As noted above, it should take the form of an amendment to the existing Council decision on voting, to ensure that Protocol 9 to the Treaties applies to it.
As regards planned Treaty amendments, the potential text of the planned new amendments could be drawn up in advance, although their approval would be dependent upon the EU Treaty amendment process. Again, the European Parliament might indicate in advance whether it would insist on a ‘Convention’ being held or not. Finally, as regards the issue of ‘competitiveness’, the Commission could draw up a list of legislation that it plans to propose or repeal – although that’s more about being more precise than legally secure, as any proposals for new legislation (or repeal or amendment of existing law) would have to go through the EU legislative process.
Can the EU be trusted?
As noted already, the EU has agreed draft Decisions like this one twice before, as regards Ireland and Denmark. It promised a Treaty amendment to Ireland, and delivered it in the form of a protocol several years later. It didn’t expressly promise a Treaty amendment to Denmark, but delivered one anyway, as part of the Treaty of Amsterdam (it’s since been amended). It’s sometimes suggested that the EU tricked Denmark because the CJEU later ignored the Danish opt-out of EU citizenship. But this is a myth: the fact is that Denmark never opted out of EU citizenship. The 1992 Decision on Denmark simply contained clarifications relating to the meaning of EU citizenship (see Section A of that decision), not any form of opt-out.
Another Treaty amendment (in the form of a protocol), relating to the legal effect of the EU Charter of Fundamental Rights, was promised to the Czech Republic if it ratified the Treaty of Lisbon. In this case, there was no Decision of Member States’ Heads of State and Government, but the draft Protocol and the promise were set out in conclusions of the European Council. The Protocol was subsequently formally proposed, but it was not pursued after a new Czech governmentwithdrew the previous government’s request. It’s possible that the Czech government decision was influenced by the European Parliament, which had voted against the draft Protocol. But as noted above, the EP does not have a veto over Treaty amendments: indeed, even after the EP’s objection, the Council recommended that the Treaty amendment process get underway.
The most the EP can do to stop Treaty amendments is to demand that a ‘Convention’ be established to discuss them. But remember: the Convention process does not give the EP any kind of veto over a Treaty amendment either. It’s merely an obligation to hold meetings. Ultimately a subsequent Inter-Governmental Conference decides what the final text of those Treaty amendments will be. I sympathise with anyone who rolls their eyes at the thought of attending meetings. But if the Czech government had really wanted to insist upon the adoption of its Protocol, it would have got it in the end.
For those who really don’t trust the EU to deliver on the renegotiation package, there’s one further option to consider. But that brings me neatly to the issue of domestic legal changes in the UK.
Domestic UK law
In his Chatham House speech last year, David Cameron raised the prospect of new UK legislation to limit the effect of the EU Charter of Fundamental Rights, and to safeguard UK sovereignty. I commented on his plans at the time, although it was only possible to make a preliminary assessment in the absence of a text. According to press reports, he is committed to going ahead with these changes. Again, there’s no point commenting further until there is a draft text.
Instead I have two suggestions for further domestic law changes. The first is a substantive point, which I’ll elaborate upon in a later blog post. Currently theEuropean Communities Act is the legal basis for the adoption of secondary UK legislation on the implementation of EU law. But these measures often go beyond the minimum legal requirements of EU law (a process known as ‘gold-plating’); and some object to regulating any more than EU law strictly requires.
In my view, the Act should simply be amended to prevent ‘gold-plating’ taking place at all. The EU should not be getting the blame (or, from the opposing point of view, the credit) for regulation that it does not require Member States to adopt. If the UK government wishes to adopt more regulation than the EU requires, let it table a Bill for a new Act of Parliament, or use the secondary legislative powers conferred by a different Act of Parliament, to do that.
Secondly, can the UK take any unilateral action to ensure that the EU keeps its promises? Obviously, the UK can’t pass a law commanding other Member States to give effect to the renegotiation deal. What it can do is state what its reaction will be if they don’t. Any new Act of Parliament addressing the renegotiation deal could therefore state that the UK government will report regularly on the implementation of the deal. If the key aspects of the deal are not in fact implemented for any reason, and there is no prospect that they will be, it would, as I’ve argued before, be reasonable to argue for another referendum.
These two suggestions – or some variation thereof – might well appeal to those Conservative politicians who are torn between supporting the ‘Remain’ side and appealing to the Eurosceptic wing of their party. It’s the closest they can come to having their cake and eating it too.
Overview: is the draft deal legally secure?
The following table lists the binding elements of the draft deal and summarises how binding they are from various perspectives. This assessment is based on the assumption that the draft of February 2, 2016 would be adopted as it stands; it might have to be updated if that draft is amended before adoption.
Decision of Heads of State and Government (in general)
Binding: in international law
In force: after Remain vote notified
Further approval needed: No, unless national law requires parliamentary approval in some States
CJEU vulnerability: Zero; although CJEU might disagree with some interpretations of EU law
Reversible without UK consent: No
Commitment to amend treaty
Binding: in international law
In force: after Remain vote notified
Further approval needed: Yes, from national parliaments and possibly electorates; Commission, European Parliament have 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 Remain vote notified
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 date that Remain vote is notified
Further approval needed: Council has to adopt; 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 tabled and adopted
Further approval needed: Yes. Commission proposals (political commitment to make them); Council approval (political commitment from Member States to support 2 proposals); European Parliament (position unknown)
CJEU vulnerability: Low-medium for 2 proposals (family members, child benefit); High for emergency brake
Reversible without UK consent: Yes