ORIGINAL PUBLISHED ON EU LAW ANALYSIS (Sunday, 21 February 2016)
by Steve Peers
Is the deal on renegotiation of the UK’s EU membership legally binding? If so, what does that mean exactly? In particular, is the deal ‘legally binding and irreversible’, as David Cameron had pledged? In part, that’s linked to the substance of the deal, which I have examined already in a post about the immigration (free movement) aspects. I will write later about the other aspects (sovereignty, Eurozone and competitiveness); and see also the analysis of the ‘red card’ for national parliaments by Katarzyna Granat here.
But in part it’s an issue about the very legal nature and legal nature of the deal itself. Some on the Leave said have already said that it’s not legally binding. So is it binding? And if so, what exactly is its legal effect in practice? I’ve addressed this already in an earlier post about the draft deal, but I’ll now update that analysis (recycling parts of it) to take account of the final deal.
The answer to those questions 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whether the EU courts have power to overturn it, and whether they are likely to do so; and whether the text could be repealed or amended in future.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 looks first at the legal form of the agreement. 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. (There’s a shinier version of this table on the ‘Full Facts’ website here).
Legal form of the main deal
The renegotiation deal takes the form of seven 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); a Declaration by the European Council: and four 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 will also table some domestic legislation linked to the renegotiation deal, but since those proposals have not appeared yet I won’t comment on them for now.
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 new ‘red card’ for national parliaments objecting to EU proposals. It is possible, however, that the UK would be the only Member State aiming to implement some parts of the renegotiation deal, in particular the ‘emergency brake’ on benefits; and of course some of the existing opt-outs referred to in the deal only apply to the UK and one or two other Member States.
Let’s begin with the easiest parts of the deal (legally speaking): 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 on in-work benefits and child benefit exports), 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 on EU citizens’ non-EU family members). (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 main Decision of Member States can’t bind the Commission (more on that below), but the deal includes three 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 of Member States) and the European Parliament (by a majority of the vote, under most variants of the EU legislative process). Again, the Decision of Member States doesn’t bind the Council or the European Parliament. But the Council is made up of Member States’ ministers, and in the renegotiation 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). 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, if there is one.
The renegotiation deal foresees that the new EU law creating an ‘emergency brake’ for EU workers’ in-work benefits would subsequently have to be implemented following a UK request to use it. It’s a bit vague about the exact details of this process, to avoid irritating the European Parliament, but it’s clear that the Council would decide on the UK application. The voting rule isn’t specified, but it would be legally dubious if the vote had to be unanimous on this (because it concerns an issue on which vetoes don’t apply). A Commission declaration states that the Commission is willing to make this implementing proposal; but there is no commitment from the Member States to support it. 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 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 have discussed the possible challenges to the legality of the planned changes on free movement law in my separate post on those issues. For a summary of this analysis, see 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 renegotiation 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. However, it’s not clear if Protocol 9 applies to the decision on Eurozone governance. 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 Member States 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 deal. Finally, as for timing, the renegotiation deal provides that the Decision will be adopted once a ‘Remain’ vote is notified (if there is one), with no further action necessary. The deal also provides for a Treaty amendment in future on this point; more on that below.
Finally, the main part of the renegotiation deal: the 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 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 an 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 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 the Vienna Convention on the Law of Treaties). Certainly the UK government is going 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.
What are the distinctions between this Decision and EU law? First of all, while the Decision is binding (as confirmed by the conclusions of the European Council), since binding effect inherently follows from its status as a treaty, it is binding under international law, not EU law. Secondly, the Decision does not as such change EU law, although other elements of the overall deal would, when implemented: the planned legislation on free movement issues, and the Council Decision on Eurozone issues. The 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 the exemption of the UK from ‘ever closer union’.
Indeed, the Decision could not have changed EU law as such, without following the formal procedures to that effect set out in EU law itself. I discussed the issue of amending EU secondary law above, but the same is true of EU primary law (the Treaties). The prior Decisions relating to Denmark and Ireland 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 Decision specifies that it does not amend EU as such, but interprets it. This is consistent with CJEU case law, which accepted in the Rottmann judgment that the previous Decision on Denmark could be used to interpret EU law.
However, the Decision does include legal obligations for Member States as a matter of international law; this is fine as long as the particular obligations don’t conflict with EU law. In the event of any conflict, the primacy of EU law means that the latter takes precedence over the renegotiation Decision. But is there any conflict? This is a substantive question, and in any event where the renegotiation Decision calls for EU secondary law measures to be adopted (the free movement legislation, the Eurozone Decision) the real question is whether those measures wouldthemselves 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 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. But the renegotiation deal does not call for either of that special sort of Treaty amendment, but (implicitly) for the usual procedure to amend the Treaties.
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 (IGC) to negotiate the final text – which the EP cannot reject. The result of that Convention will probably influence the outcome of the IGC, but doesn’t bind it.
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 ‘red card’ for national parliaments, 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 renegotiation Decision at national level. So there is no legal certainty that those Treaty amendments would definitely be approved.
On the other hand, the renegotiation 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 renegotiation 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 renegotiation Decision was in conflict with EU law.
As for the timing, the renegotiation Decision was apparently already formally adopted on 19 February. The text of Section E of the Decision says it will come into force automatically as soon as a ‘Remain’ vote (if there is one) is notified. The Decision is irreversible in the sense that the UK government has to consent to amend it or repeal it; this is explicitly confirmed by the 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.
However, the distinction between the renegotiation Decision and EU law does mean that there is a gap in the Decision’s enforceability. Section E of the Decision 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 renegotiation Decision, there is no clear mechanism for making it stick. This brings us back to the issue of trust, discussed further below.
Finally, some commentators on my previous blog posts on this issue 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 renegotiation Decision, it couldn’t have adopted it.
Can the EU be trusted?
As noted already, the EU has agreed Decisions like the renegotiation Decision twice before, as regards Ireland and Denmark. In those Decisions, the EU 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 (another Protocol, attached to the Treaties, which has 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. Ultimately a subsequent Inter-Governmental Conference decides what the final text of those Treaty amendments will be. So 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 always one further option. The UK government could commit itself, perhaps in the form of an Act of Parliament addressing the renegotiation deal, that it will report regularly on the implementation of that 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.
Overview: is the renegotiation deal legally secure?
It follows from the above that the renegotiation deal is binding – and anyone who says otherwise (without clarification) is just not telling the truth. But there are two significant caveats to that: (a) parts of the deal, concerning the details of the changes to free movement law and Treaty amendments, still have to be implemented separately; and (b) there are limits to the enforceability of the deal.
The following table lists the binding elements of the renegotiation deal and summarises how enforceable they are and whether they need further implementation (and if so, what exactly this entails).
Decision of Heads of State and Government (in general)
Binding: in international law
In effect: 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’ for national parliaments
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 of this Decision, on date that Remain vote is notified
Further approval needed: Council has to adopt; no role for any other EU institution or national parliaments
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, which is due after Remain vote is notified
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
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