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 Decisionwas 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 promiseof 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

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Who should get the vote in a Brexit referendum?

 

Steve Peers

“Nasty Yes won the referendum yesterday”

That was my initial response to the Brexit referendum of 1975, written precociously in my childhood diary. I rather suspect that a hundred or so miles away, in a rather posher diary, and in an infinitely posher school, David Cameron was writing exactly the same words.

Of course, we had different motivations for this youthful flirtation with the Dark Side. In my case, I was simply copying my parents’ left-wing opposition to the EU, which remained unabated even though my dad had been one of the very first British citizens to (briefly) exercise the free movement of workers to another Member State. (I remained in the UK with my mother, who was a third-country national; it’s lucky we didn’t end up as an EU law exam question).

On the other hand, David Cameron probably didn’t care much about the referendum at all, but felt he needed to write those (hypothetical) words in his diary so that right-wing Eurosceptic bullies would finally leave him alone. They didn’t.

Forty years later, it looks like we may have another Brexit referendum in the near future, depending (as things stand) upon the very uncertain result (and aftermath) of the general election due in May. I have already blogged here about the reasons why advocates of the EU should support such a referendum. My topic today is who should get the vote in a Brexit referendum; I suspect many on the pro-EU side won’t like my argument on this issue much either. But like my case for a referendum, I believe that the case I make here is a principled one – and ultimately, the pro-EU case can only legitimately be made upon principled foundations.

Although it’s not yet certain that a Brexit referendum is imminent, I am prompted to write now on the issue of the franchise due to comments on the weekend by Nigel Farage, the leader of the UK Independence Party, who said that only British citizens should get the vote in the referendum. It wasn’t clear whether he thought British expatriates in the EU (or elsewhere) should also get it.

The starting point should be the franchise rules that already exist, although they could be changed for a referendum (as they were for the Scottish independence referendum last year). Among the existing rules, it makes sense to focus on those for UK-wide elections, rather than those for local government or the devolved bodies in Scotland, Wales and Northern Ireland, since a Brexit vote would be held nationwide.

There are two nationwide templates to choose from. In general elections, all British, Irish and Commonwealth citizens can vote, as can any British expatriates if they have been away from the country (whether in the EU or elsewhere) for less than 15 years. In European Parliament elections, citizens of all European Union countries can vote.  (For more details, see here).

At first sight, it might seem attractive to argue (as many on the pro-EU side do) that all EU citizens in the UK should get the vote. The departure of the UK from the EU would certainly affect them fundamentally. Even though UKIP’s current official position is that all those legally present should get to stay, there’s no guarantee that this protection would exist in practice after Brexit. And giving all EU citizens the vote is not unprecedented for nationwide elections, as they have the vote in European Parliament elections. (Indeed, they have the vote in local elections too).

However, this argument should be rejected, for two reasons. First of all, European Parliament elections are different in principle from other nationwide votes. They determine who will be the UK’s Members of the European Parliament, but that is a multinational body with a role in EU-wide decision-making. Of course EU laws have an impact on the UK, but the European Parliament is not the place where decisions distinct to the UK as a separate stateget made. In contrast, such decisions get made via means of direct democracy, in nationwide referendums, and more frequently via means of indirect democracy, via means of our vote for the national parliament. So it makes more sense for all votes on the future of the UK as a separate state to be subject to the same franchise rules. In fact, this is the practice: the Westminster voting rules (leaving aside members of the House of Lords) were applied to the 2011 referendumon a change to the electoral system, and in the recent private members’ bills(supported by the Conservative party) providing for a 2017 Brexit referendum.

The second argument is one of legitimacy. If the pro-EU side narrowly wins a Brexit referendum in which all EU citizens are allowed to vote, Eurosceptics will endlessly claim that the election was ‘stolen’ from them. I can already anticipate the reaction to this point: Eurosceptics will demand another referendum anyway. The historical parallels are legion: Quebec separatists demanded another referendum after they lost the first one in 1980; Scottish nationalists are already agitating for a second independence referendum; and the Eurosceptics of the 1970s took over the Labour party shortly afterward.

But the point is not to try to stop hardcore Eurosceptics arguing for another Brexit referendum. They are bound to do that. The point is to stop them winning the argument for another referendum in public opinion more broadly. The pro-EU side should aim to win that argument fairly, by ensuring that the upcoming Brexit referendum (if there is one) is, as far as possible, beyond reproach.  (Again, of course hardcore Eurosceptics are bound to reproach it if they lose; the battleground is mainstream public opinion). The result of a Brexit referendum is always likely to be seen as a little bit dubious in mainstream public opinion if it depends on the votes of people who don’t usually have the vote in general elections, given that EU citizens can only vote in EP elections in the first place because of EU law. A good historical parallel would be the Canadian election of 1917, which was won by a pro-conscription party in the midst of the First World War by disenfranchising conscientious objectors and enfranchising women, but only if they were related to servicemen. For good reason, this victory was regarded as illegitimate by those opposing conscription.

Furthermore it’s not impossible to convince the broader public that a fresh referendum is unnecessary, where there’s a good case that the earlier one was clearly legitimate. After all, while Quebec separatists did get to hold another referendum in 1995, they have not yet secured another one despite their very narrow loss on that occasion. The Eurosceptic takeover of the Labour party proved shortlived, since it contributed to splitting the party and its biggest electoral defeat since the 1930s.

Should the franchise be changed in some other way for a Brexit referendum? No, for the same reason: any special rule would look like an attempt to fix the result, possibly in a Eurosceptic direction. So the franchise should not be narrowed to British citizens only: Irish and Commonwealth citizens have the vote in general elections, so should have the vote for the Brexit referendum too. (Remember that Cyprus and Malta are in both the EU and the Commonwealth). So should British citizens living abroad, whether they are living in the EU or not. It can’t be assumed that they are all pro-EU voters, as my dad’s example shows. Some of them may even have left the UK because of a belief that there were too many immigrants there – displaying an obvious lack of appreciation of irony.

What if the general election mandate is changed anyway? There may indeed be a case to be made that only British citizens should vote in general elections. However, for good reasons, there is a tradition that changes to the franchise need broad support across the political spectrum, including the main opposition party. And it would clearly be obnoxious to shove through a change to the franchise in the last few weeks before a general election. If there is such broad support for changing the franchise after the next general election, the first time to apply the new rules should be the subsequent general election, not any Brexit referendum that might take place.

My argument above will disappoint those who believe strongly that EU citizens in the UK should have the vote on a matter that affects them so significantly. But the case against letting them vote in a Brexit referendum is also tactical: the complaints against it are more likely to lead to a further referendum in the near future, or even to increase the votes for the anti-EU side. Yet even if the net result of letting all EU citizens vote would be to increase the pro-EU vote, it would be wrong to give them the vote in principle. And if EU citizens are particularly keen to vote, they could always consider obtaining UK citizenship.

Postscript (10 May 2015):

The above analysis obviously becomes more relevant after the results of the UK general election, given that a referendum on EU membership now seems certain to happen in the near future. That doesn't give me any reason to change my view, but it's a good occasion to make two further points.

First of all, I would reiterate the case against changing the voting franchise at all for the EU referendum, no matter what the changes concern. So the UKIP argument that 'only UK citizens should have the vote' should also be rejected, because it is equally wrong in principle. If Commonwealth citizens and Irish citizens can normally vote on the key issues facing this country in general elections, why can they not vote on the question of EU membership? Excluding them would appear to be an attempt to bias the vote toward the anti-EU side. Similarly, while I am in favour of extending the vote to 16 and 17-year-olds, the EU referendum would be the wrong time to change the rules. Again, it would appear to be an attempt to fix the results, particularly in light of the bizarre UKIP argument that young minds have been polluted by EU colouring books featuring evil Euro-cows.

Secondly, I think there's a better way to put my argument of principle against allowing all EU citizens to vote in the EU referendum. The whole point of the referendum is to decide on the polity (ie the political identity) of the UK in the first place. Should we remain part of the EU or not? Allowing all EU citizens in the UK to participate in that decision would effectively mean that they are judges in their own case.

I can understand the concerns of EU citizens in the UK that they ought to have a vote in an issue which will affect them so directly.  One solution is to obtain UK citizenship. For those unwilling or unable to do that, they have every right to participate in the broader public debate to convince voters that EU membership makes an important contribution to the UK's economic prosperity, environmental protection. social justice, animal welfare and cultural identity - and in particular that migrants from the EU make a huge contribution to Britain's economic and social success.  

Second postscript (25 May 2015)

Press reports indicate that the UK referendum on EU membership will indeed essentially follow the general election franchise, and not extend the vote to citizens of other EU countries (besides Ireland, Cyprus and Malta) living in the UK. Some have questioned the legality of this, but there seems little ground to challenge it. The EU Treaties require Member States to give all EU citizens the vote in local and European Parliament elections, but there is no reference to other votes. Since the Treaties include the power (never used) to widen EU citizens' rights beyond those listed, it must therefore be presumed that the Treaty drafters did not intend to require Member States to extend voting rights in referenda (or in any other elections) in the absence of a decision to lengthen the list of rights attached to EU citizenship.  As for the ECHR, the First Protocol to the Convention requires States to hold 'free elections', but on the face of it this does not apply to referenda, and the case law does not suggest that voting must be extended to non-nationals in any event.     


Barnard & Peers: chapter 2

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The Cameron express: could there be a ‘fast-track’ Treaty amendment on the free movement of workers?

 

Steve Peers

For EU law geeks, the Treaty amendment process is the World Cup, the general election and the second coming of the Millennium Falcon rolled into one. Following the Treaty of Lisbon, it seemed unlikely that there would be another significant Treaty amendment for years. But following David Cameron’s demand to renegotiate EU free movement rules (which was echoed to a lesser extent by the UK Labour party), it has become rather more likely.

So we must move on to the next question: what type of Treaty amendment would it be?  Before the Treaty of Lisbon, there was only one form of Treaty amendment set out in Article 48 of the Treaty on European Union (TEU). However, it was also possible to amend the Treaty by means of accession treaties, and there were sundry forms of minor Treaty amendment (such as amendments to the EU Court’s Statute) scattered around the rest of the Treaties.

Since the Treaty of Lisbon came into force five years ago today, this situation is considerably more complicated. The previous Treaty amendment process has been revised, and there are two variations of it; it’s now called the ‘ordinary revision procedure’. There are two entirely new ‘simplified revision procedures’. Furthermore, there are additional possibilities for minor Treaty amendment scattered around the rest of the Treaties, and it’s still possible to amend the Treaties via means of an accession treaty.

These distinctions are important because if Cameron’s plans could be put into place by using a simplified revision procedure, the process would be speeded up at EU level – although not necessarily at national level.

The changes were so fascinating that, in an explosion of EU law geekiness, I took over 100 pages to analyse them in an article for the Yearbook of European Law. I won’t subject you to all of my analysis there, but it’s the basis for my following comments on which Treaty amendment process would apply to Cameron’s reforms.

Legal framework

There’s no accession to the EU planned for the next five years. So even if an accession treaty could address David Cameron’s renegotiation demands (and I don’t think it could), that prospect is irrelevant, since they couldn’t be addressed by this route before the deadline he has set for a referendum on the UK’s membership of the EU (end of 2017). The minor Treaty amendment processes aren’t relevant to any of his renegotiation demands either.

That leaves us with the ordinary revision procedure and the two simplified revision procedures set out in Article 48 TEU. These have been discussed in posts on other blogs over the weekend, in particular the 'Boiling the Frog' blog. I’ll respond below to some of the points made there.

The ordinary revision procedure requires a ‘Convention’ to be called, consisting of representatives of national parliaments, Member State governments, the European Parliament and the Commission. The Convention meets for a while (the details have to be worked out on a case-by-case basis) and recommends Treaty amendments. An Inter-Governmental Conference (IGC) of Member State representatives then convenes to consider the proposed amendments. If the IGC reaches agreement by the ‘common accord’ (ie the positive support) of all Member States, then the resulting Treaty amendment must be ‘ratified by all Member States, in accordance with their respective constitutional requirements’.

As a variation on this procedure, it’s possible to skip the Convention stage if a simple majority (15/28) Member State governments think that it’s unnecessary, in light of the limited extent of the proposed amendments. But an (inevitably short) IGC and Treaty ratification process is still necessary. If governments want to skip the Convention stage, they must convince the European Parliament to consent to it.

What about the two simplified procedures? The first simplified procedure, set out in Article 48(6) TEU, is the only one that might be relevant to Cameron’s proposed amendments. It provides that a Decision to amend the treaties can be adopted by the ‘European Council’, ie the EU body consisting of Heads of State and Government (Cameron, Merkel, et al), acting unanimously. This Decision then has to be ‘approved by all Member States, in accordance with their respective constitutional requirements’. This procedure applies to amendments of ‘all of part of Part Three’ of the Treaty on the Functioning of the European Union (TFEU), the second of the two main Treaties establishing the EU (more below on what’s in Part Three of the TFEU). This process ‘shall not increase the competences conferred on’ the EU.

The second simplified procedure, set out in Article 48(7), provides for a shift away from unanimous voting of Member States to qualified majority voting, or for changes in the type of legislative procedure, as regards most (but not all) of the two main EU Treaties. Again, the decision concerned would be adopted by the European Council, acting unanimously. But instead of ratification or approval by national parliaments, the Decision could be adopted if no national parliament objected within six months.

Obviously the second procedure couldn’t apply to Cameron’s proposed amendments, since increasing qualified majority voting in the EU is the last thing on his mind. This means that the curtailed role for national parliaments in the second procedure would not apply to the amendments which Cameron is seeking. The Boiling the Frog blog post gets this point wrong.

Since the entry into force of the Treaty of Lisbon, Article 48 has been used four times for Treaty amendments. (There’s also been an accession treaty and some minor Treaty amendments). The ordinary revision procedure was used on three occasions, as regards: a Protocolincreasing the number of Members of the European Parliament temporarily; a Protocolon the concerns of the Irish people about the Treaty of Lisbon; and a Protocollimiting the effect of the EU Charter of Fundamental Rights in the Czech Republic.  The first of these Protocols entered into force in 2011; the second Protocol is still being ratified; and the ratification of the third Protocol stopped after a new Czech government withdrew its request, because it no longer wanted to limit the effect of the Charter.

The other Treaty amendment was based on Article 48(6). It consisted of a Decision adding a single paragraph to the TFEU in order to provide for Member States to adopt a treaty establishing a European Stabilisation Mechanism (ESM), ie a bailout fund for Eurozone Member States. This Decision entered into force in 2013.

The key questions about the possible use of the simplified Treaty amendment procedure set out in Article 48(6) for Cameron’s suggested changes are twofold. Firstly, how much easier is it to use than the usual Treaty amendment process? And secondly, when exactly can it be used? I’ll address these procedural and substantive questions in turn.

Procedural simplification

The simplified procedure doesn’t require a Convention to discuss the Treaty amendments. Furthermore, it allows a Convention to be skipped without the European Parliament’s consent; the Parliament only gets to be consulted on the Treaty amendment. There’s no IGC either, although inevitably there is some discussion among Member States, within the framework of the European Council, about the text which the European Council should adopt.

What about transparency? The last few IGCs have been fairly transparent, but when the European Council drew up an Article 48(6) amendment in 2010, no drafts of the Decision were published, and the European Council staff simply ignored my requests for access to the documents. Let’s hope this obnoxious attitude wouldn’t be applied to future cases. For a starting point, it was illegal to ignore my requests for access, since the EU’s access to documents rules apply to documents of the European Council. Furthermore,  while those rules allow for access to be refused in the interest of the institution’s decision-making efficiency, that interest can be overridden in the greater public interest. Obviously the public interest in scrutinising and debating planned Treaty amendments should take precedence.

While it's been suggested that a European Council Decision can be quietly adopted and presented as a fait accompli, that isn’t legally accurate or politically realistic. On the legal side, Article 48(6) expressly makes clear that the Decision will have to be ratified at national level. For the UK, if Cameron is doing the negotiating, that would also necessarily mean that the Conservative party either had obtained a majority at the next election or had done a deal with one or more parties to allow it to govern. In the scenario, an Act of Parliament providing for a ‘Brexit’ referendum would surely be on the statute books by the time the renegotiation of membership takes place.  

In the event of a Labour (or Labour-dominated) government, there would be no commitment to a Brexit referendum (unless that party changes its current policy). So the Treaty amendment in question would be subject to the European Union Act 2011, which requires an Act of Parliament for its ratification (see s. 3 of that Act; such a Treaty amendment is not among the list of changes which would require a referendum, according to s. 4 of that Act).

On the political side, if David Cameron secured a Treaty amendment and said he would not hold a Brexit referendum after all, he would not remain as Conservative party leader for more than 24 hours.  Anyway, since the referendum Act would presumably be on the books already, it’s hard to imagine a scenario in which a Conservative-dominated House of Commons would vote to rescind it. Equally, the Labour party says that it supports the European Union Act 2011, and if it has enough votes in the House of Commons to form a government, it should probably have enough votes to pass an Act of Parliament approving the Treaty amendment.

It’s often thought that all Treaty amendments require referendums in some other Member States, at least in Ireland. But that isn’t the case: the post-Lisbon Treaty amendments mentioned above didn’t require one. The crucial issue, according to Irish constitutional case law (see the Crottycase), is whether there is a fundamental change in the basis of Irish participation in the EU. It might be argued that a cut back in the rights of free movement of workers would constitute such a change; but the favourable immigration status of Irish people in the UK derives originally from UK domestic law, not the EU Treaties. On the other hand, an amendment to the Treaties would leave more flexibility for the UK to change that domestic law if it wished to.

Substantive issues

As a reminder, Article 48(6) can only be used if a Treaty amendment would revise Part Three of the TFEU, and would not increase the EU’s competences. Part Three of the TFEU is the biggest part of that Treaty, and sets out the main rules on the internal market, along with other EU internal policies on issues such as Justice and Home Affairs and the environment. Obviously, this means that the Treaty amendment could not be used to amend the separate TEU Treaty, or to amend the other six Parts of the TFEU.

What do these two legal constraints mean exactly? An interesting feature of Article 48(6) is that the CJEU has jurisdiction to rule on whether the European Council Decisions are valid or not. That’s because these particular Treaty amendments take the form of decisions of an EU institution, whereas the ordinary revision procedure results in acts of the Member States. The CJEU can rule on the validity of the former, but not the latter.

Challenges to the European Council Decision could come from the European Parliament (which might want to argue that the ordinary revision procedure should have been used), or via the national courts, which would send a question on validity to the CJEU. The latter process was indeed invoked when the Article 48(6) process was used before. In the case of Pringle, the CJEU was asked (among other things) whether the Treaty amendment relating to the ESM treaty was valid.

According to the Court, it was; and its judgment gives us some insight into the limits of Article 48(6). First of all, the Court assessed whether the Treaty amendment only amended Part Three TFEU. Formally speaking, that was an easy question to answer, since the amendment took the form of a new paragraph added to Article 136 TFEU concerning economic and monetary policy, and Article 136 is within Part Three. But the CJEU went further than that, and examined whether there was an indirect amendment to other provisions of the Treaties. This is surely the right approach, because otherwise it would be possible for an amendment placed in Part Three of the TFEU to limit the scope of an EU competence described in Part One of the TFEU, or to alter the Treaty amendment procedure as set out in the TEU (a separate Treaty).  

The importance of this point is that it could crop up again in respect of Cameron’s planned Treaty amendment. It could be argued, for instance, that a limit on EU workers’ rights might take the form only of an amendment to Article 45 TFEU (which sets out the basic rules on free movement of workers), it might impact upon the rules on EU citizenship and non-discrimination, which are set out in Part Two of the TFEU. Arguably, it might also impact upon the objectives of the EU, which include the free movement of workers, as set out in Article 3 TEU. Someone might also argue that it violates the EU Charter of Rights, which is separate from the Treaties but has the same legal value.

Furthermore, it’s clear that Cameron still wants to make changes to EU law besides the free movement rules. He confirmed this in his speech, when he said that he stood by every word of his Bloomberg speech of January 2013. The other changes he wants, such as a weakening of the ‘ever closer union’ rule and some changes relating to EU regulation, might not require a Treaty amendment, as I suggested earlier this year. But if Cameron did seek one, that would be problematic. The ‘ever closer union’ rule appears in the preamble, and Article 48(6) TEU cannot be used to amend the preamble either directly or indirectly. Arguably, any curtailment of the ‘ever closer union’ rule affects the entirety of the Treaties anyway. It would be easier to use Article 48(6)TEU as regards regulation issues, since the rules on the internal market and employment policy both appear in Part Three TFEU. But again it might be argued that such amendments have an indirect impact upon the objectives set out in Article 3 TEU, or the Charter.

What if the amendments took the form of a Protocol? Arguably Article 48(6) cannot be used to add, amend or repeal a Protocol, even if the content of that Protocol relates only to Part Three TFEU. The reason for this interpretation is that Protocols are attached to the entirety of both of the main EU Treaties, rather than to any Part of the TFEU as such.

That still leaves the issue of increasing EU competences. In Pringle, the CJEU ruled that the relevant Treaty amendment was acceptable on this point, since it simply confirmed the existence of competences that the Member States already had. Applying this to Cameron’s planned Treaty amendments, they could probably not take the form of permitting the EU institutions to pass legislation to curtail the free movement rules, since that might be described as a new competence for the EU, given that the institutions would be able to provide for more limits than they can at the moment.

So the amendments would have to take the form of a new power for the Member States to curtail workers’ free movement rights. In principle this should be acceptable legally, since the prohibition on increasing EU competences set out in Article 48(6) surely implies that this process can be used to decreasesuch competences. But remember, in Pringle, the CJEU stressed that the Treaty amendment was acceptable because it confirmed existing powers of Member States. The amendments to the rules on the free movement of workers would be giving Member States new powers. While this also seems to fall within the scope of Article 48(6), the CJEU sometimes takes unusual approaches to the interpretation of Treaty rules.

Conclusion

A simplified Treaty amendment for Cameron’s free movement plans is possible, but only if they remain tightly restricted to amending rules set out in Part Three TFEU, provide for powers for Member States (rather than the EU institutions), and (probably) do not take the form of a Protocol. In any event, there would likely be a legal challenge, either from those who do not like the proposed changes or who think they do not go far enough (or both). It’s possible that they would survive such a legal challenge, but it might be politically unhelpful.

Barnard & Peers: chapter 2 

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