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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The Referendum Bill: politics and law

 

Steve Peers

Yesterday’s publication of the Referendum Bill fired the starting pistol in the process of renegotiating the UK’s membership of the EU, and holding an ‘in-out’ referendum on the results. I’ll look at two different elements of the Bill: the parliamentary process and its main contents. It inevitably leaves some issues out, since a Referendum Bill is only meant to deal with the basic referendum process, not with the substantive questions like the content of the renegotiation or the consequences of withdrawal.

Parliamentary process

Although some press reports give the impression that the contents of the Bill are already law, this is obviously not the case. Every Bill must be approved by both Houses of Parliament before it becomes law. Even then, it would always be possible to amend the ensuing Act of Parliament.

Will the Referendum Bill become an Act of Parliament? Yes, that’s virtually certain. The principle of a referendum on EU membership is not only supported by the Conservative majority in the House of Commons, but also (following a recent U-turn) by the Labour party. That should ensure that a Referendum Act can get through both the Commons and the Lords.

However, the devil is in the details. It’s still possible that the Bill could be amended, particularly as regards the issues discussed below (the question, the timing and the franchise).  In the last majority Conservative government, the Bill to ratify the Maastricht Treaty ran in to endless trouble at the hands of an alliance of Labour and Eurosceptic Tory MPs. The current Conservative government has a similar slim majority in the House of Commons, and while there are fewer Labour MPs, there are more Eurosceptic Tories. Time will tell whether these two groups (perhaps in conjunction with the big contingent of Scottish National Party MPs?) can find common cause as regards any amendments.

The Bill also has to pass the House of Lords, of course. While it is unlikely to be defeated as such there (in part because of the ‘Salisbury Convention’, which provides that the House of Lords will not oppose the principle of Bills which were set out in the winning party’s manifesto), again there may be attempts to amend the details. The political dynamics are different, since the Conservative party does not have a majority. While the House of Commons can override the House of Lords if need be, by use of the Parliament Acts, this would cause a one-year delay in the entry into force of the law, scuppering any plan to hold the referendum in 2016.  

 

Main contents

Most of the Bill sets out the dry but necessary detail of the mechanics of holding the referendum. But it does address three key issues: the timing, the question and the franchise (ie, who can vote). I will address these issues in turn.

First of all, the timing. As promised by the Conservative party, the Bill sets a deadline of end-2017 for the Referendum to take place. A referendum in the midst of Christmas shopping is highly unlikely, so the latest realistic date would be November 2017. In fact, the real issue is whether the referendum might be held earlier, sometime in 2016. There’s been some speculation that it might be held in May 2016, on the same date as elections in London, Scotland and Wales. Ideally, as recommended by the Electoral Commission, the referendum should not be held the same day as other elections, to ensure that voters are completely focussed on the separate choices facing them.  Furthermore, holding the referendum on the same day as elections in pro-EU areas such as Scotland and London will give rise to suggestions that the poll is biased, which it is better to avoid.

Secondly, the question. The Bill suggests the following question:

“Should the United Kingdom remain a member of the European Union?”

Some have objected to the word ‘remain’, because it allegedly biases the question in favour of staying in. However, I see no problem in referring to an objective fact: the UK is indeed currently a member of the EU. Indeed, the Electoral Commission recommended the word ‘remain’ rather than ‘in’, because apparently some people are unaware that the UK is currently a member of the EU. I am hoping that none of my former students are among them!

It will still be fully open to the ‘Out’ side to try to convince the public that our current EU membership is a bad thing. Indeed, their whole argument will presumably rest on the awful consequences of being (and indeed remaining) an EU member.

Having said that, it would be preferable not to give either side the supposed advantage of being the ‘Yes’ side. A better question would therefore be ‘Should the UK remain a member of the European Union, or leave?’ with the possible answers being ‘remain’ or ‘leave’.

Some have suggested that there should be multiple questions on the ballot paper, namely a chance to vote for the current status quo of EU membership, as well as withdrawal or Cameron’s renegotiated version (see Jon Worth’s blog for how this could work). The argument against this is simply democratic legitimacy: the Conservative party won a majority in the House of Commons on the basis of holding an in/out referendum on the renegotiated terms.

This brings me to the vexed question of the franchise. The Bill proposes to use the franchise for general elections: citizens of the UK, Ireland and Commonwealth countries over 18 years old living in the UK, and UK citizens living abroad for less than 15 years. But it proposes to add members of the House of Lords and residents of Gibraltar. I have already blogged on the reasons why the general election franchise should be used, due to concerns about legitimacy as well as tactics. (See also the analysis by Jo Shaw here). But some have suggested that it may be illegal to ban EU citizens in the UK from voting in the referendum: see the arguments by Richard Edwards here and by Albert Sanchez Graells here. 

Let’s examine these legal arguments in more detail. The obvious argument against the right of EU citizens to vote in the referendum is the list of EU citizens’ rights in Article 20 TFEU. That list includes the right to vote in local and European Parliament (EP) elections, but does not mention other elections. Article 25 TFEU then says that for EU citizens to have more rights, a further Council Decision has to be agreed and ratified. In the absence of such a decision, they surely do not have further electoral rights. The general references to democracy in the Treaties aren’t very specific, and mostly (for instance in Article 10 TEU) refer to the EU institutions only. It can’t be seriously argued that the ‘general principles’ of EU law require all EU citizens to vote in referenda, in the absence of any widespread practice to that effect (even Ireland does not allow UK citizens to vote in referenda).

The EU Charter of Rights doesn’t help either. It only mentions the rights to vote in local and EP elections, and Article 52(2) of the Charter makes clear that these provisions of the Charter do not add anything to the citizenship provisions of the Treaties. Anyway, the Charter only applies where there is a link to EU law, and although the process of withdrawal from the EU is referred to in Article 50, Article 50(1) in turn refers to the national law of individual Member States as regards the decision on whether to withdraw. It couldn’t be any clearer that it’s entirely up to each Member State to decide who votes in a withdrawal referendum. And for those contemplating litigation on this issue: do you seriously think that the prospects of an ‘In’ vote (and British citizens’ regard for the EU more generally) could possibly be helped by a EU or ECHR court (or a UK court doing their bidding) ordering Parliament to allow EU citizens to vote in the referendum?

 

Barnard & Peers: chapter 2

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

 

Steve Peers

 

The renegotiation of the UK’s membership of the European Union – or ‘EU reform’, if you prefer – is about to begin in earnest. But already several Member States have ruled out the prospect of amending the Treaties. Is it still possible to deliver a package of renegotiation or reform despite this?

 

It is, of course, possible to amend EU secondary legislation (or to credibly promise to do so) without a Treaty amendment. But there is always the risk that such legislation will not be amended after all as promised, or that the amendments will be overturned in future. So some have suggested the ‘Danish solution’: namely a decision of the EU Heads of State and Government, meeting within the European Council, which constitutes the EU’s response to the renegotiation request, probably in conjunction with amendments to EU secondary legislation.

 

Such Decisions have been adopted in the past, as regards Denmark and Ireland, in order to address the former Member State’s difficulties ratifying the Maastricht Treaty and the latter Member State’s difficulties ratifying the Treaty of Lisbon. In the latter case, the European Council (ie Member States’ Presidents and Prime Ministers) also agreed the broader legal and political context of this decision: the decision was ‘legally binding’, it did not constitute a Treaty amendment, and its content would be set out in a Protocol to be attached to the Treaties in future. Indeed, the latter protocol was subsequently signed and ratified as promised. The UK could be offered a similar commitment.

 

In order to indicate more clearly how the renegotiation would work, Annex I to this post suggest a possible wording for such a decision, based upon the 2009 Decision concerning Ireland, adapted to the Conservative party’s negotiating demands. (I’ve updated this from a previous post on this issue).

 

But I think it is possible to go further alongside this, and to make changes to EU secondary law which have a similar impact to a Treaty amendment. How would this work exactly? At the moment there is a separate Decision on voting rules in the Council. This provides that where a number of Member States falling short of the usual 'blocking minority' are outvoted, they can insist on a delay before the Council adopts its position. In fact this text was agreed as part of the Lisbon Treaty negotiations (it was a Polish ‘red line’) and set out originally as a Declaration to that Treaty. I believe that this text could be amended to deal with two UK concerns: (a) the position of the non-eurozone Member States as compared to the eurozone Member States; and (b) the very serious concerns of individual Member States about specific EU proposals on certain grounds, such as economic competitiveness or objections by national parliaments.

 

It wouldn’t be possible to amend the voting rules in the Council as such without a Treaty amendment. But amending this separate Decision could ensure a delay before a vote is taken. I believe it would also be possible to include rules on what happens if there is still no agreement after the delay – namely the use of ‘enhanced cooperation’ (some Member States going ahead without the others) if the disagreement still persists.  Again, only a Treaty amendment could require the Council to move to enhanced cooperation at this point. But it is possible for Member States to agree how they will vote in the Council, by means of a separate treaty. There is a precedent for this, in Article 7 of the ‘Fiscal Compact’ treaty between a group of Member States. (It’s understood that the Council legal service agreed that this was acceptable).

 

So in Annex II, I have suggested some amendments to this Council Decision, to address the UK’s two concerns. The issue of Member State voting is addressed in the parallel Decision of Heads of State and Government.

 

I believe that such an approach has a large number of advantages. First, it can be adopted by the Council, without needing the participation of the Commission or European Parliament, or approval by Member States. Second, Member States can secure the continued existence of this Decision by agreeing that it can only be amended following a unanimous vote. Third, it is possible to avoid the risk that, for these changes at least, the EU is offering a ‘post-dated cheque’. The Council could already adopt the Decision before the referendum vote, with the simple proviso that it will enter into force as soon as the UK notifies the Council that the UK public has voted to stay in the EU. Fourth, the changes will not be specific to the UK, so that other Member States also have a positive reason to approve these amendments. Fifth, the amendments could address both the concerns of business and other concerns as well. Sixth, any use of enhanced cooperation would still be subject to the rules in the Treaty, ie it could not discriminate between Member States or distort the internal market. So the interests of non-participating Member States would be respected.  

 

I have also suggested (in Annex III) an amendment to the Council’s rules of procedure dealing with the specific issue of reviewing CJEU judgments on EU secondary legislation, where a Member State has a particular concern about those judgments. Again, the issue of Member State voting is addressed in the parallel Decision of Heads of State and Government.

 

Finally, I’m not addressing in detail the key issue of ‘immigration’ within the EU, ie free movement of EU citizens, in this blog post. I will come back to that in the near future.

 

 

Annex I

 

The Heads of State or Government of the 28 Member States of the European Union, whose Governments are signatories of the Treaties,

 

Taking note of the concerns of the British people identified by the Prime Minister of the United Kingdom,

 

Desiring to address those concerns in conformity with the Treaties,

 

Having regard to the Conclusions of the European Council of [xx date 2016],

 

Have agreed on the following Decision:

 

Section A

Enlargement and the movement of persons

 

In every forthcoming enlargement of the European Union, the current Member States agree that the free movement of persons from a new Member State will be dependent on a unanimous decision of the Council, which will be taken at the latest once the income of the new Member State concerned is 75% of that of the other Member States of the European Union.

 

Section B

Free movement of persons and social benefits

 

The Heads of State and Government confirm that, in accordance with the jurisprudence of the Court of Justice of the European Union, Member States may deny benefits to nationals of other Member States who are not workers or self-employed persons.

 

[Further provisions addressing Cameron agenda]

 

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

 

Section C

Powers of national parliaments

 

The Heads of State and Government take note of the Commission’s firm commitment that, building upon the Protocols on national parliaments and on subsidiarity and proportionality attached to the Treaties, it will withdraw any proposal which is opposed by one-third of Member States’ parliaments.

 

Section D

Economic reform

 

The Heads of State and Government [make specific commitments as regards free trade agreements and amendments to EU legislation, or refer to such agreements and treaties which have already been agreed].  

 

Section E

Policing and criminal law

 

The Heads of State and Government reaffirm the United Kingdom’s sovereign power not to opt in to proposals for new legislation on criminal law or policing pursuant to the Protocols attached to the Treaties, and the provisions of the Treaties which require respect for the national identity and legal system of every Member State.

 

They confirm their strong support for the ongoing process of reform of the system established by the European Convention on Human Rights.

 

Note: if the process of ECHR reform is completed before the UK renegotiation of its EU membership, there could be a more specific commitment to give effect to the results of that process, for instance ratifying a new protocol to the ECHR.

 

Section F

Reduction of EU competences

 

The Heads of State and Government reaffirm that In accordance with Article 48 TEU, the competences conferred upon the Union can be reduced. In accordance with Articles 2 and 4 TFEU, the European Union can choose to exercise its competences less intensively in those areas where it shares competence with its Member States.

 

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

 

Section G

‘Ever Closer Union’

 

The Heads of State and Government confirm that the commitment in the Treaties to ‘ever closer union’ has no specific legal effect. It does not require that further competences be conferred upon the Union, or that the Union must exercise its existing competences. Nor, in accordance with Section D, does it constrain the Member States from adopting Treaty amendments which reduce the Union’s competences, or constrain the Union from choosing to exercise its competences less intensively.

 

The concept of ‘ever closer union’ allows for different paths of integration for different countries, allowing those who want to integrate to move ahead, while respecting the wish of those who do not want to deepen any further.

 

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

 

Section H

Economic and Monetary Union

 

The Heads of State and Government confirm that the reference to the euro as the single currency in the Treaties only means that the euro is the currency of some, not all, Member States. It does not in any way prejudice the Protocols which give the United Kingdom and Denmark the possibility of not adopting the euro, or alter the rules governing the extension of the euro to other Member States.

 

Section I

Member States’ voting in Council

 

In the event that Section 3 of the [decision on voting in Council] is applied, and agreement is not found within six months, the Heads of State and government undertake that they will not vote in favour of the proposed act. They may instead consider requesting the Commission to propose enhanced cooperation as regards the proposed act, in accordance with the Treaties. In that context, they agree that this constitutes a case of ‘last resort’ in accordance Article 20(2) TEU.

 

Member States undertake not to vote in favour of any amendment to the [decision on voting in Council] unless all Member States are in favour of that amendment.


Member States undertake to support a request by a Member State in accordance with [Article x] of the Council rules of procedure.

 

 

 

Annex II

Amendment to Council Decision on voting

 

(new) Section 3

Other provisions

 

Article 6a

 

If Members of the Council representing a qualified majority of Members not applying the euro as their currency, defined in accordance with Article 238(3)(b) TFEU, indicate their opposition to the Council adopting an act by qualified majority, on the grounds that it will discriminate against the financial services industry of those Member States, or create an obstacle to free movement of financial services from those Member States, the Council shall discuss the issue.

 

Article 6b

 

If any Member of the Council indicates its opposition to the Council adopting an act by qualified majority, on one or more of the following grounds:

 

(a)    the national parliament of that Member State has expressed serious concern that the proposed act would breach the principle of subsidiarity, in accordance with the Protocol on subsidiarity and proportionality;

(b)   the proposed act would not respect Member States’ national identity, in accordance with Article 4(2) TEU;

(c)    the proposed act would severely impact, in that Member State, upon the Union’s aims of creating a highly competitive social market economy, aiming at full employment and social progress, a high level of protection of the environment, or the promotion of scientific and technological advance, as set out in Article 3(2) TEU; or

(d)   the proposed act, in the field of social policy, would not take account, in that Member State, of the diversity of national practices, or the need to maintain economic competitiveness, set out in Article 151 TFEU, or would impose a constraint that would hold back the creation and development of small and medium-sized undertakings, or affect the fundamental principles or financial equilibrium of social security systems, as set out in Article 153 TFEU,

 

the Council shall discuss the issue.

 

Article 6c

 

Articles 5 and 6 shall apply to this section.

 

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

 

Annex III

Amendment to Council rules of procedure

 

Article x

 

If a Member State invokes concerns about a judgment of the Court of Justice of the European Union on EU secondary legislation, on the grounds set out in [Article 6b of the Decision on Council voting], then the Council will ask the Commission to report within six months on whether to propose a change to the legislation concerned.

 

Note: there could be a parallel change to the Commission’s rules of procedure, or an inter-institutional agreement on this point.

 

 

Barnard & Peers: chapter 2, chapter 5, chapter 13, chapter 25

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