February 25, 2016
One of the fiercely debated questions during the European Council summit of 18/19 February 2016 was whether the changes in the UK’s renegotiated settlement with the EU are legally binding. This follows on from the Prime Minister Cameron’s demand that some of the concerns listed in his letter to European Council President Tusk should be addressed by means of an instrument in a “formal, legally binding way’’.
Paragraph 3 of the European Council conclusions seems to leave no doubt: “this Decision is legally binding” and “gives legal guarantee that the matters of concern to the United Kingdom as expressed in the letter of 10 November 2015 have been addressed”.
In reality, the legal picture is more nuanced though.
Firstly, the deal does not constitute a legal act of one of the institutions of the Union in the sense of Articles 288 TFEU and 15 TEU. As a “Decision of the Heads of State or Government, meeting within the European Council” it is therefore not an act that is covered by EU law and over which the Court of Justice of the EU has jurisdiction to decide on its validity or interpretation.
Rather, the Decision constitutes an intergovernmental agreement intending to offer clarification that “will have to be taken into consideration as being an instrument for the interpretation of the Treaties”. The agreement will need to be lodged with the Secretariat of the United Nations in accordance with Article 102 of the UN Charter.
Such a construction is not without precedence but follows the examples set by the heads of state or government meeting within the European Council in Edinburgh in December 1992 (to accommodate Danish concerns about the definition of the ambit ratione personae of the provisions of EU law referring to the concept of national), and in Brussels in June 2009 (to make sure that Irish concerns relating to, inter alia, taxation policy, the right to life, education and the family, and Ireland’s traditional policy of military neutrality, would remain unaffected by the entry into force of the Treaty of Lisbon). In each case, the Decision was followed up by a Protocol added to the Treaties on the conclusion of the Amsterdam Treaty and the Accession Treaty with Croatia, respectively.
As such, the Decision’s operative parts will be legally binding under international law, under the conditions prescribed in the 1969 Vienna Convention on the Law of Treaties, notably Article 11 (expressions of consent to be bound) and 31(3)(a) (prerogative of signatories of treaties to adopt a subsequent act in simplified form to interpret the treaties).
The fragility of this regime lies in the fact that if the Court of Justice of the EU (CJEU) is called to rule on a conflict between international law and existing EU law, it may give preference to the latter. However, because the Decision supplements and interprets the existing EU treaties, it is supposedly not contradicting them. Again, the European Council is more unequivocal in its (political) conclusions: “the content of the Decision is fully compatible with the Treaties” (para. 3(iii)).
Thus, the risk of the CJEU overturning the deal is limited, especially in view of its ruling on the nature of the above-mentioned Edinburgh Decision, in which the Court declared that the Decision “has to be taken into consideration as being [an instrument] for the interpretation of the [Treaties]” (para. 40 of the Rottmann case (C-135/08, ECLI:EU:C:2010:104)).
As a final point in this regard, it should be remembered that the entire construction depends on the Decision actually taking effect, i.e. on the same date as the British government informs the Secretary-General of the Council that the UK has decided to remain a member of the EU.
As much as certain European leaders may have resented Prime Minister Cameron for the tactical blackmail he deployed to push through mostly technical reforms, which were either not a priority for them or cut against their interests, no-one wanted to see the summit fail or fan the flames of Brexit. At the same time, the heads of state or government were keen to ensure that the UK would not be allowed to reopen talks in the event of a ‘leave’ vote in the British referendum; an idea embraced by Mr. Cameron to kill the idea of a ‘neverendum’. And so they joined together in a move to adopt a ‘self-destruct’ clause in the deal: “It is understood that, should the result of the referendum in the United Kingdom be for it to leave the European Union, the set of arrangements referred to in paragraph 2 above [i.e. the Decision and flanking statement and declarations] will cease to exist” (para. 4 of the conclusions of the European Council).
However, the ‘take it or leave’ or ‘self-destruct’ clause inserted into the deal on the insistence of Belgium, backed by France, will not deter copycat exception-seekers, even when read in conjunction with para. 1 of Section E of the Decision itself: “Any Member State may ask the President of the European Council that an issue relating to the application of this Decision be discussed in the European Council”.
The genie is out of the bottle. As Euroscepticism grows throughout the Union, there is a real risk of contagion: (future) leaders of other member states could refer to the UK deal and threaten to steer their own country out of the Union (‘Frexit’, ‘Plexit’, etc.) if its special relationship within the EU is not secured. Marine Le Pen has already said so explicitly.
Secondly, some parts of the Decision (for instance on limiting child benefits, introducing an emergency brake on in-work benefits, and tightening up rules on marriages of convenience – on the latter, see Annette Schrauwen and Betty de Hart) will have to be passed into separate secondary EU legislation before they can take legal effect. This would be done under the ordinary legislative procedure, which prescribes that a simple majority of the European Parliament needs to approve the legislative proposals made by the Commission after the taking effect of the Decision.
It is for this reason that Cameron tried to secure the support of the leaders of the Parliament’s three key political groups (EPP, S&D, ALDE) in the days before the European Council meeting, and that three EP negotiators (‘sherpas’) participated in the summit negotiations. Notwithstanding this, the exact nature of the legislation – including possible amendments – can of course not be pre-empted.
In this context, it is worth adding that also non-legislative action will be required to implement parts of the agreement. For instance, the Commission’s intention to develop clarifications on to whom national governments can refuse entry or remove from their territory will be laid down in a Communication providing guidelines on the application of Union law on the free movement of Union citizens. Another case in point is the Council’s acceptance to improve the management of the banking union by way of a decision.
Thirdly, yet other parts of the Decision will have to be incorporated into the EU Treaties at the time of their next revision.
With regard to future EU enlargements, the Decision notes that “appropriate transitional measures concerning free movement of persons will be provided for in the relevant Acts of Accession to be agreed by all Member States, in accordance with the Treaties. In this context, the position expressed by the United Kingdom in favour of such transitional measures is noted.”
Arguably, a future round of treaty revision will have to wait until after the referendum in the UK, the presidential elections in France in May 2017 and the next federal elections in Germany, in October of that year. It may be presumed that the extent of the changes to the economic governance and overall direction of integration of the Union envisaged by the New Settlement, as indeed additional amendments that other member states, the Commission and the European Central Bank may wish to introduce, will trigger the ‘ordinary revision procedure’ of the Treaties laid down in Article 48(2-5) TEU. After all, it is unlikely that the European Parliament would give its consent to the European Council deciding by simple majority not to convene a Convention pursuant to Art. 48(3), second para. TEU.
This revision procedure prescribes a wholesale Convention akin to the one that prepared the EU Constitutional Treaty prior to a ‘normal’ intergovernmental conference. As a consequence, those future negotiations will probably consider a host of issues that go well beyond the scope of the present deal. It should also be noted that, if and when the European Council agrees to them, those amendments to the Treaties will only enter into force after being ratified by all the member states in accordance with their respective constitutional requirements.
As with previous rounds of treaty revision, the outcome of these processes cannot be guaranteed in those countries that put the treaties to the test in national referenda.
This blog is an abridged version of the paragraphs written for a Special Report co-authored with Stefani Weiss and published by CEPS at https://www.ceps.eu/publications/eu-deal-avoid-brexit-take-it-or-leave
Steven Blockmans is Professor of EU External Relations Law and Governance at the University of Amsterdam.acelg