Tusk’s Six-Pack

2717

Here’s my 600-word structural summary of Tusk’s 2 February six-document reform package, which comprises in draft:

  1. HOGS decision (15 pages, all aspects)
  2. HOGS statement of intent re a future Council decision on Council acts concerning economic governance
  3. three Commission statements of intent re future actions:
    > new EC subsidiarity-check and burden-reduction mechanisms
    > free movement: amend Regulation 492/2011, by co-decision
    > free movement: amend Directive 2004/38, by co-decision
  4. EUCO conclusions on competitiveness

None of the texts propose treaty change. At a later date however some elements may be reflected in treaty changes.

The draft EUCO conclusions on competitiveness (point 4) will apply immediately on adoption, possibly at this month’s summit, and largely restate existing initiatives. The EC statements similarly can be adopted without delay, probably also this month, so allowing work on subsidiarity checks etc to get started and the two legislative bills to be readied for tabling straight after a positive UK referendum outcome.

The legal texts in points 1 and 2 take effect only after the UK has said it will not quit the EU.

The Council Decision (point 2) provides for contentious proposals affecting economic governance to be further debated by the Council prior to voting in that institution in the usual way. (This is not dissimilar to the existing EU treaty Protocol 9, which under the Lisbon Treaty replaced the historical Luxembourg  and Ioannina compromises. It’s unclear why, other than for cosmetic reasons, such a system needs repeating.)

Turning then to the main HOGS Decision text (point 1) and each of its four headings.

First Section A: Economic Governance. After a preamble, seven principles are elaborated that can read directly. The last refers to Section A’s incorporation into the EU treaties at the next revision, though this for now remains in square brackets. Until such time, the section would be aided in practice by the specific provisions contained the Council Decision (point 2) as discussed above.

Section B. Competitiveness is the shortest. Essential it endorses the EUCO conclusions (point 4) and, also as discussed above, points i.a. to the additional EC-led work re subsidiarity/burdens, which probably will begin immediately irrespective on the UK vote.

Section C: Sovereignty contains one new measure, a so-called ‘red card’ system that would be used suspend new legislative bills in the Council if 55% of national parliaments call for this. This is a high threshold so would be difficult to use. That said, it may turn out to be very useful if it encouraged national parliaments to undertake greater scrutiny and discussion of new EU-level proposals. Section C also contains clarifications on existing Treaty provisions in four areas namely: {1} ever closer union, {2} yellow card mechanism {4} freedom, security and justice provisions and protocols and {5} national security.

Lastly Section D: Social Benefits and Free Movement. After a preamble, there follow three sub-sections: clarification of current EU rules, changes to EU rules, and future accession treaties. Clarification is straight forward, as are future accession treaties where member states have both veto and the possibility to erect temporary derogations. For changes to EU rules, thee amending acts are foreseen, all by co-decision, also starting only after a positive UK referendum outcome. These are:

Draft provisions of these bills including e.g. qualification criteria and duration are not yet available though no doubt the EC is already drafting. For now, the next summit sits in just ten working days.

* HOGS = Heads of government and/or state

Council agendas #EU2016NL

Dutch presidency

Scheepsvaartmuseum and Marine Etablissement Amsterdam (MEA). Thanks @EU2016NL

The following summary is extracted from Council doc 15548/15 listing the provisional draft agendas under the incoming Dutch presidency for first-half 2016. For background, see also 18-month work plan in doc 15258/15.

Environment Councils

  • 4 March: Brussels
    • Circular economy; policy debate
    • Paris Agreement; policy debate
    • European Semester, Annual Growth Survey 2016 and 2030 sustainable development agenda; exchange of views
  • 14-15 April, Amsterdam informal, with transport ministers
  • 20 June: Luxembourg
    • ETS revision proposal; policy debate
    • Circular economy; conclusions
    • Wildlife trafficking; exchange of views; (poss) conclusions
    • (poss AOB) not-ETS GHG proposals
    • (poss AOB) Wildlife laws, REFIT outcome

Energy Councils

  • 4 February, Amsterdam
  • 11 April: Amsterdam informal
  • 6 June: Luxembourg
    • revised market arrangements; policy debate
    • heating/cooling & LNG; presentation EC strategies
    • energy labelling rules; progress report
    • gas & IGA lex proposals; progress reports

Foreign Affairs Councils

  • 15 February, Brussels
    • climate diplomacy, revised action plan

In addition, the 17-18 March European Council (gov’t leaders summit) meeting is expected to discuss the Paris Agreement.

Cameron’s slim end-game

Tusk Cameron

While David Cameron is clocking-up a lot of air miles, and while he and Donald Tusk have exchanged letters recently (here & here), most other country positions remain unknown and much is still to be decided.

Few if any have seen an outline of any potential outcome, which in the European Council all 28 members must agree. Tusk says he’ll only offer a draft text in January, after next week’s talks among leaders.

So until then here’s my take on what UK PM faces and why I think expecting a consensus outcome any time soon is highly optimistic. Of Cameron’s five main requests (four on substance, one on form) I take each in turn.

Eurozone governance (“Economic governance”)

On this issue, the UK confuses Eurozone governance with EU treaty provisions in other areas. Part 3 TFEU on the Union’s internal policies contains in total 24 chapters. Only chapter 8 concerns provisions on Eurozone governance as such. Single market and competition rules, for example, all rely on provisions among the other 23 chapters. On these topics the powers of UK ministers and MEPs in their respective institutions continue to apply in full.

The seven principles listed in Cameron’s letter to Tusk are essentially repetition. Already all are either covered by existing treaty provisions (e.g. non-discrimination) or in existing legislative agreements (e.g. ESM).

Disputes over any misuse of Union competence, if not resolved before or during legislative stages, are resolved by the Court of Justice.

If in future any new economic governance provisions are introduced in the treaties, then – as always – the UK has a veto that it can use during such negotiations to ensure whatever further safeguards as it may require.

Forecast: Clarifying declaration re exiting provisions; substantive changes not needed at this time; possible treaty amendments 5-10 years out.

“Competitiveness”

Strictly speaking this is a policy demand, and not a UK membership issue. The UK certainly does not suggest treaty change in this area.

A specific “target to cut the total burden on business” is more rhetorical than realistic since such a thing cannot be specified or measured. (Or perhaps Cameron might say how this could be done. To repeal or amend European legislation, all three EU institutions agree.) One could assess the number of times the UK voted against laws that were subsequently adopted, if only to show how rare this is.

Trade agreements are external agreements for which the Union has exclusive competence and where the position of a single Council delegation is not afforded any special status as compared to the others. The content and timing of new external trade deals also relies on the agreement of the relevant counter-party, e.g. in the case of TTIP the United States. Conclusion of trade agreements requires also Parliamentary approval.

Forecast: Commission’s Better Regulation initiative to continue. No regulatory target as such. Ongoing TTIP and other trade talks to continue.

“Ever closer union”, red-card rule, subsidiarity (“sovereignty”)

Almost always the phrase “ever closer union” is quoted out of context. Everyone who has not already done read the full 110-word Article 1 TEU can do so here.

Changing Article 1 would require treaty change, which isn’t on the table, at least not at the present time. Clarifying Article 1 by way of a non-binding declaration is possible, but we already did that once last year. In any case, its merely a cosmetic exercise.

A new red-card rule would also require treaty change, which isn’t on the table. The yellow-card rule, in force since 2009, has not been used; a sufficient number of national parliaments never registered objections to new EC legislative proposals. Better for now to highlight and if necessary use the yellow-card rule before further changes.

Subsidiarity (and the other two Article-5 principles, conferral and proportionality) are subject to established legal and procedural norms that already well understood and perform well. See also Protocol 2.

Forecast: No change to the present settlement.

Terms of access to in-work tax and welfare advantages (“immigration”)

This is a UK domestic matter, since member states’ control the terms of access to benefits for (all) workers resident in each state.

EU legal principles on free movement and equal treatment (e.g. contained Articles 18, 21 and 45 TFEU) of Union citizens are also not up for renegotiation, at least in the short term.

If the UK were to make changes to its access terms for in-work benefits that were not in line with EU legal requirements, it would leave itself open to challenge in the courts.

Temporary limitations of free movement of people from newly-joining member states are a matter for specific accession treaties at the time.

Forecast: No changes at European level. Domestic changes at the UK’s discretion.

Procedure / [legal] form

Cameron asks for an agreement that is “legally-binding and irreversible“. It is hard to see how this could be possible, at least in the short time-frame suggested.

The European Council (EUCO) as a body is not empowered to change the treaties. Similarly individual EUCO members (heads of state or government) cannot normally commit their respective states, e.g. a president sitting in EUCO cannot commit to Parliamentary ratification of any outcome where this is his or her domestic constitutional requirement.

A post-dated agreement, or a commitment to one, as some have suggested, also doesn’t work since parliaments cannot bind their successors. How could e.g. the Spanish prime minister (who faces elections on 20 December) commit his State when a different incoming government may take an alternative view.

Past agreements (e.g. Denmark, Ireland and the UK in 1975) were dressed-up to look like binding agreements but in fact were not.

Forecast: outcome will be a non-binding declaration.

❧  ❧  ❧

Planning, reporting?

Governance

In this blog I want to share and then comment on four recent slide decks from the EC Secretariat General’s 6 October 2015 “technical working group” (TWG) of member state representatives on future EU framework (laws) for energy and (perhaps) climate.

First the four slide decks (PPT as PDF):

This is all quite jigsaw that we need to work through step-by-step. So next a caveat: the discussion below is only about this SG-led process and so is without prejudice to other discussions on the same topic in Council and in Parliament.

On an analysis, it is perhaps best to start with four issues on which the documents are silent:

  1. Parliament: What is Parliament’s role in the process, if any? Parliament insists it must be involved but, if it were on some way excluded, what would happen to planning and reporting legal requirements in existing laws? Unless Parliament agrees to repeal them they will carry on.
  2. Non-climate environmental acquis: Climate does not have a dedicated legal base in the treaties. Climate action has always relied on the environment chapter, since the limitation of greenhouse gas emissions is a control on air pollution. Other important air pollution legislation overlaps with greenhouse gas controls, for example the Industrial Emissions Directive 2010 and one of its precursors the Large Combustion Plant Directive 2001. As operators of old and inefficient coal plants choose not to upgrade their installations to IED-LCP standards, so the resulting drop in coal burn is a climate benefit as well as one for local air pollutants.
  3. Competition: State aid, merger control and other anti-competitive practices all have significant impacts on energy trading. Controlling these properly is essential for the realisation of a single market. But could a new national planning regime lead to competition controls being curtailed or abandoned? The SG documents are silent. Past practice on state aid e.g. has meant that new EU laws usually contain a recital reminding readers that the application of the new law is without prejudice to requirements for state aid control, which from a basic structural point of view is acceptable.
  4. Euratom: Are Euratom requirements in scope or not? If only some, which ones? The 2011 radioactive waste management directive e.g. has planning and reporting requirements. The (bad) situation in many member state in this area would certainly benefit from more transparency at the EU level. But because the SG remains vague on scope, we don’t yet know if it will.

Next are objectives and indicators. Here the SG slides are just as fuzzy. First, the docs suggest, rather than dimensions, that there are “energy union” objectives though in fact none exist. Second the slides reiterate a proposal for “key indicators”, first made January 2014, still without saying what these could or should be. There is however a table of potential “the indicators” (not “key“) as follows:

SG indicators

The third slide deck does says we may see more specific proposals on 18 November, so perhaps things change soon. Likewise, the energy union country fact sheets (‘fiches’) remain secret for now but should also be released on 18 November.

Overall clearly this is still a SG work in progress. There was no initiative on the topic listed in the EC’s 2016 work programme adopted yesterday. The next meeting of the TWG is listed for 15 December 2015.

Finally, on governance more generally, see also my first blog on this topic on 11 February 2014. ☙

Rudd’s rules

Amber RuddHere are the speaking notes used by UK’s Amber Rudd in Parliament on 17 Sept. The UK is pushing for Europe already to go beyond the agreed 2030 framework so as to ensure all member states start planning to meet common energy and climate goals up to 2050. In the text, this is covered by priority 3 on page 4. The UK thinking is reflected already in the draft conclusions for the 26 November Energy Council. ☙

What energy union isn’t

EU flag held aloft

Perhaps it helps to remind ourselves what energy union isn’t? Energy union isn’t a new thing, such a new European treaty or agency. It isn’t a new single legal framework, or a new single package of laws or a new single structure of any kind. For these reasons I prefer to avoid to writing energy union with Capital Initials, as Donald Tusk did last year in the FT (cf pic).

FT Tusk

So what is energy union then?

In a single sentence, I see energy union as Europe doing more of the same things as we did before only (hopefully) better.

For me this means continuing to apply the EU treaties in general and the energy chapter objectives in particular. We should modify existing framework rules (EU laws etc) where there is a good case to do so.

The fields of energy, environment and internal market all remain shared competences under EU basic law. Based on the principles of proportionality and subsidiarity in Article 5, this means there are natural limits to Union-level actions towards other levels. There is e.g. no EU plan to harmonise mains plug sockets.

To do more of the same only better relies, as one would expect, on the same European institutions, the same rules of procedure and the same or similar framework conditions that, in turn, shape how people and companies obtain, use and conserve various forms of energy.

The energy union work programme that the Commission set out in February comprises 43 initiatives to be undertaken over the next four years or so. Some are big, some small, some will be binding, some not, some may be dropped, others may emerge. Parliament and Council got their hands of the first two bills in July.

The quality of the outcomes as a whole (affordable, clean, reliable energy systems) relies on the quality of each of the component parts, before, during and after the present activities. We need to ensure our objectives are met today as well as in the future. Moreover, the foreseen energy union legislation will for the most part only amend existing rules rather than create new ones.

Lastly, one could see energy union also in communications terms as a slogan! or a #tag or both. This helps unify the many initiatives, including e.g. 2030-framework actions, into a more cohesive policy narrative, in Brussels at least.

Scope

The scope of energy union risks being confusing as the formal work programme excludes much environmental rule-making and most competition matters. However due the significance of these later two policy areas, it helps to see them as at least overlapping with the energy union‘s work programme, for example as regards pollution from large combustion plants and the situation of Gazprom operations in the EU market. The key Commissioners certainly see these areas as relevant to or even a part of energy union based on public statements they have made.

Is energy union transformational?

It should be transformational but it isn’t so far. The global climate crisis and the linked need for our societies to exit fossil fuels over 1-2 generations, starting with coal, ought to make it a radical programme for change. However under its present leadership – not just the two EC principals, but the fractious debates and outcomes in all institutions, it’s far from there today.

More of the same only better. Hopefully.