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.

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