Three little words, two short weeks

PM - European Council

European leaders are due to meet on 17 and 18 December in Brussels. The President of the European Council, Donald Tusk, has let it be known that David Cameron would like a response to his letter setting out the key aspects of the ‘new settlement’ he wants for the UK in the EU.

The prime minister understands that a resolution of the renegotiation question is not itself enough to deliver a ‘remain’ vote in the forthcoming referendum. Indeed, with recent polls signaling that the electorate might well vote to leave the EU, all the talk of treaties, protocols and ratifications creates an unhelpful, but self-inflicted, legal distraction for the prime minister from the hard political business of making the case for continuing UK membership.

Key to any putative new settlement is the idea that the UK does not share with other EU countries an understanding of membership premised upon an ‘ever closer union’. These three words are to be found in the treaties which create the EU and express the idea that the peoples of Europe have come together to establish a system for European cooperation based on shared values. For the prime minister, these words represent a commitment to a deepening of the integration process in which the UK does not wish to take part.

Renegotiating ‘ever closer union’

If the prime minister actually wanted to remove the wording from EU law, he would need to seek a number of amendments. ‘Ever closer union’ is referred to in the preambles to the founding treaties and to the EU Charter of Fundamental Rights. It is also contained more specifically in Article 1 of the Treaty on European Union (TEU).

Removal or changes to the wording of these treaties would engage the treaty revision procedure and would require the unanimous consent of all 28 EU member states as well as ratification in all EU states, with the potential for a referendum in several of them.

Significantly, the UK committed to ‘ever closer union’ in the Treaty of Accession by which it, together with Ireland and Denmark, joined the European Economic Community in 1973. In this sense, ‘ever closer union’ has stood not just for the deepening of European integration but also its widening through enlargement.

Does ‘ever closer union’ actually matter?

The argument would seem to be that it might matter because of its use as an interpretative prop by courts. Certainly the phrase pops up in judgments of the European Court of Justice and indeed of the UK’s own courts. But citation is not causation.

To be compelling, the argument would need to be that the phrase had sufficient normative content and purpose to be decisive in shaping judgments – that courts would come to different conclusions if the wording was different. Yet in some of the most far-reaching constitutional judgments of the European Court of Justice – including those on the primacy of EU law – decisions have been reached without reference to, or reliance upon, ‘ever closer union’.

It seems highly unlikely that the UK will actually seek to remove the term ‘ever closer union’ from the treaties. The other member states would likely prefer to see it remain and what the UK really wants is some means of clarifying its interpretation and application to the UK. To have binding legal effect within EU law, that clarification will need to be achieved via a protocol to be attached to the treaties at a future point, probably well after the referendum itself, when the treaties are next revised.

In the meantime, the prime minister will need to show that he has secured a legally binding text that ensures that the continuing presence of these words in the treaties cannot produce effects for the UK. What seems likely is that a decision will be taken by EU leaders that will be binding as an international agreement.

Paradoxically, the success of this strategy lies in such an agreement being binding in international law but not effective within European law: binding but benign. Any attempt to implement such an agreement within EU law without a formal treaty amendment or clarifying protocol would be open to challenge as a subversion of the proper treaty amendment process and as substantively incompatible with the specific wording of the EU treaties.

A rather more significant side to the debate about ‘ever closer union’, however, emerged during the Chancellor of the Exchequer’s speech to German industry leaders on 3 November. For the Chancellor, the deepening of European integration through the eurozone represents ever closer union. It is the preservation of the rights of the UK – and indeed other non-eurozone states – rather than a philosophical angst about what ‘ever closer union’ means, that is at the heart of the renegotiation.

Reaching agreement on the principles and the mechanism by which eurozone and non-eurozone states will live in mutual harmony will be a difficult political and legal undertaking. Three little words. Two short weeks.

This article by Kenneth Armstrong, Professor of European law, University of Cambridge is based on a presentation made on 2 December 2015 to a conference on ’The Legal Implications of the Referendum on EU Membership’ organised by Monckton Chambers and City University.

 

Disclaimer:
The views expressed in this analysis post are those of the authors and not necessarily those of the UK in a Changing Europe initiative.

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