The ‘ever closer union’ dossier was always going to be one of the most challenging for David Cameron to negotiate. This challenge arose from its mattering so little at one level whilst mattering so much at another.
It mattered so little because it is difficult to point to many instances of the phrase ever having any practical effects. It has only rarely been invoked by the European Court of Justice (ECJ) and then usually in banal ways which did little to influence the judgment either way. It was a storm in a teacup.
It mattered a lot because the phrase is seen by many as providing a mission statement of the European Union. That of political integration. Change was thus central to David Cameron being able to build a narrative that the new UK relationship with the EU was significantly different.
The challenge with changing the EU’s mission statement is that it would be difficult to get agreement on a new one. This is what happened with the original draft. It stated that ‘ever closer union’ was not equivalent to political integration. This upset the Belgian government, in particular, who wished to have that link.
The solution was to avoid any definitions and state that at the next EU treaty revision the phrase would be amended so it does not apply to the United Kingdom alongside a statement that the latter is not committed to political integration.
This is pretty much what David Cameron promised the British people: an exemption from ever closer union will be enshrined in the treaties. The only problem is that it is uncertain when this will take place. Events can change things but no treaty amendment is currently on the horizon. The euro area, for example, can secure significant institutional change to meet its needs without treaty change. Furthermore, who would want to risk it? The last process of treaty revision took seven years, three negative referenda and many heart-in-mouth legal challenges.
And when it does take place, will it matter? The phrase has rarely been explicitly relied on by the European Court of Justice. It will not be amended for 27 States. The court is likely to continue on its merry way irrespective of the precise wording of that phrase.
More significant is the sovereignty Bill likely to be outlined later this week and how it relates to other parts of the European council decision on sovereignty. We will have to await the detail but it has been reported that the British government may follow elements of the German model. This is especially likely given that any legislation will have to be aligned with the legal situation elsewhere to avoid significant push back from other member states.
The German model states EU law will not enjoy primacy over domestic law in two circumstances.
The first is when the EU institutions act beyond their powers. This position has, in fact, been followed by the UK since 1996. Many other states also follow that position, including the Czech Republic, Hungary, Italy, the Netherlands and Poland. The second is where an EU law threatens the ‘democratic identity’ of Germany. This has been interpreted to include EU measures in a series of fields where the EU competence is quite general in nature or in a number of politically sensitive fields, such as welfare policy, criminal law, budgetary policy and family. In such instances, EU law will only have authority if the German parliament has agreed to it. States with a similar restriction include the Czech Republic, France, Poland, Portugal and Spain.
The European council decision paves the way for a British sovereignty act to take a robust approach to this. It states ‘ever closer union’ is not to justify extending the scope of EU powers or extensive interpretations of EU law. The UK legislation may provide that if UK institutions believe this to be happening, they would not have to apply EU law. This would be a very significant change to the current position and allow much stronger policing of the EU.
Some on the ‘leave’ side have suggested that this German model is nothing more than a paper tiger. In particular, the German constitutional court has never struck down EU legislation under either of these headings.
This is true. However, it oversimplifies the position. The German constitutional court has used these powers to give the German parliament a veto in a number of fields by stating that EU law has no authority without its consent. Czech, Italian and Dutch courts have struck down EU legislation on these grounds. Most importantly, the jury is still out on how the current German constitutional court will police EU law. The current (more aggressive) settlement only crystallised fully around about 2010. In the first significant case since then on whether EU Institutions exceed their power, the German constitutional court argued in 2014 that the ECB had done just that in a matter that went to the very heart of whether the latter can engage in quantitative easing. Before coming to a final decision it referred the question to the ECJ who said it had not breached EU law. The matter is now back with the German court for further consideration.
Three indicators will provide the acid test, however, as to whether UK parliamentary sovereignty will be more effectively protected by David Cameron’s proposals.
The first is who polices EU law. Constitutional courts engage with EU law relatively rarely, and it takes a while to reach them. The criticism about EU law being infrequently struck down is less effective as a critique of the disposition of the German constitutional court. Its force lies, however, in the latter only having had to consider this in a handful of cases.
The second goes to who could challenge any EU measure. If the matter is simply to be decided by private litigation, this is a very ad hoc way of deciding what is best for the UK. A strong case can be made for parliament being able either to refer matters or to submit opinions before the relevant court or body on whether EU law should be applied or not.
The third is the threshold for any EU measure to be struck down. In Germany, the threshold is whether there is a manifest exceeding of EU powers on a structurally significant matter. This could be seen as giving EU Institutions a lot of leeway. Other jurisdictions simply state that the EU measure will not be applied if the Institution exceeded its powers.
This article was written by Damian Chalmers senior fellow The UK in a Changing Europe and Professor of EU Law, London School of Economics and Political Science.
