Margarida Vasconcelos: Removing the commitment to “ever closer union” will be a very symbolic gesture unless the treaties are fundamentally change, which is not on offer

The Prime Minister reiterated in his 10 November speech as well as in his letter to the President of the European Union, Donald Tusk, that “The commitment in the Treaty to an ever closer union is not a commitment that should apply any longer to Britain.” David Cameron wants to “end Britain's obligation to work towards an "ever closer union" as set out in the Treaty.''

Would this require amendments to the Treaties?

The ambition to create `an ever closer union among the peoples of Europe’ has been part of the EU treaties language since 1957. The phrase “ever closer union” can be found in Preamble to the TEU, in Article 1 TEU, in the Preamble to the TFEU and in the Preamble to Charter of Fundamental Rights, consequently it can only be removed by changes to those treaties, requiring the agreement and ratification by all member states, which would be impossible to reach.

Nonetheless, David Cameron has made clear that he is not seeking to drop the commitment to ever closer union from the EU Treaties, as it does not want to stop the other member states, particularly eurozone countries, to pursue further integration. The Government is no seeking a treaty change that would apply to all member states but wants to ensure that Britain is no longer bound by this commitment.

It is already known that Treaty changes, before the referendum, are not on offer, which has become crystal clear after Donald Tusk’s letter to David Cameron and the December’s European Council Conclusions on the United Kingdom. Hence, David Cameron wants to secure “a clear, legally binding and irreversible agreement to end Britain’s obligation to work towards an ever closer union.”

Would it be possible to achieve this?

David Cameron recalled in his letter to Donald Tusk that “with the protocols and other instruments agreed for Denmark and Ireland, the EU was able to arrive at a settlement, which worked for each country and did not disadvantage other Member States.” Indeed, the Member States’ Heads of State and Government adopted in 1992 a Decision addressing the Danish concerns with the Maastricht Treaty and in 2008 a Decision addressing the Irish concerns about the Treaty of Lisbon, which were then, at the next treaty change, included into Protocols attached to the Treaties.

The Foreign Secretary also explained to the House of Commons European Scrutiny Committee that the renegotiation package “will be made as a registered agreement, binding in international law, an agreement that interprets the treaties according to the decision the 28 member states have taken”. Hence, it seems that the so called “legally binding and irreversible agreement” would be a Decision adopted by the Heads of State or Government, meeting within the European Council, which would be binding as an international agreement, in accordance with the Vienna Convention on the Law of Treaties. The registration in the Treaty Section of the UN Secretariat is indeed a prerequisite for an international agreement to be legally binding. However, under the dualistic theory of incorporation of international treaties, international agreements need to be ratified in order to become binding on the parties concerned, so that a state can assume the international obligations enshrined in it. Moreover, such decision would not be part of EU law and it would not be legally binding on the European Court of Justice and the other EU institutions.

The decision will be deposited at the United Nations but it will not have any legal effect until it is ratified by all member states. The depositing of the Decision at the UN is a red herring as this would be an international agreement which concerns the autonomous EU legal order and falls primarily under EU law, as interpreted by Member State courts and the ECJ. The decision would have to be incorporated into a protocol to be attached to the EU Treaties and ratified by all member states in order to become part of the Community legal order.

Thus, until this happens there is no insurance that the renegotiation package that has been agree will be complied with by the EU institutions and other member, as it could be easily retreat from member states successor governments with different views, in fact it might be challenged by the other member states or struck down by the ECJ after the referendum takes place.

Such decision, as an act adopted by representatives of the Member States acting not in their capacity as members of the Council but as representatives of their governments is not subject to judicial review by the Court. The decision/international agreement is not enforceable because the European Court of Justice has no competence to rule on the compliance of the agreement. In order to ensure the enforceability of the Decision it has been suggested that Article 273 of the TFEU should be used to provide the ECJ with jurisdiction to give binding rulings as regards all or some of provisions the Decision. This provision allows indeed member states to give powers to the ECJ to settle disputes between them in a special agreement, that does not constitute EU law but related to the subject-matter of the EU Treaties, but it shall be a unanimous decision. However, the Court would protect the unity of EU law and would require the application of such agreement to be consistent with EU law. Hence, a ruling against the UK would be most likely.

Nevertheless, the EU leader’s decision would be subject to the Court binding interpretation, which has competence to consider any potential conflict with the EU treaties.

It is important to recall that the ECJ, in Defrenne II, ruled that the Treaties can only be amended by means of the procedures contained in Article 48. Hence, any decision that intends to achieve the same objective by a different process, and which renders certain aspects of the Treaty process ineffective, would be seen as incompatible with that process. Thus, such decisions of the Heads of State and government cannot modify the Treaties, only formal treaty amendments can do so. The ECJ may find that such decision affects the internal legal order of the EU by amending an EU Treaty. As the ECJ has confirmed the principle of primacy of EU law over international agreements, agreements concluded between the Member States are to be set aside by national courts when conflicting with EU law.

It is important to note that Denmark as well as Ireland were trying to ratify the treaties, Maastricht and Lisbon respectively, and whilst the other member states were prepared to accept certain measures so that those Treaties could be passed in second referenda, they were unwilling to make any changes, which would require the re-opening of the intergovernmental negotiations. Hence, the EU leaders adopted a decision on the meaning of the Treaties, deciding that the Maastricht and the Lisbon Treaty respectively had no effect on certain aspects of those countries national law. It was emphasised that they were interpretative decisions, whose purpose was not to amend but to clarify the treaties. The Danish and the Irish Protocols did not change in substance those countries obligations under the treaties, but clarified their implications and limitations regarding particular issues relevant to the Danish and Irish people.

Hence, one can only wonder whether the Danish and Ireland Decisions are real precedents for the UK, as Jean-Claude Piris argued promises of future treaty change will not work if they contradict the existing treaties. However, some of the UK Government’s reform proposals would have a substantive impact on the EU treaties, not only as they apply to the UK, but they also would have an impact on other member states national interests, such as demands on free movement. The so called “interpretative decision” can only work if the Government is not serious about changing the treaties and would be happy with a protocol just clarifying treaty provisions as regard the UK. But, a similar decision to Ireland could be taken indeed with regard to the UK on “ever closer union” stating that it does not apply equally to all member states.

The prime minister request has not encountered considerable resistance from the other member states because they know the concept “ever closer union” has no specific legal effect. In fact, as the European Scrutiny Committee pointed out “There is already substantial legal and political recognition that different levels of integration are permissible”. According to Donald Tusk “There is wide agreement that the concept of "ever closer union among the peoples" allows for various paths of integration for different countries. Those that want to deepen integration can move ahead, while respecting the wish of those who do not want to deepen any further.” But, it remains to be seen whether such decision could be worded by including a specific reference to the UK, namely clarifying that the concept imposes no specific obligations on the UK.

It is important to recall that the June 2014 European Council Conclusions read “In this context, the European Council noted that the concept of ever closer union allows for different paths of integration for different countries, allowing those that want to deepen integration to move ahead, while respecting the wish of those who do not want to deepen any further.” In fact, the most David Cameron can expect from the other member states is a decision enshrining the European Council’s June 2014 conclusions about different paths for different countries, which must be then incorporated into a Protocol attached to the EU Treaties at a future date.

According to Philip Hammond the UK's decision would be an “interpretative decision” which “would then be required to be taken into account by the Courts.” The ECJ might come across the decision on the UK renegotiation while ask to interpret treaty provisions through the preliminary ruling procedure. It is important to stress that the European Court is the sole interpreter of EU law and it is not bound by the decision. The ECJ might refer to it as an aid to interpretation of the Treaties but it is not obliged to interpret the Treaties in line with it. It is important to recall that the 1992 Edinburgh Agreement stated that EU citizenship would ‘not in any way take the place of national citizenship’ and that ‘the question whether an individual possesses the nationality of a Member State will be settled solely by reference to the national law of the Member State concerned’ yet in Grzelczyk the ECJ overrode this Agreement, declaring that EU citizenship ‘is destined to be the fundamental status of nationals of the Member States’. In Rottmann the Court of Justice indicated that the European Council’s interpretative declarations and decisions should be ‘taken into account’ in interpreting the Treaty, but then went on to decide in a way clearly contrary to the Danish decision.

It would not be possible to achieve the “legally binding and irreversible agreement”. The so called “interpretative decision” is not EU law and would have no binding legal effect until it is incorporated into a protocol next time the treaties are changed and ratified by all Member States. Nonetheless, even when this happens there would be no fundamental change on the UK membership with the EU.

Would ending the commitment to “ever closer union” have a symbolic value or it would have a meaningful political and legal impact?

The “ever closer union” it is indeed a general EU goal that symbolises the member states general intention for further integration, but the phrase itself is largely symbolic and does not create any specific EU competences, nor imposes specific obligations on the UK. In fact, it is not a legally enforceable obligation.

Moreover, the spirit of EU integration is not confined to that phrase, the treaties also talk about “a new stage in the process of European integration”; “further steps to be taken in order to advance European integration”; “solidarity” and “convergence”. In fact, the general aim of achieving further integration is embedded in most treaty provisions. It is important to recall that the Draft EU Constitution did not contain the aim of “ever closer union” in the preamble or in the body text, which clearly shows that there is no need to have this reference in the treaties to pursue further integration.

It is important to note that David Cameron said “I want to make it explicit that for us it is principally a common market and not an ever-closer union…” However, the EU Single Market provisions of the EU treaties and secondary legislation have been by far more used, by the EU institutions, for the harmonisation of EU legislation and more centralisation of powers than the “ever closer union”.

The Commission has been extensively using article 114 TFEU, the general legal basis for internal market legislation, to expand EU competences, particularly in the field of financial services, adopting measures that, most of the time, have no connection with the operation of the common market, whilst the ECJ makes a broader interpretation and has been authorising a widener use of this provision.

Would it have any impact on the jurisprudence of the European Court of Justice?

It is undeniable that the ECJ has been the motor of the European integration. In fact, the new President of the European Court of Justice, Koen Lenaerts has conceded that there is a “strong link between the court and European integration.” The Court interprets EU law not only with reference to its wording but also in the light of its general scheme and objectives.

The reference to “ever closer union” in the preamble, and then in the body of the treaties, might have influenced the ECJ but it has not had any tangible impact on its rulings. The Court has made no reference to the “ever closer union” in its seminal cases, namely Van Gend & Loos and Costa, whereby it created the doctrines of direct effect and supremacy of Community law, which had no legal basis in the EC Treaty but were built on the basis of the Court idea of how the new legal order should work. In fact, the spirit of the treaties is much more often referred to in the Court’s rulings than the phrase “ever closer union”.

The Court has not adjudicated yet on the meaning of “ever closer union”, and it has only referred to it on few cases. According to the House of Commons Library’s research paper on “Ever closer union” at the EU Court of Justice, this phrase was cited only in 53 occasions in the EU Court case law, and mainly in opinions of the Advocate-General, whereas the “spirit of the Treaties” has been used 554 times.

Moreover, it is important to note that most of the opinions and rulings where the Court referred to ever closer union were mainly in the context of public access to official documents, where the Court used the second paragraph of Article 1 TEU of “marking a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen” not to justify further EU integration but that the “decisions are taken as openly as possible and as closely as possible to the citizen.” The Court also referred to it in Pupino, while developing the doctrine of indirect effect to third pillar matters, requiring Member States to interpret national law in conformity with community law in the area of police and judicial cooperation in criminal matters. In the opinion 2/13 on the EU accession to the European Convention of Human Rights, the Court has emphasised more its previous case law namely the supremacy of EU law and the direct effect than the “ever closer union”, which, again, was not decisive in influencing the Court’s decision.

The Court has never used the phrase “ever closer union” against Britain, or any other member state, and does not rely on it to justify and pursue further integration. The Court does not underpin its authority from it but from the spirit of the treaties. In fact, the EU institutions, particularly the Court, and the European Commission, take the view that the spirit of European integration is not necessarily confined to one phrase. Hence, the EU institutions do not need the “ever closer union” to pursue further integration, as they also may invoke, for instance, “a new stage in the process of European integration”. Thus, it would not be enough removing the commitment to ever closer union for the UK no longer being bound to the principle of greater integration.

Ending the UK commitment to “ever closer union” will not have a considerable impact on the Court jurisprudence, as it can only apply to the future and not retrospectively to the acquis. Hence, it won’t apply when the implementation and interpretation of the existing treaties provisions and acquis entail further transfer of sovereignty from Britain to Brussels. The Court will continue to be able to make an extensive interpretation of the existing treaty provisions and secondary legislation, expanding the reach and scope of European law, and pursuing further integration. The ECJ will continue to be able to deeply interfering with the UK legal system, overriding national rules as regards a wide range of EU policies and legislation.

Would ending the UK commitment to ever-closer union entail a fundamental change in the relationship between the United Kingdom and the European Union?

As abovementioned, it would have no effect on the existing Treaties and acquis, and would not limit the exercise of the powers conferred on the EU’s institutions by the existing treaties. The UK would continue to be subject to the EU obligations and legislation as well as to the EU fundamental principles, including supremacy of EU law, direct effect and sincere cooperation under the existing treaties.

The so called “interpretative decision”, even if subsequently incorporated into a protocol, and ratified by all member states, clarifying that ever closer union allows for various paths of integration for different countries or even saying that it does not apply to the UK, would not offer any more protection than at present, as all EU legislation has to be based on a specific treaty base, which can then be subjected to the ECJ interpretation. As Professor Simon Hix said it would be “symbolic of the future”. It will only apply to the future, in case of major negotiations where pursuing further integration and “ever closer union” is clearly evident. According to the European Scrutiny Committee the “UK disengagement from the concept could be politically significant as it could be used to advocate further opt-outs in future Treaty negotiations or to resist integrationist initiatives.” It is important to stress that there is no single definition of the goal “ever closer union”, which, ultimately will be interpreted by the Court. According to David Cameron it “will mean that Britain can never be entangled in a political union against our will……or be drawn into any kind of United States of Europe.” In fact, the idea of a political union is now an official EU’s policy after having been endorsed by the five presidents, which allegedly, does not apply to the UK. Nonetheless, the creation of a political union, ultimately will require amendments to the treaties to which the British government, along with the other member states, would have to unanimously agree and ratify.

This would not be a breakthrough or a fundamental change, as it would simple confirm the existing position. In fact, it would confirm the two tier union, which is not in the UK’s interest. The situation is already unacceptable as regards, a banking union whereby the eurozone and other member states part of such union vote in block in financial and banking matters outvoting the UK. The situation would exacerbate, covering all policy areas, while they further integrate, towards a fiscal, and political union. By remaining in the EU, bound by the TEU and TFEU, while all the decisions are made in the Eurozone, the UK would find itself in the net of rules it never wanted in the first place, and there is no safeguards in EU decision-making to suitably protect it from this, as the other EU member states would never agree to give Britain a veto.

Removing the commitment to “ever closer union” will be a very symbolic gesture unless the treaties are fundamentally change, particularly the EU decision making process, the ordinary legislative procedure and qualified majority voting. There is not much the Government can do while QMV and the ordinary legislative procedure are the rule, and this is the main issue, as the UK has been forced to accept EU measures against the national interest. The idea of further integration and ever closer union is embedded in almost treaties provisions and the EU law will continue to have primacy over British law. It is important to recall that the UK is bound by EU law and by the CJEU’s rulings due to Section 2 of the European Communities Act 1972 whereby the UK is required to transpose and implement EU legislation and to fully comply with the ECJ’s judgements.

It will do nothing to fundamentally change the relationship between the United Kingdom and the EU, which cannot happen without a profound change in the EU Treaties, dealing with the fundamental structure. However, the other EU member states are unwilling to amend the treaties let alone a fundamental change. Following the letter of the European Council President, Donald Tusk, on the current state of the EU’s assessment of the UK negotiating package, and the December European Council Conclusions it is crystal clear that no fundamental change will be achieved. As the EU cannot be reformed to address the concerns of the British people the UK has no option but to leave, so it regain the right to legislate for and govern the British people through the authority of the Westminster Parliament.

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