The European Scrutiny Commitee’s Legal Adviser: There is no legal guarantee that the Decision will produce all the results envisaged

The House of Commons European Scrutiny Committee published today a preliminary note on the outcome of negotiations that it has received from its Legal Adviser as well as further advice from legal experts.
The European Scrutiny Commitee's Legal Adviser has reached the following conclusions:
• The renegotiation package is based on an international agreement which is binding in
international law (which means it lacks the enforcement mechanisms of EU or
domestic law). Any such agreement must conform to EU law. To the extent it does
not EU law prevails.
• The international agreement is “irreversible” in the sense that it can only be repealed
or amended by common accord of the parties, but that does not have the effect of
removing the legal uncertainties highlighted by this note i.e. there is no legal
guarantee that the Decision will produce all the results envisaged.
• This international law agreement does not purport to change the Treaties, only clarify
or supplement them. Any such clarifications of the Treaties, and the consistency with
the Treaties of supplemental agreements, are subject to the view of the Court of
Justice of the European Union (CJEU) because it is the ultimate interpreter of the
Treaties.
• There are two areas where Treaty change is envisaged, in each case to “upgrade”
clarifications to Treaty level. Any such upgrade limits the scope for the Court of
Justice to give an adverse judgment.
• Both areas of future Treaty change lack detail and urgency; and are in any event
conditional, as they must be, on the approval/ratification of the Member States. This
makes any future Treaty change vulnerable to a change in government or an adverse
referendum result in another Member State.
• Critical EU secondary legislation envisaged by the package is subject to agreement by
the European Parliament which is not bound by the international law agreement and
has made no declaration of its intentions (although it has been involved in the
negotiations and European Parliament Groups have made positive statements1).
• It is questionable how much effect the red card will make in practice.
• The emergency brake in respect of the Eurozone is not a veto.
• The emergency brake in respect of free movement applies only to in work benefits
and relies on agreement by the Commission (effectively given for this first time by a
Declaration) and the Council (which is also likely on this first occasion). Please read the legal analysis here.

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