A Legally Binding Commitment To Treaty Change: Is It Humanly Possible?

Steve Peers

Prime Minister David Cameron has already achieved roughly feats that roughly idea impossible: a cutting inward the European Union budget, as well as a bulk inward the House of Commons for the Conservative party. But are his plans for renegotiation of the UK’s European Union membership really impossible for whatever human to achieve?

The context of this is yesterday’s confirmation that his intention inward the forthcoming renegotiation is non an immediate Treaty change, but a ‘legally binding’ as well as ‘irreversible’ text that (apparently) commits to Treaty change. I get got blogged earlier on the content of possible Treaty changes (see here on economical reform, as well as here on migration of European Union citizens), but I volition focus today on the form which a bargain mightiness get got to satisfy Cameron’s demands.  

There is an European Union history of promising Treaty amendments to its Member States. Back inward 1992, the Member States’ Heads of State as well as Government adopted a prior weblog post on economical reform. The novel points are Sections J as well as K, as well as the proposed hereafter Protocol.

Annex I

The Heads of State or Government of the 28 Member US of the European Union, whose Governments are signatories of the Treaties,

Taking banknote of the concerns of the British people identified yesteryear the Prime Minister of the United Kingdom,

Desiring to address those concerns inward conformity alongside the Treaties,

Having regard to the Conclusions of the European Council of [xx appointment 2016],

Have agreed on the next Decision:

Section A

Enlargement as well as the effort of persons

In every forthcoming enlargement of the European Union, the electrical flow Member US concur that the costless effort of persons from a novel Member State volition live theme on a unanimous conclusion of the Council, which volition live taken at the latest in ane lawsuit the income of the novel Member State concerned is 75% of that of the other Member US of the European Union.

Section B

Free effort of persons as well as social benefits

The Heads of State as well as Government confirm that, inward accordance alongside the jurisprudence of the Court of Justice of the European Union, Member US may deny benefits to nationals of other Member US who are non workers or self-employed persons.

[Further provisions addressing Cameron agenda]

Section C

Powers of national parliaments

The Heads of State as well as Government get got banknote of the Commission’s theatre commitment that, edifice upon the Protocols on national parliaments as well as on subsidiarity as well as proportionality attached to the Treaties, it volition withdraw whatever proposal which is opposed yesteryear one-third of Member States’ parliaments.

Section D

Economic reform

The Heads of State as well as Government [make specific commitments equally regards costless merchandise agreements as well as amendments to European Union legislation, or advert to such agreements as well as treaties which get got already been agreed].  

Section E

Policing as well as criminal law

The Heads of State as well as Government reaffirm the United Kingdom’s sovereign ability non to opt inward to proposals for novel legislation on criminal police clit or policing pursuant to the Protocols attached to the Treaties, as well as the provisions of the Treaties which require observe for the national identity as well as legal organisation of every Member State.

They confirm their rigid back upward for the ongoing physical care for of reform of the organisation established yesteryear the European Convention on Human Rights.

Section F

Reduction of European Union competences

The Heads of State as well as Government reaffirm that In accordance alongside Article 48 TEU, the competences conferred upon the Union tin forcefulness out live reduced. In accordance alongside Articles ii as well as 4 TFEU, the European Union tin forcefulness out pick out to exercise its competences less intensively inward those areas where it shares competence alongside its Member States.

Section G

‘Ever Closer Union’

The Heads of State as well as Government confirm that the commitment inward the Treaties to ‘ever closer union’ has no specific legal effect. It does non require that farther competences live conferred upon the Union, or that the Union must exercise its existing competences. Nor, inward accordance alongside Section D, does it constrain the Member US from adopting Treaty amendments which cut down the Union’s competences, or constrain the Union from choosing to exercise its competences less intensively.

The concept of ‘ever closer union’ allows for dissimilar paths of integration for dissimilar countries, allowing those who desire to integrate to displace ahead, piece respecting the wishing of those who do non desire to deepen whatever further.

Section H

Economic as well as Monetary Union

The Heads of State as well as Government confirm that the reference to the euro equally the unmarried currency inward the Treaties solely agency that the euro is the currency of some, non all, Member States. It does non inward whatever way prejudice the Protocols which give the U.K. as well as Kingdom of Denmark the possibility of non adopting the euro, or alter the rules governing the extension of the euro to other Member States.

Section I

Member States’ voting inward Council

In the lawsuit that Section iii of the [decision on voting inward Council] is applied, as well as understanding is non found inside half dozen months, the Heads of State as well as regime undertake that they volition non vote inward favour of the proposed act. They may instead consider requesting the Commission to suggest enhanced cooperation equally regards the proposed act, inward accordance alongside the Treaties. In that context, they concur that this constitutes a instance of ‘last resort’ inward accordance Article 20(2) TEU.

Member US undertake non to vote inward favour of whatever amendment to the [decision on voting inward Council] unless all Member US are inward favour of that amendment.

Member US undertake to back upward a asking yesteryear a Member State inward accordance alongside [Article x] of the Council rules of procedure.

Section J

Treaty amendment

Within ane twelvemonth of the notification yesteryear the U.K. that the electorate of the U.K. has voted to stay a fellow member of the European Union, the necessary steps shall live taken, inward accordance alongside the Treaty on the European Union as well as the Treaty on the Functioning of the European Union, to contain the Protocol attached to this Decision into the legal framework of the European Union.

Note: This text is adapted from Article xvi of the financial compact treaty.

Section K

General provisions

This Decision is legally binding as well as volition get got lawsuit on the appointment of its adoption, except where it provides otherwise.

It tin forcefulness out live amended solely yesteryear consensus of the Heads of State as well as Government.

Where a Member State considers that roughly other Member State has failed to comply alongside whatever provision of this Decision, it may convey the thing to the Court of Justice. The judgment of the Court of Justice shall live binding on the parties to the proceedings, which shall get got the necessary measures to comply alongside the judgment inside a menses to live decided yesteryear the Court of Justice.

Note: the finally sub-paragraph is based on Article 8(1) of the financial compact treaty. It would live possible to bound the Court’s jurisdiction to certainly provisions of the Decision only, equally is the instance inward that treaty. It would too live possible to supply for fining Member US which breach a courtroom order, equally Article 8(2) of that treaty provides.

PROTOCOL ON [INSERT TITLE]

The Heads of State or Government of the 28 Member US of the European Union,

Having regard to the Conclusions of the European Council,

Have agreed on the next Protocol:

Article 1

Notwithstanding Article 45 of the Treaty on the Functioning of the European Union or whatever other provision of the Treaties, Member US may supply for a waiting menses of upward to 4 years for workers from roughly other Member State to get got access to work-related benefits.

Note: Cameron’s requests relating to the costless effort of European Union citizens mightiness too require other Treaty amendments, equally discussed here. So this is only yesteryear way of example.

Article ii

1. The Protocol on national parliaments is amended equally follows:

2. The Protocol on subsidiarity as well as proportionality is amended equally follows:

Note: Text to live inserted. This would enshrine inward the Treaties the agreed changes relating to powers of national parliaments.

Article iii

The provisions of the Treaties referring to ‘ever closer union’ get got no legal lawsuit upon the United Kingdom.

Article 4

The next text shall live attached equally a Protocol to the Treaty on European Union as well as the Treaty on the Functioning of the European Union:

“Protocol on voting inward the Council of the European Union

Article 1

If members of the Council, representing (a) at to the lowest degree 55% of the population; or (b) at to the lowest degree 55% of the number of Member US necessary to constitute a blocking minority resulting from the application of the application of Article 17(4), get-go subparagraph of the Treaty on European Union or Article 238(2) of the Treaty on the Functioning of the European Union dot their opposition to the Council adopting an deed yesteryear qualified majority, the Council shall hash out the issue.

Article ii

If Members of the Council representing a qualified bulk of Members non applying the euro equally their currency, defined inward accordance alongside Article 238(3)(b) TFEU, dot their opposition to the Council adopting an deed yesteryear qualified majority, on the grounds that it volition discriminate against the financial services manufacture of those Member States, or create an obstruction to costless effort of financial services from those Member States, the Council shall hash out the issue.

Article 3

If whatever Member of the Council indicates its opposition to the Council adopting an deed yesteryear qualified majority, on ane or to a greater extent than of the next grounds:

(a)    the national parliament of that Member State has expressed serious line of piece of work concern that the proposed deed would breach the regulation of subsidiarity, inward accordance alongside the Protocol on subsidiarity as well as proportionality;

(b)   the proposed deed would non observe Member States’ national identity, inward accordance alongside Article 4(2) TEU;

(c)    the proposed deed would severely impact, inward that Member State, upon the Union’s aims of creating a highly competitive social marketplace seat economy, aiming at total work as well as social progress, a high grade of protection of the environment, or the advertisement of scientific as well as technological advance, equally pose out inward Article 3(2) TEU; or

(d)   the proposed act, inward the champaign of social policy, would non get got account, inward that Member State, of the multifariousness of national practices, or the postulate to hold economical competitiveness, pose out inward Article 151 TFEU, or would impose a constraint that would deal dorsum the creation as well as evolution of little as well as medium-sized undertakings, or impact the key principles or financial equilibrium of social safety systems, equally pose out inward Article 153 TFEU,

the Council shall hash out the issue.

Article 4

The Council shall, inward the course of written report of the discussions referred to inward Articles 1 to 3, do all inward its ability to reach, inside a reasonable fourth dimension as well as without prejudicing obligatory fourth dimension limits pose downwardly yesteryear Union law, a satisfactory solution to address concerns raised yesteryear the members of the Council referred to inward Article 1.

Article v

To this end, the President of the Council, alongside the assistance of the Commission as well as inward compliance alongside the Rules of Procedure of the Council, shall undertake whatever first necessary to facilitate a wider footing of understanding inward the Council. The members of the Council shall lend him or her their assistance.

Article 6

In the lawsuit understanding is non found inside half dozen months of discussions held pursuant to Article 4, the Council shall non deal a vote on the proposed measure. Influenza A virus subtype H5N1 grouping of Member US may instead consider requesting the Commission to suggest enhanced cooperation equally regards the proposed act, inward accordance alongside the Treaties. The application of this Article shall constitute a instance of ‘last resort’ inward accordance alongside Article 20(2) TEU.”

Note: this would enshrine inward the Treaties the suggested changes to the rules on Council voting, discussed inward the previous weblog post, which would give a shape of opt-out to Member US alongside major objections to European Union proposals. These suggestions too address relations betwixt the Eurozone as well as non-Eurozone countries.

Article 5

This Protocol shall live annexed to the Treaty on European Union as well as to the Treaty on the Functioning of the European Union.

Barnard & Peers: chapter 3

Image credit: DailyMail.co.uk

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