Is It Possible To Reform The Eu Without Amending The Treaties?

 

Steve Peers

 

The renegotiation of the UK’s membership of the European Union – or ‘EU reform’, if yous prefer – is most to start inward earnest. But already several Member US direct hold ruled out the prospect of amending the Treaties. Is it even hence possible to deliver a parcel of renegotiation or reform despite this?

 

It is, of course, possible to better European Union secondary legislation (or to credibly hope to do so) without a Treaty amendment. But at that topographic point is ever the endangerment that such legislation volition non live amended later all equally promised, or that the amendments volition live overturned inward future. So to a greater extent than or less direct hold suggested the ‘Danish solution’: namely a decision of the European Union Heads of State as well as Government, coming together inside the European Council, which constitutes the EU’s reply to the renegotiation request, in all likelihood inward conjunction with amendments to European Union secondary legislation.

 

Such Decisions direct hold been adopted inward the past, equally regards previous post on this issue).

 

But I remember it is possible to become farther with this, as well as to brand changes to European Union secondary constabulary which direct hold a similar impact to a Treaty amendment. How would this operate exactly? At the minute at that topographic point is a carve upward Decision on voting rules inward the Council. This provides that where a number of Member US falling curt of the green 'blocking minority' are outvoted, they tin dismiss insist on a delay earlier the Council adopts its position. In fact this text was agreed equally purpose of the Lisbon Treaty negotiations (it was a Polish ‘red line’) as well as laid out originally equally a Declaration to that Treaty. I believe that this text could live amended to bargain with 2 UK concerns: (a) the seat of the non-eurozone Member US equally compared to the eurozone Member States; as well as (b) the real serious concerns of private Member US most specific European Union proposals on for sure grounds, such equally economical competitiveness or objections past times national parliaments.

 

It wouldn’t live possible to better the voting rules inward the Council equally such without a Treaty amendment. But amending this carve upward Decision could ensure a delay earlier a vote is taken. I believe it would also live possible to include rules on what happens if at that topographic point is even hence no understanding later the delay – namely the utilization of ‘enhanced cooperation’ (some Member US going ahead without the others) if the disagreement even hence persists.  Again, exclusively a Treaty amendment could require the Council to displace to enhanced cooperation at this point. But it is possible for Member US to handle how they volition vote inward the Council, past times agency of a separate treaty. There is a precedent for this, inward Article vii of the ‘Fiscal Compact’ treaty betwixt a grouping of Member States. (It’s understood that the Council legal service agreed that this was acceptable).

 

So inward Annex II, I direct hold suggested to a greater extent than or less amendments to this Council Decision, to address the UK’s 2 concerns. The number of Member State voting is addressed inward the parallel Decision of Heads of State as well as Government.

 

I believe that such an approach has a large number of advantages. First, it tin dismiss live adopted past times the Council, without needing the participation of the Commission or European Parliament, or blessing past times Member States. Second, Member US tin dismiss secure the continued beingness of this Decision past times agreeing that it tin dismiss exclusively live amended next a unanimous vote. Third, it is possible to avoid the endangerment that, for these changes at least, the European Union is offering a ‘post-dated cheque’. The Council could already adopt the Decision earlier the plebiscite vote, with the unproblematic proviso that it volition locomote into into forcefulness equally shortly equally the UK notifies the Council that the UK world has voted to remain inward the EU. Fourth, the changes volition non live specific to the UK, hence that other Member US also direct hold a positive argue to approve these amendments. Fifth, the amendments could address both the concerns of concern as well as other concerns equally well. Sixth, whatever utilization of enhanced cooperation would even hence live bailiwick to the rules inward the Treaty, ie it could non discriminate betwixt Member US or distort the internal market. So the interests of non-participating Member US would live respected.  

 

I direct hold also suggested (in Annex III) an amendment to the Council’s rules of physical care for dealing with the specific number of reviewing CJEU judgments on European Union secondary legislation, where a Member State has a exceptional concern most those judgments. Again, the number of Member State voting is addressed inward the parallel Decision of Heads of State as well as Government.

 

Finally, I’m non addressing inward exceptional the key number of ‘immigration’ inside the EU, ie costless elbow grease of European Union citizens, inward this spider web log post. I volition come upward dorsum to that inward the nigh future.

 

 

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 authorities annotation of the concerns of the British people identified past times the Prime Minister of the United Kingdom,

 

Desiring to address those concerns inward conformity with 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 elbow grease of persons

 

In every forthcoming enlargement of the European Union, the electrical flow Member US handle that the costless elbow grease of persons from a novel Member State volition live subject on a unanimous conclusion of the Council, which volition live taken at the latest 1 time the income of the novel Member State concerned is 75% of that of the other Member US of the European Union.

 

Section B

Free elbow grease of persons as well as social benefits

 

The Heads of State as well as Government confirm that, inward accordance with 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]

 

Note: see the CJEU judgment inward the Dano case, discussed here, equally good equally the Cameron proposals on European Union costless movement, discussed here.

 

Section C

Powers of national parliaments

 

The Heads of State as well as Government convey authorities annotation of the Commission’s line solid 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 past times 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 refer to such agreements as well as treaties which direct hold 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 constabulary or policing pursuant to the Protocols attached to the Treaties, as well as the provisions of the Treaties which require honour for the national identity as well as legal organization of every Member State.

 

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

 

Note: if the physical care for of ECHR reform is completed earlier the UK renegotiation of its European Union membership, at that topographic point could live a to a greater extent than specific commitment to give termination to the results of that process, for example ratifying a novel protocol to the ECHR.

 

Section F

Reduction of European Union competences

 

The Heads of State as well as Government reaffirm that In accordance with Article 48 TEU, the competences conferred upon the Union tin dismiss live reduced. In accordance with Articles 2 as well as four TFEU, the European Union tin dismiss select to exercise its competences less intensively inward those areas where it shares competence with its Member States.

 

Note: this could live accompanied past times specific commitments to repeal or cut the reach of to a greater extent than or less existing European Union legislation.

 

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 with Section D, does it constrain the Member US from adopting Treaty amendments which cut the Union’s competences, or constrain the Union from choosing to exercise its competences less intensively.

 

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

 

Note: the 2nd paragraph is taken from the wording of the June 2014 European Council conclusions.

 

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 exclusively 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 Great Britain 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 authorities 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 with the Treaties. In that context, they handle that this constitutes a example 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 past times a Member State inward accordance with [Article x] of the Council rules of procedure.

 

 

 

Annex II

Amendment to Council Decision on voting

 

(new) Section 3

Other provisions

 

Article 6a

 

If Members of the Council representing a qualified bulk of Members non applying the euro equally their currency, defined inward accordance with Article 238(3)(b) TFEU, betoken their opposition to the Council adopting an human activity past times qualified majority, on the grounds that it volition discriminate against the fiscal services manufacture of those Member States, or create an obstruction to costless elbow grease of fiscal services from those Member States, the Council shall verbalize over the issue.

 

Article 6b

 

If whatever Member of the Council indicates its opposition to the Council adopting an human activity past times qualified majority, on 1 or to a greater extent than of the next grounds:

 

(a)    the national parliament of that Member State has expressed serious concern that the proposed human activity would breach the regulation of subsidiarity, inward accordance with the Protocol on subsidiarity as well as proportionality;

(b)   the proposed human activity would non honour Member States’ national identity, inward accordance with Article 4(2) TEU;

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

(d)   the proposed act, inward the champaign of social policy, would non convey account, inward that Member State, of the multifariousness of national practices, or the involve to hold economical competitiveness, laid out inward Article 151 TFEU, or would impose a constraint that would handle dorsum the creation as well as evolution of little as well as medium-sized undertakings, or touching on the telephone substitution principles or fiscal equilibrium of social safety systems, equally laid out inward Article 153 TFEU,

 

the Council shall verbalize over the issue.

 

Article 6c

 

Articles v as well as 6 shall utilize to this section.

 

Note: Articles v as well as 6 render for attempts to settle the dispute.

 

Annex III

Amendment to Council rules of procedure

 

Article x

 

If a Member State invokes concerns most a judgment of the Court of Justice of the European Union on European Union secondary legislation, on the grounds laid out inward [Article 6b of the Decision on Council voting], as well as hence the Council volition inquire the Commission to written report inside half dozen months on whether to suggest a alter to the legislation concerned.

 

Note: at that topographic point could live a parallel alter to the Commission’s rules of procedure, or an inter-institutional understanding on this point.

 

 

Barnard & Peers: chapter 2, chapter 5, chapter 13, chapter 25

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