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The Renegotiation - "Ever Closer Union"

"Ever Closer Union" will remain in the Treaty and the summit deal makes no difference to the UK's legal obligations

In our series of detailed analyses of the terms of the deal reached by David Cameron at the European summit,  Martin Howe QC looks at the parts of the deal which are billed as giving the UK an exemption from "Ever Closer Union" in the European Treaties.

What is the Treaty reference to "ever closer union"?

The Treaty on European Union (originally known as the Maastricht Treaty) refers to "ever closer union" in the second paragraph of its first Article:-
"This Treaty marks 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."
This phrase - "an ever closer union among the peoples of Europe" - is also included in the preamble to the Treaty on European Union and was in the preamble of the original Treaty of Rome signed in 1957.  It is still there, now that treaty has been renamed as the Treaty on the Functioning of the European Union (TFEU).

None of these references to "ever closer union" are in parts of the treaties which create specific rights or impose specific obligations on Member States.  It would therefore not be possible for example for the UK to be hauled before the European Court (ECJ) for having breached a Treaty obligation to work towards "ever closer union".

However, they do perform a function.  They form part of the general 'mood music' or background against which the more specific provisions of the treaties are interpreted.

With these points in mind, we now turn to the deal which was negotiated at the European Council summit meeting on 18-19 February 2016.

The summit deal on "ever closer union"

As we have seen in our section on the Legal Status of the Renegotiation, the summit deal was embodied in an agreement between the European leaders which is described as a "decision" of the heads of government meeting in the European Council.  We have explained the precise legal status of such a "decision" and in particular how limited its binding legal effects can be in the absence of a formal treaty amendment.

But with the parts of the decision relating to "ever closer union",  it does not matter how binding or non-binding they are because, as we shall see, none of the terms when read carefully produce a substantive change in the legal position of the United Kingdom.

For readers who are interested in looking at the actual text which we analyse below, see the European Summit Conclusions Feb 2016 (PDF)

The decision begins by reciting some existing legal facts, in the recitals at the top of page 10.
  • First, that the UK has a legal right never to join up to the euro against its will, an existing and clear legal right which is spelled out in the UK's monetary union opt-out Protocol No 15 (Protocols are a legally binding parts of the Treaties)

  • Secondly, that under Protocol No 19 the UK is not obliged to participate in the Schengen acquis, under Protocol No 20 it is not obliged to get rid of its border controls and participated in the Schengen area.

  • Thirdly that it has a right under Protocol No 21 to choose whether or not to participate in new measures under the EU's so-called "area of freedom, security and justice" and that under the Lisbon Treaty Protocol No 36, it has chosen to opt out of a number of such measures.
It should be stressed that none of these are new rights for the UK and none of them have been "won" by David Cameron in his negotiations. The inclusion of references to these existing opt-out rights, which are not enlarged in any way,  seems to be pure window dressing for political purposes which does not produce a legal effect.

The subject of "ever closer union" is addressed at Section C, headed "Sovereignty", paragraph 1, on page 16 of the decision. 

This starts with the sentence:
"It is recognised that the United Kingdom, in the light of the specific situation it has under the Treaties, is not committed to further political integration into the European Union."
The important word to note in this sentence is the word "recognised". This word means what it says - it is recognising the existing legal position and the existing posture of the UK regarding future treaty changes, and does not claim to be changing anything.

The existing legal position is that the UK (in common with all other Member States) has an absolute right to agree to or to veto treaty changes which involve further political integration.  The UK cannot be compelled to agree to such treaty changes, whether because of the words "ever closer union" in the treaties or for any other reason.  The sentence quoted above simply recognises the existing legal reality that the UK cannot be compelled to agree to such treaty changes, and the political reality that it is not committed to further political integration (at least for now).

The following sentence of the summit decision states that:
"The substance of this will be incorporated into the Treaties at the time of their next revision in accordance with the relevant provisions of the Treaties and the respective constitutional requirements of the Member States, so as to make it clear that the references to ever closer union do not apply to the United Kingdom."
This is a promise of a treaty change at some indefinite time in the future.  The European leaders gathered in the European Council cannot legally bind their own member states to deliver a treaty change, since this depends upon fulfilling national constitutional requirements in each State. This sometimes for example involves the need for a referendum and/or ratification by the legislature, in some cases by special majorities or processes.

But leaving aside the non-binding nature of the promise of future treaty change,  the real point is that all that is promised is a treaty change which will repeat "the substance of this";  that is the substance of the first sentence quoted above which simply "recognises" the existing legal position.  So all that is promised is to write into the treaty an acknowledgement of the existing legal position.  There is no promise at all to make a change to the treaty which actually changes the legal position.

The summit decision does not spell out the precise wording of the treaty changes which would be made (another point of weakness), and the precise wording could be important.  But assuming that the wording in some way declares that the references to "ever closer union" do not apply to the UK so that the UK is not committed to agreeing to further treaty changes which deepen political integration, the words "ever closer union" would still remain there in the Treaty on European Union and in the preambles, still influencing the mindset of the ECJ.

It is hard to see how, when the ECJ comes to interpret EU legislation or treaty articles which apply to all Member States including the UK, it could put out of its mind the references to "ever closer union".  Certainly,  there is nothing in the decision which could possibly authorise the same piece of EU legislation being given two different meanings,  a narrower one for the UK and a wider one for all other Member States.

"Ever closer union" and interpretation of the Treaties

The above sentences are followed by some further paragraphs which relate to the way in which the phrase "ever closer union" can be used to interpret other provisions of the Treaties and EU legislation which contain operative rights and obligations. Close examination of the text reveals that these contain less than meets the eye.

There is no promise to change the treaties to incorporate these particular provisions at treaty level. A "decision" of the leaders in the European Council such as this cannot contradict or change the treaties, but is capable of being taken into account in interpreting them where their meaning is doubtful.  (Although the previous use of such a "decision" to interpret the treaties had a very unhappy outcome in the Rottmann case, which we refer to in our explanation of the Legal Status of the Renegotiation.)

First, the "decision" states (page 16 second paragraph) that the references to ever closer union "do not offer a legal basis for extending the scope of any provision of the Treaties or of EU secondary legislation", and that they "should not be used either to support an extensive interpretation of the competences of the Union or of the powers of its institutions as set out in the Treaties".

The problem with these sentences is that they are knocking down an Aunt Sally.  This is not how the European Court has made use of the phrase in its case law in the past.

The most famous occasion when the ECJ made reference to the Treaty of Rome preamble containing the phrase "ever closer union among the peoples of Europe" was in Case 26/62 Van Gend en Loos, decided in 1963 before the UK joined the EEC, which established the fundamental doctrine that many treaty provisions are directly effective as law inside member states.

The Court however did not refer in that case to the fact that it mentioned "ever closer union", but rather to the fact that the preamble "refers not only to governments but to peoples",  in support of its conclusion that the treaties are law which applies directly to people inside the Member States as well as to the Member States themselves.

Examination of judgments of the ECJ over the past 15 years reveals that it very rarely refers to "ever closer union". It did so in its formal opinion on the EU's draft treaty of accession to the European Convention on Human Rights, Op 2/13, at paragraphs 166-167, where it pondered on the nature of EU law:
166. To these must be added the specific characteristics arising from the very nature of EU law. In particular, as the Court of Justice has noted many times, EU law is characterised by the fact that it stems from an independent source of law, the Treaties, by its primacy over the laws of the Member States (see, to that effect, judgments in Costa, EU:C:1964:66, p. 594, and Internationale Handelsgesellschaft, EU:C:1970:114, paragraph 3; Opinions 1/91, EU:C:1991:490, paragraph 21, and 1/09, EU:C:2011:123, paragraph 65; and judgment in Melloni, C 399/11, EU:C:2013:107, paragraph 59), and by the direct effect of a whole series of provisions which are applicable to their nationals and to the Member States themselves (judgment in van Gend & Loos, EU:C:1963:1, p. 12, and Opinion 1/09, EU:C:2011:123, paragraph 65).

167. These essential characteristics of EU law have given rise to a structured network of principles, rules and mutually interdependent legal relations linking the EU and its Member States, and its Member States with each other, which are now engaged, as is recalled in the second paragraph of Article 1 TEU, in a ‘process of creating an ever closer union among the peoples of Europe’.
The Court's view therefore is that "ever closer union" is a concept which operates at a very deep level in supporting its conception of the nature of European Union law. It is not used as a crude tool to extend the scope of individual Treaty articles or regulations or directives, or to extend EU competences or powers of the EU institutions.

We have not been able to identify any ECJ case in which the phrase "ever closer union" has been used directly in either of the ways which these interpretative provisions would seek to contradict, that is as a "legal base for extending" or to "support an extensive interpretation" of competences or powers.  These interpretative provisions therefore do not contradict or curtail any existing ECJ case law, which explains why the Commission and the Council legal service have been willing to see them included in the "decision".  They are simply shooting at the wrong target.

However, the references to "ever closer union" will remain in the Treaty and in the preambles, and it is hard to see how they will not continue to have subtle and indirect effects,  as one but only one of the pointers to the continuing direction of travel of the EU which serve to confirm the pre-existing mindset of the ECJ and the Commission.

The key practical question is whether this "decision" would have changed the outcome of any past case in the ECJ, or would be likely to change the outcome of any future case.  The government have not identified any past case whose outcome would have been different,  nor have we been able to.  There is no reason to believe that any future case would be different.

The "Red Card" and national parliaments

The "decision" then contains some text which simply repeats and rehashes declarations and statements made at previous summits. Then in numbered paragraphs 2 and 3 it sets out a so-called "red card" system for national parliaments to "veto" draft EU measures.

The question of whether or not this part of the "decision" is legally binding is beside the point, since there is no prospect of it having any effect in any real situation.  Paragraph 3 states that the Council of Ministers will cease consideration of draft EU legislative acts when parliaments representing a 55% weighted vote of Member States send in a "reasoned opinion" stating that the proposed measure breaches the principle of "subsidiarity".

The first point is that this does not give a general veto to national parliaments,  but only a right to object on the narrow and specific ground of "subsidiarity".  This arcane and difficult doctrine does not permit objections on the ground that the EU has gone too far or that the measures are unnecessary, stupid or damaging: it is limited to the narrow case where the EU has adopted a policy objective, but it is better implemented at the national level.

Secondly and more importantly, it is impossible foresee a situation in which this "red card" system would actually bite and make a difference.  In the rare case of measures which require unanimity for adoption, the UK would be able to block the measure and the UK government is obliged to block it by Parliamentary convention if the measure does not pass Parliamentary scrutiny.

In the more common case where a measure is to be passed under qualified majority voting, it will only be passed in the first place if it is supported by 55% of the weighted votes of the Member States who represent 65% of the EU population.  So a measure could only be passed on this hurdle, and then blocked under the proposed red card,  if enough national parliaments were to 'rebel' against their governments to convert a 55% weighted vote/65% population majority into a 55% weighted vote the other way, with only 12 weeks to organise these negative opinions.

While national parliaments can theoretically disagree with the views of the national government, by and large national governments are supported by a working majority in the national parliament so such departures are rare.  In order for the "red card" system to make a difference even it theory, it would be necessary to convert a majority in favour of a measure of 55% (or more usually much greater) of national governments into a 55% majority of national parliaments against, within the space of 12 weeks.

This point has not been missed by other commentators. The Guardian published an article analysing the numbers on this point. Even taking into account exceptional situations such as minority governments where a parliament might disagree with a national government's vote in favour of an EU measure in the Council of Ministers and making other favourable assumptions, their conclusion was:
"In practice, we suspect the red card will be only ever be used once or twice over the next 20 years. It would therefore make very little difference to decision-making in the EU."
We suggest that "once or twice in 20 years" is a significant over-estimate, and that in practice it is never going to happen that 55% of national parliaments will disagree with a measure passed with the assent of 55% or greater of the national governments.  This part of the summit decision does not possess content which makes a difference in the real world.

Respecting Opt-out Protocols requirements

Paragraph 4 of the "decision" contains some paragraphs about the observation of the Treaty protocols, in particular opt-out Protocols Nos 21 and 22.  These paragraphs simply state that the rights and obligations of the member states under the Protocols must be fully observed and that member state representatives will ensure that the Protocols will apply to a measure when it falls within the scope of the parts of the Treaty to which the Protocols relate.

These paragraphs simply repeat, in non-binding form,  the provisions of the Protocols themselves which are legally speaking an integral part of the treaties and of the same legal status as the bodies of the treaties.  They are just a statement that "I will observe the law".  Such statements achieve nothing: if the other Member States are willing to observe the law they are unnecessary, and if they are willing to breach it then the mouthing of such platitudes in non-binding form will not cure the situation.

Conclusions

It can be seen that the provisions of the summit "deal" on "ever closer union" and "sovereignty" are almost totally devoid of substance.  For the most part, they make no alteration of any kind to the existing legal rights and obligations of the UK but are simply reiterating the existing legal situation for purposes of political effect and not substance.  Where they attempt to make a nuanced (and non-binding) interpretation of the concept of "ever closer union", they miss the real target, do not contradict or limit any existing ECJ case law, and it is not possible to see how they would actually affect the outcome of a real case in a real situation.