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The dilemma of treaty change
The Decision does not and cannot change EU primary law. There are, however, two references in the draft document in square brackets that provide for the insertion of specific items in the EU treaties "at the time of their next revision". These are requested by the UK. The European Council will have to decide whether to agree to this ruse.
[...] Cameron’s early bluster that he was out singlehandedly to ‘reform’ the whole Union has been firmly rebuffed – hence Tusk advanced his low-key and limited proposal as a "good basis for a compromise" on "a new settlement" for the UK within the EU.
All or nothing?
Tusk’s letter asserts that "nothing is agreed until everything is agreed". But can this be true? Or is it just a lazy cliché? Although the four Brexit elements may be welded together in the febrile imagination of the British prime minister, nothing connects them in a technical way. [...]
‘Ceci n’est pas une pipe’
A third and deeply troubling matter in Tusk’s proposal is the attempted castration of the phrase "ever closer union of the peoples of Europe". Whatever one’s inclinations, however, there can be no doubt about the historical importance of those words in the Union’s constitutional development, which are now elevated into the first article of the EU Treaties as the mission of the Union, predicating all that follows. [...]
Leaving aside the matter that ‘ever closer union’ appears in the UK’s accession treaty to the EU, and that the EU’s official membership criteria demand adherence to the ‘aims of political, economic and monetary union’, the draft Decision would render ‘ever closer union’ meaningless. [...]
Cameron wants a treaty change that would exempt the UK from the vocation of ‘ever closer union’. Although such an opt-out would relegate his country to second-class membership of the EU, and would be the cause of much grief in Britain, it is vital not to let Cameron jeopardise the whole European project for everyone else. [...]
More card games
The draft Decision invents a new blocking mechanism for national parliaments for breaches of the federalist principle of subsidiarity. In addition to the existing ‘yellow card’, and the ‘orange card’, there would now be a ‘red card’ waved by more than 55% of parliaments, within twelve weeks (in which case the draft law, if not amended by the Commission, would fall). One recalls that a proposal for a red card was rejected in the last Convention.
There are several problems with this proposal. First and foremost, the Council and national parliaments are supposed to work in tandem, and in all but most abnormal circumstances, do so. [...] Second, the yellow card has only been used twice (and only once properly) and the orange card never. Third, many national parliaments – including that one at Westminster – object to their being trammelled and bossed about by foreign national parliaments. Fourth, many national governments object to having to concede yet more power to national parliaments over EU policy, and are hostile to introducing more impediments to EU decision making. [...] Fifth, the proposed innovation, by giving the Council a free hand, carves out the European Parliament from the legislative procedure – and so is in breach of Article 294 TFEU. Sixth and lastly, the Decision would only commit the Council to the red card by way of a change of its own rules of procedure. [...]
Welfare benefits: how much and for how long?
The draft agreement on the granting of social benefits to EU citizens living and/or working in an EU state other than their own is closer to resolution than might have been expected – not least because of recent judgments of the much-maligned Court of Justice. The Commission is ready to submit at least three legislative proposals to the Council and Parliament.
The key idea is for an emergency brake to be triggered by an appeal from a member state in difficulties from an influx of mobile EU citizens in which case the Commission could invite the Council, by means of an implementing act (Article 291 TFEU), to allow a state to restrict access to in-work benefits for a period (to be defined), extendable by two successive further periods (also to be defined). Although the draft Decision is silent on the matter, this proposal will need the consent of the European Parliament.
A single rule book no longer
The draft agreement on the future management of the banking union is notable in that it envisages two sets of banking rules, one uniform for the eurozone, the other less so for the non-euro states. Here again, important secondary legislation will be needed, in which the European Parliament has much expertise and a high level of political interest. [...]
Facilitating coexistence
There is much at stake, not least in terms of mutual trust and solidarity among the member states. [...]
While it is true that the rest of the EU wants Britain to remain a member, it is also true that every other member state has their price for accommodating Britain. Hammering home clear and durable legal texts that revise the system of EU governance in a democratic manner is a difficult task: if it is to be done at all, it must be done well, and good will has to be present on all sides.
The true nature of the Brexit exercise should not be ignored: the UK is the first country ever to seek a renegotiation of its terms of membership. It has not got all it wanted, although what it has been offered, at least by Tusk, is a significant reversal of the trend of integration with regard to freedom of movement and an enormous blow at ‘ever closer union’ aimed at recuperating national sovereignty. Rumours continue to swirl at Westminster about impending new domestic measures to limit the judicial authority of the European Court of Justice or to derogate from the EU Charter of Fundamental Rights. That way indeed lies Brexit.
If this really is the big moment when Britain chooses never to be at the heart of Europe, it is also a grave one. At the very least, nothing should be enacted by the rest of the EU until the British voters have delivered a positive referendum result – although if anyone in Britain knows what they are really letting themselves in for is anyone’s guess.