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With its all-night negotiations, ‘war room’ of lawyers, heated private consultations, and frustrated snippets delivered to a waiting press left to muse on the revised ‘English’ menu over the day, the European Council meeting of 18-19 February 2016 had all the theatrical trappings of a make-or-break summit. Beyond the drama, however, what became clear was the fundamental desire on the part of the leaders of all 28 EU member states to agree a deal on the British government’s demands for a renegotiated settlement on the UK’s relationship within the European Union.
As much as certain European leaders may have resented Prime Minister Cameron for the tactical blackmail he deployed to push through mostly technical reforms, which were either not a priority for them or cut against their interests, no-one wanted to see the summit fail or fan the flames of Brexit. At the same time, the heads of state or government were keen to ensure that the UK would not be allowed to reopen talks in the event of a ‘leave’ vote in the British referendum; an idea embraced by Mr. Cameron to kill the idea of a ‘neverendum’. And so they joined together in a move to adopt a ‘take it or leave’ clause in the deal.
Now that the game is over and the curtain closed we are left wondering if there is any clarity in what was agreed. The short answer is No, because it is highly unlikely that the referendum on whether the UK should stay in or leave the EU will be decided on the minutiae of any reform to child benefits or tax credits. David Cameron will have to campaign on bigger ticket issues if he wishes to convince his electorate that it is better for the UK to remain in the EU.
Yet the deal is important, for at least four reasons. First, it has provided Mr Cameron with the political capital he needed from his fellow European leaders to call a date for the in/out referendum and to lead a campaign for the UK to stay in the European Union.
Second, it marks a watershed acknowledgement that EU integration is not a one-directional process of ‘ever closer union’ but that “different paths of integration [are] available [that] do not compel all member states to aim for a common destination”. It will effectively lead to a legally binding recognition that the UK is not committed to further political integration in the EU.
Third, it lays down commitments to change secondary EU legislation, for instance on the free movement of workers and the coordination of social security systems, and to incorporate the substance of parts of the deal in the EU treaties at the time of their next revision.
Finally, the deal has set a precedent whereby one member state successfully held the rest of the EU to ransom until its demands were met. As Euroscepticism grows throughout the Union, there is a risk of contagion: (future) leaders of other member states could refer to the UK deal and threaten to steer their own country out of the Union (‘Frexit', ‘Plexit', etc.) if its special relationship within the EU is not secured. The ‘take it or leave’ or ‘self-destruct' clause inserted into the deal at the last minute will not deter copycat exception-seekers2 because the genie is now out of the bottle.
This paper analyses the substance of the “Decision of the Heads of State or Government, meeting within the European Council, concerning a New Settlement for the United Kingdom within the European Union” and sheds light on its legal character. It does so by contextualising this EU deal to avoid Brexit, in part by drawing on the conclusions reached in a simulation of European Council negotiations between representatives of think tanks in the European Policy Institutes Network (EPIN), conducted by CEPS and the Bertelsmann Stiftung in October 2015.