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15 May 2015

Open Europe: Is EU treaty change really mission impossible?

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One of the most contentious elements of David Cameron’s EU renegotiation push is his stated intention to change the EU Treaties.

It has been a long-standing article of faith among members of the ‘nothing is possible camp’ (which comprises both europhiles and better-off-outers) that there are no prospects for Treaty change whatsoever, and that Cameron is setting himself up for an inevitable fall. 

"Cameron’s problem is that Britain cannot get the treaties changed before the referendum, since other member-states do not want to re-open them, especially if Britain might leave anyway."

                                       - John Springford, Centre for European Reform

Securing Treaty change will of course be challenging, and even Philip Hammond has moved to manage expectations by telling the Financial Times that it was more important to focus on the substance of reform as opposed to the process, and that Treaty change is not an end in itself. Equally however we do not think it should be dismissed out of hand. Given that the debate has been somewhat superficial and one-sided, we assess in turn the main claims made in support of the ‘nothing is possible’ argument.

Claim: There is not enough time to secure Treaty change before the referendum

It will indeed be tricky to align the UK’s domestic timetable with the Eurozone’s moves towards further integration. However, the history of the EU is riddled with examples of when political expediency – if not utter urgency – has forced EU leaders to achieve years’ worth of change in a few months. In March 2010, Angela Merkel said “there is a treaty and under that treaty there can be no bailouts”. In May 2010, EU leaders agreed to a €440 billion eurozone bailout fund – over a weekend, and later that year to a limited Treaty change. What’s impossible can quickly become inevitable – especially when the membership of the club’s second largest economy is at stake.

Claim: There is zero appetite for EU treaty change

Yes, it is undeniably true that a number of EU leaders have come out against Treaty change. However, there is a window of opportunity (especially if the centre-right take over in France in early 2017) for a ‘grand bargain’ involving more budgetary supervision for Berlin, more ‘solidarity’ for Paris and more single market for London. Remember, Germany remains committed to putting Eurozone integration on a constitutionally-sound footing.

Claim: Only full Treaty change offers any degree of legal certainty

EU Treaty changes come in various shades; if a full Eurozone integration linked Treaty change proves impossible to negotiate within the given timeframe, the UK could push for a limited Treaty change via the simplified revision procedure, like the 2011 amendment which allowed for the establishment of the European Stability Mechanism. Another option would be to secure a legally binding Council Decision clarifying certain Treaty provisions (like the guarantees on security and defence, ethical issues and taxation given to Ireland after it voted down the Lisbon Treaty). The final option would be a political agreement – binding changes that could be formally integrated into the Treaties at the earliest available opportunity – akin to what the Danes got after voting No to Maastricht in 1992. Frans Timmermans has floated the idea of introducing a red card mechanism for national parliaments via such a political agreement.

Open Europe and the Fresh Start Project published a thorough study of which reform measures would require treaty change and, if so, which of the above options and other alternatives to treaty change could work.

Claim: Treaty change would trigger referenda in other member states

A stand-alone Treaty change pursued via the simplified revision procedure which does not transfer any new powers to Brussels would most likely only have to be ratified by national parliaments and not require national referenda (although there may be political pressure to hold them, for example in France).

Claim: Member states would never accept a ‘UK-tailored’ Treaty change

Much of Cameron’s EU reform agenda enjoys support in various member states including proposals to give national parliaments more of a say over EU-lawmaking, to protect the integrity of the single market and to tighten access to national welfare systems. If presented as a series of reforms to make the EU work better – and explained and understood properly – as opposed to UK-specific opt-outs, then support could materialise.

Claim: Britain won’t win any concessions because it could leave anyway

While there is a risk that Britain could vote to leave anyway, this can be substantially reduced by securing an ambitious reform package, the credibility of which would be further enhanced if it included Treaty changes. Polls have shown that while support for continued membership under the status quo is precarious, support for staying in a reformed EU is considerable.

Ultimately, the question of Treaty change will come down to political will, and now that David Cameron has a strong democratic mandate other EU leaders will have to take this issue more seriously. Although we have consistently argued much can be done within the existing Treaties, including the crucial matter of re-writing the rules around EU migrants’ access to benefits – achieving Treaty change has the advantage of making any reforms more permanent and secure, as well as making the wider renegotiation process more credible in the eyes of the public ahead of the referendum.

Full article on Open Europe


© Open Europe

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