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29 October 2015

Fondation Robert Schuman: Brexit or Britin - is it really colder outside?

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Consultant in EU law Piris maintains that "the adoption of reforms by the EU, which would not require a revision of the EU Treaties, appears to be the only realistic and politically andlegally acceptable solution" to the Brexit issue.


Consequently, the adoption of reforms by the EU, which would not require a revision of the EU Treaties, appears to be the only realistic and politically and legally acceptable solution.

These reforms should however give appropriate answers to the seven or eight "key-issues" listed by Prime Minister Cameron in his Bloomberg Speech in January 2013 and in his Telegraph article in March 2014. In fact, many things could be done, without changing the Treaties: change are more about political will of the member States and of culture in the EU Institutions.

-a) Measures which could be favourable to a better economic competitiveness:

This might include substantive policy measures, such as a calendar in view of completing the internal market, especially in services[54], to launch new optional cooperation policies, for example on energy, and on industrial cooperation in defence equipment programmes. This might also include measures aimed at improving the functioning of the institutions, by streamlining the Commission, organising it in teams presided by Vice-Presidents, as decided by the current President of the Commission Mr Jean-Claude Junker, and by encouraging all institutions, not only, but especially the European Parliament, to stay within the limits of their legal powers, in conformity with the Treaties' provisions, and to concentrate on important subjects, respecting the principles of conferral, subsidiarity and proportionality.

-b) "Ever closer union":

One must stress that the often incomplete quotation of this EU Treaties' formula is twice misleading. In fact, the Treaties refer to a "union" (without capital "U", as this does not refer to the EU) and "among the peoples of Europe", and not between the States of the EU. How could one argue that the reference to a closer union between peoples means aiming at a merger of the EU member States, while the Treaties gives to the EU the legally binding obligation to respect the national identity of its member States ? This being said, this formulation has created real misunderstandings in British public opinion, which would deserve to be dissipated

The European Council begun to do it, by stating in June 2014 that the political concept of an “ever closer union” should not be interpreted as a strict legal provision, and that it does allow for different “paths” (and not "speeds") of integration for the member States. In the same vein, one could recall that the EU Treaties give the EU a goal which is "to deepen the solidarity between their peoples while respecting their history, their culture and their traditions" (Preamble TEU). They also request the EU to "respect its rich and linguistic diversity" (Article 3(3) TEU) and "to respect (...) their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security" (Article 4(2) TEU).

It might be worth reminding the public of this, perhaps via some kind of Solemn Declaration.

-c) To cut red tape and to respect subsidiarity better:

The mandate given by Jean-Claude Junker, the present President of the Commission, to his First Vice-President, Frans Timmermans, goes exactly in that direction. Frans Timmermans has certainly begun his task in a forceful manner. In any case, it must be recalled that, by definition, one EU legislation replaces 28 national laws (28 different kinds of red tape) and enables the single market to function. In fact, preventing EU legislation from creating unnecessary and cumbersome obstacles to economic life is taken more seriously today, both by the Member States and by the EU Institutions (see for example the Programme "REFIT"[58]), than was the case in the past.

However, there is no simple legal option available to avoid red tape: this cannot be decided by a Treaty. It is day-today work. A closer scrutiny of the Commission’s legislative proposals by national authorities than this is the case now would be the pre-requisite. Other non-legal mechanisms might also be suggested, such as: -seriously reforming the current Impact Assessment system, which could be conferred on an independent agency and serve all three legislative institutions, the Commission, the Council and the Parliament; -developing performance indicators, and -regularly assessing the actual effects of some EU Regulations or Directives, after a few years of implementation.

-d) Encouraging national Parliaments to participate in the EU's functioning:

Article 12 TEU and Protocols n°1 and 2, texts which have been added to the Treaties by the Lisbon Treaty, confer interesting new powers on national Parliaments (NP). Depending on the domain concerned, either one third or one quarter of NPs may, based on control of subsidiarity, oblige the Commission to review a legislative proposal. It is true that this has been rarely used. Too short delays are imposed on NPs, their cooperation is not organised in an optimal way and their opinions are not binding ("yellow cards", not "red cards"). This might be improved in practice, without changing the Treaties:

-by offering practical facilities to NPs (secretariat, translation services),

-by interpreting and applying with flexibility the (very short) delays that they have been given to react, and

-by inviting the Commission to agree on a political commitment that, as a matter of principle, it will follow the NP opinions given at the required majority, any exception having to be justified in the European Council.

-e) Protecting the rights of the non-euro EU Member States:

More and more people think that, in the medium term, the euro area might be forced to integrate further, either through an EU Treaty revision, or through a “Eurozone Treaty”, outside the EU Treaties but linked to them. In this case, non-euro area EU members fear that the euro area might adopt decisions that will affect them negatively, especially regarding the single market. In order to reassure them, the euro area, or more exactly its members and some other EU members (the so-called "pre-in" euro area members), could state that any new "euro area treaty" would confirm their legal obligations, under the control of the EU Court of Justice:

- to guarantee the rights of non-euro area countries, including the integrity of the single market,

- to respect the”acquis communautaire” and the exclusive and exercised powers of the EU under the Treaties,

- to respect the legal primacy of the EU Treaties and of the EU’s law over the euro area treaty,

- to accept guaranteeing openness of their activities, and

- to give the right to participate in meetings for those willing to join the euro within a given delay.

Implementing such measures would mean tackling real problems. It would be wise to concentrate on those problems, rather than to proclaim that immigration of EU workers in the UK is the essential question to solve in order to decide if the UK should remain a member of the EU or leave the EU. On that particular issue, it is sufficient to refer to the economic studies made in the UK, which demonstrate that this is beneficial to the UK, and to recall that the current EU legislation authorises member States to adopt measures against abuses in that domain. The EU Court of Justice has reminded us of that in a recent judgment. If need be, that legislation could even be made more precise.

However, some of the suggestions which are currently being discussed in London would affect the basic principles of the free movement of people and of equality between the EU citizens. One might think that such requests would not be conducive to a short and positive negotiation with the EU.

Full paper

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