1. No category

Fresh Start Project & Open Europe
Strategies for Fundamental
EU reform
How to Achieve Treaty Change without Changing the Treaties!
December 2014
The ideas presented below draw on the research and policy proposals of the Fresh Start Project and Open
Europe. Many of them were discussed at the Fresh Start Project - Open Europe Conference on EU Reform on
15-16 January 2014 and a private seminar in London on 14 July 2014 attended by EU practitioners, academics
and experts. They also draw on the contributions of Conservative MEPs, including, David Campbell-Bannerman
MEP, Vicky Ford MEP, Ashley Fox MEP, Sajid Karim MEP, Timothy Kirkhope MEP, Kay Swinburne MEP, Geoffrey
Van Orden MEP.
2
Executive Summary
There seems little appetite in the rest of the EU for far-reaching treaty change—rightly or wrongly,
leaders across the continent fear opening a Pandora’s Box, and having to ask their people for assent
in a referendum1. So, to achieve significant reform of the EU, the UK government will need to be
creative.
Treaty change is desirable for a number of reasons and a ‘grand bargain’ could still be struck to
secure the rights of the non-euro states in return for the changes needed to firm-up the euro.
Of 13 other significant reforms proposed by the Fresh Start Project to improve competitiveness,
flexibility and democratic accountability, only four of them (ever closer union, policing and criminal
justice, the Charter of Fundamental Rights, and the Strasbourg Circus) could only be achieved by
treaty change—the others could be achieved through other means as the table below summarises.
Substantive reform can be achieved through qualified majority voting (QMV) among national
governments and co-decision with the European Parliament, through unanimity among member
states with the European Parliament’s consent, through ‘inter-institutional agreements’, through a
‘promissory note’ along the lines of that agreed with Ireland following the rejection of the Lisbon
Treaty, or through the EU treaties’ ‘flexibility clause’.
However, there is a clear trade-off between the permanence of treaty change on one hand, and the
relative ease of achieving change through the current structures on the other. This paper examines
these trade-offs. One thing is clear, if the political will is there, there is always a means to make the
change happen.
Area for reform
National parliaments:
greater powers to
enforce subsidiarity
Legal safeguards for
the single market and
Eurozone ‘outs’
End ‘ever closer
union’
Services: liberalise
cross-border EU trade
Within the treaties
Agreement between member states
and the EU institutions, principally the
Commission.
Use flexibility clause to reiterate the
single market obligations of all
member states; expand the use of
double majority voting into ESMA and
EIOPA by amending the regulations
establishing these organisations.
A political declaration to clarify that
‘ever closer union’ does not apply
equally to all member states (e.g. June
2014 European Council conclusions)
Fully implement the existing EU
Services Directive;
Amending the existing Services
Directive to introduce the ‘country of
origin’ principle, by enhanced
cooperation if necessary.
1
Treaty change
Amend the treaties to give more
powers to national parliaments.
Introduce double majority voting at
the Council (possibly limited to
single market issues):
Introduce an ‘emergency brake’ so
a member state can veto proposals
that affect its national interest.
Amend the treaties and preamble
to reflect that ‘ever closer union’
does not apply equally to all
member states.
While it is not certain that a treaty change to meet UK asks would trigger referendums in other parts of the EU, it is still a cause for
concern in other member states.
3
Better regulation
External free trade:
focus on concluding
agreements
Free movement of
persons: Regaining
national control over
access to welfare
benefits
EU budget: reform the
Common Agricultural
Policy (CAP) and
Regional Policy
Social and
employment law:
deregulation and
greater national
flexibility
Policing and criminal
justice law: return to
intergovernmental
cooperation
Human rights: a
secure opt-out from
the Charter of
Fundamental Rights
Energy: greater
national choice of
energy mix
End the European
Parliament’s
‘travelling circus’
2
An inter-institutional agreement or via
case-by-case amendments to
individual EU laws.
Refocus the Commission and increase
resources in the area of trade policy.
Amendments to the EU’s Free
Movement Directive, the Regulation
on the Free Movement of Workers,
the Directive on Enforcement of Free
Movement Rights and the Social
Security Coordination Regulation2
could limit EU migrants’ access to
benefits, social housing and publicly
funded apprenticeships until they had
lawfully resided in their new country
for, say, four years.
Amending secondary EU legislation
relating to CAP and Structural and
Cohesion Funds;
Also need approval of all Member
States in the EU budget.
Reform Directives on a case-by-case
basis;
Inter-institutional agreement to
mitigate the influence of ECJ
judgements;
Develop a regulation to exempt
certain sectors (eg healthcare) from
EU Social and Employment legislation.
Seek amendments to each PCJ
measure to remove ECJ jurisdiction.
Amend treaty provisions on nondiscrimination and citizenship
(Articles 18 & 20-21 TFEU) and the
provisions on workers and social
security (Articles 45,46 & 48 TFEU).
Amend Articles 151-161 TFEU.
Treaty change to remove the UK
from ECJ jurisdiction, and negotiate
international agreements to ensure
operational cooperation.
Treaty change to opt-out from the
Charter of Fundamental Rights
would need to be accompanied by
an opt-out from the ‘fundamental
rights general principles’.
Agreed at October European Council.
Amend the EU Treaty Protocol on
the Location of the Seats of the
Institutions.
Directive 2004/38/EC, Regulation 492/2011/EU, Directive 2014/54/EU and Regulation 883/2004/EC
4
Introduction
If David Cameron becomes Prime Minister following the 2015 General Election, he has tasked any
government he leads with negotiating “a new settlement for Britain in Europe” and putting it to the
electorate in a referendum in 2017. He has said that “Some changes will best be achieved by
alterations to the European treaties – others can be achieved by different means.”3
Many other European governments have expressed enthusiasm for reforming the EU and better
delineating the power balance between Brussels and national capitals. In addition, Germany’s
insistence on the need to establish a stronger legal basis for further eurozone integration suggests
that the EU treaties could be re-opened sooner or later. Nevertheless, many countries remain wary
of wholesale treaty changes and whether a eurozone-led treaty change would coincide with David
Cameron’s timeline remains far from certain. This paper therefore considers a range of reforms to
the EU and how they might be achieved, either by changing the treaties, or through other means.
Mechanisms for change
For the majority of issues, meaningful and substantive reform can be achieved without treaty
change. In many cases this would mean using qualified majority voting (QMV) among national
governments and co-decision with the European Parliament, under which the European Parliament
effectively has a veto over a proposal. In others it might mean unanimity among member states with
the European Parliament’s consent.
In a very limited number of cases, there is no credible alternative to treaty change (see Annex 1 for
details about how to change the EU treaties). There are other mechanisms (see Annex 2) that could
be explored as alternatives to treaty change, such as ‘inter-institutional agreements’, a ‘promissory
note’ along the lines of that agreed with Ireland following the rejection of the Lisbon Treaty in a
referendum, or the EU treaties’ ‘flexibility clause’.
In some cases, there is a trade-off between the greater legal certainty that comes via treaty change
(which are harder to undo) versus reforms that are likely to be more easily negotiable but may also
be more easily reversed.4
3
Writing in the Daily Telegraph, ‘David Cameron: the EU is not working and we will change it’, 15 March 2014;
http://www.telegraph.co.uk/news/newstopics/eureferendum/10700644/David-Cameron-the-EU-is-notworking-and-we-will-change-it.html
4
For analysis by Jean-Claude Piris, former Legal Counsel of the European Council, see
http://proeuropa.org.uk/eu-the-key-demands-of-cameron/#
5
Proposals for reform
National parliaments: greater powers to enforce subsidiarity
Objective:

Give national parliaments, acting together as a group, the power to veto a proposed EU law or
set in motion an amendment to or repeal of existing EU law. There are several ways to
strengthen the role of national parliaments in the EU decision-making process and make sure
that the subsidiarity principle is enforced properly:
o
o
o
The ‘red card’ – This would allow groups of national parliaments to permanently block
unwanted EU legislative proposals, as opposed to the existing ‘yellow card’ mechanism.
The ‘red card’ could also be used to repeal existing legislation.
The ‘green card’ – This would give groups of national parliaments the right to put
forward their own legislative proposals, including suggestions to amend or repeal
existing EU laws.
The ‘late card’ – This would allow national parliaments to scrutinise and raise objections
to draft EU legislation at the end of negotiations between national governments and the
European Parliament.5Further changes could include widening the scope of the ‘card’
procedure so that it can be used against proposals that are disproportionate, not simply
those that raise subsidiarity concerns, introducing a provision extending the deadline
should a threshold be reached, or requiring a two-thirds majority of national parliaments
to approve a measure.
Mechanism(s) within the treaties:
In order to achieve all or any of the above, treaty change would be desirable but not necessary. An
inter-institutional agreement between member states and the EU institutions could have the same
practical effect. Dutch Foreign Minister Frans Timmermans has suggested turning the existing yellow
card “into a red”, meaning that “If one-third of national parliaments raise subsidiarity objections to a
legislative proposal (the yellow card procedure), the commission should not just reconsider, it
should use its discretion to take the disputed proposal off the table.”6 Similarly, the ‘green’ and ‘late’
cards could be introduced through an inter-institutional agreement7.
Mechanism(s) involving treaty change:
While the same practical effect could be achieved through an inter-institutional agreement,
enshrining them in a treaty change would bring greater legal certainty, particularly in front of the
European Court of Justice (ECJ).
5
For further discussion of the ‘green’ and ‘late’ cards see Tweede Kamer, ‘Position paper of Dutch House of
Representatives on Democratic Legitimacy in the EU & the role of national parliaments’, 17 October 2013
6
Writing in the Financial Times, ‘Monnet’s Europe needs reform to fit the 21st Century’, 14 November 2013;
http://www.ft.com/cms/s/0/346f4ff4-4c82-11e3-923d-00144feabdc0.html#axzz3BU3Ckixi
7
Many of these proposals were supported by the European Parliament in the resolution on better law-making,
adopted February 2014
6
Legal safeguards for the single market and Eurozone ‘outs’
Objective(s):



It is vital to Britain’s interests that further Eurozone integration does not impinge on the rights of
those outside the Eurozone or distort the single market.
There is a widespread view that further measures to strengthen the foundations of the Eurozone
will require further integration, either through changes to the EU treaties or possibly via an
intergovernmental ‘eurozone treaty’ outside the EU treaties. The UK must safeguard its interests
in such circumstances.
In addition there is already the potential for discrimination under the existing architecture – the
European Central Bank’s insistence that high-value euro-denominated clearing houses be based
in the euro area illustrates this, although sectoral legislation such as EMIR and CSDR contains
“non-discrimination” clauses that make clear this is not a policy of the EU itself. 8 9
Mechanism(s) within the treaties:
The UK has already achieved a number of legal safeguards to protect the interests of non-euro
members10. It may well be helpful to link these together in one clear amendment. For example, the
EU could adopt a Regulation under the so-called flexibility clause (Article 352 TFEU), whereby the
member states reiterate their willingness to abide by Article 4(3) TEU. The latter establishes that
member states “shall take any appropriate measure […] to ensure fulfilment of the obligations
arising out of the treaties.” These obligations include the establishment of the single market.
However, safeguards achieved via a political agreement or Article 352 would not have the same legal
strength as if they were written into the EU treaties and would rely on ECJ enforcement.
In a more piecemeal fashion, similar to what has been agreed for the European Banking Authority
(EBA), the ‘double majority’ voting system could also be introduced at the European Securities and
Markets Authority (ESMA) and the European Insurance and Occupational Pensions Authority (EIOPA)
8
Also see Chancellor of the Exchequer George Osborne and German Finance Minister Wolfgang Schäuble
writing in the Financial Times, ‘Protect Britain’s interests in a two-speed Europe’, 27 March 2014;
http://www.ft.com/cms/s/0/5265a32e-b5c7-11e3-81cb-00144feabdc0.html#axzz39VEDwQ00
9
Also see Chancellor of the Exchequer George Osborne and German Finance Minister Wolfgang Schäuble
writing in the Financial Times, ‘Protect Britain’s interests in a two-speed Europe’, 27 March 2014;
http://www.ft.com/cms/s/0/5265a32e-b5c7-11e3-81cb-00144feabdc0.html#axzz39VEDwQ00
10
Measures recently introduced include: The UK protocol to the European Treaty which exempts the UK from
the Stability and Growth Pact and prevents any further powers being passed to the ECB without unanimous
approval; a specific exemption from Fiscal Union, by ensuring that the UK is not exempted by fiscal rules on
Debt and Deficit (excludes UK from articles 5-7 of the budgetary framework directive, Directive 2011/85/EU);
The double majority voting mechanism in the European Banking Authority; The specific clauses in the Deposit
Guarantee Directive and the Single Resolution Mechanism Directive which mean that the UK does not need
Banks to pay into bailout funds, but can instead charge banks a direct Levy; the intergovernmental agreement
behind Banking Union's Single Resolution Mechanism which makes it clear that any liability of the European
Institutions under resolution is to be met solely by the Banking union "Ins" and that "Outs" will be reimbursed
in full by "Ins"; the article in the intergovernmental agreement which says that point 3 will be clarified in a
new treaty within a decade.
7
– the EU’s other single financial authorities. That could be achieved by amending the Regulations
establishing ESMA11 and EIOPA12 – but would be subject to co-decision, and the European Parliament
would have a veto over it.
Mechanism(s) involving treaty changes:
Future eurozone-led treaty change could potentially allow for the introduction of a ‘double majority
lock’ – whereby a majority of both eurozone and non-eurozone countries would be needed to pass
legislation – in policy areas likely to be affected by eurozone integration such as banking and finance.
Another option would be a new treaty protocol agreed by the member states and EU institutions –
whereby eurozone countries make an explicit commitment to ‘self-restraint’. If any new
intergovernmental Eurozone treaty were agreed, it would need to state the EU treaties’ and EU
law’s primacy over the Eurozone treaty.
A more radical reform would be to introduce an ‘emergency brake’ – allowing member states to
refer an issue to the European Council (and so unanimity) if they feel it is vital to national interests or
is a threat to the functioning of the single market.13
End ‘ever closer union’
Objective:

The EU treaties should reflect that ‘ever closer union’ is not the goal of all member states, and
the UK in particular.
Mechanism(s) within the treaties:
A political declaration by the member states could clarify the meaning of ‘ever closer union’, perhaps
reiterating that it refers to the “peoples” and not the “states” of the Union. Indeed, in the June 2014
European Council conclusions, EU leaders agreed that “the concept of ever closer union allows for
different paths of integration for different countries, allowing those that want to deepen integration
to move ahead, while respecting the wish of those who do not want to deepen any further.”14
Mechanism(s) involving treaty change:
The process of “creating an ever closer union among the peoples of Europe” is enshrined in the EU
Treaty both in the preamble and in Article 1 TEU. Removing this from the treaties would constitute a
11
Regulation (EU) No 1095/2010
Regulation (EU) No 1094/2010
13
See Open Europe, ‘Continental shift: safeguarding the UK’s financial services trade in a changing Europe’,
December 2011; http://www.openeurope.org.uk/Content/Documents/Pdfs/continentalshift.pdf
14
European Council, Conclusions 26-27 June 2014;
http://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/en/ec/143478.pdf
12
8
major treaty change and the European Parliament’s agreement would be required to avoid a full
treaty convention.
However, a ‘simplified’ treaty change could be used to agree a protocol on how the concept is
applied in general or to certain member states.
Services: liberalise cross-border EU trade, especially in services and digital
Objective:

Further liberalisation of trade in services would be hugely beneficial to the EU economy. Fully
implementing Services Directive and introducing ‘country of origin’ principle could boost EUwide GDP by 2.3%.
Mechanism(s) within the treaties:
This would not require treaty change. The European Commission could be tasked by the member
states with ensuring full implementation of the existing EU Services Directive and better
enforcement by taking cases to the European Court of Justice. European Commission studies show
that ‘best practice’ implementation could boost EU GDP by 1.8%.
Alternatively, amending the existing Services Directive to introduce the ‘country of origin’ principle
would be subject to co-decision and QMV – meaning that the UK would not have a veto over the
revised Directive, and that the European Parliament will have to give its approval.
If agreement at the level of 28 were not possible, the UK could seek agreement among a smaller
group of countries under ‘enhanced cooperation’ (see Annex 2 for details).15
Better regulation
Objective:

Less and better EU regulation and more exemptions for SMEs from one-size-fits-all EU
regulation.
Mechanism(s) within the treaties:
A number of options are available, including: a ‘one in, one out’ rule for EU laws, a ‘sunset clause’ for
all new EU regulations, a stronger impact assessment board, and further exemptions for small and
micro-businesses.
15
Open Europe, ‘Kick-starting growth: how to reignite the EU’s services sector’, April 2013;
http://www.openeurope.org.uk/Content/Documents/kickstartinggrowthEUservices-OE.pdf
9
All this could be put in place by means of an inter-institutional agreement or via case-by-case
amendments to individual EU laws – with the latter subject to QMV and co-decision.
We welcome European Commission President Jean-Claude Juncker's appointment of First VicePresident Frans Timmermans as Commissioner in charge of better regulation. This will potentially be
a positive development, provided the new Commissioner is granted the powers to push through a
real de-regulation agenda. In addition, the High Level Group on Administrative Burdens, chaired by
Edmund Stoiber, former Prime Minister of Bavaria, recently published its final report on cutting red
tape in Europe. This included recommendations that the Commission commit to a net annual target
for reducing regulatory costs and publish annual statement of progress; apply a One in –One out
rule; apply the "think small first" SME test to exempt SMEs and Micro businesses from EU
obligations as far as possible; improve pre-legislative consultation, impact assessment and post
implementation reviews; and only legislate at a European level where this is indispensable.
External free trade: greater focus on concluding agreement
Objective:

The EU place much greater emphasis on completing the negotiation of free trade agreements.
Mechanism(s) within the treaties:
The European Commission could be tasked by member states with opening more FTA negotiations
and given stricter timetables to conclude agreements.
The Commission’s tasks and Directorate-Generals could be refocused, increasing man power in the
area of trade policy where the Commission has been accused by business groups of spreading itself
too thinly in what is an exclusive EU competence.
Free movement of persons: greater national control over access to welfare
benefits
Objective:

Regain national control over EU citizens’ access to state welfare.
Mechanism(s) within the treaties:
Under the EU treaties, EU citizens’ rights to free movement and access to certain benefits are
derived from their status as workers16 and as citizens17. These rights could be further qualified by
amending EU legislation.
16
Article 45 TFEU
10
The recent judgement by the ECJ in the Dano case clarifies that national governments are able to
deny benefits to citizens from another EU member state if they have moved countries “solely” to
claim them. The ruling states that ‘A Member State must therefore have the possibility of refusing to
grant social benefits to economically inactive Union citizens who exercise their right to freedom of
movement solely in order to obtain another Member State’s social assistance.’ Extending this
principle to in-work benefits, such as tax credits and social housing would require changes to EU
legislation.
Amendments to the EU’s Free Movement Directive, the Regulation on the Free Movement of
Workers, the Directive on Enforcement of Free Movement Rights and the Social Security
Coordination Regulation18 could place much stricter qualification periods before EU migrants are
entitled to access state welfare and some public services.
One route could be a new EU ‘Directive on Citizenship and Integration’.19 All EU migrants would only
be entitled to benefits (out of work and in work), social housing and publicly funded apprenticeships
once they had lawfully resided in their new country for, say, four years.
There would have to be limited exceptions to this rule in order to comply with human rights
provisions in the Charter of Fundamental Rights. The children of EU citizens could have the right to
public education prior to that and EU citizens should also have a right to access public healthcare.
But with the latter, the Directive could stipulate that the costs should be borne by EU migrants’ state
of nationality or via private health insurance.
Meanwhile, stopping the payment of child benefit to children not resident in the UK could be
achieved by introducing a residency requirement. All these changes would need to be achieved
through QMV and co-decision.
Further changes that could be introduced at a national level in the UK include moving some benefits
to a contributory system, limiting access to services – especially to non-emergency NHS provision,
further action to prevent cross-border criminal movements including restricting employment in
"CRB-checked" roles to those employees on whom it is possible to get equivalent of a UK CRB check,
stricter use of legal powers to remove those who are not "exercising their treaty rights", for example
those who are not working or seeking work, and stricter enforcement of language testing as
envisaged by revisions to Mutual Recognition of Professional Qualifications.
Mechanism(s) involving treaty changes:
The EU treaties’ provisions on citizenship and the rights of workers mean that regaining complete
national control over welfare systems would likely require treaty changes to the provisions on nondiscrimination and citizenship (Articles 18 & 20-21 TFEU) and the provisions on workers and social
security (Articles 45,46 & 48 TFEU).
17
Article 21(2) TFEU
Directive 2004/38/EC, Regulation 492/2011/EU, Directive 2014/54/EU and Regulation 883/2004/EC
19
See Chalmers, Prof. D., and Booth, S., ‘A European labour market with national welfare systems: a proposal
for a new Citizenship and Integration Directive’, Open Europe, November 2014
18
11
EU budget: reform the Common Agricultural Policy (CAP) and Regional
Policy
Objective(s):

Reduce the EU budget, increase national control and flexibility over agricultural and regional
policy.
o CAP: The budget should be reduced and environmental payments should be tradable to
allow productive land to be intensively farmed and marginal land to be focussed on
environmental stewardship.
o Regional Policy: Regional Development Policy should be decentralised by limiting EU
funds to those member states with GDP per head of less than 90% of the EU average.
Mechanism(s) within the treaties:
For both the CAP and Regional Policy, these reforms could be achieved through amending secondary
EU legislation – via QMV and the agreement of the European Parliament. However, the impact of
these reforms on the EU’s long-term budget, known as the Multiannual Framework and decided by
unanimity, means that in practice each member state will have a veto via the budget negotiations
and therefore careful thought needs to be given to what compensation those who might lose out
should get.
Social and employment law: deregulation and greater national flexibility
Objective:

In the interests of economic competitiveness and the principle of subsidiarity, member states
should have greater flexibility to determine their own mix of social and employment regulation.
Mechanism(s) within the treaties:
One option would be to seek reform or repeal of particularly burdensome EU social and employment
laws (such as the Working Time Directive or the Temporary Agency Workers Directive) on a case-bycase basis. The European Commission could be tasked by member states with a deregulation
programme that targeted specific regulations.
One of the major issues cited by business is the ongoing uncertainty caused by continuous European
Court of Justice rulings on and interpretations of EU legislation. The UK could seek an interinstitutional agreement to establish that EU social and employment law no longer have immediate
justiciable effects.
Article 14 TFEU and treaty protocol 26 ‘on services of general interest’ recognise the special nature
of public services such as healthcare and allow the EU to establish principles about how these
services operate. The UK could seek an EU Regulation exempting certain public services from EU
12
social policy legislation, which could resolve the problems caused by the Working Time Directive’s
application to the NHS.20
Mechanism(s) involving treaty changes:
A full ‘repatriation’ of EU social policy to the member states would require treaty change, which
would require addressing the ‘social policy’ title of the EU treaties.21
The ‘nuclear option’ for the UK would be to request going back to the arrangement in place before
the 1997 Amsterdam Treaty – when Britain had an opt-out from the Social Policy Protocol annexed
to the Maastricht Treaty.
Policing and criminal justice law: intergovernmental cooperation
Objective:


Return to intergovernmental cooperation in policing and criminal justice.
Remove ECJ jurisdiction in this area.
Mechanism(s) within the treaties:
The UK Government could try to secure individual opt-outs from EU laws as they are amended on a
case-by-case basis in order to remove ECJ jurisdiction. However, this would be a lengthy process,
depend on the laws in question coming up for amendment and it is not clear to what extent the ECJ
would respect the new opt-outs.
Mechanism(s) involving treaty change:
Full repatriation of this policy area would require treaty change. Once opted out of EU legislation on
crime and policing the UK could seek to negotiate international agreements with the EU/individual
member states to ensure operation cooperation outside the jurisdiction of the European
Commission and the European Court of Justice.22
20
See Fresh Start, ‘The EU and the NHS: the impact of the Working Time Directive and language requirement
on doctors in the NHS’, November 2012; http://www.eufreshstart.org/downloads/eunhs.pdf
21
Articles 151-161 TFEU
22
The Government noted in its command paper on the 2014 policing and criminal justice opt-out that “in
principle, bilateral or multilateral agreements - either with the Member States individually or collectively –
would be legally possible” with authorisation from the EU institutions. HMG, Command Paper 8671, July 2013.
P80; https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/235912/8671.pdf
13
Human rights: a secure opt-out from the Charter of Fundamental Rights
Objective:

A secure opt-out from the Charter of Fundamental Rights.
Mechanism(s) within the treaties:
It would be practically impossible for the UK to secure a watertight opt-out of the EU’s Charter of
Fundamental Rights absent treaty change, given that the Charter is effectively embedded in the EU
treaties. Absent treaty change, the option of a political declaration or inter-institutional agreement
could potentially limit the influence of the Charter. In addition, the proposal for a British Bill of Rights
could give the UK Supreme Court greater freedom to refer to these rights as opposed to those in the
Charter. However, a political agreement would not be legally binding – and would probably do very
little to influence the way the ECJ interprets the Charter and these rulings have effect across the
entire EU.
Mechanism(s) involving treaty change:
An opt-out could only be achieved through EU treaty change. It should be noted that an opt-out just
from the Charter would not deal with ‘fundamental rights general principles’ which are a distinct
element of EU law, and through which all the Charter rights could effectively apply to the UK if the
UK did not have an opt-out from those too.
Energy: greater national choice of energy mix
Objective:

Give national governments the freedom to choose their own energy mix within an agreed EU
emissions reduction framework by removing binding EU renewable targets.
Mechanism(s) within the treaties:
In terms of blocking any new binding targets under the EU’s Renewable Energy Directive post-2020,
which will be under negotiation from autumn 2014, the Government should argue that the veto
applies under Article 192(2)(c) TFEU, given such targets are “measures significantly affecting a
Member State’s choice between different energy sources and the general structure of its energy
supply”. However, the current Directive was adopted on the environment legal base entailing
qualified majority voting. If necessary, the UK could challenge at the ECJ any attempt to push
through new targets using this legal base.
As for amending the existing targets up to 2020 under Renewable Energy Directive, this would
require the agreement of the Commission and European Parliament as well as a qualified majority of
Member States. Alternatively, the UK could seek a political agreement among the member states
and the European Commission to abandon the targets.
14
End the European Parliament’s ‘travelling circus’
Objective: The European Parliament should have only one seat.
Mechanism(s) involving treaty change:
While not accounting for a large part of the EU’s budget, moving the seat of the European
Parliament from Brussels to Strasbourg on a regular basis is widely viewed as an iconic waste of
money. Changing this could only be achieved through treaty change. The EU Treaty Protocol on the
Location of the Seats of the Institutions specifies that the seat of the European Parliament is
Strasbourg, where “the 12 periods of monthly plenary sessions” shall be held. What’s more, the
Protocol goes on to require the committees of the Parliament, and any additional plenary sessions,
to meet in Brussels, so it would not be possible to move everything to Strasbourg without treaty
change.
15
The European Court of Justice: the elephant in the room?
The European Court of Justice plays a crucial role in ensuring compliance with EU law on the part of
both member states and the EU institutions. It also is supposed to act as a check on the other EU
institutions. However, the ECJ has also been a major driver of integration and its credibility to act in
defence of subsidiarity or to police the powers of the EU institutions vis-à-vis the member states is
therefore lacking. There are a number of ways the ECJ’s role could be reformed to address these
shortcomings:23
An override mechanism: In its recent subsidiarity review, the Dutch government proposed that
where the ECJ has interpreted EU law in a way that the member states clearly did not intend it
should be possible for member states, via the European Council, to reverse this either by striking
down the ruling itself, or by asking the Commission to prioritise re-drafting the underlying
legislation. In principle member states can already do this, but there is no formal mechanism which
could streamline the process.24
Greater recourse to national interpretation of EU law: Another suggestion made by Professor
Damian Chalmers is to make greater use of the accumulated legal expertise already existing at the
national level. As such, the ‘preliminary reference’ procedure – where national courts forward cases
for consideration to the ECJ – would be replaced by an EU-wide database of judgements concerning
points of EU law which would be translated into all the EU languages. Judges in the EU countries
interpreting EU law would then be required to consider rulings in the database on the provision in
question – but they could also give reasons why it would not be suitable for their jurisdiction,
bearing in mind the obligations of EU membership.25
A new chamber of national judges: Another suggested alternative is that cases of particular
importance and/or sensitivity should be heard by a new chamber composed of judges from national
Constitutional Courts. One specific variant of this would be a ‘subsidiarity court’ in which national
judges/legal experts would consider whether the Commission has overstepped its legal bounds in
cases of new and existing legislation.26
23
See APPG on European Reform, ‘Inquiry into Democratic Accountability, Scrutiny and a new EU architecture
for the 21st Century’, 2014
24
Dutch government, ‘Testing European legislation for subsidiarity and proportionality – Dutch list of points for
action’, 21 June 2013; http://www.government.nl/documents-and-publications/notes/2013/06/21/testingeuropean-legislation-for-subsidiarity-and-proportionality-dutch-list-of-points-for-action.html
25
See Prof Damian Chalmers on the LSE EUROPP blog, ‘The European Court of Justice is now little more than a
rubber stamp for the EU. It should be replaced with better alternative arrangements for central judicial
guidance’, 8 March 2012: http://blogs.lse.ac.uk/europpblog/2012/03/08/ecj-rubber-stamp-replacement/
26
Clingendael and the Centre for European Policy Studies, ‘From Subsidiarity to Better EU Governance:
A Practical Reform Agenda for the EU’, March 2014;
http://www.clingendael.nl/sites/default/files/Clingendael%20CEPS%20From%20Subsidiarity%20to%20Better%
20EU%20Governance.pdf
16
Annex 1: How to change the EU treaties
There are several different procedures to change the EU treaties but the two most relevant for any
UK renegotiation are the so-called ordinary revision procedure and simplified revision procedure.
The former is more onerous and can be used to change any aspect of the treaties while the latter
can only be used to make changes to the part of the treaties that deals with the EU’s internal policies
and must not increase the EU’s competence (Part Three of the Treaty on the Functioning of the
European Union).
Ordinary revision procedure (Article 48(2) TEU)
Step 1:
Any national government, the European Parliament or European Commission can make a proposal
for treaty change. The European Council (heads of state or government) votes whether to examine
the proposal – a simple majority amongst EU member states is required to proceed to the next step.
Step 2(a)
The default scenario is that a Treaty Convention composed of representatives of national
parliaments, heads of state or government of the member states, the European Parliament and the
European Commission, is called to debate the proposals. National leaders can vote by simple
majority to skip this stage but the European Parliament must also agree to do so.
Step 2(b):
Following a Convention (or not), EU leaders then meet to debate and agree the proposed changes by
unanimity at an Intergovernmental Conference (IGC).
Step 3:
Treaty changes must be ratified under the domestic law of all member states in order to take effect.
In some countries this could require a referendum, depending on the extent and content of the
treaty change.
Simplified revision procedure (Article 48(6) TEU)
Step 1:
Any national government, the European Parliament or European Commission can make a proposal
for treaty change.
Step 2:
Because it does not constitute ‘full blown’ treaty change, the process simply requires the European
Council (heads of state or government) to agree and approve by unanimity the proposed treaty
amendments, after consultation with the European Parliament.
Step 3:
Treaty changes must be ratified under the domestic law of all member states in order to take effect.
In some countries this could require a referendum, depending on the extent and content of the
treaty change.
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Annex 2: EU reform mechanisms not involving treaty changes
1. Inter-institutional agreements
Inter-institutional agreements are concluded between the Council of Ministers (representing
national governments), the European Commission and the European Parliament. These agreements
can be binding, and their legal basis is Article 295 TFEU.
A typical example is the inter-institutional agreement that Council, Commission and Parliament sign
in coincidence with the beginning of a new seven-year EU budget period.27 Another example is the
1993 inter-institutional agreement on the implementation of the subsidiarity principle. This
agreement established that,
“The three institutions shall, under their internal procedures, regularly check that action
envisaged complies with the provisions concerning subsidiarity as regards both the choice of
legal instruments and the content of a proposal.”28
This type of arrangement could be used, for instance, to introduce the ‘red card’ system. However,
in order for inter-institutional agreements as envisaged by Article 295 TFEU to be concluded, the
involvement of the European Parliament is necessary.
2. ‘Enhanced cooperation’
Enhanced cooperation has been used only three times so far, once for trans-EU divorce law, once for
European patent law and for a financial transactions tax. It allows a minimum of nine countries that
wish to continue to work more closely together to do so, while respecting the EU treaties.29 The
Member States concerned can thereby move forward at different speeds and/or towards different
goals. It has only been used in order to further integration.
3. European Council conclusions (the Irish case)
Political agreements among EU member states can be written into European Council conclusions.
Following the rejection of the Lisbon Treaty by Irish voters in the June 2008 referendum, Ireland was
given a number of reassurances that a few sensitive issues would not be affected by the entry into
force of the new treaty. Those pledges were all included in the conclusions of the December 2008
European Council – and were later turned into legally binding acts.
a. Taxation, defence and family policy
The December 2008 European Council conclusions were used to promise Ireland that:



The EU would not gain more powers on taxation policy under the Lisbon Treaty;
The Lisbon Treaty would not force Ireland to give up its military neutrality;
The Lisbon Treaty would not affect Ireland’s national sovereignty on issues such as abortion,
education and family policy.
27
http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%2011298%202013%20INIT
http://europa.eu/rapid/press-release_PRES-93-171_en.htm
29
See Article 20 TEU and Articles 326 to 334 TFEU
28
18
EU leaders agreed to give Ireland “the necessary legal guarantees” on these three points. In return,
the Irish government committed itself to ratifying the Lisbon Treaty before the end of the term of
the Barroso I Commission.30
The political agreement was followed by a European Council Decision adopted by EU leaders at the
June 2009 summit.31 The Decision was then turned into a specific ‘Irish protocol’ to be annexed to
the Lisbon Treaty. The protocol was signed at an Inter-Governmental Conference (IGC) in May 2012,
after the European Parliament had given its consent that a fully-fledged Convention to amend the
Lisbon Treaty was not needed.32
b. Number of EU Commissioners
Ireland was also promised that the EU would continue to have one Commissioner per member state
if the new treaty entered into force.
The Lisbon Treaty establishes that,
“As from 1 November 2014, the Commission shall consist of a number of members, including
its President and the High Representative of the Union for Foreign Affairs and Security Policy,
corresponding to two thirds of the number of Member States, unless the European Council,
acting unanimously, decides to alter this number.”33
However, the conclusions of the December 2008 European Council stated that,
“The European Council agrees that provided the Treaty of Lisbon enters into force, a decision
will be taken, in accordance with the necessary legal procedures, to the effect that the
Commission shall continue to include one national of each Member State.”34
In other words, Ireland was promised that one specific provision of the Lisbon Treaty would not
apply before the treaty even entered into force. The European Council followed up on its pledge
with the adoption of a Decision in May 2013, establishing that “the Commission shall consist of a
number of members […] equal to the number of member states.”35 The Decision does contain a
review clause, but Ireland will have a veto over possible changes.36
30
http://consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/104692.pdf
http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/108622.pdf
32
http://www.publications.parliament.uk/pa/bills/cbill/2012-2013/0076/en/13076en.htm
33
Article 17(5) TEU
34
http://consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/104692.pdf
35
European Council Decision 2013/272/EU of 22 May 2013: http://eur-lex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:32013D0272&from=EN
36
Article 2 of the Decision establishes that the European Council “shall review this Decision […] in sufficient
time in advance of either the appointment of the first Commission following the date of accession of the
thirtieth Member State or the appointment of the Commission succeeding that due to take up its duties on 1
November 2014, whichever is earlier.”
31
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4. The ‘Edinburgh Agreement’ and the Danish opt-outs
Danish voters rejected the Maastricht Treaty in a referendum held in June 1992. As a result, the
European Council adopted a Decision in December 1992 addressing some of the concerns raised by
Denmark on the new treaty.37
The Decision touched upon four areas: EU citizenship, Economic and Monetary Union, defence
policy and justice and home affairs. The Decision can broadly be seen as interpreting the Maastricht
Treaty, rather than adding/changing it. Therefore, it can be an interesting precedent for the UK as
regards the interpretation of the EU treaties. However, it remains to be seen whether this type of
political agreement can be used as an alternative way to change the treaties and effectively bypass
the European Parliament. In the case of Ireland, the follow-up was the drafting of a specific protocol
– but the latter has been added to the Lisbon Treaty via the simplified revision procedure only after
the European Parliament gave its consent not to hold a fully-fledged Convention.
5. Fiscal treaty (intergovernmental treaties)
The Treaty on Stability, Coordination and Governance in the Economic and Monetary Union (aka the
‘fiscal treaty’) was signed in March 2012 by all EU member states except the UK and the Czech
Republic. It is an intergovernmental treaty aimed at strengthening budget discipline and economic
surveillance within the Eurozone.
The advantage of intergovernmental treaties is that the European Parliament does not have to be
involved in the process, although it has continued to argue that the fiscal treaty should be
incorporated into Union law.. However, the fiscal treaty may not be a useful precedent for the UK
because it adds further provisions to the existing EU treaties. It goes in the direction of more
integration, not less. It is also not in the UK’s interests for the Eurozone to use intergovernmental
treaties to circumvent EU processes.
6. Flexibility clause (Article 352 TFEU)
Article 352 TFEU (aka the ‘flexibility clause’) can be used to pass legislation “to attain one of the
objectives set out in the [EU] treaties” in cases where “the treaties have not provided the necessary
powers”. Under Article 352, national ministers must adopt the new measures by unanimity following
a proposal from the European Commission. The European Parliament must also give its consent. The
‘flexibility clause’ cannot be used to adopt EU foreign policy measures.
The ‘flexibility clause’ can potentially cover a wide range of areas. However, it has only been used in
a very limited number of cases since the entry into force of the Lisbon Treaty, including:38
37
http://www.euo.dk/fakta_en/denmark/edinburgh/?print=1
38
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/324453/Call_for_Evidence_
Subsidiarity_and_Proportionality_FINAL_26_3_14.pdf
20



Legislation to recognise electronic versions of the EU’s Official Journal as authentic and
legally binding;
A decision to give the EU historical archives at the European University Institute in Florence;
For a decision to adopt a “Europe for Citizens” programme.
Furthermore, Declaration 42 annexed to the Lisbon Treaty clearly states that,
“In any event, [Article 352 TFEU] cannot be used as a basis for the adoption of provisions
whose effect would, in substance, be to amend the Treaties without following the procedure
which they provide for that purpose.”
Therefore, it could be hard to use the ‘flexibility clause’ to adopt measures that are effectively
equivalent to a treaty change. However, as ever, if the politics require it, a legal means is likely to be
found.
21