To be binding or not to be binding? The delicious Cameron/Gove legal controversy about the EU–UK deal

The Brexit debate promises to be conceptually delightful. Within days of the European Council agreement, the prime minister and the secretary of state for justice of the United Kingdom were already busily defending completely opposite visions of the EU–UK deal.

(Photo credit: Council of the EU)

*****

To Be Binding or Not To Be Binding? The Delicious Cameron/Gove Legal Controversy About the EU–UK Deal 

The Brexit debate promises to be conceptually delightful. Within days of the European Council agreement, the prime minister and the secretary of state for justice of the United Kingdom were already busily defending completely opposite visions of the EU–UK deal.

Before tackling the heart of matter, one needs to emphasise clearly that this is a toxic controversy. Even EU law specialists are far from unanimous about the agreement’s impact. One thing that everyone can foresee is that if two important British ministers already diverge on this, obviously many ministers from many EU countries could very easily do the same. Due to the very mediocre nature of the present EU leadership and the dumb objectives defined by Cameron, only a complete fudge could provide an agreement. Unfortunately, uncertainties linked to EU legal fudges have a tendency to return over and over again. This is hardly the time to increase the (already deep) legal complexity around the functioning of the European Council and the development of the eurozone.

This being said, the general framework of the deal is not that difficult to understand, provided the concepts are defined with precision. The EU is based on two main treaties. These treaties may only be modified through specific and quite formal procedures. The European Council may take some implementation decisions foreseen by the treaties. The Member States may also adopt international agreements in the framework of the European Council. Both decisions may complete and interpret the treaties, but they may NOT modify them. In this context, the European Court of Justice controls the respect of the treaties’ principles and procedures.

For Gove, ‘the court is not bound by this agreement until treaties are changed and we don’t know when that will be’ and ‘Ultimately it will decide on the basis of the treaties and this deal is not yet in the treaties’. For Cameron, ‘Britain’s new settlement in the EU has legal force and is an irreversible international law decision that requires the European court of justice to take it into account.’^[1]

So, who is right: Cameron or Gove? Neither of them, in fact. However, Gove’s false presentation has limited practical importance. Cameron’s, on the other hand, has a fundamental practical importance. The EU–UK deal comprises seven parts. It is an international deal, made by governments in the framework of the European Council. In this sense it is binding, like any executive agreements. However, the legal strength of this agreement is quite limited. Furthermore, no court will be able to guarantee its execution to the United Kingdom. Firstly, it is an international agreement of second or third category, generally submitted to EU law. Secondly, the deal expressly indicates that it is meant to conform to the EU treaties, and thus to the principles mentioned above. When J. Wright declares that ‘this is one of those agreements, with equivalent legal force to other agreements such as treaties’, he is thus quite economical with the legal truth. All treaties are not the same.

Basically, the deal says three things. (1) Some provisions will be revised later in the EU treaties. This is a simple promise for the future, depending on undefined modalities. (2) Some EU legislation regarding migrants and the eurozone will be revised. Again, this is a promise, depending this time on the EU legislative authorities. (3) Some texts establish a modus vivendi for the Council. Areas (2) and (3) remain subordinated to the treaties, and thus to the control of the European Court of Justice. In particular, people will be able to contest judicially all acts adopted (or their implementation) in the domains of migrants and the eurozone in front of the Court of Justice. There will be very strong arguments linked to discrimination, as emphasized by the European Parliament’s president when he said that ‘two workers, both EU nationals, both paying the same taxes, doing the same work, would for a certain time not be paid the same’ (in fact it would even be worse, since they would receive a different treatment, both for social subsidies and taxes).

It is thus rather fun to read A. Dashwood’s conclusions, piously supporting Cameron, in which ‘the reform package … is legally binding to the extent that it needs to be, and irreversible in practice.’[2] Practical irreversibility is not, as even non-lawyers can guess, a legal concept. A conditional binding character linked to some undefined necessity is unclear.

The best synthesis came from A. Ridout for the Commons European Scrutiny Committee:

• The renegotiation package is based on an international agreement which is binding in international law (which means it lacks the enforcement mechanisms of EU or domestic law). Any such agreement must conform to EU law. To the extent it does not EU law prevails.
• The international agreement is ‘irreversible’ in the sense that it can only be repealed or amended by common accord of the parties, but that does not have the effect of removing the legal uncertainties highlighted by this note i.e. there is no legal guarantee that the Decision will produce all the results envisaged.

• This international law agreement does not purport to change the Treaties, only clarify or supplement them. Any such clarifications of the Treaties, and the consistency with the Treaties of supplemental agreements, are subject to the view of the Court of Justice of the European Union (CJEU) because it is the ultimate interpreter of the Treaties.
• There are two areas where Treaty change is envisaged, in each case to ‘upgrade’ clarifications to Treaty level. Any such upgrade limits the scope for the Court of Justice to give an adverse judgment.
• Both areas of future Treaty change lack detail and urgency; and are in any event conditional, as they must be, on the approval/ratification of the Member States. This makes any future Treaty change vulnerable to a change in government or an adverse referendum result in another Member State.

In a nutshell, all this is far from simple, far from sure, and far from exempt of the control of the European Court of Justice. Area (1) is submitted to all the unknowns of a future treaty negotiation. Area (3) is the less problematic, in fact. Most probably, the Court of Justice will not intervene in areas (1) and (3). However, its interventions in the adoption and implementation of all future EU legislations are most likely.

Three things are clear, however. First, Cameron’s description of the deal is disingenuous. This is highly dangerous since it will allow Brexit partisans to plead, now and later, that the referendum is being manipulated by the feeding of false information to the public. Second, this deal is going to open a new big can of legal worms in the years that follow. Third, the EU is entering a very dark phase of its history if it is unable to settle such conflicts in a more rational way, because this one certainly won’t be the last.

[1]See J. Rozenberg, ‘Who’s right on the legal status of the EU deal, Cameron or Gove?’,Guardian, 24 February 2016.

[2]Guardian, 25 February 2016.

Charles Secondat

The copyright of this commentary belongs to the Egmont Institute. It can be quoted or republished freely, as long as the original source is mentioned.?