Gian Luigi Tosato The EU-UK deal: legal issues Luiss SEP 1 March - PDF document

Gian Luigi Tosato The EU-UK deal: legal issues Luiss SEP 1 March 2016 1 Gian Luigi Tosato Introductory Remarks Three basic questions:  What is the legal nature of the Package?  What are its legal effects?  Is it compatible with (i) the EU Law and (ii) the MS internal law? Gian Luigi Tosato 2 1

Composition of the Package The Package consists of:  Two acts of the Heads of States or Government (MS acts)  Five Declarations (i) one of the European Council (EC) (ii) four of the Commission  The conclusions of the EC meeting (18-19 February 2016) (EC Conclusions) 3 Gian Luigi Tosato Legal nature of the MS acts (1) The MS acts:  The Decision of the Heads of State or Government meeting within the EC (the MS Decision)  The Statement of the Heads of State or Government containing a draft Council Decision (the MS Statement) Gian Luigi Tosato 4 2

Legal nature of the MS acts (2)  The MS acts are not: • a decision of the EC, as an institution of the EU under article 15 TEU • a revision of the EU Treaties under article 48 TEU (possibly a future revision; MS Decision, section A.7 and section C.11)  They are international law agreements concluded in a simplified form 5 Gian Luigi Tosato Legal nature of the MS acts (3)  Valid and binding agreements under international law  Denomination and how the consent is expressed is irrelevant (Vienna Convention on the Law of the Treaties, articles 2.a and 11)  No need for ratification (Vienna Convention, articles 12 and 14)  Binding nature confirmed by EC Conclusions (point I.3.iii) and MS Decision (Section E.2)  Entry into force (notification of “Remain” vote)  Amendments or termination (only by common accord or in case of a “Leave” vote) Gian Luigi Tosato 6 3

Legal nature of the MS acts (4) Specific Precedents  The 1992 Decision on Denmark (ratification of the Maastricht Treaty)  The 2009 Decision on Ireland (ratification of the Lisbon Treaty)  The 2009 Czech Protocol (ratification of the Lisbon Treaty) General Precedents  Decisions of the Member States within the Council (ECJ judgement 30 June 1993, case C-181/91 and C- 248/91) 7 Gian Luigi Tosato Legal effects of the MS acts (1)  Instrument for the joint interpretation of the Treaties  Commitments with respect to certain arrangements • legal obligations • best effort obligations Gian Luigi Tosato 8 4

Legal effects of the MS acts (2)  Interpretative instrument (ECJ judgement 2 March 2010, Rottmann case, on Denmark Decision)  Provision of the Treaties concerned (MS Decision, MS Statement) • Economic governance (more than one EU currency, respect of competences, rights of “outs”, no financial liabilities of outs for Eurozone measures and so forth) • Competitiveness (to be enhanced, better and less regulation, lower administrative and compliance costs and so forth) • Sovereignty (ever closer union not-binding, no legal basis for extending EU competences, different path of integration and so forth) • Social Benefits, Free Movement (MS competences on these matters, free movement limitations for public policy and public interest reasons, sustainability of social benefits and so forth) 9 Gian Luigi Tosato Legal effects of the MS acts (3) Commitments:  Legal obligation to cause the Council • to adopt the draft Decision contained in the MS Statement (establishing a “brake” not a “veto” mechanism with respect to financial legislation) • to discontinue consideration of draft legislative acts opposed by 55% of NPs (red card) (MS decision, section C.3)  Best effort obligations • to monitor, review, and support the implementation of arrangements set out in the MS Decision • in particular, to ensure priority and rapid adoption of legislative changes on social benefits and free- movement Gian Luigi Tosato 10 5

Legal nature and effects of the Declarations (1)  Declarations are (atypical, not listed in article 288 TFUE) acts of the relevant EU institutions  The EC Declaration on competiveness, like all EC declarations, has a strong political effect but is not legally binding  The Commission Declarations clarify how the Commission intends to interpret certain rules of EU law or initiate legislation on competitiveness, social benefits, and free movement  Like communications (notices), they are not formally binding but create a bona fide commitment for the Commission to implement them 11 Gian Luigi Tosato Legal nature and effects of the Declarations (2)  Effective subject to a “Remain” vote and deprived of any effects in case of a “Leave” vote  In derogation to the above, the UK is authorized to immediately trigger the safeguard mechanism against an exceptional inflow of EU workers (Commission Declaration on the Safeguard Mechanism) Gian Luigi Tosato 12 6

Compatibility of the Package with EU Law (1) MS Acts  Extra-UE agreements not per se prohibited (Pringle Case)  No breach of the Treaties revision procedure  Respect for powers of the EU institutions, and legislative and budgetary procedures (MS Decision, Preamble)  Asserted full compatibility with EU law (EC Conclusions; MS Decision, Preamble) – Interpretation in conformity with EU law  EP: excluded from MS Decision procedure, but EP members views taken into account; no prejudice to EP competences  ECJ: no jurisdiction on disputes between MS on MS Decision (EC only competent), jurisdiction over conflicts (if any) of the MS Decision or the related legislation with EU law Declarations  No compatibility problem • issued by competent EU institutions • implementation subject to ECJ review 13 Gian Luigi Tosato Compatibility of the Package with EU Law (2) Two delicate issues  The “brake” mechanism under the MS Statement • Council’s competence to govern its activities under articles 16 (4) TEU and 238 (2) TFEU • No prejudice to MS Decision on Council’s voting arrangement under art. 18 of the SRM regulation (Ecofin meeting 18 December 2013) • EC general competence under the Treaty (article 15,1 TEU) and the MS Decision (Section E.1)  The “red card” mechanism • Amendment of Lisbon Protocol 2 ? • Freedom of the Council to stop discussing any legislative proposals? • Freedom of MS to coordinate their voting in Council? • Precedents: Fiscal Compact ( art. 7), MS Decision within Ecofin of 18 December 2013. 14 Gian Luigi Tosato 7

Compatibility of the MS acts with national laws of the MS  International agreements concluded in simplified form generally admitted, subject to limitations  Limitations to be assessed under each national law  Under the Italian Constitution, the simplified form is prohibited for treaties requiring parliamentary approval (Constitution, article 80) 15 Gian Luigi Tosato Concluding Remarks  MS acts are binding international law agreements, having the effect to both create an interpretative instrument of the Treaties and produce legal and best efforts obligations for MS  The Declarations are atypical acts of the EU, not formally binding but entailing a bona fide obligation of the issuing institution to properly implement them  The Package Deal does not appear to be in conflict with EU law; compatibility with national laws is to be assessed on a case by case basis Gian Luigi Tosato 16 8