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

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Gian Luigi Tosato

The EU-UK deal: legal issues

Luiss SEP 1 March 2016

Gian Luigi Tosato

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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?

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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)

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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)

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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

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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)

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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)

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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

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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
• f competences, rights of “outs”, no financial liabilities of
• uts 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) Gian Luigi Tosato

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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
• pposed 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

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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

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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

• f

EU workers (Commission Declaration on the Safeguard Mechanism)

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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
• nly 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

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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.

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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)

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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