This is genuinely a tough call.
As someone who spent ten years as a Member of the European Parliament, I know that whilst the words "Ever Closer Union" rarely appear in European Court judgements, what they signify does form a big part of the DNA of European Commission officials. These three words, along with "in the spirit of the Treaties", are the default mindset of people drafting EU directives and regulations and so, as far as I am concerned, removing them (if this is possible) from the EU Treaties would be a good thing. Whether, though, the removal of these words would actually change the mindset is a completely different matter.
Below is a short briefing on "Ever Closer Union" and the increasingly important "Ioannina Compromise."
- The Words “Ever Closer Union” have been cited by the ECJ 23 times since 2005 out of an all-time total of 53 citations.
- The words “Spirit of” the Treaties have been used 554 times by the ECJ to push integration.
- Removing the words would require Treaty Change.
- Removing the words in the context of safeguarding the rights of non-euro states in the face of Eurozone integration may have some utility as a part of a wider package of safeguards or reform of the ECJ.
What has David Cameron promised to do?
David Cameron’s Bloomberg Speech 23 January 2013
“The European Treaty commits the Member States to “lay the foundations of an ever closer union among the peoples of Europe”. This has been consistently interpreted as applying not to the peoples but rather to the states and institutions compounded by a European Court of Justice that has consistently supported greater centralisation. We understand and respect the right of others to maintain their commitment to this goal. But for Britain - and perhaps for others - it is not the objective. And we would be much more comfortable if the Treaty specifically said so freeing those who want to go further, faster, to do so, without being held back by the others.”
Conservative Party Manifesto 2015
“And we want an end to our commitment to an ‘ever closer union,’ as enshrined in the Treaty to which every EU country has to sign up.”
Occurrences of the “Ever Closer Union” in the EU Treaties:
History of the wording:
1957: “Determined to lay the foundations of an ever closer union among the peoples of Europe …..”.
1983: “ever closer union among the peoples and Member States of the European Community.” (Council Conclusions)
1986: ““MOVED by the will to … transform relations as a whole among their States into a European Union”
1992: ““RESOLVED to continue the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as closely as possible to the citizen in accordance with the principle of subsidiarity”.
[The failed EU constitution did not contain and explicit reference in the main body of the text, but did in the preamble to the Charter of Fundamental Rights.]
Current wording post Lisbon Treaty
- “PREAMBLE [TEU]
RESOLVED to continue the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as closely as possible to the citizen in accordance with the principle of subsidiarity,”
- “Article 1 [TEU]
“ This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen.
- PREAMBLE [TFEU]
DETERMINED to lay the foundations of an ever closer union among the peoples of Europe,
- PREAMBLE to CHARTER OF FUNDAMENTAL RIGHTS
“The peoples of Europe, in creating an ever closer union among them, are resolved to share a peaceful future based on common values.”
In addition to these words there are a number of similar general expressions in addition to the express powers to harmonise given in the Treaties, for instance:
“It shall promote economic, social and territorial cohesion, and solidarity among Member States.”
To what effect has the ECJ used the words “ever closer union” to drive integration?
Ever Closer Union has been cited by the ECJ 23 times since 2005 out of an all-time total of 53 cases, of these cases a significant number relate to requests for access for documents.
Dr Gunnar Beck has pointed out in 2012, the “spirit” of closer union is much more often referred to in Court of Justice rulings:
“… if the case law search …. is broadened from the expression ‘ever closer union’ to include the words ‘spirit of’ and ‘spirit and’ there are 554 cases during the same reference period”
How to make the reform more effective?
If removing the words in themselves would not significantly alter the jurisprudence of the ECJ, how could removing the words “Ever Closer Union” be made to mean something?
- It could be a part of other agreements that protect the UK from the effects of Ever Closer Union within the Eurozone?
- If the words are removed they could be replaced by other words that set out the limits of EU integration.
- Removing the words could be done in tandem with reform of the ECJ to reverse its role as a motor of EU integration?
It goes without saying that removing the words from the EU treaties and Charter of Fundamental rights would require treaty Change to be effective.
If a political agreement would suffice we already have one: “the European Council noted 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.”
Postscript: Maastricht Treaty Federal v Ever Closer Union
At the time of the Maastricht negotiations Prime Minister John Major objected to the proposed wording of a closer European Union with 'a federal goal.'
Former head of the European Movement Ernest Wistritch has argued that “John Major's strenuous objections to 'a federal goal' led to the adoption of 'an ever closer union' implying a much closer centralised system, though somewhat ameliorated by applying to it the principle of subsidiarity.”
Despite the wording already existing in the treaties, it is unclear whether inserting the words federal would have actually led to better protections for member states. The word Federal can have numerous meanings, most applicable to sovereign states. Although in Germany and the USA a federal System backed up by a Court safeguards (or is supposed to safeguard) states’ rights where by default powers are exercised from the top, in the European Union the opposite is supposed to be the case – the EU only acting if expressly given the power. It is therefore arguable that the words Federal may those have led to the ECJ transferring more powers moving to the centre by default.
A model for a non-euro safeguard?: The Ioannina Compromise
- A 1994 political decision most recently formalised in a 2009 Council Decision designed to allow failed blocking minorities a second chance to gain agreement.
- It does not overrule the EU Treaties, and has reportedly been used only once relating to Portuguese Sardines, the FCO has no record of it being used.
- It could potentially be amended to allow a “non-Euro” minority the right to get a second hearing in the European Council.
Originally a 1994 Council Decision the Ioannina Compromise was resurrected during the Lisbon Treaty negotiations at the bequest of Poland following a bitter dispute with Germany over voting weights. It was attached to the Lisbon Treaty as a Declaration (a political decision not a part of the actual Treaty). The Declaration included a draft Council Decision – the actual Council Decision was latter taken in 2009.
The Council Decision is a political agreement to take into account the concerns of states constituting a failed blocking minority. The stipulation on what proportion of a failed minority is necessary starts at 75% and drops to 55% from 2017. A failed minority has a commitment that other Council Members to re-discuss the issue and try and reach an agreement.
Draft Decision Text attached to the Lisbon Treaty (same as actual Decision emphasis added):
Does it work to protect outvoted minorities?
- It is unclear whether it has ever been used. The FCO has no records of it being used since 1994 or in its more recent form. It has however reportedly been used once in a dispute over Portuguese sardines.
- It is a political agreement, the Declaration has no legal force and although a Council Decision is a legal instrument it does not overrule QMV or the Treaties. Although attached to the Lisbon Treaty (and an earlier version to the Amsterdam Treaty) it is not a part of the Treaty.
- It is only an agreement to attempt to reach an agreement within a “reasonable time”.
Why could this be relevant to the Prime Minister’s re-negotiation?
- As the Council Decision is not a part of the Treaties, to change it would not require Treaty Change. It could be claimed that wording attached to the Lisbon Treaty has been “changed” but that is semantics.
- I suspect the Prime Minister’s “non-Euro State” safeguard, could be inserted as an amendment to the Council Decision, by adding a non-euro states qualification to allow matters to be discussed again. This would not be harmful, but would not change the power dynamics of actual decision making.
- It is difficult to see when a non-euozone safeguard of this type might be viable, given the non-cohesive appearance of non-Euro states. Denmark and the UK have formal opt outs, yet Denmark has a currency peg to the Euro. The Czech Republic also has a currency peg, others wish to join the Euro or the Banking Union. Poland on migration quotas recently showed it was capable of cutting a separate deal with Germany.
The FCO has no records of it being used.
Original Version Council Decision of 29 March 1994:
“The Council Decision of 29 March 1994, also known as the Ioannina Compromise, was superseded by the Treaty of Nice, and subsequently by the Treaty of Lisbon in 2007. From 2014, a new version of the Ioannina Compromise took effect. This allows a group of Member States short of a blocking minority to request a deferral of decisions they do not agree with, within a reasonable timeframe. The Government does not maintain a central record of when the provision has been invoked or for what reason.”
New Version post 2014 Council Decision 2009/857/EC:
“The purpose of Council Decision 2009/857/EC on the implementation of Article 16(4) of the Treaty on European Union is to allow Member States that are close to but do not constitute a blocking minority to request that the Council defer adoption of a measure for a period of time to allow for further discussions with a view to resolving the concerns that they have raised. It came into effect with the introduction of the changed system of calculating a Qualified Majority on 1 November 2014. Although the Government does not keep data on this provision, to the best of our knowledge it has not been invoked.”
UK Government view on the separate Luxembourg Compromise
“The Luxembourg Compromise is a convention which has not been formalised and the procedure for invoking it is not defined. However remains in place following the entry into force of the Lisbon Treaty. Its origins stem from a set of non-binding conclusions entered into the 28-29 January 1966 European Council minutes. The Council Statement states:
“Where, in the case of decisions which may betaken by majority vote on a proposal of the Commission, very important interests of one or more partners are at stake, the Members of the Council will endeavour, within a reasonable time, to reach solutions which can be adopted by all the Members of the Council while respecting their mutual interest and those of the Community, in accordance with Article 2 of the Treaty”.
Member States who have invoked the Luxembourg Compromise in previous negotiations, have formally raised their concerns in Council. Due to the confidential nature of the negotiating positions taken by other Member States, it is not for HMG to comment on which Member States have invoked the Luxembourg Compromise and to what effect.”