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Michael Gove is wrong: Cameron’s EU agreement will be legally binding Michael Gove is wrong: Cameron’s EU agreement will be legally binding
(6 months later)
Michael Gove described the decision of the EU’s heads of state on the reform package for the United Kingdom as an “international declaration” in his BBC interview on Wednesday morning. That is not accurate. While it is accompanied by a number of declarations that complement its contents, the decision itself is a treaty binding in international law.Michael Gove described the decision of the EU’s heads of state on the reform package for the United Kingdom as an “international declaration” in his BBC interview on Wednesday morning. That is not accurate. While it is accompanied by a number of declarations that complement its contents, the decision itself is a treaty binding in international law.
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The renegotiation package belongs to a perfectly familiar category of international treaties, which are concluded by the parties to an existing treaty in order to agree on how elements of it should be interpreted. That is what has now been done. The various representatives of EU nations have expressed their understanding of certain aspects of the treaties that are of concern to the United Kingdom. They did the same in 1992 to address concerns of Denmark regarding Maastricht, and again in 2009 to address the concerns of Ireland regarding the Treaty of Lisbon.The renegotiation package belongs to a perfectly familiar category of international treaties, which are concluded by the parties to an existing treaty in order to agree on how elements of it should be interpreted. That is what has now been done. The various representatives of EU nations have expressed their understanding of certain aspects of the treaties that are of concern to the United Kingdom. They did the same in 1992 to address concerns of Denmark regarding Maastricht, and again in 2009 to address the concerns of Ireland regarding the Treaty of Lisbon.
The EU court of justice acknowledged that it was bound to take the decision on Denmark into consideration when interpreting relevant provisions of the treaties, and it will have to do the same with respect to David Cameron’s renegotiation.The EU court of justice acknowledged that it was bound to take the decision on Denmark into consideration when interpreting relevant provisions of the treaties, and it will have to do the same with respect to David Cameron’s renegotiation.
As an instrument of interpretation, the decision will become binding as soon as it enters into force – if the UK votes to remain in the European Union. The purpose of eventually introducing some of those principles into the treaties themselves would be to enhance their status, from interpretative tools to provisions of primary EU law in their own right.As an instrument of interpretation, the decision will become binding as soon as it enters into force – if the UK votes to remain in the European Union. The purpose of eventually introducing some of those principles into the treaties themselves would be to enhance their status, from interpretative tools to provisions of primary EU law in their own right.
A different legal technique employed in the decision, which Gove did not mention, involves what may be termed “council conduct agreements”. These are agreements binding the member states as to how they will behave in certain circumstances, when acting in their capacity as members of the council (which, with the European parliament, constitutes the EU’s legislature).A different legal technique employed in the decision, which Gove did not mention, involves what may be termed “council conduct agreements”. These are agreements binding the member states as to how they will behave in certain circumstances, when acting in their capacity as members of the council (which, with the European parliament, constitutes the EU’s legislature).
An important example is the safeguard mechanism to reinforce the protection of non-members of the eurozone. Under this mechanism, the council’s decision-making process can be interrupted by a single member state making a reasoned case that the proposal under consideration infringes one or more of the economic governance principles. An effort must then be made to accommodate those concerns, which may entail referring the issue to the European council.An important example is the safeguard mechanism to reinforce the protection of non-members of the eurozone. Under this mechanism, the council’s decision-making process can be interrupted by a single member state making a reasoned case that the proposal under consideration infringes one or more of the economic governance principles. An effort must then be made to accommodate those concerns, which may entail referring the issue to the European council.
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This will be implemented by adding a new provision to an existing council decision, which provides for a similar procedure, where the threshold for a qualified majority decision is achieved by a relatively narrow margin. Council voting agreements are a tried and tested technique of uncontested legality.This will be implemented by adding a new provision to an existing council decision, which provides for a similar procedure, where the threshold for a qualified majority decision is achieved by a relatively narrow margin. Council voting agreements are a tried and tested technique of uncontested legality.
Another point missed by Gove is that the prime minister’s aims in respect of benefits are to be achieved, without any need to amend the treaties, by agreed interpretations of existing legislation and by the introduction of two significant rule changes.Another point missed by Gove is that the prime minister’s aims in respect of benefits are to be achieved, without any need to amend the treaties, by agreed interpretations of existing legislation and by the introduction of two significant rule changes.
This provides a sound basis for the robust application by courts in the UK of the various limitations on rights of free movement that are recognised by EU law. The rule changes entail giving states the option of indexing child benefits, which are exported, to the standard of living in the member state in which the children are resident, and the introduction of the so-called “emergency brake” on in-work benefits. These changes can be achieved by amending existing legislation.This provides a sound basis for the robust application by courts in the UK of the various limitations on rights of free movement that are recognised by EU law. The rule changes entail giving states the option of indexing child benefits, which are exported, to the standard of living in the member state in which the children are resident, and the introduction of the so-called “emergency brake” on in-work benefits. These changes can be achieved by amending existing legislation.
It cannot seriously be doubted that the commission will fulfil its undertaking to bring forward the proposals necessary to introduce those rule changes, and the members of the council will be obliged to adopt them. While the European parliament will have a part to play in the adoption of the legislation, it is implausible that, in a situation where the UK has voted to remain within the EU and the renegotiation has entered into force, the parliament would see any political advantage in putting the new constitutional settlement in jeopardy.It cannot seriously be doubted that the commission will fulfil its undertaking to bring forward the proposals necessary to introduce those rule changes, and the members of the council will be obliged to adopt them. While the European parliament will have a part to play in the adoption of the legislation, it is implausible that, in a situation where the UK has voted to remain within the EU and the renegotiation has entered into force, the parliament would see any political advantage in putting the new constitutional settlement in jeopardy.
Nor would there be any significant risk of such legislation being struck down by the court of justice. EU law-makers are perfectly entitled to lay down the conditions under which rights of free movement for workers are exercised.Nor would there be any significant risk of such legislation being struck down by the court of justice. EU law-makers are perfectly entitled to lay down the conditions under which rights of free movement for workers are exercised.
A fair overall assessment would, therefore, be that the reform package achieved by the prime minister is legally binding to the extent that it needs to be, and irreversible in practice.A fair overall assessment would, therefore, be that the reform package achieved by the prime minister is legally binding to the extent that it needs to be, and irreversible in practice.