Cameron’s deal will stick – probably

by Jack Schickler | 25.02.2016
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Is David Cameron’s renegotiation deal legally rock solid? Michael Gove, the justice secretary, says it isn’t. The prime minister says it is, as does European Council President Donald Tusk.

Gove does have a point, in theory. But, in practice, Cameron’s deal is likely to stick.

Is the deal legally binding?

Even Gove acknowledges that the decision leaders agreed last week is a declaration in international law. Whether it can be enforced is a separate question. If one of the other countries that is a party to the deal changed its mind, Cameron would have little legal recourse.

The UK’s most potent responses would be political. It could bring such a dispute for discussion at the European Council, which could heap peer pressure on a country that reneged. It could also retaliate in other non-legal ways – for example, undermining any pet projects that the offending country was keen on.

The European Commission will also have an important role to play – for example, in agreeing the emergency brake applies, and proposing the new laws needed. Formally it is not a party to the international law declaration of last week. Nonetheless that declaration refers to several other written declarations the Commission made, which hence form part of the deal. It seems unimaginable it would renege on such formally-made commitments.

Another possible weakness in the deal is that the European Parliament is not a party to the agreement, but needs to sign off legislation on the elements covering sham marriages, child benefit and in-work benefits. But that seems unlikely given that leaders of some of the key groups in the Parliament have made supportive comments.

Could the Court overturn it?

Gove’s main argument is that, until the EU treaties were themselves changed, “the ECJ (European Court of Justice) is not bound by this agreement” – and what’s more, that the deal doesn’t amend the EU treaties as far as benefits are concerned. Gove is right on the latter point. Cameron’s deal would only involve treaty change to give Britain an opt-out of “ever closer union” and to give countries that are not in the eurozone, such as the UK, protection against discrimination by those using the single currency.

It’s less clear how strong Gove’s argument about the ECJ is. According to Damian Chalmers, Professor of EU law at LSE, declarations like that signed last week can have a “sway” over judges’ decisions. In a 2010 judgement, the court suggested that one such declaration “ha[d] to be taken into consideration as … instruments for the interpretation of the EC Treaty”.

But, Chalmers continued, that would only be a deciding factor “when there are two plausible interpretations of EU law’. The court could still unpick elements of Cameron’s deal if it felt they were incompatible with the EU treaties.

Views differ on how likely that is. Some, such as Professor of EU Law Steve Peers, reckon legislation to limit in-work benefits is highly vulnerable to ECJ challenge. But Chalmers said he “doubted” the court would rule those changes illegal.

In the sense that none of Cameron’s changes is yet embedded in the treaties and some never will be, Gove is right that the court could still rule them illegal. The question is rather whether it will.

Edited by Hugo Dixon

This article was amended on 26 February to reflect that the Commission was not legally party to the decision of Heads of State and Government, though it made various other declarations. 

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