Britain and EU: How to deform a treaty (Part II)

This second post looks at the situation a year hence, if the Conservative Party is in power in the United Kingdom and the Treaty of Lisbon has entered into force.


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Lisbon Treaty


Ordinary revision procedure

The amended Article 48 of the Treaty on European Union (TEU) contains some new options and procedures, although its hard core remains fairly equal to its predecessor.

The government of any member state, the European Parliament and the Commission can make proposals to amend the treaties.

The proposals can serve to increase or to decrease the powers of the European Union.

The European Council consults the European Parliament and the Commission (and the national parliaments have been notified).

The European Council decides to examine the proposals by a simple majority.

In this case the primary option is to call a Convention, but with the consent of the European Parliament it can be dispensed with.

With or without a Convention, an intergovernmental conference decides by common accord (unanimity) the amendments to make to the treaties.

The amendments enter into force after being ratified by all member states.

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Simplified revision procedure

If the proposals concern only internal policies and actions contained in Part Three of the Treaty on the Functioning of the European Union (TFEU), the European Council can decide, by unanimity, to amend the treaty, after consulting the European Parliament and the Commission. Such a decision cannot increase the powers of the European Union.

The amendments have to be approved by the member states in accordance with their constitutional requirements.


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Political framework

We suppose that the Conservative UK government would want to repatriate the social and employment competences it wishes to take back under the Treaty of Nice.

Employment and social policy belong to TFEU Part Three. Granting the United Kingdom a fifth opt-out from the Lisbon Treaty would not increase the EU’s competences.

Under the simplified revision procedure a unanimous decision by the European Council and approval (ratification) by all member states would suffice.


If the Lisbon Treaty is already in force by the time the Tory government is formed, it will make clear that political integration in the EU has gone too far and it would not let matters rest there. [In his recent speech, David Cameron made an unqualified promise to arrange a referendum on the Lisbon Treaty, in other words regardless of its entry into force.]

With or without a preceding referendum, the rest depends on the additional powers the British government would propose to scrap, either universally or with regard to itself.

With regard to the Lisbon Treaty, the United Kingdom has already opted out of the Schengen agreement, economic and monetary union (the euro), the EU Charter of Fundamental Rights and police and judicial cooperation in criminal matters.

We lack information about the additional areas Britain would wish to exclude. Therefore it is too early to tell if they would fall under the ordinary or the simplified treaty revision procedure.

The Tories’ European Election Manifesto rejects the new role for the High Representative/Vice-President and the European External Action Service. If changes are proposed, they clearly fall outside TFEU Part Three, and they are core Lisbon Treaty reforms for the other member states. Institutional opt-outs of a horizontal nature are not practicable in general.


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Conclusion

Under the Lisbon Treaty, limitations of EU powers or opt-outs from internal policy areas would be marginally easier from a legal point of view, but are they politically viable?

The UK’s record as an obstructionist member is solid and the Conservative Party promises even more contempt for its European partners and their common aims.

The EU member states would be foolish to cringe before a member state without loyalty and solidarity.

If even one member state stands up against Britian’s irresponsible behaviour, the plan to deform the treaty crashes.

David Cameron and William Hague would probably have to call a referendum on Britain’s EU membership.

The European Union could offer ex-member Britain a privileged partnership.



Ralf Grahn