The European Union, acting through the European Council, has agreed to enter into a “new relationship” with the UK. The terms that will govern this new relationship are set out in the conclusions of the Council meeting of 18 and 19 February 2016.

On 23 June 2016, the UK will decide whether to stay in the EU on these new terms, or leave. But: are these terms binding?

 The terms of the new relationship:

  • The terms represent a “set of arrangements, which are fully compatible with the Treaties and will become effective [if] the [UK] informs … the Council that [it] has decided to remain [in] the European Union“;
  • The terms are intended to “clarify … certain questions … so that such clarification will have to be taken into consideration as … an instrument for the interpretation of the Treaties“;
  • Everyone accepts that the UK “is not committed to further political integration in the [EU]“. But, for good order, “the substance of this will be incorporated into the Treaties at the time of their next revision …” – even though Treaty change isn’t really necessary because: (a) the UK already has a “specific situation … under the Treaties” that makes its position clear; and (b) “the references in the Treaties … to the process of creating an ever closer union among the peoples of Europe do not offer a legal basis for extending the scope of … the Treaties or … EU secondary legislation” anyway;
  • The right of economically non-active persons to reside in the host Member State [already] depends under EU law on such persons having sufficient resources … not to become a burden on the social assistance system of the host Member State … Member States [already] have the possibility of refusing to grant social benefits to persons who exercise their right to freedom of movement solely in order to obtain [benefits] although they do not have sufficient resources to claim a right of residence …” To make this easier, if the UK votes to stay, the European Commission will bring forward proposals to amend two pieces of secondary legislation, which – if made and brought into force – will:
    • give Member States, with regard to the exportation of child benefits to a Member State other than that where the worker resides, an option to index such benefits to the conditions of the member State where the child resides, This should apply only to new claims made by EU workers in the host Member State. However, as from 1 January 2020, all Member States may extend indexation to existing claims to child benefit already exported by EU workers“; and
    • provide an alert and safeguard mechanism that responds to situations of inflow of workers from other Member States of an exceptional magnitude over an extended period … A Member State wishing to avail itself of the mechanism would notify the Commission and the Council that such an exceptional situation exists on a scale that affects essential aspects of its social security system, … or which leads to difficulties which are serious and liable to persist in its employment market or are putting an excessive pressure on the proper functioning of its public services. [Then] on a proposal from the Commission … the Council could authorize the Member State concerned to restrict access to non-contributory in-work benefits to the extent necessary … The limitation should be graduated, from an initial complete exclusion but gradually increasing access to such benefits … The authorization would … apply to EU workers newly arriving during a period of 7 years 

The legal status of the terms:

These terms are irreversible because all 28 members of the European Council agreed to adopt them. So they can only be varied or revoked if all 28 members agree to the variation or revocation – and that’s unlikely to happen.

However:

  1. The terms are susceptible to challenge in and by the Court of Justice of the European Union (see, for example, article 263 of the Lisbon Treaty). The Court might strain to uphold the terms, but that doesn’t mean it will succeed;
  2. The terms will only become effective if (a) the UK decides to stay in the EU; and (b) the UK Government informs the Council’s Secretary-General of this fact. If these pre-conditions are met, and the terms do become effective, some or all of them will be difficult or impossible to enforce. For example:
    • Some terms are merely compatible with, and only meant to be taken into account when, the EU law is interpreted and applied by the Court;
    • Some terms effectively compel the Commission to bring forward proposals to clarify or change EU law, but – if the Commission fulfills this obligation – the usual legislative processes will apply, and the results (if any) cannot be guaranteed;
    • Some terms will only be incorporated into an amended version of the Treaties if the Treaties are amended and ratified by all 28 Member States – an outcome that cannot be guaranteed over any particular timescale, or at all;
  3. The terms will still have to be adopted or accepted by the European Parliament – and that outcome cannot be guaranteed either.

This may begin to explain why Donald Tusk, the President of the European Council, has just issued what appears to be a self-contradictory and partially flawed statement: “The 28 heads of state or government [have] unanimously agreed and adopted a legally binding and irreversible settlement for the [UK] in the EU. [It] is in conformity with the Treaties and cannot be annulled by the European Court of Justice. But it will only enter into force if the British people vote to stay. If they vote to leave, the settlement will cease to exist … if Britain decides to stay, I hope [the European] Parliament will … ensure that the agreed settlement is transformed into the necessary legislation and will enter into force.

A tangled and unsatisfactory web. More to follow …