RENEGOTIATION - can it be done?
Or should the UK become a free country again?
"Getting a “better settlement for Britain,” while remaining an EU member, is fantasy at best and a gross deception at worst. We must work on an entirely new relationship...”
Q: "The UK's only a member of the EU because of an international treaty. Why can't we just renegotiate it to the specific terms we want - for instance, opting out of the Common Fisheries Policy (CFP) or arrangements that damage employment?
A: The Treaty establishing a European Union - currently the Treaty of Lisbon - swept up the obligations of the Treaty of Nice - so inherited a legal device called the 'acquis communautaire' - translated roughly as 'an occupied field'. Once the EU has possession of a particular 'competence' - an area of exercising powers, it retains possession with a ratchet-like block on their return.
The Treaty of Nice, Title I, Art. 3 expressed it clearly:
"The Union shall be served by a single institutional framework which shall ensure the consistency and the continuity of activities carried out in order to attain its objectives while respecting and building upon the acquis communautaire...."
By signing the various EU (EC, EEC) treaties we put ourselves under the Court of Justice of the European Union (ECJ) as the final authority over our terms of membership. In 1964 it decided:
"The EC legal system carries a permanent limitation of
member states' sovereign rights" (Case 6/64)
(The Treaty of Lisbon (ref. TEU, Title I, Art. 1; Title III, Art. 13) inherited this ratchet from the Treaty of Nice.)
Q: "But surely even the EU admits that it's a club of nations that have 'pooled' sovereignty for particular purposes? We should be free to change the Treaty in any way we want."
A: That freedom might apply to the international treaties that countries outside the EU negotiate, but we need to read the small print.
The Treaty of Nice, Title II, Art. 10 was quite explicit:
"Member States shall take all appropriate measures, whether general or particular, to ensure fulfillment of the obligations arising out of this Treaty or resulting from actions taken by the institutions of the Community. They shall also facilitate the achievement of the Community's tasks.
They shall abstain from any measure which could jeopardise the objectives of the Community."
(The Treaty of Lisbon TEU, Title I, Arts. 2-5 now provide for this.)
That vital 'Community institution', the ECJ, has long defined those obligations (cf. Case 6/64). It has ruled that we must respect both the letter of the law and the spirit - "ever closer union", politically and economically.
"The acquis communautaire is the entire body of Community Law, including Treaties, all secondary legislation, decisions etc... by virtue of the concept, member states commit themselves to the goals of the Community as well as its Law." (Cases 161/78 and 44/84).
It would be against this commitment for other EU members to even discuss the return of powers to national level. The body responsible for discussing Treaty changes is the European Council; although comprised of the EU's heads of government, it is very much an EU institution. It must back the EU's law for ‘continuity and consistency’ and its political goals – what successive EU Treaties were explicitly designed to achieve – further and further European integration.
“The main goal of the EU is the progressive integration of Member States' economic and political systems...” (EU website, “What Is EU Law?”, 17.8.11)
Q: "But surely we got a better deal in 1975 when the Labour government under Harold Wilson renegotiated the terms of our membership under the Treaty of Rome?"
A: The 1975 'renegotiation' was a fraud - it tweaked secondary matters like budget contributions and trade terms for New Zealand. It did not cover the return of any powers.
PM Harold Wilson stitched a deal with the German Chancellor at the Paris European Council meeting in which Chancellor Schmidt would deliver sufficient 'concessions' to allow Wilson to claim that 'renegotiation' had been a 'success'. (See 'The Great Deception', Booker and North, 2003)
Q: "But surely as one of the world's largest economies and a net paymaster of billions into the EU, we could just put our foot down and insist unilaterally on having reserved powers to legislate where we want - if you like a partial withdrawal from the Treaty. After all, our Constitution insists that no Parliament can bind its successor"
A: The ECJ is unimpressed by that argument. In 1970, Germany (then known as West Germany or the FDR) was in dispute over an alleged violation of the German national Basic Law ['municipal law' in Euro-speak] by an EC regulation. The ECJ ruled:
" No provision of municipal [‘national’] law may prevail over a Community law. The validity of a Community act or its application remains unimpaired, even if it is alleged that the basic rights of the national constitution were violated" (Case 11/70).
If anything Germany was a bigger economy and paymaster than the UK. After a period of foot-dragging the Germans eventually caved in and accepted the judgement.
The ECJ can issue unlimited fines
on nations that refuse to implement EU law; in 1994, the UK was fined millions
of pounds for relatively trivial offences concerning cold-stored meat.
The EU has been very creative in the past in bypassing barriers such as a national veto - (e.g.) passing the burdensome Working Time Directive as a 'health and safety' measure rather than being bound by the rules for 'employment' measures, which would have stood in the way of furthering integration. Although the Treaty of Lisbon lists limited areas (‘competences’) as for member states, the exercise of national sovereignty is fettered by wider EU obligations. 'National security' is not exempt – even though it is the ‘sole responsibility’ of member states, the EU decides who has the power. (Treaty of Lisbon refs: TEU, Title I, Art. 4.2; ECJ Cases 273/97, 186/01 and others)
Q: "But wouldn't it be a bit extreme to just leave the EU? In view of the difficulties in passing the European Constitution, the EU will be forced to reinvent itself on a more modern basis? Shouldn't we at least try to re-form the EU into something on the lines of the Council of Europe which regards nations as sovereign, but allows those that wish to integrate in particular areas to do so?"
A: The 'extreme' tag is an anachronism from the 1970s, when some hard-left and hard-right politicians opposed membership of the EEC for their own reasons (as did two-thirds of the public both before and after the referendum propaganda campaign). By decoying attention to the personalities involved, the media managed to stop many people looking at the actual arguments.
The experience since shows that the extremists are the political elites of Europe who refuse to accept the democratic will of peoples who voted 'No' to European integration - the Danes in 1992, the Irish in 2001 and 2008, the French and the Dutch in 2005... the Irish and Danes were forced to vote again; and the French and the Dutch denied a referendum on a slightly modified EU Constitution
The same elites regarded the 'No' votes to the proposed European Constitution as a temporary inconvenience. They made up for lost time by implementing parts of the rejected Constitution by stealth. They are working steadily towards 'ever closer union' specified by the Treaty of Lisbon.
should not be any surprise, as the small print clearly sets out 'further
steps to be taken in order to advance European integration', and reminds
member states (e.g.) that they are committed to its objectives, to maintain the
'rule of law' with consistency and continuity, and 'ever increasing convergence
of action' in policy areas.
(Treaty of Lisbon refs: TEU Preamble; TEU, Title I, Arts. 2-5; Title III, Art. 13;
TEU, Title V, Art. 24; TFEU, Part 6, Title I, Art. 263).
So the EU is suffering from a democratic crisis, an economic crisis and a political crisis. In attempting ever more of the same, it looks set to implode eventually. Whereas it is possible that the future will see more flexible international arrangements on the lines above, the 'acquis communautaire' ratchet means that they cannot happen within the EU.
The various nation states will have to leave the EU, individually or collectively, for this to be possible. Many alternative options for international co-operation currently exist, so there would be little need for 'reinventing the wheel'.
This page compiled: 18 January 2006; updated: 8 June 2012