12 February 2016

Summary

  • The UK Government has said it wants to “end Britain’s obligation to work towards an ‘ever closer union’ as set out in the Treaty” in a way that is “formal, legally-binding and irreversible”.
  • Securing an agreement setting out in clear terms that the UK is no longer bound by the commitment to ever closer union – and that this cannot be used to extend the EU’s competences by stealth – is important both symbolically and practically. The fact that the EU will have to cope with two categories of states, one bound by the provisions of ‘ever closer union’ and others not, could force change.
  • Nevertheless it is clear that the EU has been unwilling to entertain a more fundamental debate at this stage about how this concept might be given greater substance, which owes much to disagreements amongst Eurozone members about how integrated the Single Currency should become and what this means for their relationship with non-Eurozone states.
  • Those erring on the side of Leave will fear that, following the referendum, the concessions made to the UK will be swept aside and the process of creeping EU integration will continue regardless. Others will argue that the deal will clearly establish the UK’s uniquely semi-detached relationship inside the EU and reflect that, for Britain, the high watermark of EU integration has been passed – a position that would establish the starting point for any future EU treaty negotiations prompted by calls for further Eurozone integration, likely to commence between 2017 and 2020.
  • Finally, this is an important point in that it helps, finally, flesh out and settle the terms on which the UK is a member of the EU. There can be no re-run of the 1975 UK referendum when the referendum campaign and debate focused on the UK being a member of the ‘Common Market’, with many voters subsequently feeling they had been cheated when the political aspects of the project came to the fore.

What is the practical and symbolic significance of ‘ever closer union’?

Many people have stressed that the EU Treaties’ commitment to ever closer union refers to the “peoples of Europe”, and not to its states. However, regardless of the reference to “the peoples of Europe”, in practice, ever closer union has manifested itself in the form of creeping supranationalism with ever more powers ceded from national governments to EU institutions – often encouraged by the jurisprudence of the EU’s Court of Justice (ECJ). Survey after survey has found that the British public has rejected this trajectory.

The significance of the commitment to ever closer union, particularly with regards to its impact on the behaviour of the EU institutions and its interpretation by the ECJ, is the subject of long-standing debate in academic circles. A House of Commons briefing on this subject notes that between 1954 and 2015, ‘ever closer union’ was directly cited by the European Court of Justice in 57 cases. Professor Stephen Whetherill has argued that in most of the 57 cases, ‘ever closer union’ was “of no material significance” to the way they were decided, and that of the remainder, “none come remotely close to the front rank of the Court’s great constitutionalising judgments.”

However, Dr Gunnar Beck has found that if the scope is broadened to encompass references to the ‘spirit of’ and ‘spirit and general scheme’ of the EU Treaties, the ECJ made such references in 554 cases between June 1997 and June 2012. He argued that this “broader measure provides a better indication of the true importance of the ‘closer union’ objective… Its effect has almost certainly been to take the development of de facto precedents in EU law cumulatively into a more communautaire direction than a more pluralistic structure of treaty-based objectives would have done.”

Professor Derrick Wyatt has also argued that “the aim of ‘ever closer union’ has probably played a larger role in the thinking of the [ECJ] than appears on the face of the Court’s judgments… [it] cannot be described as solely symbolic.” Indeed, the arguments put forward by Beck and Wyatt reflect what Professor Koen Lenaerts, the current President of the ECJ, himself acknowledged in a recent interview with The Wall Street Journal, in which he said that “there is a strong link between the Court and European integration. The Court…has contributed in its case law many principles which are implied in the process of European integration set out in the Treaties”.

EU federalists have recognised the symbolic and practical significance. Former Liberal Democrat MEP Andrew Duff, has argued that “there can be no doubt about the historical importance of those words in the Union’s constitutional development” and that the proposed UK-EU deal “would render ‘ever closer union’ meaningless”, while during the renegotiation, Luxembourg’s Prime Minister Xavier Bettel stressed that ever closer union “is one of the aims of the EU, I’m not in favour of a Europe à la carte.”

What might the renegotiation achieve?

One reason why this part of the renegotiation is important is that it helps, finally, flesh out the terms on which the UK is a member of the EU. Much is often made of that fact the 1975 the referendum campaign and debate focused on the UK being a member of the ‘Common Market’ – i.e. it focused on the economic not the political nature of the union. The question on the ballot paper even referred to the ‘Common Market’. Now it can well be pointed out that the treaties still included references to ‘ever closer union’ and made it clear that the institution was well on the way to being more than simply a Common Market. However, there remains a widespread feeling that ‘we voted for the market, not political union’.

As such, there has always been a disconnect between what much of the UK electorate believed it joined and wanted to join and how the EU has progressed, which has only been exacerbated by further integrationist treaties. This tension became clearer during the negotiations and agreement of the Maastricht Treaty where the UK was given a permanent opt-out from the Eurozone. This set it on a fundamentally different path from other states, yet it was still part of the same one-size-fits-all EU framework. These differences have stoked confusions and tensions.

The provisional UK-EU renegotiation agreement tabled by European Council President Donald Tusk states that the EU Treaties’ references to ever closer union “are not an equivalent to the objective of political integration” and “They should not be used either to support an extensive interpretation of the competences of the Union or of the powers of its institutions.” Ever closer union is “compatible with different paths of integration being available for different Member States and do not compel all Member States to aim for a common destination. The Treaties allow an evolution towards a deeper degree of integration among the Member States that share such a vision of their common future, without this applying to other Member States.” However, the importance that some continue to attach to this principle is reflected by the fact that the latest version of the deal has been amended to assert that this “objective enjoys wide support in the Union.”

The document also sets out the various areas in which the UK already enjoys a semi-detached relationship inside the EU, such as its opt-outs from the Euro and the passport-free Schengen area and its ability to pick and choose which EU justice and home affairs laws to adopt. In light of these exceptions, it notes that “It is recognised that the United Kingdom, in the light of the specific situation it has under the Treaties, is not committed to further political integration into the European Union” and envisages that “The substance of this will be incorporated into the Treaties at the time of their next revision.”

Genuine two-circle, flexible EU not yet on the agenda

If approved by other EU leaders and incorporated in the EU Treaties, this would be a useful clarification of the UK’s existing position in the EU and, at its strongest, could be an important step in the direction of a genuine two-circle, flexible EU. In December 2015, the Italian Foreign Minister, Paolo Gentiloni, joined British Foreign Secretary Philip Hammond in calling on the EU to “embrace a new model of its functioning, based on the flexibility to manage greater or lesser integration” in which “Italy and the UK may find that sometimes they will have differing arrangements – as has been the case since the creation of the euro.” Such a concept could allow two visions of what the EU is for to exist side by side, allowing all countries to find a suitable degree of integration, according to their national circumstances and national democratic preferences.

The fact that the EU will have to cope with two categories of states, one bound by the provisions of ‘ever closer union’ and others not, could force change. The Commission could propose legislation in a way which took this into account, unnecessarily integrationist rules would be more vulnerable to challenge by Britain, and over time the ECJ could develop different jurisprudence affecting Britain. It should be noted that the first draft of the proposed UK-EU deal suggested that differential treatment could be required in the field of financial regulation and supervision and “different sets of Union rules may have to be adopted”, depending on whether member states are in the EU’s Banking Union or, like the UK, are not. However, France in particular is resisting this distinction, with the latest draft suggesting that the deal could provide for differences within common EU rules, but not two sets of rules.

That the EU has been unwilling to entertain a more fundamental debate at this stage about how this concept might be given greater substance owes much to disagreements amongst Eurozone members about how integrated the Single Currency should become and therefore how the responsibilities of member states outside the Eurozone, such as the UK, might differ. Therefore, how much of a turning point this could mark is uncertain.

Those leaning towards the side of Leave will fear that, following the referendum, the concessions made to the UK will be swept aside and the process of creeping EU integration will continue regardless. Others will argue that the deal would clearly establish the UK’s uniquely semi-detached relationship inside the EU and reflect that, for Britain, the high point of EU integration has been passed – a position that would establish the starting point for any future EU treaty negotiations prompted by calls for further Eurozone integration, likely to commence between 2017 and 2020.