The Renegotiation - the weak legal status of the summit "deal"
The summit "deal" does not bind the European Court of JusticeGovernmental claims that the summit deal is “legally binding” are highly misleading as a matter of substance.
Legal form of the summit dealThe summit "deal" is in the form of a "decision" or agreement of the heads of government of the member states meeting within the European Council: see the European Summit Conclusions Feb 2016 (PDF).
Technically it is not a decision of the European Council itself,since the European Council includes the President of the European Commission and the President of the Council as well as the Heads of Government. The Decision is not a recognised legal act of any EU institution: its status is solely that of an agreement reached between Heads of Government acting as representatives of their respective States, who have used a meeting of the European Council as the venue in which they have reached their agreement.
The Heads of Government have no power actually to alter the Treaties without going through the whole Treaty amendment process, which involves ratification by each Member State in accordance with its constitutional requirements. Such constitutional requirements can include referenda in some Member States and the Heads of Government cannot bypass these requirements and amend the Treaties themselves without going through the required formalities.
So what the Heads of Government can do is much more limited: they can agree on a particular "interpretation" of the Treaties within the range of their possible meanings. This is what the Renegotiation claims to have done. It does not claim to have actually altered the Treaties.
The Renegotiation deal is “binding” only in the very limited sense that the Heads of Government have reached an agreement between themselves on what is their favoured interpretation of the EU treaties on a number of points, and have also agreed between themselves to promote (1) some limited future Treaty changes, and (2) certain amendments to EU legislative instruments. They have also agreed between themselves that the “Decision” is not to be repealed or amended in the future without unanimous agreement.
But although the Heads of Government may have agreed between themselves on their favoured interpretation of the treaties and cannot back out of the agreement without the UK’s assent according to their obligations under general international law, the agreement between Heads of Government is not the same as an amendment to the EU treaties nor is it a recognised legal act under those Treaties. A recognised legal act under the Treaties would for example be a Directive flowing from a formal legislative proposal by the Commission which is subsequently adopted after approval by the Council of Ministers and the European Parliament under the EU’s ordinary legislative procedure. Such a Directive produces binding legal effects within the European Union’s legal order and must be respected by the EU’s institutions as well as by the Member States.
By contrast, the agreement between the Heads of Government is under general international law (and not under the EU treaty framework), and so it does not bind the EU’s supranational institutions. As a matter of law it does not bind the European Commission, still less the European Parliament, and most importantly it does not bind the European Court of Justice. The agreed-upon interpretation will be "taken into consideration" by the European Court of Justice, but it is absolutely clear that that Court is not bound to follow and apply the interpretation preferred by the Heads of Government.
The Edinburgh decision on national citizenshipThis is not just a theoretical point. It is graphically demonstrated by the fate of the similar 1992 Edinburgh summit agreement/"decision" in which heads of government agreed that EU citizenship would not supersede national citizenship and that questions of citizenship would be settled “solely by reference to the national law of the Member State concerned”.
In Case C-135/08 Rottmann (Grand Chamber, 2 March 2010) the ECJ paid lip service to the summit decision by saying it should be “taken into consideration”, but then departed from it by holding that EU law governed the circumstances in which a person could be entitled to German citizenship because this would also affect his EU citizenship, which was now his “fundamental” status.
In our Supreme Court, Lord Mance (with the agreement of three other Supreme Court judges) expressed the view that the ECJ’s decision in Rottmann had been taken “in the face of the clear language” of the Edinburgh decision, as well as other declarations and indeed of the underlying treaties (Pham v Home Secretary  UKSC 19 (PDF) at para 90).
It is therefore clear beyond doubt that the ECJ will retain the ability to arrive at decisions which depart from the clear language of the summit deal as and when it chooses to do so.
Promised future Treaty changesIn addition to containing provisions which purport to interpret aspects of the Treaties, the Renegotiation also promises (at Section C, paragraph 1) that “the substance of” a recognition of the position of the UK regarding further political integration will be incorporated into the Treaties “at the time of their next revision in accordance with the relevant provisions of the Treaties and the respective constitutional requirements of the Member States”. This phraseology recognises the obvious fact that a group of politicians sitting round a table at a European Council meeting do not have authority to dispense with the legal requirements (1) in the Treaties themselves about how they can lawfully be amended, and (2) of their own national constitutions as to how such Treaty amendments are to be approved and ratified.
The procedure for amendment of the Treaties is set out in Article 48 of the Treaty on European Union. An amendment of the kind envisaged would not fall within the so-called “Simplified revision procedures” and accordingly would have to be passed under the “Ordinary revision procedure” in Article 48(2) to (5). The first step of the procedure (under Article 48(3) normally involves the European Council convening a Convention to examine the proposed amendments. This Convention is composed not only of representatives of the Member State Heads of Governments, but also of representatives of each national parliament and of the European Parliament and of the Commission. Therefore even if the representatives of the Heads of Government all want to approve the proposed Treaty change in accordance with what they have agreed at the summit, it is not certain that the Convention as a whole would approve them, or approve them in unmodified form.
That said, the Convention’s views are not binding since it makes a recommendation to a conference of representatives of the governments of the Member States (an “IGC”). We will assume that the IGC would adopt the required treaty change on the basis that the government representatives at the IGC would comply the agreement to revise the Treaties undertaken by their respective Heads of Government in the Renegotiation. If one or more governments did not do so, either by a blank refusal or more likely by watering down the text of the Treaty amendment into meaninglessness, it is completely unclear what judicial or other remedy the UK would have in view of the lack of legal status of the Renegotiation under the EU treaties.
But assuming that a Treaty amendment is agreed by the IGC in a form acceptable to the UK, this is where the real difficulties begin. This is because Article 48(4) states that Treaty amendments only come into force “after being ratified by all the Member States in accordance with their respective constitutional requirements”. These constitutional requirements vary from State to State, but can involve ratification by the legislature by either ordinary or special procedures, and in some cases may require approval in a referendum. The Heads of Government who entered into the Decision promising these Treaty changes are simply not in a position to guarantee that the legislatures of their States at a future date, still less the people of their States in a referendum, will take the necessary constitutional steps to ratify the Treaty amendments.
We deal with the substance of this promised Treaty amendment in the first of our detailed analyses on this website, where we point out that (assuming it actually comes to be passed) it would achieve little or nothing of practical value in improving the UK’s legal position or in curbing the activities of the European Court of Justice. That does not mean that it would not be politically contentious in other Member States, where it would be viewed as giving a special privilege to the UK in relation to the process of European integration. Indeed, the risks of it engendering resentment at special treatment for the UK and political opposition to ratifying it must have been enhanced by the UK government’s greatly exaggerated claims about its significance. It is therefore, at best, far from certain that this promised Treaty amendment will actually come to be ratified when the next Treaty revision process takes place in the years ahead.
Promises of secondary legislationThe Decision or agreement of Heads of Government also promises certain changes to EU secondary legislation. In particular, it notes that the Commission will bring forward proposed amendments to two EU Regulations on exportation of child benefits and on a “safeguard mechanism” for in-work benefits, and promises that the representatives of the Member States will support these amendments in the Council of Ministers (Section D, paragraph 2).
Assuming that the Member State representatives will do what their Heads of Government have promised and support these measures, it does not follow that they will be passed into law. This is because the European Parliament is entitled to amend or totally reject these measures. Even if MEPs are lying low at the moment for fear of upsetting the British public in the referendum campaign, these measures will only be brought forward after the referendum is over and only if the UK votes to remain, in which case no such political restraint will continue to apply to the European Parliament. There is a tangible risk that these measures will be voted down by the Parliament altogether, and probably a higher risk that they will be mauled by wrecking amendments.
And even this leaves out of account the final hurdle. These measures are likely to be highly contentious and will therefore attract legal challenges. Those legal challenges will in the normal course find their way to the European Court of Justice. That Court is not bound to hold them valid or consistent with the EU Treaties, for example with the principle of non-discrimination on the grounds of nationality, just because the Heads of Government have approved them in this kind of agreement.
Conclusion as to “legally binding”As we have explained, the so-called Decision is only legally binding in a very narrow sense, in that the Member State Heads of Government have bound themselves under general international law, not under the EU treaty framework, to favour certain interpretations of the Treaties and to support certain limited future changes to the Treaties and to EU secondary legislation. The problem is that the agreement between the Heads of Government does not bind the European Court of Justice when it comes to interpreting the Treaties and as regards future action does not and cannot national legislature and national electorates to approve the future treaty changes, the European Parliament to approve the EU legislative changes or bind the Court to hold them valid and not incompatible with the EU treaties.
The UK government has extolled the “legally binding” nature of the agreement between Heads of Government but has failed to explain or even acknowledge the limited effect which such an international law interpretative agreement outside the EU Treaty framework can have. Indeed, the UK government’s claims have gone considerably further than is compatible with the actual legal position by suggesting that the agreement provides effective legal security for actual delivery in legally effective and binding form of the content of the Decision. That it plainly does not.
What is actually in the summit deal?Concentrating on the legal form of the summit deal may mean missing what it actually says - or rather does not say. In the first of our detailed analyses of the individual parts of the deal, Martin Howe QC examines the detailed wording of the parts of the deal on sovereignty and "ever closer union", and explains why they do not add to or alter the legal rights of the United Kingdom and will not be successful in affecting the outcome of cases in the ECJ.