The Legal Status of the Agreement of the Heads of State or Government (re Brexit)

By Dr Phil Syrpis, Reader in Law (University of Bristol Law School)

© http://arthur.co.uk/

© http://arthur.co.uk/

On 19 February 2016, sometime well after breakfast, the members of the European Council reached an agreement concerning a new settlement for the United Kingdom within the EU. The Government was quick to proclaim that the UK’s ‘special status’ in ‘a reformed European Union’ amounts to ‘the best of both worlds’. David Cameron’s ‘hard-headed assessment’ is that the UK will be stronger, safer and better off by remaining inside this reformed European Union, and so he is recommending that the British people vote to ‘remain’ in the in-out referendum on 23 June.

The substance of the reforms, which focus on economic governance, competitiveness, sovereignty, and welfare and free movement, is and will continue to be much debated. This contribution instead focuses on a more technical question – the legal status of the deal – a subject which is now said to be creating ‘open warfare’ in the Tory party.

Let me attempt to distil the question. To do so I focus on one key aspect of the Agreement; the agreement to restrict the social benefits payable to migrants. In this area, there is pre-existing Court of Justice case law interpreting the provisions of the Treaties and the relevant secondary legislation. Many governments have argued that the case law goes too far, and that it creates threats to the sustainability of social security systems. This agreement amounts to a further attempt to limit the rights which will be available for migrants; specifically in the UK. It includes elements relating to the interpretation of current EU rules, and proposes changes to EU secondary legislation. The specific question I am addressing here is whether the Agreement will be successful in influencing the Court’s interpretation of the Treaties; others have already commented on the extent to which we can be sure that the legislation (and future Treaty change) envisaged in various parts of the Agreement will be adopted.

The Heads of State or Government certainly appear to have intended to attach the greatest possible legal significance to their Agreement. They assert that ‘the content of the Decision is fully compatible with the Treaties’. Its intent is to clarify ‘certain questions of particular importance to the Member States so that such clarification will have to be taken into consideration as being an instrument for the interpretation of the Treaties’ (emphasis added). The UK Government is at pains to make the same point. In its White Paper it includes a section assuring us that the agreement is ‘legally-binding’ (see paras 2.128-2.145). It makes the points that the Agreement is legally binding under international law; and that it will be registered as a Treaty with the United Nations if the British people vote to remain in the EU. Most pertinently, it argues that agreements between Member States on the meaning of the EU Treaties are required to be taken into account by the Court of Justice when interpreting the Treaties in the future (here it refers to the Court’s judgment in Rottman). It also refers to a note by Professor Sir Alan Dashwood which suggests that there is nothing in the Agreement ‘likely to encounter the disapproval of the CJEU’, and no proposed amendments to EU legislation which would ‘run a serious risk of being struck down by the CJEU’.

I have written (in the 2015 Common Market Law Review) on the relationship between EU primary and secondary law, essentially asking a question which resonates with public lawyers – whether the adoption of secondary legislation is able to influence the Court’s interpretation of the Treaties. I framed the discussion in the following way: ‘Most lawyers would, at first blush, assume that there is a simple hierarchical relationship between primary and secondary law, that primary law does and should take priority over secondary law, and that the adoption of secondary legislation should not affect the way in which primary law is interpreted. Political scientists on the other hand, might expect the passage of legislation to have a greater impact on the case law of the Court. The somewhat confused reality which this article exposes, illuminates the tensions between the judiciary and the legislature in the EU, and between what may be termed the “legal” or “political” nature of the EU’s constitutional settlement.’ My main conclusion was that ‘it is almost impossible to predict with any certainty what effect the passage of secondary legislation will have on the pre-existing case law of the Court on the interpretation of primary law’.

The issues raised by the Agreement are, notwithstanding the claims made for its status, similar to those raised by the passage of secondary legislation. The extent to which the political institutions are, and ought to be, able, to tie the hands of the Court remains a matter of acute academic controversy. I argue that the Court should be more responsive to the interventions of the political institutions; and that it ‘should strive to maintain clearer standards as regards not only the intensity of judicial review, but also the way in which its arsenal of interpretative strategies are deployed and combined’.

Any uncertainty of course plays into the hands of the ‘leave’ campaign. It is an unavoidable feature of all constitutional systems that it falls to courts to assess the legality of, and to interpret, the interventions of the political institutions with reference to constitutional texts; and so certainty is, for better or worse, unattainable. But, like Sir Alan Dashwood, I am confident that the Court will not attempt to unpick the Agreement of the Heads of State. In its case law relating to, for example, economic and monetary union and citizenship (most recently last week…), the Court has shown itself increasingly willing to embrace political reality and endorse the choices of the Member States in areas of high political salience. This Agreement represents an unambiguous attempt by the political institutions at the highest level to influence the Court’s interpretation of the Treaties. It is unusually clear and forthright. And while the legal obligation on the Court is indeed no stronger than an obligation to take the political signal ‘into account’, the mind of the Court should be concentrated. In its future case law, it will be faced with a stark choice – either choose an interpretation of the Treaties which is in conformity with the Agreement and endorse the new restrictions; or precipitate huge constitutional conflict within the EU by insisting on interpreting the Treaties in a manner antithetical to the Agreement. It only has one realistic choice.

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