Cameron and reform of EU free movement – to discriminate or not to discriminate

benefit tourism

Prime Minister Cameron has, at long last, written down his list of proposals for EU reform, to be followed by the in/out referendum. Nothing that was not expected, in some form or other. Cameron seems keen to wrap this reform process up at breakneck speed, making the whole thing look like a really short film, with the longest trailer ever.


Commentators agree that the 4th demand, reform of free movement, is the hardest to achieve. That is particularly the case with respect to the proposal to introduce a 4-year residence/contribution condition for migrant workers to qualify for in-work benefits or social housing. The pundits also point out that the letter to European Council President Tusk tries to create some room for manoeuvre by recognising that these issues are difficult for other Member States. They are indeed, not least because this proposal seems to require some kind of exception to what is the constitutional cornerstone of free movement of persons (and much else) in the EU: non-discrimination on grounds of nationality. But there isn’t much commentary which digs deeper, and that is what this post aims to do. What is discriminatory, and what not?


Before doing so, the proposal calls for a couple of other comments. First, it has been cobbled together quickly, at the time when Chancellor Merkel made clear that more drastic restrictions, such as an emergency break on immigration from other EU Member States, were unacceptable. It drew inspiration from an Open Europe briefing co-authored by my LSE colleague Damien Chalmers. That briefing called for a new EU directive on citizenship and immigration, which would contain a comparable 3-year rule. It has to be said that this briefing went into the direction of declaring that discrimination is a virtue, by advocating a new provision establishing the supremacy of national citizenship over EU citizenship. The proposed directive would “set out that welfare benefits, social housing and publicly funded apprenticeships are in principle reserved for national citizens and can only be granted to EU citizens n limited circumstances”. The authors denied that this required Treaty change, but if I was asked to write a legal opinion on this, I would come to the opposite conclusion.


Second, it is not clear at all that the proposal, if implemented, would make any difference to the numbers coming to the UK. Research shows that so-called benefit tourism is a marginal phenomenon; that EU citizens come to the UK to work; and that they contribute more in taxes and draw less on benefits, proportionally, than UK nationals. But no need to develop those points, as all this has been extensively commented upon.


Third, I note the disconnect between two current UK government policies. The government is concerned that so-called in-work benefits, which as I understand them work mainly through systems of tax credits, are too much of a pull-factor for EU citizens. However, the same UK government is looking at drastically reducing these tax credits, in general, as part of its deficit-cutting programme. If the pull-factor were real, would this issue not be taken care of by the general welfare-reduction policies?


But onto the discrimination point. Let me, in succinct blogpost fashion, try to sum up the law on non-discrimination on grounds of nationality. We EU lawyers distinguish between direct and indirect discrimination (also described as overt and covert discrimination). Direct discrimination means that a particular law or rule takes the prohibited criterion – here nationality – as the basis for differential treatment: “UK nationals obtain in-work benefits unconditionally, nationals from other Member States must have legally resided in the UK for 4 years.” Such direct discrimination is a clear breach, and the Treaties would need to be changed to make it lawful. I note in passing that this is the kind of Treaty change which requires an elaborate procedure, as a rule requiring the convening of a “Convention” – so not just consensus among Member State governments.


But the prohibition of discrimination on grounds of nationality does not mean that EU Member States cannot have policies distinguishing between residents and non-residents – as opposed to nationals and non-nationals. In the field of taxation, for example, the EU Court of Justice readily accepts such distinctions. Nor does it mean that the award of some kind of benefit on condition of prior residence violates the non-discrimination principle. These are what we call cases of indirect discrimination. Requiring a period of prior residence is not directly discriminatory, but since most UK nationals live in the UK, and most non-UK nationals do not, distinctions based on residence are suspect. Crucially, however, they can in certain cases be justified. Here is an example from the Court’s case law. Mr Bidar, a French national, came to the UK to study (at UCL!). He requested a student loan, to cover his maintenance costs. These loans are government-subsidised, and the UK limited the loans to students who had been resident in the UK for 3 years before starting their course. The UK argued that UK taxpayers funded the student loans, and that it was therefore legitimate to impose the residence condition. The Court accepted this. It stated that it was legitimate for a Member State to grant assistance only to students who have demonstrated a certain degree of integration into the society of that State. And the existence of a certain degree of integration could be regarded as established by a finding that the student in question has resided in that State for a certain length of time. In other words, requiring a certain period of prior residence for the award of a benefit is not a priori unlawful.


However, this all depends on the type of benefit, and the context of the case. In this respect, it shows that EU law has developed over a period of more than 40 years, through case law and through legislation on free movement. There are benefits which Member States confer which cannot be conditioned on prior residence, and there are those which can. This post is not the place to demonstrate this, as it would require an extensive study, but it does seem to me that there is a real need for creating greater clarity and consistency in this area of EU law. That would be a kind of EU reform which is worthwhile. What this would require is a process of looking carefully at the EU legislation on free movement, and of starting a debate on which “integration” requirements are acceptable, and which not. That can be done, but it will be time-consuming and difficult, also politically. Of course it cannot be done by the European Council at a summit: there is a legislative procedure in the EU, which involves the Commission, the Parliament and the Council of Ministers. But the European Council could initiate a work programme on this issue.


Whether the outcome of such a review process could be that the UK would be allowed to introduce the 4-year Cameron proposal is uncertain, in particular as regard tax credits and in-work benefits. EU legislation on free movement of workers has, from the beginning, provided that workers from other Member States “shall enjoy the same social and tax advantages as national workers”. Coming to work in another Member State involves a much higher level of integration than studying, and subjects the person to income tax and social security contributions in the same way as that State’s own nationals who are employed. The principle of non-discrimination in my view requires that all workers are treated equally in matters of taxation and social security.


Curious to see how all this plays out …

Prisoner voting and the UK’s imprisoned European policy

Reposted from European Futures:

Following this month’s EU court ruling on voting rights for prisoners, I situate the judgement in context and assess its consequences for the UK. In so doing, I explore the relationship between EU law and the European Convention on Human Rights, suggesting that, even when states attempt to avoid difficult ECHR rulings, they may encounter them again through EU law with significantly less room to manoeuvre.


Recently, the EU Court of Justice delivered a judgement on prisoner voting. In the UK, the prisoner voting saga is well known. UK legislation bans all convicted prisoners from voting in general, European and municipal elections. There is no minimum threshold, other than serving a prison sentence, and the voting ban is lifted upon leaving prison. It is an automatic effect of being convicted, not an individually tailored punishment for certain types of criminal behaviour.

Ten years ago, the European Court of Human Rights decided in the Hirst case that this generalised, automatic voting ban is a breach of the fundamental right to participate in free elections, as articulated in Article 3 of Protocol 1 to the European Convention on Human Rights.

The Court found that, although there is great variation throughout Europe in the disenfranchisement of prisoners, the UK ban was too general and indiscriminate to pass muster. The Court generally recognises that states have a ‘margin of appreciation’ to determine limits to fundamental rights, but in Hirst, and in cases which followed, it found that the UK’s legislation was outside any acceptable margin.

This Strasbourg case law has become a preferred target for the Strasbourg-sceptics in UK politics and public debate, who see it as a prime example of the European Court of Human Rights extending the Convention far beyond what was originally intended, and meddling in issues which are best left to national democratic politics.

The UK government and parliament have been dragging their feet when it comes to implementing these Strasbourg judgements. Prime Minister David Cameron has himself said that the idea of prisoners voting makes him physically sick.

The UK courts are not, on their own, in a position to accommodate prisoners’ voting rights under the Convention. The Human Rights Act, which implements the Convention in national law, does not allow them to override parliamentary legislation. Nevertheless, the UK Supreme Court has accepted the Strasbourg case law in Chester and McGeoch. The justices are clearly not as outraged as the Prime Minister and many in the Conservative Party.

Of course, the UK could free itself from this unwelcome Strasbourg interference by simply withdrawing from the Convention. Before last May’s general election, it often looked like a Conservative government would try to do just that. Now, however, it is less clear whether any radical reform of human rights policies is on the cards.

Be that as it may, there is now another European court which has put its foot in the door. Earlier this month, the EU Court of Justice decided in Delvigne to follow in the footsteps of the Strasbourg case law when it comes to voting bans for European Parliament elections. The case involved a French convict, but the principles which the Court established extend to all EP elections, including those in the UK.

The lesson is that, even if you manage to keep the Convention out of your front door, it will creep in through the backdoor of EU law. Why is this the case? To start, the EU has its own binding Charter of Fundamental Rights (CFR). In short, the Charter is a copy of the European Convention with a number of add-ons (such as a range of social and economic rights).

There is however an important difference with the Convention. Unlike the Convention, the EU Charter is not generally binding on the EU Member States. Instead, it only binds them when they implement EU law (Article 51(1) CFR). That is a crucial limitation, and one whose application is not straightforward. Ultimately, it is for the EU Court of Justice to determine in which instances the Charter applies.

The Delvigne decision is a prime example of the indeterminacy of the ‘implementation’ requirement in EU law. The Charter contains a provision on EP elections, but it only states the principle that MEPs ‘shall be elected by direct universal suffrage in a free and secret ballot’. There is no uniform EU-wide procedure for elections to the EP, and a 1976 Act (part of the EU’s treaty norms) does no more than leave the question of the franchise to national law, whilst at the same time confirming the requirement of direct universal suffrage.

Nevertheless, the Court of Justice decided that, in determining the franchise, the EU Member States must respect the Charter. In effect, it has interpreted the Charter requirements in accordance with the Strasbourg case law – even if it did not expressly refer to that case law.

For UK purposes, the crucial point in Delvigne is that the Court of Justice said that there must be a degree of proportionality between the seriousness of the crime or its punishment and a prisoner’s disenfranchisement. Clearly this means that the general, automatic and indiscriminate disenfranchisement of all prisoners does not comply with the EU Charter. For EP elections, some convicted prisoners can be disenfranchised, but not all of them.

There are now two bail-out cards for UK prisoners seeking to vote. At least in principle, the EU card is a trump. The fact that UK legislation does not provide for this EU requirement is not an issue, unlike the Convention and the Human Rights Act mentioned before. Under the doctrine of primacy, EU law prevails over any inconsistent national law. All UK courts are under an obligation to ensure that any rights under EU law are respected.

It will be interesting to see how this issue plays out. The Court of Justice judgement definitely puts further pressure on the UK to amend its prisoner voting ban. Nevertheless, the prisoner voting saga is but a proxy for a much wider point.

For EU Member States, adherence to the European Convention on Human Rights is next to indissociable from their EU membership. The EU is founded on a set of values which include human rights. The EU Charter must be respected within the scope of EU law. If an EU Member State were to leave the European Convention, it would continue to be bound by the Charter indirectly through EU law.

Such circumstances would lead to very awkward legal distinctions. For example, that state’s citizens would not have certain rights (because their case would not be covered by EU law), but migrant workers from other EU Member States would have those rights by virtue of the Charter and of being within scope of application of EU law. It would result in a paradoxical situation in which EU citizens living in that country would have greater human rights entitlements than its own citizens!

The result is that the UK government’s European policy is constrained – imprisoned even. On one side, the European Convention and EU membership cannot be easily separated. On the other, European judgements – be they delivered in Strasbourg or Luxembourg – must be respected and implemented.

The European refugee crisis and EU governance

We have all been greatly affected by the unfolding European refugee crisis and the EU’s failure to offer a coherent response. Another EU default, in the same summer as the Greek debt crisis. Most observers will agree that both crises are not just of the EU’s own making, but that does not erase the fact that the policy responses appear wholly inadequate.

In my previous blog I critiqued the rules-based approach of EMU and Eurozone governance. Not that it is bad to have good rules, but for a well-functioning economic and monetary union a mere set of rules on national budgetary discipline is insufficient. Some kind of fiscal transfer mechanism is required. Today I read that a French member of government, Mr Macron, is of the same view.

It is remarkable that a similar analysis can be made of the refugee crisis, as pointed out in Wolfgang Munchau’s excellent FT opinion piece (with apologies to those who do not get behind the FT wall). No need to copy or summarise here, but do read it if you can.

The refugee crisis is a sobering lesson for us, EU lawyers. There is a nice apparatus of EU legislation, harmonising national laws on asylum and the treatment of asylum seekers. There are clear rules in the Dublin Regulation on which country is responsible for dealing with a particular asylum claim. There is the EU Charter of Fundamental Rights which is supposed to protect everyone. There are mechanisms of judicial review, with the possibility for any judge in any EU country to refer questions to the EU Court of Justice – if need be under an accelerated procedure.

Has any of this worked this summer? Not at all. The Dublin rule is proving untenable, but equally hard to modify. Asylum claims ought to be judged by each country under identical rules: the Geneva Convention and EU legislation. But we read and see that there are huge discrepancies in the acceptance of such claims. Germany and Sweden are the most receptive countries, and the Hungarian prime minister considers that refugees are a German problem – implying that they are wholly unwelcome in his country. So far for the rule of law in the EU.

Consider also the following example of how the law can be part of a virtual world which is totally detached from the real one. One of the core principles governing the Schengen free movement zone – which the EU calls the Area of Freedom Security and Justice … – is the principle of mutual trust. It means that, in matters such as asylum, all EU countries are full protectors of human rights, and that their relations should be governed by this principle. They cannot check, when returning an asylum claimant to another EU member State, whether that claimant’s rights will be respected. The EU Court of Justice even went so far, less than a year ago, to declare that this principle needs to be protected from interference by the European Court of Human Rights, which fortunately is a bit less presumptive about standards of human rights protection across Europe.

Mutual trust, this summer? All EU countries offering refugees treatment which respects their human rights? Just think of all the images we are seeing.

So what to do about all this? It is easy to adopt the regressive position of abandoning Schengen, and reinstating border controls. Only, if you think this through, it is no solution at all (again pretty similar to the Eurozone crisis). Even if one discounts the negative effects for everyone else moving freely around a borderless Europe (which does not include the present London-Brussels-London mover of course): the fact is that even more refugees would get stuck in Italy, Greece, and Hungary, which are the most affected borderline states. That would be even less sustainable than the present situation, in a crisis such as the one currently engulfing Europe. Imagine the multiplication of the scenes at Calais, at so many internal EU border crossings.

The crisis proposals which are currently on the table are focused on refugee redistribution – greater EU solidarity, in other words, than under the current Dublin Regulation. Not easy to achieve, in light of the politically toxic nature of immigration in so many countries. But it also dances around the problem of who decides about refugee status. To me, at this point, it seems that this is a policy area which calls for institutional federalism. The EU has so many agencies already. Why not create an EU asylum agency, with offices in most if not all member States, which decides on EU asylum claims. An institutional response, rather than a rules-based one. Federal law, administered by a federal agency. The advantage would not only be that there would be unified decision-making, but also that this agency, if operating under a well-designed status of independence, could de-politicise the treatment of asylum claims. Just like EU competition policy is de-politicised. Perhaps food for further reflection.

Austerity, rules, and fiscal policy

Much of the commentary on the Greek crisis has focused on “austerity”, which has established itself as the central concept in most analyses. There is a very strong current in at least the English-language economics commentary to indict the excessive austerity demanded bausterityy the eurozone (and the IMF!) for the collapse in Greek GDP, and the consequent unsustainable nature of Greek public debt. Proponents of this view include Nobel prize stars Joseph Stiglitz, Amartya Sen and Paul Krugman. The Keynesian theory is simple enough, even for this dilettante in the field, a mere lawyer, not an economist: in times of crisis, when the private sector saves rather than spends in order to repay excessive debt and to recover, governments need to spend more. If in such times the government also spends less, the crisis only intensifies and government revenue decreases with further negative effects on public debt. By contrast, when growth resumes as a result of expansionary policies, government debt can be more easily repaid, and will to some degree take care of itself through inflation and greater revenue. Who are we to disagree? But those are not the policies which the eurozone has embraced.

And yet, as a lawyer, I’d like to examine the evidence, forensically, and would love to cross-examine the witnesses. Not about whether the theory is correct – that looks incontestable. But about the realities of the eurozone sovereign debt crisis. Why is it, for example, that essentially the same bailout policy did not destroy the Irish and Portuguese economies? Why is it that UK austerity policies, which are also pretty tough, have apparently not undermined the UK economy, which has been recovering more quickly than the eurozone, and has enviably high employment (and unenviably low real wages …)? Why is it that the Spanish economy seems to be on the mend again, notwithstanding strict austerity policies? As long as I don’t get convincing answers to those questions, I continue to think that there is more at hand in the Greek crisis than misconceived austerity.

The political actor most vilified for this austerity drive is doubtless Mr Schäuble (also a lawyer …). He definitely looks most austere, and is seen as embodying Germany’s wrong-headed (some say self-serving) insistence on eurozone austerity. But those who look a bit more closely at Mr Schäuble’s policies see more than a failure to understand Keynesian economics. One recent comment which struck me is that he now considers that a Greek debt haircut – which would clearly hurt Germany as the main creditor – can be talked about if Greece leaves the eurozone, but not if there is no Grexit. He in fact claims that eurozone law prohibits this, a claim convincingly rebutted by inter alia Armin von Bogdandy. But leaving the legal argument to one side, this focus on eurozone rules is revealing. The euro was set up without a fiscal union which would allow for transfers from richer to poorer eurozone countries, without a common economic policy, and without a common budgetary authority. All of that was a bridge too far, at Maastricht, in terms of transfer of sovereignty – or several bridges probably. The deal was that each eurozone country would remain fully responsible for its budgetary policies and equilibrium, hence the no-bailout clause of Art 125 TFEU. Instead of moving to a real political union, as it is mostly called, the negotiators decided to establish strict disciplines for participating states, the famous Maastricht criteria. Rules instead of a common fiscal and economic policy. This focus on national responsibility and strict rules is a central pillar of EMU. So it is not at all surprising that someone like Mr Schäuble, who regards himself as an architect of EMU, insists on Greece living by the rules. In fact, the complete failure of the 6 months of negotiations between Syriza and the eurozone seems to me to have been mostly caused by the unbridgeable positions of a rule-based eurozone approach and a new Greek government regarding itself as wholly sovereign because democratically mandated.

The financial and sovereign debt crises have not as yet led to anything resembling a fiscal union which would allow for EU redistributive policies. Indeed, the term fiscal union as it is currently used in some of the political discourse strikes me as either completely utopian or pretty deceptive. In the many decades of European integration it has so far not been possible to develop any common fiscal policies, other than in the fields of customs duties (a function of EU trade policy) and the system of VAT, but not the rates and most of the revenue from it. To the extent that the EU has competences in the field, it is held back by unanimous decision-making. So a real fiscal union is an utopia, or else a deceptive term which is used to denote just doing a little more at EU level than before.

Instead of moving in that direction, the EU has responded to the crises by ratcheting up the rules. Stability and Growth Pact, Fiscal Compact, Six-Pack and Two-Pack, you name it, it is all more of the same: stricter rules for national budgetary policies, more strictly enforced. From this perspective, it is understandable that Mr Schäuble insists that Greece cannot default within the eurozone: not only has it disobeyed the rules, it has then needed several bail-outs, and if its debt is now partially cancelled the eurozone might just as well throw its rule book away.

But the process of ratcheting up the rules strikes me as pretty desperate. When a major crisis such as the 2008 one strikes, no rule book enforcement is going to resolve it. Spain is the best example. Its sovereign debt was within the Maastricht norms, but when its banking and private sectors crashed its debt ballooned.

To sum up, the eurozone austerity fixation seems to me as much a function of the imperfect monetary union which was created, as it is the result of misguided economic policy-making. It makes little sense further to strengthen the rule-oriented approach (yes, and it is a lawyer stating this). Instead there needs to be some kind of real fiscal policy at eurozone level which allows for some degree of redistribution. Otherwise the euro project will lose all legitimacy, particularly in the countries which are suffering more. Scope for some more thinking and blogging.

The Greek crisis and the dysfunctional European political space

Igreek-crisis-16t has been sad to see the Greek crisis gathering pace, culminating in a Eurozone summit which, on condition of deep and intrusive reforms, allows Greece to remain in the Eurozone, and offers the perspective of another bailout.  But no one is under any illusions that the crisis is resolved.  It is clear that European integration has reached a very low point, judging by the acrimonious debates at all levels: official, media, and social media.

This post does not comment on substance but on process.  If there is a silver lining to the crisis it is, in my view, the birth of a European political space.  The long-living mantra that the EU suffers from a democratic deficit is well known.  It is coupled with a profound scepsis about the potential for ever narrowing, let alone removing, that deficit: there is no European demos, only demoi.  Democracy continues to be embedded in the nation-State, a conception most extensively articulated by the Bundesverfassungsgericht (German Constitutional Court) in its Maastricht and Lisbon judgments.  To put it in less elevated terms: all politics are local.  The EU’s main top-down attempt at instituting democracy at the EU level is tentative and has not worked well: the directly elected European Parliament is not a full sovereign parliament and its elections do not manage to transcend the local nature of State politics.  The democracy sceptics consider that all this is evidence that there can be no real EU-wide political space. Notwithstanding decades of – one would almost forget – largely successful European integration, we all continue to live in countries which are too diverse to enable us all to engage in genuine European political debate.  There is no European political space.

Or is there?  For anyone who has followed the Greek crisis (and has not nearly everyone, to some degree?) it is difficult to deny that we have seen and are seeing a genuine European debate.  It is a moral debate, about who is right and who is wrong; it is an economic debate, about the merits and flaws of the euro-project and of austerity policies; it is a social debate, about protection of people and solidarity; and it is a hard-core politics debate, on left and right, and on power structures.  That is not to say that there is no national dimension to the debate.  Views are clearly very different between creditor States and bail-out States, or, to simplify, between North and South.  Indeed, the debate is way too nationalist in many ways. But a European debate it nonetheless is.

How come?  The most immediate answer could be that the Greek crisis is so deep, grave and awful that people take an – perhaps unusual – interest in European politics.  If that is the case, this European debate is unlikely to continue beyond this crisis.  The European political space would be contingent and not enduring. But there may be a deeper reason.  It is becoming ever clearer that the Eurozone sovereign debt crisis has given birth to a European politics of redistribution. That is a historical shift.  European integration and its politics have never been about redistribution at the levels we now witness.  Yes, the internal market project may have some redistributive effects.  Yes, the EU has tried to develop something of a social policy, but it is limited and contested.  Yes, the expansion of the EU has some redistributive goals and effects.  But none of this is in the same league as the issues raised by the Greek crisis.  And when I say “issues raised” I do not refer to any objective academic assessment of the actual effects of bailouts and their financing, but to political perceptions and claims.  Responsible Germans financing spend-thrift Greeks.  Creditors bailing out German and French banks rather than the Greek people.  The euro project being to the benefit of the North (or Germany) at the expense of the South.  Right-wing eurozone politicians imposing austerity to the benefit of capital.  Etc etc.  And of course it cannot be denied that the Greek people are intensely suffering, that Germany and others are doing well, that we are speaking about a lot of money (even if Greece accounts for only 2% of the eurozone economy), that a default would constitute a transfer from the creditors to Greece, and that full repayment of the Greek debt requires further austerity, if either is at all possible.  All this is inherent in the euro project in times of crisis.  The idea, endorsed by the creators of EMU, that solidarity could be avoided by continuing to have each eurozone State responsible for its own fate has proven illusory.  The euro has created a politics of redistribution, and the crisis a European political space.

However, it is a political space which in institutional terms is dysfunctional.  For the politics of redistribution to work one needs a political system which crystallises debates, and enables, at some point, effective majority decision-making.  By majority I do not mean, in the eurozone context, a majority of Member States.  There is such a majority: the creditors are united in the conditions they impose – in fact Greece has accepted and its parliament has adopted legislation, so there is a consensus.  But it is not a consensus emanating from the European political debate.  It is a creditors’ consensus, and it is mostly determined by national political interests and debates.  For example, the governments of other Southern eurozone countries are resisting a good deal for Syriza, because of the political ammunition it would supply to anti-austerity parties, mostly on the left.  It is also a politically weak consensus, in the sense that it builds on established policies, institutions, and rules.  Once the EU has set on a political course, it is very hard to change it.  In part, that explains the failure of the negotiations since Syriza came to power: how many times have we heard that the new government had to stick to the rules and to what was previously agreed?

By contrast, it is no accident that at one level the eurozone has been able to evolve and respond: ECB policy.  This is an organisation which is capable of crystallising debates and making decisions.  It has a President who is able to say that the ECB will defend the euro, whatever it takes, as Draghi did in 2012 when announcing the OMT policy.  But of course the politics cannot be left to the ECB, because it is independent, hardly accountable, and not subject to the politics of democracy.

The analysis of the dysfunctionality of Europe’s political space is easy enough; which reforms to suggest is much harder.  The “federalists” of course have a straightforward solution.  We need to establish EU-wide political institutions with real decision-making powers, also in terms of redistributive politics.  To simplify: the Commission needs to become a European government, with a majority in the EP, and with a budget which allows for redistribution.  But it is pretty clear that the peoples of Europe (these are the “peoples”, plural, referred to in the EU Treaties’ preamble) are at this stage pretty reluctant to endorse such a federalisation – not sure they are aspiring to “ever closer union”!  Nor am I convinced that this is what European integration was originally aimed at: transcending nationalism is not the same as building a European nation.  So I think Europe again has to find what Weiler has called its Sonderweg to create a more functional European political space.

The referendum paradox

The UK’s EU referendum is upon us, and the media are manic about it.  The timing is uncertain, the EU reform programme advocated by the government imprecise, the reaction by the other governments diverse, and the position of the government and the conservative party towards Brexit in flux.  One constant theme is whether the founding treaties will need to be revised.  However, there is in this respect an enormous referendum paradox, which is hardly ever noted.

Cameron’s position is that the EU needs to be reformed.  If such reform happens, he will advocate continued membership.  In this respect he has been enormously successful.  In the UK there is near universal recognition that reform is indeed needed.  Given that the EU founding treaties are so prolific and detailed, on questions of principle, policy and governance, fundamental reform is difficult to conceive of in the absence of changes to these treaties.

It is here that the referendum paradox kicks in.  It is precisely because serious treaty revisions require referenda in many EU member states that most governments are opposed to reopening this pandora’s box.  This generalised referendum practice – in some countries constitutionally required, in others politically indispensable – is a result of the failed EU constitution-making process (2003-5).  Blair also promised a referendum on the EU constitution, but was saved by the negative votes in France and the Netherlands.  Avoiding referenda in all EU states but Ireland for the approval of the subsequent Lisbon Treaty (2007-9) was a veritable tour de force, which strongly contributed to conservative party clamouring for a referendum – at the time in opposition of course.  This tour de force cannot easily be repeated.

So the paradox is to require EU reform, which really demands treaty amendments, followed by a UK referendum – whereas other governments are dead against having to organise their own EU referenda. To make the paradox much sharper Cameron has tied himself to the 2017 deadline.  It is simply impossible for the treaties to be revised (a process subject to a fairly complex procedure in various phases), and for other, non-UK referenda to take place by the end of 2017.  So let us assume that the treaties are indeed revised, and that this leads not just to a UK referendum, but also to referenda in other member states.  The UK public will then have to cast their vote on EU reform which may very well still falter at the next referendum hurdle – in Ireland, or in Spain, or, who knows, in Greece …

The conclusion can only be that it is a particular political performance to have linked these three elements: a referendum on membership, the issue of EU reform, and a 2017 deadline.

A cross-channel Europe blog

It’s taken 17 years of Eurostar travel Brussels-London-Brussels-London-Brussels-… for me to start blogging about the European Union.  It’s taken a Conservative Party win at the latest general election, and with it the certainty of a UK referendum on EU membership.  It’s taken half a life of study and observation of the EU phenomenon, in particular its legal system.  But here we go.  Time to speak up a bit more.