Legally binding and irreversible

Announcing agreement between the Heads of State and Government of the EU Member States on the UK’s renegotiated status within the EU just before midnight on 19 February 2016, Donald Tusk, European Council President, stated that it was a “legally binding and irreversible decision by all 28 leaders”. The terms of the renegotiation are set out in seven draft legal documents: the Decision setting out the main terms of the agreement; a Statement of the Heads of State and Government incorporating a Draft Council Decision on specific provisions relating to the effective management of the banking union; a Declaration by the European Council on competitiveness; and four Declarations by the European Commission.

The conclusions to the European Council Meeting confirms that the Heads of State or Government had declared that the:

• (draft) Decision gives a legal guarantee that the UK’s concerns have been addressed
• content of the Decision is fully compatible with the Treaties, and
• (draft) Decision is legally binding and can only be amended or repealed if all 28 Heads of State or Government of the European Union agree.

Notwithstanding, the Justice Secretary, Michael Gove asserted on 24 February 2016 that the outcome of the negotiation was not legally binding until the Treaties are changed and could therefore be overturned by the Court of Justice of the European Union (ECJ).

It is true that the Decision itself does not change EU law - although some aspects of the agreement will do so once they are implemented, such as the provisions on social welfare and the Council Decision on economic governance. It contains a commitment to incorporate the section on economic governance and the carve-out for the UK from the commitment to ever closer union at the next Treaty revisions, which can only be carried out under one of the Article 48 TEU procedures.

However, the Decision does contain legal obligations that are binding under international rather than EU law. This is because the draft Decision is intergovernmental in nature, rather than a decision of the European Council (which would have to rest on a specific legal basis in the Treaties). It is consequently a creature of international law, rather than EU law, and once it enters into force (automatically, on an announcement that the UK has voted to remain in the EU) will be binding under international law. Similar agreements were put in place in relation to Denmark and Ireland, in both cases to help persuade their citizens to ratify the Lisbon Treaty. EU law would only take precedence over international law if there were a conflict between international and EU law.

Donald Tusk also weighed in on the dispute, reiterating before the European Parliament that the deal was legally binding and irreversible, is in conformity with EU law, and cannot be annulled by the European Court of Justice.

What remains uncertain, however, is whether the Commission proposals on the emergency brake and child benefit survive the ordinary legislative procedure in the format in which they have been agreed. Both the Council and the Parliament must agree the proposals before they are adopted and become directly applicable (in the case of the Regulations on in-work benefits and child benefit exports) or are implemented (in the case of the Directive on the non-EU family members of EU citizens). The Decision cannot bind the Council or the Parliament. However the Heads of State or Government committed themselves to support the first two of these measures in the draft Decision, which gives some reassurance that their Ministers will take account of that commitment. The Parliament is a rather different issue - and it is unclear how contentious (or otherwise) the proposals may prove with the elected Members of Parliament