EU hopes legal gymnastics will avoid Brexit

The UK may have given other EU countries the push they need to seek real change in the EU. [Iain Farrell/Flickr]

A draft text granting further concessions to the United Kingdom in its renegotiation with the EU will not be a normal European Council decision, but an international agreement. EURACTIV France reports.

The legal status of the UK’s new settlement with the EU, expected to be adopted at this week’s EU summit on 18-19 February, is causing headaches for diplomats.

The document, drafted by European Council President Donald Tusk, will not be a normal European Council decision. Strictly speaking, it is not even a European decision.

In fact, it is a “decision of the heads of state and government on a new settlement for the United Kingdom within the European Union”. In other words, it is an international agreement between heads of states which happen to be members of the European Union.

Twists and turns to avoid treaty change

This places the draft Brexit deal in an unusual hybrid position: it carries the same legal value as an international agreement, but does not oblige member states to change the treaty that binds them together.

The idea of amending the EU Treaty to accommodate Britain’s demands is indeed a no-go for many member states, including France and Germany, the EU’s two political heavyweights. In the current climate of Euroscepticism, a series of national ratification referendums would likely sink the Union, so it is no surprise that Paris and Berlin oppose this course of action.

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Leading MEPs have expressed the view that a possible Brexit would trigger the collapse of the European Union, EURACTIV has learned.

There is a precedent for this kind of exceptional legal status, however. According to sources in the European Council, it was applied to the settlement of Denmark’s special terms, as well as during the introduction of the euro.

The European Fiscal Compact was also adopted in the form of a Treaty, a more ambitious formula, as it requires ratification by most parliaments, but which was not a comprehensive ‘in-house’ solution for the European Union, since the United Kingdom, the Czech Republic and Croatia did not participate.

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Another advantage of turning to an international agreement rather than treaty change is the speed and relative ease with which it can be adopted. In France, for example, the agreement will not need parliamentary ratification, but will apply automatically… if it applies at all.

Any concessions granted to the UK will only take effect if the country votes to remain in the EU.

A senior diplomat in Brussels said Belgium was even seeking an “automatic auto-destruct” clause for the agreement in case British voters decide to leave.

A faster but weaker text

“The text will have the status of a treaty under international law,” said Manual Lafont-Rapnouil, the French director at the European Council of Foreign Relations, a think tank. “This means it will not be part of European law or the legal bases that govern the actions of the European institutions, including the Court of Justice.”

“On the other hand, with a legal value equal to European law, it will not be able to contradict it,” Lafont-Rapnouil said, adding that this status could turn out to be a real asset for David Cameron. “This mechanism makes it possible to postpone the inclusion of UK renegotiations in the Treaties, which is still on the cards,” he noted.

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The international agreement will be complemented by several ‘annexes’. One focuses exclusively on eurozone economic governance, another on competitiveness, and a third on the  subsidiarity principle, according to which decisions should be taken as close to the citizen as possible. There is also a Commission proposal to introduce tougher laws against sham marriages.

Simple in theory, complicated in practice

If the UK decides to leave the EU, a period of two years of negotiations would be opened, as laid down in Article 50 of the Treaty on European Union. Withdrawal from the EU is simpler than negotiating accession, as it does not require the agreement of the 27 other member states or the European Council.

But for the UK, which has no codified constitution to fall back on, this process may be particularly complicated.

“In addition to renegotiating the status of their relations with the EU, which will be based on the Swiss precedents, the United Kingdom will also have to rewrite and adopt thousands of EU laws which currently apply directly to the UK. This is an enormous challenge which will take a very long time,” a French diplomat warned.

Westminster would have to sift through mountains of existing EU regulations and decide case by case whether to abandon them or translate them into national law.

According to Jean-Claude Piris, from the Bruegel think tank in Brussels, leaving the EU would also mean dropping out of some 200 international agreements currently in force. It would then be up to Britain state to restore these links.

British Prime Minister David Cameron promised to renegotiate the UK's relations with the European Union. The renegotiation will be followed by a referendum by the end of 2017, to decide whether or not the United Kingdom should remain in the EU.

If he achieves the reforms, Cameron will campaign to stay in. Otherwise, the Conservatives might campaign to leave the EU. This decision could have far-reaching consequences for trade, investment and Great Britain's position on the international scene.

Some other European countries are ready to listen to Cameron's concerns on issues such as immigration, and may be prepared to make limited concessions to keep Britain in the bloc.

But EU leaders also have their red lines, and have ruled out changing fundamental EU principles, such as the free movement of workers, and a ban on discriminating between workers from different EU states.

The UK's EU referendum: On the path to Brexit?

Following the Conservative Party’s victory in the 2015 general election, the UK is set to hold an in/out referendum on its membership of the European Union before the end of 2017.


  • 18-19 Feb. 2016: EU leaders to discuss Cameron's reform demands.
  • June 2016: Rumoured favoured date of Cameron for holding the referendum.
  • End of 2017: Deadline for referendum.
  • July-Dec. 2017: United Kingdom holds rotating EU Council Presidency.


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