The Prime Minister’s renegotiation deal on the UK’s European Union membership is a package of changes to EU rules. It was agreed by European leaders on 19 February 2016. In this series of articles, some of the country’s leading experts in EU law explain the deal and what it changes.
In brief: The proposed EU deal would exempt the UK from aspiring to “an ever closer union among the peoples of Europe”. This phrase has a symbolic political impact, but has little or no legal effect. Saying that it no longer applies to the UK doesn’t change anything about how the EU works, or the powers it has.
The phrase “ever closer union” is one of the targets for David Cameron’s renegotiation of Britain’s relationship with the EU.
In his statement to the House of Commons on 3 February, Mr Cameron said:
“we do not want to have our country bound up in an ever closer political union in Europe”.
This links “ever closer union” to progress towards a federal or "super-state” Europe.
But a closer look at the use of this term in EU law undermines that idea.
“Ever closer union” isn’t specifically a call for political union
This expression is of long-standing origin.
It is found in the Preamble to the 1957 treaty that set up what became the EU. On at least six occasions the UK has signed up to it (firstly in becoming a member, and then agreeing to subsequent treaty changes).
So for example, one of the main EU treaties currently refers to:
“the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen”.
Notably, the treaties actually say “ever closer union of the peoples” of Europe, not governments. The phrase does not contain the word “political”, and it uses the word “union” with a small u, less suggestive of a formal drive towards a European super-state.
It’s also important to read the phrase “ever closer union” with the rest of the sentence. This links ever closer union, as the original draft of the EU deal stated, with a desire to “…promote trust and understanding among peoples living in open and democratic societies…”.
The “new settlement” deal also spells out that references to ever closer union don’t give the EU any specific “competences”, or powers.
Likewise, the phrase doesn’t require the EU to expand its powers, nor prevent any power from being removed from the EU.
This is important, as it underlines that the phrase has no actual legal bite, and can’t be a springboard for expansive EU action.
The phrase is therefore symbolic. But this doesn’t mean that it’s unimportant politically.
The EU court hasn’t used the phrase to support federalist judgments
Is "ever closer union" an expression that the EU court can use in support of judgments that expand EU competences, as the government has argued?
The evidence of the case law suggests not. The EU court doesn’t often cite the phrase.
When it does use it, it’s usually as part of the whole phrase, “ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen”, in the context of public access to official documents.
In other words, the phrase is mostly used in decisions about freedom of information requests.
It was notably absent from the court’s landmark judgments, such as the Costa decision, which set out the principle of supremacy of EU law.
The UK has opt-outs despite “ever closer union”
It’s also important that the wording “ever closer union” hasn’t prevented Britain from obtaining a range of opt-outs from EU integration in the past.
And in June 2014, the European leaders formally stated that
“the concept of ever closer union allows for different paths of integration for different countries, allowing those that want to deepen integration to move ahead, while respecting the wish of those who do not want to deepen any further”.
The renegotiation deal repeats this.
Exempting the UK from ever closer union is political rather than legal
As the phrase "ever closer union" is to be found in the EU treaties themselves, amending or deleting it would require every country to agree.
Instead, the UK could be formally exempted from the aspiration to “ever closer union,” which could be confirmed by treaty change down the line.
That’s just what the EU deal does:
“It is recognised that the United Kingdom, in the light of the specific situation it has under the Treaties, is not committed to further political integration into the European Union. The substance of this 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, so as to make it clear that the references to ever closer union do not apply to the United Kingdom”
What’s actually achieved by this?
Given the fact that the phrase “ever closer union” doesn’t imply a move to a federal EU, and isn’t a legal basis for any increase of EU power, exonerating the UK from a commitment to achieving ever closer union will not change the UK’s relationship with the EU.
Update 22 February 2016
We revised the article to take into account the final version of the EU deal published on 19 February, rather than the draft of 2 February as in the original.
Update 5 March 2016
We added "what became" to the sentence "It is found in the Preamble to the 1957 treaty that set up what became the EU".
