Andrew Duff -  On Governing Europe

European Council meetings are deliciously unpredictable – especially, like today’s, when constitutional matters are raised. There are new faces around the table (including the new Latvian prime minister, Maris Kucinskis, who only took office last week) who are largely unknown and, as far as one can tell, largely unknowing about the EU’s constitutional problems.

Several prime ministers – Rajoy, Kenny, Tsipras – are preoccupied by domestic electoral politics. Donald Tusk himself, presiding the meeting, is not very experienced at this game. The two people who know most about everything are Jean-Claude Juncker and Angela Merkel – but both of them are rather more concerned about the refugee crisis than Brexit. David Cameron himself, agent provocateur, has shown himself to be in the course of his recent exercise careless in his diplomacy, inconsistent in his demands and muddled in his messages, and alarmingly ignorant about EU law and the working of its institutions.

Sticking points

So what are likely to be the main sticking points on Brexit? First and foremost, the Heads will have to grapple with the issue of whether the envisaged ‘new settlement’ is really about Britain alone or whether it should have wider implications for the EU as a whole. Clearly, concessions made too readily to the UK cannot reasonably be denied to other member states. This dilemma is most exposed over the ‘sovereignty’ dossier, where the draft includes a lot of gibberish about what ‘ever closer union’ might mean (in short, not ever closer union) when all Cameron wants is a blockbuster unilateral British exemption from political union. But the problem affects other dossiers too. Will other states, notably Germany, be able to claim the same curbs to pay child benefits as the UK is set to get? The Central Europeans quite rightly are indignant about being shafted – and can be expected to insist further that the proposed restrictions shall only apply to new and not existing migrant workers and their families.

The UK appears to be winning the argument that instead of a single rule book for Europe’s banks, we will now have two – one for those inside the banking union and another ‘less uniform’ for those outside. But both France and the European Central Bank have been fighting back against this dilution of EU legislation only completed in 2014. They can be expected to fight more.

For the British there are some new problems emerging. In an important addition to the latest draft Decision (of early this morning), a new clause stipulates that the welfare benefits accorded to EU citizens shall in no circumstances fall below those accorded under EU law to third country nationals working in the EU. For the relevant gold standard, see how well the Turkish guest workers are treated in Germany.

Parliament flexes its muscles

The European Parliament has emerged as a late but important player in the Brexit farrago. The draft Brexit decision instructs the Commission to bring forward amendments to two important and controversial pieces of secondary law – Regulation 883/2004 on social security and Regulation 492/2011 on free movement of workers. Earlier attempts by the Council secretariat to install the new ‘alert and safeguard mechanism’ to stem the flow of migration by implementing acts (tertiary legislation, where MEPs have a more limited role) have been stymied by Martin Schulz and his colleagues. So full-on co-decision by the Parliament will commence if and when (but not before) the Brits vote to stay in the EU. Journos should brush up on their knowledge of the Parliament’s Employment Committee (EMPL).

Parliament will also be right to quiz the Commission on why it has already deemed that the UK enjoys a crisis situation with regard to migration even before the relevant criteria for an objective assessment of crisis have been established by the legislature. (The evidence, in fact, is scanty.)

MEPs will also be curious to know how it is justified to widen the scope of the limitations on migrant workers allowed under the treaty on grounds of ‘public policy, public security or public health’, to include the protection of employment. This smacks terribly of ‘British Jobs for British Workers’.

Once hacks have supped at the well of the EMPL they could move on to the Civil Liberties Committee (LIBE) who will want to know why it is proposed to allow the UK (and other member states) to ban individuals from entry on the grounds that they are just ‘likely’ to pose a threat to public security in the absence of any evidence of criminal tendencies or previous conviction. Dig out the Charter of Fundamental Rights, by the way.

Some of the proposals are just too complicated for the Heads to understand. So perhaps we need not dwell on them here. But a good question to ask at a late night press conference is to ask one of the notables to explain the content of the Commission declaration on clarification of Directive 2004/38 on the marriage of EU citizens to third country nationals. (The answer, by the way, is to fall in love only with a good lawyer.)

No treaty change

And then there’s still the biggie. Cameron and his chums have stomped around the place for months insisting on ‘irreversible, binding legal guarantees’ for the changes they seek to perpetrate. This means treaty change. But neither this meeting of the European Council nor the Heads acting under international law can guarantee such a thing. There are two putative commitments [in square brackets] to install changes to the Treaty of Lisbon at the time of its next revision: one on the relation between the euro and non-euro states and the other on ever closer union. Watch that space.

Other square brackets relate to the time and pace of phasing out the restrictions on in-work benefits within a four year period (or their extension), as well as to the number of states required to suspend the legislative process in banking union matters.

All of this, and more, will keep us gripped for several hours yet.

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