Explaining the EU deal: an introduction

22 February 2016


There’s been a great deal of speculation about whether the changes in the EU deal are significant and, separately, whether the deal itself will stick.

As these are first and foremost legal questions, we’ve asked impartial legal experts from leading universities to answer them.

None of our expert panel suggested that the deal amounts to a fundamental change in the UK-EU relationship.

But some individual changes will be important to many people—particularly when it comes to EU immigration and benefits rules.

The end of the beginning

As both its supporters and opponents would agree, the EU is a creature of rules. In more formal language, it’s “founded on… the rule of law”.

That means that European leaders can’t make even these relatively limited changes to the EU with the wave of a wand.

Many of the most high-profile changes will need to be made into new EU laws.

So in a way, the deal struck in February is not the end of the renegotiation.

EU immigration

As Professor Catherine Barnard writes, the general rule guaranteeing free movement of people is in the EU treaties.

This means reducing immigration from the EU can’t be done simply by, say, putting a cap on the number of people allowed to enter.

The government’s renegotiation has secured some changes that it hopes will have a knock-on effect on the number of immigrants.

None of these changes are an outright challenge to free movement, but they do expand the exceptions to it, and what people are entitled to when they move to another country.

Benefits for EU workers

The deal’s big-ticket item is the so-called “emergency brake”. This would allow any member country to limit access to in-work benefits for EU immigrants for up to four years.

Professor Eleanor Spaventa explains that this would only take effect for new EU immigrants. The brake would stop people who arrive in the UK after it’s been pulled from getting in-work benefits such as tax credits.

But those workers would become entitled to gradually increasing payments over time, until by the end of four years they’re on an equal footing with British workers.

And the brake still needs other countries’ approval even after being signed off in principle. First, EU law has to change to allow it—a job for the European Parliament as well as government representatives on the EU Council.

The Council then has to approve an application by the UK, or any other country, to actually apply the brake.

Even then, the very existence of the brake could still be challenged at the EU court.

Professor Steve Peers thinks that the brake is vulnerable to such a challenge, and in a way this isn’t surprising. It’s a significant change to EU law without changing the treaties that control that law.

Child benefit claims by EU migrant workers whose for children who live in their home country are also targeted.

Dr Charlotte O’Brien notes that the changes to benefits rules won’t stop these cross-border child benefit claims. This avoids head-on conflict with free movement law.

But the alternative solution of linking the amount that can be claimed to the cost of living in the home country might also be vulnerable to challenge.

It's hard to predict how the court would ultimately decide if these issues were put before it.

Exceptions to free movement of people

Other changes to the rules on immigration require similar political approval and face a similar possibility of challenge.

Take the family members of EU citizens who are not EU citizens themselves. 

Professor Niamh Nic Shuibhne says that the deal introduces restrictions making it harder for such people to stay in the UK.

Likewise, Professor Barnard explains that moves to beef up the exceptions to free movement rules “subtly alter the balance of power between individual and state, making it easier for countries like the UK to deport individuals” for security reasons.

UK sovereignty enhanced?

Professor Paul Craig writes that efforts to reassure the UK that it won’t be ganged up on by eurozone countries are in line with existing EU law, which bans discrimination.

Similarly, Professor Sionaidh Douglas-Scott says that the aspiration of “ever closer union” has no actual legal bite.

Exempting the UK from pursuing it is symbolic.

Necessary or not, the deal promises to write these pledges into the EU treaties. This will require all countries to agree.

In the meantime, as Professor Peers shows, these particular reassurances will be legally binding in international law, not EU law.

“That distinction has legal consequences”, he writes.

This part of the deal can’t be enforced in the EU court, although it can’t be attacked there either.

But that’s only a problem if you think the EU won’t abide by the deal.

For instance, Professor Derrick Wyatt QC says that the statement on when decisions should be taken at national rather than European level is “a positive response to Mr Cameron’s proposal”.

While you may not be able to take this declaration to court, that doesn’t mean the EU will simply ignore it.

Changes to voting rules

The so-called “red card” would allow 16 or more national parliaments to object to new EU laws. But as Professor Wyatt writes, it won’t allow them to automatically block it.

Government ministers on the EU’s Council will discuss the objections of the national parliaments, and then either shelve the draft or amend it to take on board the objections raised.

The Council can still go ahead if it accommodates those concerns. And it seems that the Council will itself be the sole judge of whether it has done that.

Similarly, countries that don’t participate in the eurozone banking union can indicate their opposition to some proposed laws about it.

This is mostly about reaching agreement if such an objection is raised. Professor Craig points out that it doesn’t give the non-euro country a legal opt-out from any laws that are passed despite these objections.

So how effective these mechanisms are in practice will depend on how seriously they’re taken.

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