The European Council anti-Brexit agreement. First questions, first answers

Angela Merkel and David Cameron in a 'bilateral' conversation during the February 18-19 summit (credit: press service of the Federal Chancellery)
Angela Merkel and David Cameron in a 'bilateral' conversation during the February 18-19 summit (credit: press service of the Federal Chancellery)

(B2) The text laid down by Sherpas and lawyers, then approved by European leaders at the European summit on Friday (February 19), to deal with the risk of a British Brexit, is of unstoppable finesse and is particularly complex. Hard to say what it actually contains. This is also the objective: to be able to lend itself to several contrary political interpretations. Here is a first decryption…

Does the UK get special EU status?

Let's say instead that this "special" status is now written in black and white. The United Kingdom already has in fact a special status because it does not participate in several of the important policies of the EU: the single currency and the Euro Zone, the Schengen borderless area and border control (Frontex, etc. .), police and judicial cooperation (except for a few policies it has voluntarily decided to join), justice and home affairs policy (where it has an opt-in, voluntary application decision). He does not vote at Eurogroup meetings or at the European Central Bank. He does not vote in many discussions in the Council of Ministers of the Interior and Justice. It also has a more symbolic exception to the application of the Charter of Fundamental Rights within the United Kingdom. Note that London no longer has an opt-out (exception) to European social policy. Negotiated by John Major and enshrined in the Maastricht Treaty, it was abandoned by Tony Blair after the 2007 general elections won by Labour.

Can the provisions negotiated by the UK be useful / used by others?

Yes and no. There are specific provisions in the United Kingdom: special status in particular. But there are others that are general: the possibility given to national parliaments to intervene in the European debate, the indexation of family allowances, the use of the emergency brake in the payment of social assistance. This is why a legal amendment (treaty or regulation) is necessary.

Is there a risk of slippage later?

Unquestionably the British game consisting in setting up a referendum by threatening to leave the Union is a bad sign given to Europe. But it could just as well be used as a springboard to restart the engine of European integration, which is seized up for the moment (see God save the Queen! Europe on the eve of a political revolution?). The United Kingdom has always been, through its history, a 'stopper'. For the good or the bad of Europe… More worrying is the feeble sluggishness of the Franco-German couple which is unable to garner new ideas and initiatives, the mistrust which has taken hold, including within the founding States (between France and Germany, Italy and Germany, Italy and France, etc.), and the lack of obvious solidarity on the continent (1).

Will the UK be able to suspend all social assistance for migrants?

An alert and backup mechanism will be put in place. It will make it possible to limit the benefit of certain allowances due to European workers residing in the territory, within a limited period. This possibility is strictly controlled. 1° It can only be triggered in the event of a massive influx of workers. from other Member States of exceptional magnitude over a significant period "which can affect the" main aspects of its social security system ". 2° It is not automatic and remains under common control. The State must notify the Commission and the Member States of the problem, with a developed argument. The Commission then prepares a proposal, following the meeting of the College of Commissioners. Authorization is then given by the EU Council of Ministers (composed of all member states). 3° This exclusion only concerns non-contributory allowances (social assistance, etc.) and not those linked to a contribution (social security contributions, tax, etc.) and to work (reimbursement of sickness, unemployment, retirement, etc. ). 4° It can be “graduated” from total exclusion to exclusion limited to a certain amount. 5° It concerns only workers who have recently arrived in the country for a limited period (maximum period of 7 years). 6° The period of limitation of social assistance is itself limited to 4 years.

Is this safeguard mechanism accessible to other Member States?

Yes. It is a general mechanism that has been put in place by an amendment to Regulation 492/2011 which governs the free movement of workers from Member States within the EU. Any State therefore confronted with such a problem may invoke the alert and safeguard clause.

Will the UK also be able to limit child benefits?

Yes, under the new system, the United Kingdom will have the possibility of indexing the amount of child benefit paid to a parent whose children reside in another country to the amount he would have received in the country of residence of the children. This provision can be permanent and not limited in time. In other words: if a child of a Polish worker does not reside in Great Britain but in Poland, the allowance may be limited to the amount paid normally paid in Poland.

Is this “indexing” limited to the UK? Does it concern other services?

All other countries may decide to use this indexation from January 1, 2020. This will be included in an amendment to the 'social security' regulation (883/2004). Several countries (Germany, Denmark, the Netherlands and even France) have more or less formally indicated their intention to use this provision. On the other hand, only the allowances paid to children are thus limited. The other so-called 'exportable' benefits (which can be served in a country other than those of the country where the right was obtained) are not affected by indexation, in particular retirement pensions. It's written black on white in the agreement. Example: the United Kingdom will have to continue to pay its pensioners who have gone to the sun in Greece, Cyprus, or Spain the amount of the pension they would have received if they had stayed in the country, and not the amount of the pension paid to Greeks, Cypriots or Spaniards…

Do States have the possibility of refusing unemployed workers?

Yes. This measure is already valid and included in the 'social security' regulation. The United Kingdom (like the other States) can already apply it (and already apply it). The right of " non-working people to reside in another Member State is indeed restricted. A Member State may require to have " sufficient resources for themselves and their families and not to become a burden on the social assistance system of the Member State of residence. The Member State has the possibility of refusing the benefit of social aid to persons who exercise their right to free movement. for the sole purpose of obtaining social assistance when they do not have sufficient resources to obtain the right of residence ».

Does the device require a modification of the Treaty? At once ?

Yes according to Cameron, No according to Holland. Both are (somewhat) right. Indeed, the “anti-Brexit” device will be immediately valid after a 'Yes' vote in the referendum. But it will only be incorporated into the Treaties when they are next revision ". This is a device that had already been used for the Non-Irish. We had incorporated the changes requested in Croatia's accession treaty. But today, there is no accession treaty about to be signed in the short term. The accession that could have been the quickest — that of Iceland — was abandoned. The two most favorable 'files' are Montenegro and Serbia. But it will still take several years before the accession mechanism is perfected: not before 8 or 10 years… As for another 'ordinary' modification of the treaties, none has currently been initiated or even sketched out. If some countries choose an in-depth route on a specific subject, they could also do so not via the European treaties but by an ad hoc treaty. It should be noted that certain provisions of the agreement do not require modification of the treaty but only at the regulatory level, in particular in social matters (it is the 'social security' regulation which must then be modified). Decision to be taken unanimously by the Board

Can these requested modifications be integrated by a simplified method?

Yes for a good part. The Treaty of Lisbon provided (Article 48 TEU) for two methods for revising the Treaties: the ordinary route (with the Intergovernmental Conference and the IGC) and the simplified route (via a decision of the European Council). This path can only be chosen for 'internal' policies, for example questions on economic governance or on competitiveness. Sovereignty issues (including ever-closer union) cannot normally be changed under the simplified procedure.

Will this text allow the British to vote Yes?

Frankly to read the text, no. This text is very intelligent, very fine. But probably too much to be easily understood. As François Hollande puts it quite well: in a referendum “ there are irrational, passionate arguments that come into play, there are sometimes arguments based on the conception of the nation ". The campaign started across the Channel is a good illustration of this adage. Anything goes: with Brexit, the British will be better protected against terrorism, against migration, etc. Now everything will depend in fact on the talent of 'batelage' of each other. David Cameron is a formidable juggler. It should not be neglected. But he will face him as formidable campaign drummers. The best known is (our former colleague) and now Mayor of London, Boris Johnson. But there are others.

Is there a plan B if the UK says 'No'?

Officially everyone will say there is no plan B if the UK says 'No' to membership. The Commission's chief spokesperson repeated this again during the daily press briefing. " We don't have a plan B ". An expert on the issue from the Commission clarified: “ we have no paper ". In fact, the referendum being quite close (June 23), and the result ambiguous to say the least, the hypothesis of a British departure is in everyone's mind. If only to define, which rule is legally applicable?

Does a 'No' vote mean an immediate departure from the EU?

A 'no' to staying in the European Union does not immediately mean leaving the EU. There may follow a period, more or less long, allowing the United Kingdom to leave the European Union but to retain a role of associated country, within the European economic area (like Norway for example). So to renegotiate its role within the EU.

What is the procedure for leaving the EU? 

The procedure for leaving a Member State is laid down in Article 50 of the EU Treaty. “The Member State which decides to withdraw shall notify its intention to the European Council”. A phase of negotiation then begins in order to conclude an agreement which sets both the terms of withdrawal and future relations with the Union. It is an agreement under international law which is therefore concluded by the Council – by qualified majority (the United Kingdom will then no longer have the right to vote in the decision). While the positive opinion of the European Parliament is required.

1. Any Member State may decide, in accordance with its constitutional rules, to withdraw from the Union.

2. In the light of the guidelines of the European Council, the Union shall negotiate and conclude an agreement with that State laying down the procedures for its withdrawal, taking into account the framework of its future relations with the Union. This agreement is negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It is concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

3. The Treaties shall cease to apply to the State concerned from the date of entry into force of the Withdrawal Agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council , in agreement with the Member State concerned, unanimously decides to extend this period.

4. For the purposes of paragraphs 2 and 3, the member of the European Council and of the Council representing the withdrawing Member State shall not take part in the deliberations or decisions of the European Council and of the Council which concern him.

(Article 50.1 to 50.4 of the EU Treaty)

Would English remain an official language of the Union in the event of British departure?

Yes English remains the official language in Ireland as in Malta.

(Nicolas Gros-Verheyde)

(1) London cannot be accused of having something to do with the border crisis which currently opposes frontline countries (Greece, Italy, Malta), transit countries (Balkans members and non-members of the EU), the host countries of the Germanic circle (Germany, Austria, Denmark, Sweden), the front of the refusal of the Visegrad countries and the countries of the West which are rather there as spectators.

On the defense impact of the (possible) UK departure: Brexit. Is the British necessary for European defense?

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Nicolas Gros Verheyde

Chief editor of the B2 site. Graduated in European law from the University of Paris I Pantheon Sorbonne and listener to the 65th session of the IHEDN (Institut des Hautes Etudes de la Défense Nationale. Journalist since 1989, founded B2 - Bruxelles2 in 2008. EU/NATO correspondent in Brussels for Sud-Ouest (previously West-France and France-Soir).