Lisbon Treaty's new voting weights kick in - Eurozone gains a majority

It has been coming down the road for some time but what we once called the "Lisbon Treaty's ticking time bomb" has finally gone off. The eurozone will now have a 'Qualified Majority' in the EU Council, meaning that any UK attempts at forming last minute blocking minorities will now be that bit harder.

Eurozone gains a majority in the Council (old rules left, new rules right)

What are the new rules? 
There are two key differences (contained within Article 16 (4) here) whose effect can be seen on the diagram above:

• The first is the lowering of the winning vote threshold to 65% as seen by the red arrow. 
• The second major change is that the voting weights will now be recalculated each year according to a state's population, as calculated by Eurostat, giving greater weight to larger states (the majority of which are in the eurozone).
• There is one important caveat - as a concession to Poland, at any point until 31 March 2017 a state can request a specific vote is done by the old rules (on the left above) even though the new rules are now the norm.

How damaging could this voting change potentially be?
It goes without saying that the eurozone is not a cohesive block, and interests within the EU cut across the eurozone / non eurozone divide. However, that being said, given increased coordination within the eurozone due to the crisis there is a real danger that, where the eurozone has a collective interest, pre-meetings between eurozone states will become the final decision making body in the EU and could allow a eurozone 'caucus' to emerge. If that happened the UK would be placed in an invidious position.

The danger is real but not all is lost, on some issues the UK could still remain within a 'Qualified Majority'. For example, a block of economically liberal net contributors - dubbed the Northern Alliance - of Germany, The UK, The Netherlands, Sweden, Finland and Denmark would still (just) have a blocking minority of 36%. This alliance could use its influence on issues such as the EU Budget (as it has done before) and the US/EU free trade negotiations (and could well play an important role in helping to keep the TTIP alive).

There is also a positive sign that the non-Euro state's legitimate interests are being recognised. Open Europe has long proposed a system of "Double majority Voting" whereby EU laws have to gain a majority of 'Ins' as well as 'Outs', in order to prevent eurozone caucusing. Such a mechanism was recently adopted by the European Banking Authority. Furthermore, there is a wider acceptance of the need to offer those outside the eurozone, such as the UK, safeguards on certain issues - as demonstrated by the recent article by the British and German finance ministers in the FT.

The change in the voting weights and procedure is a subtle but important shift. It certainly opens the door for eurozone caucusing and makes it harder to get over the already high hurdle of forming a blocking minority on issues which do not sit well with certain member states. That said, awareness of the threat has grown along with acceptance that a new balance needs to be found between eurozone ins and outs. This should help mitigate the impact but it will still be important to watch how this develops.

Juncker's appointment would bolster the Outist line that EU is unreformable

In a letter to the Telegraph today, Open Europe's Chairman Lord Leach notes:

This dispute is largely the product of the wording of the Lisbon Treaty. One part states that the election of the Commission President is the joint responsibility of the European Parliament and the European Council; another that the European Council shall “propose” a candidate to the parliament for election.  

David Cameron was entitled to take seriously the widespread support on the Continent for his speech last year in which he spelled out the need for EU reform. He was also entitled to assume that the selection process would be led by elected leaders of member states, rather than dictated by the largest “political group” in the European Parliament. The absurd portrayal of Mr Juncker as the champion of pan-European democracy is a cloak for German indecision and the failure of nerve of several EU leaders in the face of the European Parliament’s ambition to replace national democracies with its own ersatz alternative. Mr Juncker’s appointment would be a bitter blow to the pro-European cause in Britain, bolstering the Outists’ line that the EU is unreformable.

A hint as to what a eurozone grand bargain could look like?

German coalition talks are dragging on, but we may have got a hint as to what a grand bargain between the eurozone north and south might look like, with German Chancellor Angela Merkel again appearing to open up for an EU Treaty change.

She told a Süddeutsche Zeitung leadership conference,

"Germany is ready to develop the treaties still further. At the very least we have to be ready to improve the euro protocol of the Lisbon Treaty – which only applies to euro states – to allow an institutional co-operation via the so-called community method and not to only be active at intergovernmental level."

She proposed a "new co-operation" between the European Commission and member states, with the policy recommendations being the result of negotiations.

She added,

"In this way we create a sense of ownership, a sense of responsibility is created among member states to implement necessary change. That's what I understand by economic co-ordination."

As we've argued before, it's easy to get sustained whiplash injuries from tracking the German position on EU treaty change, but this (again) sounds like 'reform contracts' or 'competitiveness pacts' to us - which we have long argued would come back on the agenda - with the European Commission acting as the 'structural reform police'.

Meanwhile, in an interview with Les Echos and other European papers, Eurogroup Chairman Jeroen Dijsselbloem also had some interesting things to say: 

"If a country is not persuaded that it’s in its own interest to reform and modernise, it cannot be motivated from outside. It doesn’t seem wise to me to propose a ‘reward’ in return for a reform. Instead, I think one should link the concession of additional time to correct budget deficits to stricter conditions in terms of reform. I give you more time if you speed [reforms] up. The European Commission may, if a country fails to do so, demand more on budget [adjustment]."

A lot to play for...

Behind the rhetoric is Clegg preparing the ground for accepting an EU referendum?

 

Nick Clegg in a speech today sheds some light on his party's Europe policy and more specifically on his thoughts on an in/out referendum. He says:

We are no longer asking if Britain will have a referendum on continued membership, we are asking when Britain will have a referendum on continued membership.

 

The parties differ on the timing. The Conservative party want one in 2017, regardless of what’s happening in Europe at that time: it’s a date chosen for internal party management as much as anything else. The Liberal Democrats believe it will be far better to have the referendum when a serious change to Europe’s rules, affecting the UK, next arises. But we all agree that it will happen at some point or another...

If you want to know my position, it's very simple: yes to staying in Europe; yes to reforming the EU and improving our relationship with it; yes to a referendum when the time is right.

On the face of it that is not a change. The Liberal Democrats have in the past promised in/out referendums on the EU to be held at the next treaty change. Cynics would point out that when the last major Treaty change came, on the Lisbon Treaty, the Liberal Democrats were less than enthusiastic on having a referendum. But, the wording here looks like a change in emphasis, opening up the possibility of future support - in turn perhaps also opening up for another coalition with the Tories.

What else is new? Nick Clegg has also made some welcome moves in other areas. For a former MEP and supporter of the Lisbon treaty's transfer of powers to the European Parliament he is refreshingly honest about the need to reinforce the powers of national parliaments in the EU decision making process. He says:

I want to see a much more active role for national parliaments in scrutinising EU decisions and policing the principle of subsidiarity. We're still not fully exploiting the provisions made for this under the Lisbon Treaty.

Beyond this his speech has some of the normal party political aspects. For instance he accuses the Conservatives of wanting a "unilateral renegotiation of Britain’s relationship with the EU", when what most are suggesting are EU-wide solutions - but he does rather half heatedly admit that:

Of course a future British Government will be able to cobble together a package of reforms with Germany and other member states with likeminded views on European competitiveness and so on.

 Good, that is a start, so lets get on with it...

  

Why not shrink the European Commission?

The online edition of German weekly Der Spiegel reports on "secret" plans by EU heads of state and government to stick to the 'one country, one EU Commissioner' principle, despite the number of Commissioners being set to rise to 28 following Croatia's entry in July.

Under the Lisbon Treaty, from November 2014, the number of Commissioners is supposed to correspond to two-thirds of member states, but national governments can agree to keep things as they are by unanimous decision. Der Spiegel estimates that keeping 28 Commissioners instead of 19 would come at an extra cost to European taxpayers of at least €13.5 million a year. So why, the article asks, are Germany, France and the UK keen to keep one Commissioner per country?

A couple of points need to be made here.

• The plans are hardly a secret. Going back to the days of the second Irish referendum on the Lisbon Treaty, Ireland was given reassurances that the 'one country, one EU Commissioner' principle would stay (see the conclusions of the June 2009 European Council summit). Also, a European Council decision on the subject was drafted last October - and only needs to be rubber-stamped by EU leaders (see here).

• In the UK, Parliament has already cleared the draft decision for approval via the European Union (Approvals) Act 2013.

That being said it is increasingly hard to defend the growing size of the EU Commission, not least because it gets increasingly difficult to find a credible portfolio for everyone. To accommodate for Croatia's entry, for instance, the Health and Consumer Protection portfolio will be split into two separate posts.

The big question is, would it be so bad if the number of Commissioners was reduced and the proliferation of Commission DGs slim-lined into more rational departments?

True, smaller memebr states may take offence (larger ones like the UK would virtually be guaranteed a Commissioner). However, member states without a Commissioner for one rotation period could be given deputy Commissioners instead. Surely, there would be more influence to be had as Deputy Commissioner for Internal Market than as Commissioner for Education, Culture, Multilingualism and Youth?

Nevertheless, EU leaders look set to rubber-stamp the 'one country, one Commissioner' decision - so we'll continue to have 28 EU Commissioners after 2014. At the very least, if we are going to have an extra Commissioner, the European Commission should be obliged to find savings so net spending does not increase. Our report on reforming the EU budget from last June included some suggestions. 

Nick Clegg: EU referendum a question of "when not if"

With David Cameron away in the US, Nick Clegg took to the dispatch box for Prime Minister’s Questions today. Unsurprisingly, there was no shortage of references to EU referendums, most of them of a hostile nature. Ahead of today’s debate on the ‘referendum amendment’ to the Queen’s Speech, Clegg was repeatedly asked why he would not support the calls for an in/out referendum as pledged in the infamous 2008 Lib Dem leaflet (calling for a “real” referendum on Lisbon) and in the party’s 2010 manifesto.

Clegg responded that this issue had been settled by the passing of the 2011 EU Act which contains a ‘referendum lock’ in the event of EU treaty change, and accused the Tories of “moving the goalposts” with their policy of an in/out referendum in 2017.

But, within this bit of rhetorical politicking, Clegg said something rather interesting. He said that, due to the 'referendum lock', it was a matter of "when, not if" there is an EU referendum "because the rules are bound to change" as a result of developments in the eurozone.

Clegg accuses Tories of moving goal posts on EU referendum BUT says matter of 'when not if' as EU rules bound to change triggering a vote
— Nick Robinson (@bbcnickrobinson) May 15, 2013

Well, if the rules are "bound to change" why aren't the Lib Dems actively supporting David Cameron's proposals to reform the UK's relationship with the EU - or at least putting forward their own vision - and then putting that to a referendum ? Or would the Lib Dems rather the rest of the EU changed the rules without active input from the UK Government? Good luck winning any kind of referendum on that basis Mr. Clegg.

New light shed on Tony Blair's Charter of Fundamental Rights 'opt-out'

Was Tony Blair arguing for a Charter opt out or not?

Following five years of wrangling the European Commission has finally given in to requests from the European Citizen Action Service and the European Ombudsmen and released documents concerning the UK's negotiation position on the Charter of Fundamental Rights - you can read them here.

Were they worth the wait? Well it has been known for some time that Tony Blair's opt-out from the Charter of Fundamental Rights was not what it was originally billed to be. In fact  the 'opt-out', listed as one of Gordon Brown's celebrated defensive "red lines" was derided at the time as a 'Maginot line' defence.  However these documents do shed some light on how the UK Government presented its manoeuvring to different audiences.

Tony Blair in the House of Commons 25 June 2007:  

"It is absolutely clear that we have an opt-out from both the charter and judicial and home affairs. Those were the reasons why people like the right hon. Gentleman were saying that they wanted a referendum."

Well was it an opt-out? And was Tony Blair actually arguing for one? Apparently not, according to the new documents released by the EU's legal service. On 21 June 2007 in the privacy of the European Council the UK Government changed its mind and decided not to argue for an opt-out after all:

So was the UK arguing behind the scenes against an opt-out while in public saying it had secured one and where does that leave us now?  In the end the UK secured a clarifying protocol to the Lisbon Treaty rather than an opt-out.

The Protocol states that the Charter “does not extend” the ability of the ECJ to find that UK law is inconsistent with the rights and principles elucidated in the Charter. Indeed subsequently the Europe Minister Jim Murphy admitted: “It is clear that the UK does not have an opt-out on the Charter of Fundamental Rights.”

As we noted a while ago now, the ECJ cited the Charter extensively in its ruling to ban gender discrimination with respect to insurance, which illustrated that the Charter is very much alive.

What next on the EU bank bonus cap?

Today has been billed as the final chance for UK Chancellor George Osborne to secure a change in the proposal to limit bank bonuses across the EU.

It is true that any change to the broad political agreement (including the level of the ratio limiting bonuses) would probably need to be secured today – a move which looks unlikely. However, as we note in today's press summary, the technical discussions over the specifics will continue for some months, presenting the opportunity to water down the proposal behind the scenes. Numerous issues remain unresolved such as: whether the cap will apply to all staff or just the highest paid, whether it will apply to all banks or only larger ones and, most importantly, whether the EU will stick with the plans to apply it to subsidiaries (both EU ones located elsewhere and foreign ones located in the EU).

So there could yet be room for some improvements to the proposal. There are also two other issues which have cropped up in this discussion: the possibility of the UK invoking the Luxembourg compromise and potential legal challenges against the proposal.

What is the Luxembourg compromise?

See below for a box from p.31 of our ‘Continental Shift’ report (really a worth a read by the way to understand the context of this and related debates) which explains the premise (click to enlarge):

It has been muted that Osborne could trigger this at today’s meeting. This is a last resort and seems unlikely – besides it is not clear how effective it would be in this case, as it is only a gentleman's agreement.

Is the proposal open to legal challenges?

According to the FT, banks have been receiving legal advice and believe they may have a case based on Article 153.5 of the Lisbon Treaty, which says:

“The provisions of this Article shall not apply to pay, the right of association, the right to strike or the right to impose lock-outs.”

Article 153 is in the social policy chapter of the treaties. Currently, the legal base for the rule is as part of CRD IV, i.e. under financial regulation and looking to address financial risk taking. 

The Commission and MEPs have also dismissed claims of illegality, on the grounds that the rules do not limit total pay, but simply set a ratio on variable pay in an attempt to reduce risk taking, and it is not therefore social policy.

It looks likely that there will be some legal challenges, although from the private sector rather than the UK Government.

How realistic is Cameron's timetable for EU reform?

As Open Europe Director Mats Persson notes over on his Telegraph blog, in his speech today, Cameron has set himself a concrete timetable, despite the fact that timetables in Europe are notoriously difficult to control. A treaty change discussion could drag on for years. Here we look at how a few examples of how slowly or quickly it takes to reach a decision in Europe.

Basically, EU treaty changes or fundamental reform can take an enormous amount of time - or it can happen in months. It's all a matter of political expediency - and how bad Europe needs it / wants it. The single EU patent, for example, took 37 years to negotiate. Setting up a €440bn bailout fund took 12 hours (though it was followed by a year of bickering over what they actually had agreed).

So here are some examples. Those who say Cameron is stuffed, could point to:

Single EU patent – 37 years 
The Convention for the European Patent for the common market was signed at Luxembourg on December 15, 1975, by the 9 member states of the European Economic Community at that time. However the CPC never entered into force as it was not ratified by enough countries. It took until last December for a an agreement on the creation of a single patent system across 25 member states.

Fisheries reform – 21 years and counting 
In 1992, it was determined that there had been over-investment in vessels, overfishing and that numbers of fish landed were decreasing, and that reforms were needed to address these issues. Completing the reform of the Common Fisheries Policy (CFP) by the end of June 2013, in a single reading if possible, is the goal of the current Irish EU Presidency.

UK Rebate – 10 years 
In 1974/75 the Wilson Government sought to resolve the UK contribution question - which was the highest in net terms - during the “renegotiation” of the UK’s terms of accession which it had promised in its October 1974 election manifesto. The UK did achieve a new corrective mechanism but the revised formula (which placed more emphasis on national wealth when calculating our contribution) in practice produced no real benefit to Britain. In 1984, Margaret Thatcher secured the UK rebate in its current form.

European Constitution/Lisbon Treaty – 8 years 
The drafting for European Constitution was initiated by a declaration annexed to the Treaty of Nice in 2001, and the draft Constitution was signed on 29 October 2004 by representatives of the then 25 member states. Following the ‘no’ votes in the French and Dutch referendums, negotiations over the Lisbon Treaty began in 2007 and the new Treaty was ratified in 2009.

...but those who say that, given the enormous stakes, Cameron actually achieve something substantial, could point to:

Limited treaty change to establish new eurozone bailout fund – 5 months 
On October 29 2010, following pressure from German Chancellor Angela Merkel, EU prime ministers and presidents backed "a limited treaty change" to deliver tighter fiscal discipline and allow for the creation of a permanent bail-out fund for members of the eurozone. On March 25 2011, the European Council agreed to amend Article 136 of the Treaty on the Functioning of the European Union with regard to a stability mechanism for Member States whose currency is the euro.

Setting up a new €440bn eurozone bailout fund - 12 hours
On May 9 2010, following 12 hours of talks in Brussels, EU financed ministers agreed to establish the EFSF, a temporary bailout fund composed of government-backed loan guarantees and bilateral loans worth up to €440bn provided by eurozone members.

In EU politics, when you hear someone giving you an easy answer, it's probably the wrong answer...

What do a British Conservative PM and a French Socialist President have in common?

Over on the Telegraph blog, we note:

David Cameron will have his first face-to-face meeting with newly elected French President Francois Hollande today, at a G8 summit in the US. There has been some fuss about Cameron and Hollande not getting along. Cameron snubbed Hollande during a visit to London. And, most importantly, one is a French Socialist, the other a British Conservative. They must be each other’s diametrical opposite, surely?
Well, judging from some of their remarks and actions over the last year, if one didn’t know any better one would think they actually have quite a bit in common:

Both are trying to cut deficits: Yes, despite all the anti-austerity rhetoric, Hollande is trying cut spending too (as we’ve noted, the difference between the economic plans of Hollande and the ousted Sarkozy was paper thin). As his new economy minister Pierre Moscovici put it, “Hollande has always said that we should tackle state debt and reduce deficits”. Hollande wants to achieve a ‘balanced budget’ by 2017, Cameron wants to eliminate the UK’s spending deficit by 2015, albeit both are likely to fail.

Both have threatened to veto an EU treaty: In December, Cameron vetoed an EU Treaty change to impose greater fiscal discipline in the Eurozone. Equally, Hollande has implicitly threatened to veto the free standing ‘fiscal treaty’ (itself a result of Cameron’s veto), unless a clause on various fiscal stimulus measures is added. The rationale in each case is of course different but both have clashed with Germany’s view of the solution to the crisis.

Both have called for the ECB to become the euro’s lender of last resort: Causing half the German population to choke on their morning pretzels, Cameron and Hollande have both called on the ECB to do far more to “share the burden” of the Eurozone crisis through monetary activism, which probably means the ECB buying hundreds of billions of government bonds (which Cameron has endorsed implicitly, Hollande explicitly).

Both have toyed with the idea of eurobonds: In the past, both have called for a discussion on the eurozone moving to full debt pooling via eurobonds. Cameron called for it again yesterday, while Hollande hasn’t mentioned the idea since August last year and seems to have backtracked somewhat (his ‘project bonds’ are something different).

Both leaders have cabinets with ministers who opposed the flagship Lisbon Treaty/European Constitution: Laurent Fabius, new Foreign Minister, campaigned successfully for a “no” vote to the European Constitution in in 2005, while his UK counterpart William Hague, and most of Cameron’s cabinet (Ken Clarke excepted) opposed both the European Constitution and its successor the Lisbon Treaty.

So what’s my point? Of course, there are a whole range of disagreements between the two leaders. But two observations: first, the ‘austerity vs. growth’ debate is fundamentally false – even the proclaimed anti-austerity champion realises that public spending needs to be cut (at least in theory), while everyone is in favour of ‘growth’. The debate is on how to get there. Secondly, the line between the alleged ‘Eurosceptic’ and the alleged ‘pro-European’ suddenly becomes awfully blurred (who’s who again?) as both, obviously to different degrees, have problems with the status quo in the EU/Eurozone.

Bends assumptions doesn’t it?

A bit of European political dynamite in the Queen's Speech

The Queen delivered her "Queen's Speech" earlier today - which, for non-UK readers, isn't her speech at all but rather the government's, setting out its agenda for the forthcoming year (a rather odd ceremony but good opportunity to see Ken Clarke in a wig if nothing else).

For those interested in the ever-so-opaque EU dimension, the Queen said in passing:

"My Government will seek the approval of Parliament relating to the agreed financial stability mechanism within the euro area."

And

 "My Government will seek the approval of Parliament on the anticipated accession of Croatia to the European Union."

The latter won't be much of an issue - most MPs will play along as further enlargement rightly enjoys buy-in across the political spectrum.

The former is a different story. This relates to the EU treaty change dating back to December 2010, when the Germans managed to get agreement for tweaking the Lisbon's Treaty Article 136 to allow the eurozone's permanent bailout fund, the ESM, to be put on a more legally sound footing (at least that's how Berlin sees it). This treaty change has now finally come up for UK ratification in Parliament. Before carrying on, just to clarify, this is not the EU treaty change that Cameron vetoed in December 2011, and which gave rise to the separate Fiscal Treaty.

The December 2010 agreement didn't cause a whole lot of fuss at the time, and MPs gave their preliminary approval. Back then, Cameron had far greater control over both events and his own backbenchers. And the UK media was still waking up to the massive - and ongoing - continental political shift unleashed by the euro crisis.

2012 is a different matter altogether.

The ESM won't actually impact on the UK itself, so the 'referendum lock' wouldn't kick in. However, the treaty change that Cameron vetoed back in December wouldn't actually have had a direct impact on the UK either - that veto was about getting guarantees that UK interests were protected as the eurozone integrates further, and the rules of the game are effectively changed.

Exactly the same logic could apply to the Treaty change to put the ESM on legal footing. Like the Fiscal Treaty, the ESM will lead to greater integration in the eurozone (indeed, the two go together - see here), so Tory MPs could use the same line of reasoning they did leading up to the December summit in calling for the UK to block the measure, in return for EU concessions. Remember, an EU treaty change is not a change at all until it has been ratified by all member states.

Will they? So far, there are no signs that this issue is fully on MPs' radar and the UK government prays it will stay that way. But a lot of things to look out for:

• The UK government is likely to sell the measure as a guarantee that it will never again be forced to indirectly contribute to eurozone bailout funds - a few papers have already run with that story. At the same December summit, Britain won a political declaration and an EU decision that the article that forced it to contribute to the EU-wide bailout funds, the EFSM, won't be used again (Article 122 - for background, see here and here). However, the legal status of this guarantee is uncertain. It is not part of the treaty change itself, and MPs may argue that a guarantee that isn't anchored in the Treaties could well prove ineffective. After all, the UK has received guarantees before which proved to be pretty worthless (clue: Charter of Fundamental Rights, Working Time Directive). If MPs wake up to the legal ambiguity underpinning the 'guarantee' they may ask for something firmer in return for ratifying the treaty change.

• The timing of the ratification will be crucial, i.e. if it coincides with some cataclysmic event or political row in Europe (there will be a few to choose from), it would make life potentially much more difficult for the UK government. The ratification certainly won't happen before the summer' that's for sure. 

• Under the current agreement between eurozone leaders, the ESM is supposed to be up and running by 1 July (in parallel with the temporary bailout fund, the EFSF). This is important, because without the ESM in force, the lending capacity of the euro bailout funds will be a lot lower than markets are expecting, meaning more market nervousness, in particular as Spain is struggling.  

• To make matters even more complicated, the treaty change itself isn't actually what's needed to approve the ESM in eurozone countries - for that, eurozone leaders have agreed a separate 'ESM treaty' which is now going through national parliaments in the eurozone. As you'd expect, this is by no means plain sailing as the treaty - for obvious reasons related to taxpayers' cash - is subject to controversy in Germany and the Netherlands, which are still to ratify it. Before the ESM treaty can become operational and lend money to countries and banks, it needs to be approved by eurozone countries accounting for at least 90% of the contributions to the fund (meaning that Germany, France, Italy and Spain have an effective veto).

• And this is where things get rather bizarre.  Even if all euro countries manage to ratify the ESM treaty, the Germans originally said that they absolutely need the separate EU Treaty change for the ESM to be fully legal. However, since the UK won't have ratified the EU treaty changes by 1 July, the ESM will be up and running before the 'vital' Treaty change designed to make the whole construction legal is actually ratified in national parliaments. In other words, expect another batch of court cases to soon land in the in-tray of the German Constitutional Court in Karlsruhe.

Pretty messy - but then again, we're talking eurozone politics and EU 'law'. That one short line in the Queen's Speech hides so many complications...

The Charter of Fundamental Rights: It's alive!

Today’s ECJ ruling on insurance premiums, which will mean insurers can no longer offer different products and prices to men and women based on their sex from December 2012 (since that constitutes discrimination in the ECJ's eyes), has thrown up an interesting discussion about the Lisbon’s Treaty Charter of Fundamental Rights. It has passed under the radar of the media, which understandably have focused on the consumer angle.

The discussion on the Charter could appear boring but it’s actually very important.

This is because the UK negotiated a protocol on the Charter when the Lisbon Treaty was agreed, amid concerns that the Charter would take on a life of its own and impact on British rights legislation in ways that were deemed disproportionate or detrimental, either directly or indirectly. In fact, the protocol was one of the reasons cited by the previous government in support of not giving people a referendum on the Lisbon Treaty.

The Protocol states that the Charter “does not extend” the ability of the ECJ to find that UK law is inconsistent with the rights and principles elucidated in the Charter. Originally, the UK Government claimed to have an ‘opt-out’ from the Charter, but this was never accurate. Indeed then Europe Minister Jim Murphy eventually admitted: “It is clear that the UK does not have an opt-out on the Charter of Fundamental Rights.”

That’s history, unfortunately, but what isn’t history is today’s ruling. It’s clear that the ruling bases a significant chunk of its reasoning on the Charter of Fundamental Rights. It’s also clear that the ruling will have direct impact on the UK. In fact, the ruling will have a disproportionately large impact on the UK given that Britain is home to Europe’s largest insurance industry.

But despite drawing heavily from the Charter, there are no references to opt-outs for the UK in the ECJ’s ruling, or protocols or anything else. None.

And just to set this straight – in the ruling, the ECJ does base its reasoning on the Charter. The 2004 Gender Directive is the main driving force, but the Charter provides plenty of ammunition as well. Over on his Economist blog, Bagehot claims that we’re “not quite correct to say that the ruling was based on the Charter of Fundamental Rights, from which Britain supposedly has an opt-out. The court instead looked at a 2004 Gender Directive...”

This is just wrong. Looking at the full text of the ruling, it becomes clear that the ECJ rules that the insurance industry’s derogation from the Gender Directive is incompatible with both the spirit of the Directive itself AND articles 21 (non-discrimination) and 23 (equality between men and women) of the Charter of Fundamental Rights. Clauses 17 and 32 of the ruling put this beyond doubt:

“17. Articles 21 and 23 of the Charter state, respectively, that any discrimination based on sex is prohibited and that equality between men and women must be ensured in all areas. Since recital 4 to Directive 2004/113 expressly refers to Articles 21 and 23 of the Charter, the validity of Article 5(2) of that directive must be assessed in the light of those provisions (see, to that effect, Joined Cases C 92/09 and C 93/09 Volker und Markus Schecke and Eifert [2010] ECR I 0000, paragraph 46).”

And,

“32 Such a provision, which enables the Member States in question to maintain without temporal limitation an exemption from the rule of unisex premiums and benefits, works against the achievement of the objective of equal treatment between men and women, which is the purpose of Directive 2004/113, and is incompatible with Articles 21 and 23 of the Charter.”

Now, we can argue about whether the Charter is creating "new legal rights" or is in fact the ultimate basis of the ruling (as opposed to the Gender Directive) . But this only shows why the UK's protocol on the Charter never was credible. Anyone who can read can see for himself that the Charter is inspiring the ECJ to rule the way it does on gender-based insurance premiums - which in turn has a huge impact on the UK.

In other words, the Charter is alive and well - also in Britain.

Combining everything that is wrong with the EU's judicial system

Over on Conservative Home, we take a look at today's ECJ ruling on insurance premiums, we argue:

This morning, the European Court of Justice ruled to scrap the insurance industry's opt-out from the EU's 2004 Gender Directive, which will mean insurers can no longer offer different products and prices to men and women based on their sex from December 2012.

This may appear like an everyday consumer story, but it's not. In fact, it's difficult to find an example which better illustrates why EU judges need to be reined in and David Cameron needs to revisit his election promise to limit the jurisdiction of the ECJ and the application of the Charter of Fundamental Rights, entailed in the infamous Lisbon Treaty.

Of the two European courts - the ECJ in Luxembourg and the European Court of Human Rights in Strasbourg (ECHR) - the former is clearly the one with the most influence. On occasion, the ECHR rules on highly symbolic and emotionally charged issues such as prisoners' right to vote - rulings which rightly get a lot of attention. But the influence of the ECJ creeps in to a whole range of areas, striking deep into British society and the economy, from working time for junior doctors to the governance of the UK's most important national industry - the City of London.

The ECJ's ruling this morning combines virtually everything that is wrong with the EU's judicial system. And there's a lot going on. Here goes:

Unnecessary cost of EU laws to individual consumers: Open Europe estimates that the insurance industry will have to raise nearly £1 billion extra to cover itself against the uncertainties created by the ruling - a large chunk of which is likely to be passed on to individual consumers. Moreover, taking motor insurance as an example, a 17 year old female driver will now have to pay an extra £4,300 in insurance premiums by the time she reaches the age of 26 as a consequence of the ruling. In a worst case scenario, women drivers' cumulative insurance costs between the ages of 17 and 26 could increase by as much as £9,300. Young male drivers would on average save an estimated £3,250 over the same period of time (despite displaying riskier behaviour behind the wheel), but the cost to consumers taken as a whole will clearly increase (and men will in turn lose out on their pensions, as a consequence of the ruling).

The unintended consequences of EU laws: Just as was the case with the Working Time Directive - which the ECJ has extended on eight separate occasions, imposing a huge cost on the NHS and the UK economy - the ruling shows how an EU law can change in the most unpredictable way after the UK government has signed up to it (lesson: don't sign up to EU laws without first thinking through all possible unintended consequences).

The EU's endemic democratic deficit: No one in the UK ever objected to the practice of charging men and women different insurance premiums, not individuals, not consumer groups, not UK judges and certainly not democratically elected MPs. And yet, this practice has been scrapped by judges that no one ever voted for, based on a case brought before the courts in a different country (Belgium).

Human rights legislation out of control: The ECJ argued that using gender to differentiate between male and female insurance policies is in violation of EU law on human rights, meaning that despite the fact that roughly 95% of driving offences causing death or injury are committed by young men, the judges could rule that - perversely - taking such evidence into account violates young men's rights. Is this really what human rights law should be about?

The blurring of the line between the ECJ, the Commission and the ECHR: In its ruling, the ECJ made references to both the European Convention on Human Rights, overseen by the Council of Europe (and not an EU institution) and the EU's Charter of Fundamental Rights. This sounds techy, but illustrates the complex web of European human rights law that is now in the hands of European judges at both the Council of Europe's ECHR in Strasbourg and the EU's ECJ in Luxembourg.

In other words, the case law of the ECJ and the ECHR is becoming progressively more blurred as EU judges continually make references to the European Convention on Human Rights in their rulings. In a lecture last year, the Lord Chief of Justice Lord Judge noted that, "The [EU's] European Court of Justice is beginning to acquire jurisdiction over matters that would normally be regarded as matters not for Luxembourg but for Strasbourg." This hugely confusing fudge raises a range of questions about accountability.

The UK government does NOT have an opt-out from the Lisbon Treaty's Charter of Fundamental Rights: Do you remember the claims that the UK had won an "opt-out" from the Lisbon Treaty's Charter of Fundamental Rights (supposedly one of the Labour Government's "red lines" on the Lisbon Treaty and an alleged reason why the promised referendum wasn't called)? Well, as we've argued again and again, there never was such an opt-out and this case clearly illustrates why. The Court draws heavily from the Charter in its ruling - and there's no question whatsoever of the UK not being affected by it. In fact, it impacts on the UK the most, as it is home to Europe's largest insurance industry.

The Conservative election manifesto promised to negotiate a firm opt-out from the Charter before Coalition politics became one of the new realities of life. It also promised to tackle virtually all the other problems so clearly illustrated by this ruling. The Coalition has taken some positive steps on EU reform, but how much longer can they dodge this key issue?

Lib Dems abstained on Lisbon Treaty referendum because they thought it "would fail"

One of the latest leaked US diplomatic cables has confirmed what many of us had suspected all along. The Lib Dems' U-turn on their pledge to hold a referendum on the Lisbon Treaty was not motivated by a principled preference for an 'in or out' referendum on EU membership but by a belief that a referendum on Lisbon would be lost.

Here's the relevant passage:

A Very Bad Day: The Lib Dems and The EU Reform Treaty

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2. (SBU) March 5 marked the worst day for the Lib Dems since one infamous week in January 2006, when the party became the laughing stock of Britain after sex scandals involving two of the four candidates to succeed leader Charles Kennedy emerged one right after the other. This time around, the party imploded in the House of Commons over a Conservative Party motion to hold a nationwide referendum on the Lisbon Treaty. The Lib Dems' convoluted official position on the referendum was part of the problem. As Clegg sought to explain it to the public, the real issue for his intensely pro-Europe rank-and-file was not the Lisbon Treaty itself, but confirming UK membership in the EU once and for all. The Lib Dem official position therefore was to propose an alternate "in or out" referendum on whether the UK should remain in the EU, and abstain on the competing Conservative motion to hold a referendum on just the Treaty itself.

3. (C/NF) This position left both the pundits and the public scratching their heads: why would the UK's most pro-Europe party, whose new leader actually worked for the EU from 1994 to 1999, abstain on a vote on the Treaty? The answer, senior Lib Dems have confessed to us, is that the party leadership believes a referendum on the Lisbon Treaty would fail.

Hmmm, we kind of suspected that was the motive. Or, actually, it was blatantly obvious as the Lib Dems flip-flopped like crazy on the Lisbon Treaty.

All of this brings back some horrible memories...

Merkel refuses to fold

German Chancellor Angela Merkel is a tough cookie.

Sandwiched between Deauville and tomorrow's EU Summit, Dr. Merkel took to the podium today to defend the controversial pact with President Sarkozy on economic governance in the eurozone that has left both German politicans and EU leaders incensed (but in different ways).

Addressing the Bundestag this afternoon, a firm Merkel said both President Sarkozy and herself will relentlessly insist on a "culture of stability" at tomorrow's European Council summit. She stressed the necessity of taking "precautions today for dealing with future crises" in the eurozone.

Such precautions, she said, will simply have to include a Treaty change. Merkel stated that the measures taken earlier in the year to bail out Greece were "unavoidable" but did not provide long-term solutions. She insisted on a new, robust and legally unassailable "crisis management framework" anchored firmly in a new EU treaty; a move that she admitted is "ambitious". But she confidently asserted that, for the EU

success will only come with a change to the treaty...improvement is always possible, even if the road is rocky.

Presumably responding to Luxembourgish Foreign Minister Asselborn's and others' sneer that Europe does not work with only a "two-stroke engine", the German chancellor said, "the Franco-German union is not everything in the EU, but, without a German and French union, it is not much."

Tomorrow's summit could be really interesting...

A one-year cash freeze to EU budget won't cut it Mr. Cameron

The news in today's Guardian and Mail is that David Cameron is thinking of doing a deal on the proposed new EU treaty. The reports suggest that Cameron will back the new treaty in return for his demands for a cash freeze to the 2011 budget.

We're not convinced that Treaty-change-for-less-cash is a line that the Government will pursue in the end. But if true, Cameron and his Government risk a mutiny not only from the Tory backbenches but the public at large. And it would be completely justified.

The prospect of a new treaty is rightly seen (and not just by us) as a once in a generation opportunity to renegotiate the UK's relationship with the EU and actually repatriate some of the powers the Conservatives promised they would less than a year ago, or pursue a number of other reforms - for example giving real powers over EU policy to national parliaments.

A one-year cash freeze on the EU budget simply doesn't cut it. Sure, the European Parliament's demands for a 6 percent increase are outrageous and have understandably attracted the headlines recently. But what about 2012 and 2013? There is nothing stopping MEPs, the Commission or even other member states demanding similar increases in these years and there would be little the UK could do about it.

And even the next EU budget period, the the one that starts in 2014, is best negotiated seperately. The UK already has its rebate as leverage in those negotiations. Making horse-trades involving Treaty changes is giving EU partners a 'two for the price of one' deal.

But besides this practical reason, the prospect of yet another 'behind closed doors' EU deal could be politically disastrous. After promising to repatriate powers, Cameron cannot shirk the first, and possibly only, realistic opportunity to do so.

It would certainly make his accusations of "betrayal", levelled at Labour and the Lib Dems for their backtracking on a referendum on Lisbon, look pretty hypocritical.

Commons weighs in on deposit schemes

Hats off to the House of Commons.

Earlier today it grasped the nettle and employed the Lisbon Treaty's 'yellow card' procedure for the first time (if nine national parliaments object to a proposal from the Commission on 'subsidiarity' grounds, within an eight-week window, the Commission is obliged to re-consider - but not scrap - the proposal). The House of Lords was slightly quicker off the blocks, using the procedure last week to object to the EU's proposed directive on seasonal workers from third countries.

The Commons provided a "reasoned opinion" on the proposal to amend the so-called Investor Compensation Schemes Directive, objecting to it on subsidiarity grounds.

As we've argued before, this proposal raises various concerns, as under the proposed rules member states would be required to lend to each other should a bank go bust and deposits needed to be guaranteed. As the Swedish Parliament argued, this presents a 'moral hazard' since some member states might be tempted to under-fund their scheme, knowing that someone else would pick up the final bill.

The House of Commons joined its counterparts in Sweden, Germany and Austria in objecting to the proposal.

Only problem is, the deadline for objecting to the proposal expires today. Eight weeks doesn't exactly give national parliaments plenty of time to mobilise, particularly when, as it did now, it coincides with parliamentary recess in most European countries (almost as if it was planned).

We confess to not being up to speed with how many national parliaments actually managed to formally object to the proposal in the end - but will be back shortly with an update.

Regardless, it's good to see MPs taking responsibility.

Illusionary democracy?

We've looked at this issue before, but the Swedish Parliament, the Riksdag, yesterday supported its finance committee in protesting against the Commission's proposed amendments to the Deposit Guarantee Schemes Directive, which would oblige member states to transfer money to another member state's deposit scheme, if that scheme had run out of money. The Riksdag said this would create a moral hazard, as some countries could be tempted to under-fund their schemes, knowing that someone else would ultimately pick up the bill. The German Bundesrat has also objected to the proposal and today the lower house in Germany, the Bundestag, will give its opinion on whether it will formally object to the amended Directive.

This is the first time that national parliaments have tried to use their new 'powers' entailed in the Lisbon Treaty. The Treaty gives parliaments the right to oblige the Commission to re-consider - but not scrap - a proposal, if a third of national parliaments object to the proposed legislation on subsidiarity grounds, within an eight week window. As even Andrew Duff - the liberal MEP who has been a staunch defender of the Lisbon Treaty - has admitted, the Lisbon provision on national parliaments was never intended to be used in practice as it's very difficult to get nine parliaments to debate and then object to a piece of legislation within such a narrow time period as eight weeks.

And the task of getting nine parliaments on board looks very tricky indeed. The deadline for national parliaments to object to the Deposit Guarantee Schemes Directive is 25 October, and according to the "Interparliamentary EU information Exchange" so far only six parliaments have even begun scrutinising the proposal. Typically, the eight week period comes smack in the middle of parliamentary recesses in most countries, making the task even more difficult (although the Commission generously discounted August from the period).

It's hard not to see this provision as mere illusionary democracy, which the EU elite inserted into the Lisbon Treaty to be able to make the case that 'everyone wins'. But still, it's good that national parliaments are giving it a shot.

Surely, the UK Parliament should object too, given that the reservations concern moral hazard, transfer of funds between member states and subsidiarity?

"Europe at 27 is doomed to failure"

Pretty bleak stuff from former French Prime Minister Edouard Balladur in today's Le Monde:

Europe at 27 is doomed to confusion and failure. It suffers from problems that the Lisbon Treaty has failed to correct. Lack of authority: the 1950s structure, with the [European] Parliament, the Commission and the European Council, being too heavy. We will witness conflicts between the Parliament-Commission duo and the European Council in the future. Lack of realism: the 4 or 5 countries representing the 2/3 or the 3/4 of Europe's population and wealth have indeed special responsibilities. Lack of coherence: the 27 member states have very different social and juridical regimes. We pay the price of an enlargement which was decided too hurriedly.

So the Lisbon Treaty didn't fix all this? What a shocking revelation!

This could be interesting

Do you remember all that talk about how national parliaments would be strenghtened under the Lisbon Treaty (something which the pro-Lisbon camp continuously banged on about, presenting it as a 'fact', when in reality it's anything but)?

We've looked at what post-Lisbon life is like for national parliaments many times before (and it ain't that pretty), but it now appears that national parliaments' "new powers" to challenge proposals from the Commission are being tested for the first time.

The Lisbon Treaty says that, in the event that a third of national parliaments - that's 9 - get together to oppose their governments on a piece of legislation, on the specific grounds of 'subsidiarity', and within an 8-week window, then the legislation would have to be reviewed, following which, it would be open to the institution which originated the proposal to choose whether to maintain, amend or withdraw the proposal.

Hardly practical. But the Swedish Parliament (the Riksdag) is determined to give it a try. The Treasury Committee of the Riksdag has raised objections against the Commission's proposed amendments to the Deposit Guarantee Schemes Directive. Under the amended Directive, deposit guarantee schemes must offer depositors up to €50,000, if their bank collapses. The schemes are to be 75 percent pre-funded from bank contributions, with the remainder coming from other sources. However, the Riksdag's Treasury Committee is opposed to a provision in the Commission's proposal which could see Sweden (or any other member state) being forced to lend money to other member states' funds, if these funds face a shortfall in cash.

The Riksdag, going against the Swedish government, said that such mandatory lending could lead to some member states under-funding their deposit schemes, knowing that someone else would be lender of last resort. It also argued that the provision represents a violation of the EU's subsidiarity principle. The Riksdag will now seek to spread the word amongst other parliaments in a bid to get the Commission to reconsider the proposal.

One tiny problem: many national parliaments around Europe are on recess at the moment - including the UK's. To muster the support of an additional eight will be a difficult task indeed.

This is one to watch.