Did David Cameron really say EU migrants will need a job offer before coming to UK?

The dust has settled somewhat after Cameron’s much-anticipated immigration speech.

As we set out here, we welcomed the balance the Prime Minister struck and were particularly pleased that he co-opted our proposal to let the principle of free movement stand, while limiting access to in-work benefits until after a certain period working in the UK.

However, there is one particular passage that has caused some confusion, which is the following:

“…Second, we want EU jobseekers to have a job offer before they come here and to stop UK taxpayers having to support them if they don’t.”

This sounded like David Cameron wants to require EU migrants to have a job offer before they come to the UK. As some have pointed out this would definitely require a treaty change, since the ECJ has made it clear that the EU treaty articles on free movement must be interpreted as granting a right to move “freely within the territory of the other Member States and to stay there for the purposes of seeking employment.”

However, elsewhere in the speech, Cameron was much less categorical:

"So let’s be clear what all of these changes taken together will mean. EU migrants should have a job offer before they come here. UK taxpayers will not support them if they don’t. And once they are in work, they won’t get benefits or social housing from Britain unless they have been here for at least four years."

In combination with the "UK taxpayers will not support them" bit, the "should have a job offer" line is much more like an aspiration than a requirement. Indeed, this is the logic of the rest of the speech: Cameron would not have needed to pledge to ask unsuccessful jobseekers to leave after six months if they were to be denied entry in the first place.

Admittedly though, Cameron could have been much clearer on the specific point about the need for a job offer prior to entry. The ambiguity in his speech may risk creating false expectations.

We will publish a short briefing in the coming days looking at the various legal implications of the proposals set out in the speech.  David Cameron was clear that he thought the entire package would require treaty change. However, there are several elements to the speech and the proposals - changing the rules around in-work benefits only one. Here, we are of the view that ours and Professor Damian Chalmers' proposed changes to in-work benefits could be achieved via EU legislation rather than treaty change (we should point out that others disagree).

So stay tuned...

So, Nick, how many laws come from Brussels?

In the first IN/OUT Europe debate between Nigel Farage and Nick Clegg on 26 March, the leader of the Liberal Democrats claimed that the percentage of UK laws coming from the EU was 7%, citing research by the House of Commons Library.

This created much debate at the time, particularly as Nigel Farage claimed that figure was actually 75%, quoting the long-standing UKIP supporter Viviane Reding.

We are no stranger to this debate having written a number of times about the futility of estimating the proportion of EU laws implemented in the UK, and the differing claims. However we were surprised to discover that Nick Clegg himself is no stranger to this debate. Here he is writing in 2003:

Probably half of all new legislation now enacted in the UK begins in Brussels. The European parliament has extensive powers to amend or strike down laws in almost every conceivable area of public life.

And in case that was an accidental slip of the keyboard, here he is again speaking in 2004:

Well over 50 per cent of all new laws in the UK now emanate from Brussels and are processed by Parliament and that MEPs are now arguably some of the most powerful legislators in Europe.

That people - usually depending on ideological disposition - give wildly conflicting estimates about the share of EU laws is old news. Radically conflicting estimates from the same person is something new, however.

Fact-checking the Clegg v Farage EU debate

The first EU debate between Nick Clegg and Nigel Farage on LBC was for the most part restrained with a surprising amount of detail and substance. Most of the key fault lines in the UK-EU relationship were touched on.

However, given that the two men represent the polarising ends of the debate, there were also a number of claims that struggled in the accuracy department. Here is our quick 'fact-check' of the key debating points:

Claim - Clegg: I supported a referendum on Lisbon

Verdict: Technically true but highly misleading

On the referendum question, Clegg said that when it came to new EU Treaties transferring new powers to Brussels,

"I've never wavered in that position, that's why the last time the rules changed, something called the Lisbon Treaty, I said there should be a referendum."

It is true that the Liberal Democrats called for referendum on Lisbon but crucially it was an in/out referendum which was not on the agenda at the time - the issue wasn't even put to put to a vote. There was however a vote on whether to have a referendum on the Lisbon Treaty itself on which the party abstained, despite the fact that together Tory MPs, Lib Dem MPs and Labour rebels could have passed it. Clegg is being highly disingenuous by blurring the distinction between an in/out referendum and a treaty specific one. Farage's quip that there was no point waiting for a new Treaty as powers were being transferred to the EU every week via directives and ECJ rulings was quite effective in this context.

Claim - Farage: Under EU rules we have a completely open door to 485 million Europeans 

Verdict - Partially true but unclear on the numbers

It is true that the free movement of labour is a fundamental principle of the EU and the UK cannot limit the numbers of EU migrants coming over. However, Clegg was right to point out that the right to free movement is not completely unqualified - under the free movement directive migrants have to be able to support themselves financially or have 'reasonable' prospects of finding a job.

In terms of Farage's 485 million figure though we have to say we are a bit confused as to where exactly this comes from - the population of the EU28 is around 506 million, which minus the UK's approximately 63 million leaves 443 million.

Claim - Clegg: 3 million jobs would be at risk if UK left the EU

Verdict - Highly unlikely - would depend on a range of other factors

Clegg cited the well-worn '3 million jobs linked to the EU figure' despite established doubts over its veracity. Recently those tending to cite this number have replaced "depend on" with "linked to" but it's still dubious. As we've argued in the past, this claim is one of the most conspicuous examples of a rogue statistic without any credible counter-factual attached to it. The assumptions behind the 3 million jobs figure is that there would be no trade at all trade with Europe if the UK left the EU, which of course is nonsense -  a similarly heroic assumption to that which Better Off Outers make when calculating the cost of EU membership based on all regulatory cost magically disappearing on Day 2 post-Brexit.

Claim - Farage: UK would hold the whip hand in negotiations over a new trade deal with the EU

Verdict - Very uncertain 

Farage argued that in the event of an exit, the UK would "hold the whip hand" in trade negotiations with the EU due to the EU's trade deficit with the UK. We've looked at this in detail - the key point is that while this is true in the area of goods, when it comes to services - a crucial and thriving area of the UK economy - this is not the case. So with that logic, EU countries would have incentive to strike a deal with the UK in goods but not services including financial services. Secondly, the process for leaving the EU - the so-called Article 50 - actually involves less control for the UK than is often assumed, including a Qualified Majority Vote on the final deal in which the UK will not take part.

Claim - Farage: 75% of UK laws come from the EU. Clegg: no it's 7%

Verdict - Both are wrong

The contentious topic of how exactly how many UK laws are derived from the EU also came up, with Farage gleefully citing Viviane Reding's absurd claim that 75% of UK laws are decided in Brussels (as we've argued many times, Reding must secretly be on the UKIP payroll). Clegg went with the House of Commons' Library's briefing which estimated this to be around 7%. Regular readers will know we've analysed this in painful detail and the truth is it is simply not possible to say exactly - what's clear is that it's neither 7% (this only counts primary legislation which isn't meaningful at all) nor 75%. (But basically too many).

Claim - Farage: We give the EU £55 million per day

Verdict - True if counting gross cost, untrue and misleading if counting net cost

Farage is correct that the UK's contribution to the EU works out as around £55 million per day. However, that it is a gross figure which does not include the UK rebate (cold, hard cash the UK gets back from Brussels every year) and nor the UK's receipts from the EU budget (even if this is only UK taxpayers' cash being re-routed via Brussels).

Claim - Clegg: Without the EAW we'd struggle to extradite criminals and terrorists

Verdict - The EAW makes the process faster but it is not indispensable

The European Arrest Warrant (EAW) is used by EU states to speed up extradition procedures. It is true that the EAW has been used by the UK to recover suspected terrorists and other criminals from other EU states who have subsequently been found guilty and locked up. It is however untrue to claim that suspects such Hussain Osman and Jeremy Forrest could not have been recovered without it. Also before the EAW was agreed, there were agreement on extradition and the UK managed to successfully extradite plenty of criminals from EU countries through bilateral procedures. These were considerably slower but it is highly unlikely that with or without the EAW Italy would have wanted to hang on to Hussain Osman or France to Jeremy Forrest.

New rules on access to benefits: another UK legal stand-off with the Commission?

The Government has today announced the details of the "minimum earnings threshold" that will be applied from 1 March to EU migrants seeking to claim certain benefits in the UK. The plan was first outlined in David Cameron's FT article last year, and the DWP has today revealed the details.

Under the new system, EU migrants will have to demonstrate they have earned around £150 a week - the level at which employees pay National Insurance contributions - for three months in order to qualify for "worker" status, which opens the door to certain benefit entitlements. Jobseeker's will need to wait three months before getting income-based jobseeker's allowance and, after the introduction of new rules on April 1, they will be ineligible for housing benefit. Those deemed not economically active would need earnings above income support levels and comprehensive sickness insurance, to be eligible to claim child benefit or child tax credit.

In our briefing following David Cameron's article in November 2013, we noted that the proposal for an earnings threshold had the potential to intensify the legal stand-off between the Government and the European Commission over the rules on access to benefits.

The Telegraph today quotes a Commission spokesman as saying:

The Court of Justice's case law makes clear that part-time workers, trainees and au pairs can be classified as 'workers', provided their activity has an economic value and is genuine and effective. This case-law makes clear that a definition of a worker according to the amount he or she earns is not compatible with EU law.

This is only an initial reaction and the Commission cannot take further action until it has reviewed the proposals. But, as we understand it, the Government will argue that it is not illegal because the threshold simply acts as an 'alarm bell' at which point claimants will face a fuller assessment of whether their work is "genuine and effective", with the possibility of being denied worker status.

This extra step means that the threshold is not an automatic criteria and should therefore fulfil the EU requirement that each applicant be assessed on their individual case.

What the Commission will make of this argument we cannot say but, as we have argued before, rather than the constant battling between the Commission and member states on this issue (it's not just the UK), the rules on access to welfare need proper reform, with a much stronger link between access to welfare and an economic contribution to the host country.

If EU law is followed, Scotland will join the EU just before Serbia

Our Director Mats Persson writes on his Telegraph blog:

The UK must be the first country, with the forthcoming Scottish and EU referenda, to simultaneously have an intense political debate about the difficulty or otherwise of both joining and leaving the EU. Traditional assumptions are being bent in all sorts of directions, with senior UK politicians approvingly citing EU Commission President Jose Manuel Barroso for suggesting it would be “very difficult, if not impossible” for an independent Scotland to join the EU.

Like Catalonia in Spain, rightly or wrongly, Alex Salmond’s case rests in part on the argument that "if we leave one club, we can safely join another." It’s an insurance policy against the uncertainty which is a such a killer in any referendum to change the status quo. So is Barroso right?

Iceland’s accession talks with the EU – which were terminated since the Icelanders turned cold on the idea – would, in purely legal terms, come close to those of Scotland. Iceland is part of the European Economic Area, and therefore almost an EU member. Scotland has been an EU member for 40 years. Both would face tricky negotiations, like protecting their fishing industries.

There are basically six steps (by my rough categorisation). Salmond’s biggest problem is that for half of these, each of the 28 EU states, including rUK and Spain, has a veto:

Step 1 – Scotland applies to join the EU: Under EU law, it would have to be an independent country to apply.

Step 2 – The European Commission “screens” Scottish law to see if the country is compatible with EU membership – this won’t be an issue.

Step 3 – EU governments decide whether to approve Scotland’s EU application. All EU states have a veto.

Step 4 – The EU and Scotland begin negotiations over individual EU policy areas. There are now 35 so-called “accession chapters” covering everything from the euro to employment law to the EU budget. Each country has a veto over the decision to both open and then to close every single chapter – ask Turkey how easy that has proven (read: Cyprus and France). It’s in these talks that Salmond would need to deliver on his pledge to get an opt-out from the euro, as well as replicating the UK’s special deals on the EU budget, crime and immigration and passport controls.

Step 5 – When the 35th chapter is agreed, the Accession Treaty with the Scottish terms of entry is drafted.

Step 6 – This Treaty must then be ratified by the Parliaments of each EU country and the European Parliament. If one says no, the deal falls.

Iceland officially applied to the EU in June 2009. In 2013, when the bid was dropped, it had completed about a third of the negotiations. So if the letter of the law is followed, Scotland might join the EU just before Serbia, several years from now.

However, in the EU, political expediency tends to trump the letter of the law. I suspect that, given the stakes, if the Scots do pull the trigger, the EU will engage in the kind of legal acrobatics that it’s proven so good at in order to fast-track an independent Scotland to membership, with or without a euro opt-out (though, as Andrew Lilico has pointed out, there might be a range of practical currency issues).

No matter what, it would be a mess. In truth, we have little idea what’s going to happen if Scotland goes independent. And I suspect that in itself undermines Salmond’s case.

EU approval process for GM requires better balance between innovation and democratic accountability

Yesterday saw a debate between the EU's Europe ministers regarding the approval of Pioneer 1507 - a strain of genetically modified maize which has been developed by US firm DuPont to be pest-resistant. This is a fascinating case which sees the clash between EU legal procedures and scientific evidence on one hand, and public opinion and green lobbying on the other.

Unbelievably, DuPont first applied for EU approval back in 2001, but due to the political resistance to GM in the EU, this application was deliberately kicked into the long grass despite six separate positive opinions from the EU's food quango, the European Food Safety Agency. The wider context is a climate of political hostility which has resulted in Europe falling far behind the rest of the world when it comes to biotechnology - aside from Pioneer 1507 only one other GM crop has been approved in the past 15 years. The result is that biotech companies such as BASF and Monsanto have already left the EU and others could follow suit, with the loss of jobs, investment and trading opportunities.

Following a legal challenge by DuPont, the EU's General Court ruled that the EU was breaching its own rules by not taking a decision. Opinion among member states was divided, with five states including the UK minded to vote in favour, four including Germany minded to abstain and the remaining 19 minded to vote against (a formal vote was not actually held). Despite the large number of member states opposing the approval, no qualified majority was reached either way.

Under the EU's comitology process, when the result is indecisive, the Commission can chose to push ahead with its original proposal, and its looks set to do so (in fact during the debate the Council's legal service indicated it would be legally obliged to).

This is undoubtedly a problematic situation. On one hand, it is good that the Commission is heeding the independent scientific recommendation issued by EFSA. As EU Health Commissioner Tonio Borg argued during the debate, member states should not pick and chose when to follow such advice and when to disregard it. On the other hand it is bad from a democratic perspective when the Commission forces through something opposed by a majority of member states and public opinion - the EU was rightly slammed for proposing to ban jugs of olive oil from restaurant tables following a similarly inconclusive vote.

The case therefore illustrates the need for more flexibility in the EU on issues where member states cannot agree and where public sensitivities need to be taken into account. As UK Europe Minister David Lidington argued during the debate:

"I've no wish to force any country that doesn't want to cultivate this variety of maize to do so... in the longer term the answer surely has to be some agreement under which we agree that those member states that want to have GM crops in cultivation are free to do it while those maintain a ban are free to do so as well."

Greater flexibility for member states to ‘go it alone’ in designing appropriate regulatory frameworks for GM was also one of the recommended in the recent Fresh Start report on the EU's impact on UK Life Sciences. This would be a good compromise - that way it would be down to national governments and parliaments to decide whether to allow cultivation of GM crops - and it would be down to national politicians in favour of this to show the requisite leadership to win over public opinion.

When Ukip's recruitment sergeant number one came to town...

Update 15:00 Nigel Farage himself speaks:

After hearing Commissioner Reding admitting 70% of our laws are made by the EU I am willing to sponsor her doing a UK tour
— Nigel Farage (@Nigel_Farage) February 11, 2014

Update 11:50 - We've come across a video (h/t @hughbs) in which Reding very much stands by the 70%-80% estimate.

Update 11:15 - The Telegraph's man in Brussels, Bruno Waterfield, has gotten in touch to say that he asked Reding specifically about the 70% figure:

@OpenEurope I asked her about the 70% figure, she said EP 'co-decides' on 70% of all EU legislation rather than what she said
— Bruno Waterfield (@BrunoBrussels) February 11, 2014

However, at a similar event in Stockholm last year, she argued that:

"Did you know that 80% of Swedish laws are not Swedish laws? They are European laws that have been translated into Swedish legislation."

We've already examined this claim here, but it seems Reding is at best confused about the extent of EU legislation (worrying for an EU Commissioner) or being purposefully misleading.

UKIP's most effective recruitment sergeant?

Original post:

Where to start with Viviane Reding? She visited London yesterday as part of her so-called 'Citizens’ Dialogue' – which is neither about citizens nor a dialogue – and gave a very impressive performance. Somehow, she managed to offend absolutely everyone.

• The British public by questioning whether they "know what they are going to vote about" in a potential 2017 EU referendum, 
• The British media by suggesting it “completely distorts the truth” over Europe, 
• The British government by rubbishing large parts of its strategy, most notably on the crime and policing opt out and EU free movement, 
• Europhiles by suggesting that “70% of the laws in this country are made, co-decided, by the European parliament" (meaning that the share of EU laws, according to Reding, must be higher since not all EU decisions are made jointly with national parliaments) – a “euro myth” that ivory-tower types in the UK have spent years trying to “dispel”, and ironically, used as Exhibit A in their accusations of “misinformed media” (“6.8% of primary legislation” and all that),
• The Ukrainian protesters by praising their brave, pro-EU stance, and then later saying she has, unlike the UK, "never pushed for further enlargement" instead favouring deeper integration. 

So in short, the British are too ignorant to vote, British media all misinformed and 70% of UK laws are made in Brussels. As one person put it on Twitter, it’s hard to think of better “rocket fuel for those who want to quit the EU”.

Apparently, Reding got her bag stolen from her car while engaging in the “dialogue”. Fortunately, her papers, hopefully including the source for the “70% of all laws” claim, were left untouched.

9%, 43%, 50%, 60%, 84%: How many domestic laws are linked to EU law? The case of Sweden

It's up there with the origins of the universe as one of the great existential questions of our time (well...): how many national laws stem from Brussels?

European Commissioner Viviane Reding - who does what she can to turn people against the EU - recently told a "Debating Europe" event in Sweden (H/T @AllieRenison):

Did you know that 80% of Swedish laws are not Swedish laws? They are European laws that have been translated into Swedish legislation.

In addition to the comment being ridiculous (it was in reply to a question about the EU costing too much)  she seems to have plucked this number out of thin air. Incidentally, it would top Nigel Farage's much-criticised claim that 75% of all UK laws are made in Brussels. Another example of Better Off Outers and Europhiles agreeing.

As regular readers will know, the Open Europe team has gone to hell and back trying to answer this question, and our conclusion is that it's virtually impossible to determine with any degree of certainty what the share of EU-derived laws is. It all depends on what you count, how you define an EU-derived law and what the counter-factual is.

It most certainly is higher than 9% as some claim. Counting UK Statutory Instruments, which is what the study from which this number is drawn from did, isn't that meaningful as there's no 1-1 correlation between that and EU law. It also doesn't include EU Regulations which, unlike Directives, are directly applicable, giving no rise to separate domestic legislation.

The 84% figure that is often cited originates from an answer to a German parliamentary question, comparing the number of new federal laws and new EU laws in one year. However, this is also too simplistic. For example, counting only federal laws in a federal system isn't particularly meaningful. Germany has 16 Länder that churn out laws as well.

Now, a new Swedish study has thrown in another number to debate. The Riksdag and Departement - the Swedish Parliament's in-house magazine - has reviewed 1,300 Swedish legislative proposals, dating back to 2005. It found that the share of legislative proposals in 2012 originating in the EU stands at 43% - a dramatic increase compared to 2010 when the share was 28%. Of the 104 laws that so far have been proposed by the Riksdag this year, about a third originate in the EU.

This is a quick and dirty study in many ways - it measures only the so-called flow of EU legislation, not its stock. And the flow clearly is subject to a lot of variation. Its proposals and not laws passed. And, as with the German study, it doesn't look at local rules. Local government is important in the Swedish system, with Councils (or municipalities) having plenty of decision-making power. So any serious "EU law count" would have to look at this dimension as well.

But, we're not done yet. A 2010 report by the Swedish Association of Local Authorities and Regions - who should know a thing or two about local decision-making - does address this very question. It says this:

The report shows that, on average, the EU affects 60 percent of items on municipal council agendas. The number is slightly lower for county councils and regions, where the EU influences around 50 percent of agenda items. 

Given that these are local decisions, it does sound high to us, but remember the report doesn't count laws per se, but issues considered by the local government in Sweden (public procurement considerations for example will always be influenced by EU law, despite it not necessarily giving rise to new local rules).

A few conclusions:

• Viviane Reding really must be on the UKIP payroll 
• It remains incredibly difficult to nail down exactly how many laws originate in the EU
• The share of EU laws is best measured in terms of domestic legislation "influenced by" or "linked to" EU decisions, ideally in combination with the measurable impact of these laws (our preferred way) to get a sense of the relative impact
• Any EU law count must also look at the local or regional level.
• Still, a h*** of a lot of domestic laws stem from the EU 

The EU might have something to say about Cameron's plan to roll back green policies

Former windmill on David Cameron's former home
publicising a former policy?

David Cameron once said his Coalition would be the "greenest ever", he once even installed a windmill on his own house in the hope of publicising his green credentials. No more it might seem. Yesterday he told the House of Commons:

"We need to roll back some of the green regulations and charges that are putting up bills."

The heat in the cost of living debate is only set to rise, but do not hold out any great hope of a dramatic reduction in energy bills. For the most part they flow from legally enforceable EU laws that the UK signed up to. Something we warned against here and looked at again here.

This begs the question, which ones can the UK scrap on its own and will it seek to renegotiate the others?

• EU Renewables Directive - imposes a legally binding target of 15% of all energy by renewables by 2020, which translates into producing 30% of UK electricity by costly renewables. This is the driving force behind subsidies and support for renewables. 
• The UK does have more control over its new Carbon Price Floor policy (which sets a minimum carbon price) and some of its strict energy efficiency policies. But even these fall under the overall banner of the EU defined emission's reduction targets which the EU will have to work very hard to hit.

So will the UK seek to renegotiate these headline targets to allow for cheaper forms of CO2 reductions? Lets see, but if not then all talk of reducing electricity bills are for the most part hot air.

UPDATE: Reuters reports on UK Government papers arguing that EU needs to cut greenhouse gas emissions by 50 percent from 1990 levels by 2030 to avoid the worst effects of climate change. The "roll back" is going well then!

Good Europeans, bad Europeans: Time to revisit a couple of labels?

It's that time of year when the European Commission either assigns gold stars to or puts black marks against member states based on how they implement EU rules. The Commission notes that the number of infringement procedures opened against EU member states is consistently decreasing - from 2,900 at the end of 2009 to 1,343 at the end of 2012. So the kids are behaving better overall.

At the end of 2012, the UK had 61 pending infringement procedures - meaning that the European Commission believes the UK is breaching EU law in 61 cases. That seems quite a lot, but, in fact, the UK is facing less infringement procedures than half of the EU's founding members: Italy (undisputed leader for the ninth consecutive year, 99 pending cases), Belgium (92) and France (63). And it's even with another founding member, Germany. Not bad, for a country usually seen as the 'troublemaker' of the bloc.

Out of curiosity, we took one step further - and looked at the ECJ's latest annual report of activities. There, we found the number of "judgments concerning the failure of a member state to fulfill its obligations" - that is, how many times EU judges have actually ruled that a country either broke or refused to implement EU rules.

Look at this graph (click to enlarge):

Between 2008 and 2012, the UK has been found guilty of breaching EU law in 14 cases, of which two times last year. A Mediterranean trio of Italy, Spain and Greece (46 infringements declared), France (33) and Germany (19) all figure ahead of the UK. Interestingly, the graph also shows that the EU's newest member states have been better at implementing EU rules than the bloc's founding members.

We may be repeating ourselves a bit, but this serves as another reminder that those countries often labelled as 'good Europeans' don't always have the best record of playing by the EU's rules.

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.

Scottish independence and EU accession: tricky to pull off in one manoeuvre?

The SNP Scottish Government has today released its 16 page plan for independence in which it envisages an independent Scotland within the EU. The document does show they have attempted to address earlier criticisms and grapple with the myriad of legal questions Scottish independence throws up, but troubling issues of EU law remain. So what are the potential problems?

The SNP's new plan is based on its belief that "negotiations will be required in advance of independence with the European Union to agree terms of an independent Scotland's continuing membership."

However this would seem to contravene EU law. The EU has a clear process for EU accessions set out in Article 49 of the Treaties as follows:

"Any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union. The European Parliament and national Parliaments shall be notified of this application. The applicant State shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the consent of the European Parliament, which shall act by a majority of its component members. The conditions of eligibility agreed upon by the European Council shall be taken into account."

 

So to apply to be an EU state you must firstly be a state, (i.e. not a pre-independent state) and that, once an application is received by the European Council, all EU states would have to agree to membership. There seems to be little room for ambiguity and is helpfully explained on the EU's own website here.

And if this was not enough, the EU, under Article 4, has a responsibility to "respect the equality of Member States before the Treaties as well as their national identities...including ensuring the territorial integrity of the State." It is difficult to see how negotiating with Scotland pre-independence would conform with that duty. Something Spain would probably point out even if the UK did not.

Even if informal negotiations were opened, could the EU conclude any of the negotiating chapters with a non candidate non state (probably not), could Scotland prove it has the capability to live up to its EU responsibilities prior to independence (again probably not) and how long would the negotiations take - probably years.

But this comes to the biggest problem for Scotland. They would need to get all 27 states' approval. Unfortunately for Scotland some states have a strong principled opposition to succession. Spain, Romania, Cyprus and Greece (and the EU) for instance still do not recognise Kosovan independence. Scotland's potential case is obviously very different, being based on consent, but the principled opposition, from other member states, could be the same. There are also unexpected bilateral issues that any EU state (apart from the UK) may wish to bring up, fish is perhaps the obvious one (and troubled Norway's accession negotiations) but for the sake of argument the sovereignty of Rockall could be another. It is difficult to tell -  Croatia's EU bid was held up for years by a dispute over maritime access with Slovenia.

And that is even before Scotland raises the question of opt-outs to the euro, Schengen, fish and issues surrounding the UK rebate, budget and the number of MEPs it might want...

Of the 27 states that need to agree a number are wary of breakaway regions: