The claim
“We wi
ll insist that the EU institutions – the court, the Commission – that they work for all 27 nations of the European Union. Indeed, those institutions are established by the Treaty, and that Treaty is still protected.”
Prime Minister David Cameron, 9 December 2011
The background
After David Cameron’s dramatic decision to veto an EU-wide agreement on greater fiscal union for the eurozone countries, it now looks likely that all 26 other European Union (EU) members will try to hammer out a new deal without the UK.
But the question still remains, how on earth will it work? Yesterday, we agreed with David Davis that the realities of such a deal made it look nigh-on impossible.
This is because the 26-strong group would want to use the European Courts of Justice, the European Commission and all the other institutions that help govern Europe to give their agreement a sound legal basis.
And to use any of these, they would need the permission of all 27 EU member states. Without Britain’s permission, they’d be forced to set up a raft of separate institutions on their own.
As far as the club of 26 countries using EU-wide institutions for their own ends, the British government’s position is clear.
A Foreign Office spokesman told FactCheck: “They will not use them – and cannot use them.”
Yet one of those institutions, the European Commission, begs to differ. Who’s right?
The analysis
The government argues that EU institutions belong to the 27 countries of the EU. They are there to carry out anything set out in treaties that the EU members have signed up to over the years, and they offer important protection for Britain.
It’s up to the EU members to allow their institutions, smaller spin-offs or civil servants to carry out work for other countries or groups of countries. All 27 have to agree, and they have done in the past.
However, early this morning the European Commission’s President Jose Manuel Barroso said that use of the institutions wouldn’t be a problem.
Mr Barroso insisted: “That intergovernmental treaty does not mean that the European institutions are not going to have a role.”
He added: “I am not going in this time of the night (or the morning) to enter into complex technical and legal issues, but we believe that if it is properly drafted that will indeed increase what was our goal – increase the governance, increase the credibility, increase also the rules we have today for the euro area.”
The President of the European Council however, sounded somewhat less strident. Herman Van Rompuy said: “This formula has some handicaps, but we will try to overcome them, and I think we will need a large interpretation of the role of institutions and others, as we did it in the past. So I think that there is also a very clear political message to the outside world, that even if we have not all the legal instruments of enforcement, that via an intergovernmental treaty, we will be as binding… as possible.”
Use of the EU institutions is a key demand of the Germans, and yet their national newspaper, Der Spiegel, throws further doubt on their chances.
An article in the newspaper says unnamed “legal services experts of the European Commission, the European Central Bank and the European Council” are in agreement that a treaty concluded only by the eurozone governments and their supporters would be illegal.
The verdict
The dealmakers clearly think they’ve found a loophole in the law. And it’s hardly surprising that Mr Barroso wants to keep EU institutions involved.
Yet details of how they plan to use EU members’ institutions without the permission of all 27 remains to be seen and is plagued by doubt.
Which means until they can wrangle their way in, Mr Cameron is right to stick to his guns – EU institutions were established by the Treaty, are protected by the Treaty and require the permission of EU members to use.
The problem is, without the use of the European Court, Commission, Parliament and so on, as the think tank Open Europe argues, the new fiscal rules will have limited credibility.
By Emma Thelwell
