Foreign Affairs CommitteeSupplementary written evidence from Professor Michael Dougan and Dr Michael Gordon, Liverpool Law School, University of Liverpool

1. All of the most important issues we identified in our original submission remain essentially the same today; indeed, we suspect that the terms of debate will come into greater focus only in the light of the Prime Minister’s forthcoming speech on EU-UK relations. In particular, while we make no attempt to prejudge the substance of the Prime Minister’s imminent intervention into the debate, if a referendum to obtain fresh consent for a renegotiated relationship between the UK and EU were to be proposed, it would seem necessary to reassess existing assumptions as to the use of national referendums in the UK for the purpose of validating EU reform. Such work would, however, need to be undertaken once the detail of the Prime Minister’s position has been disclosed to be most meaningful.

2. However, we wondered whether the Committee has already taken into account the implications of the European Court of Justice’s recent ruling in the Pringle dispute (Case C-370/12, Judgment of 27 November 2012)? Although this case concerned the compatibility of the European Stability Mechanism Treaty with EU law, the ruling addresses several important points of broader constitutional principle, which seem equally relevant for the UK’s approach towards the controversial Treaty on Stability, Coordination and Governance—including various issues which concerned the Government after the European Council meeting in December 2011, as well as being dealt with in detail by the European Scrutiny Committee in its 2012 enquiry and report into the new Treaty.

3. In particular, when it comes to certain Member States requesting an EU institution (such as the Commission) to exercise various non-EU functions on their behalf, the Pringle ruling offers a clear affirmation of that possibility under EU law. According to the Court, “the Member States are entitled, in areas which do not fall under the exclusive competence of the Union, to entrust tasks to the institutions, outside the framework of the Union... provided that those tasks do not alter the essential character of the powers conferred on those institutions by the EU and FEU Treaties”. In addition, when it comes to certain Member States conferring jurisdiction upon the European Court of Justice over disputes arising under an international agreement to which those Member States are party, the Court in Pringle adopted a broad interpretation of its own special jurisdiction under Article 273 TFEU, eg as regards the possibility of consenting to ECJ jurisdiction over a pre-defined category of potential future disputes; eg as regards how one should understand the concept of international agreements “related to” the subject matter of the EU Treaties themselves.

4. Altogether, the Pringle ruling thus suggests that many of the legal objections originally raised against the Treaty on Stability, Coordination and Governance were not well-founded.

11 January 2013

Prepared 10th June 2013