Foreign Affairs CommitteeWritten evidence from Professor David Phinnemore, Queen’s University Belfast

THE FUTURE OF THE EUROPEAN UNION: FORMS OF MEMBERSHIP

Executive Summary

A UK referendum on the EU is now highly likely and will, irrespective of the wording, most likely be treated as a vote on whether to stay in the EU or not.

Any renegotiation of the terms of UK membership will need to address the individual and collective interests and preferences of all member states and not just those of the United Kingdom.

Any renegotiation could result in a demand from “full” members that the United Kingdom’s institutional representation and role in decision-making be reduced.

Any renegotiation would set precedents for and challenge the EU’s approach to enlargement.

The United Kingdom already benefits from a specially tailored form of membership that other member states may be willing to see refined in the context of a further round of wider treaty reform but this refinement may not be sufficient to meet popular and political demands for a renegotiation.

For a range of reasons relating primarily to maintaining the existing balance of rights and obligations of member states and to enlargement the EU is unlikely to agree formalized tiers of membership.

Prof. Phinnemore is an expert on the politics of the European Union and specifically its treaties and enlargement. He is Visiting Professor at the College of Europe where he teaches on EU enlargement. He has published widely on successive rounds of EU treaty reform as well as on enlargement and forms of association with the EU. During 2010–11 he was seconded as a Senior Research Analyst to the Foreign and Commonwealth Office during the passage through parliament of the EU Act 2011. He is currently completing a book on the negotiation of the Treaty of Lisbon.

1. Whether or not the December 2011 European Council and its outcome can or should be seen as a watershed in the United Kingdom’s EU policy and place in the Union is open to question. Current debates on how the United Kingdom should respond to calls for further integration, particularly within the Eurozone, on whether the UK government should seek to alter the terms of its membership, and on whether there should be a referendum on remaining in the EU all predate the eurozone crisis. Rather they are the symptoms of the United Kingdom’s uneasy and unenthusiastic participation in a process of European integration which is poorly understood and which successive governments and oppostions have shown a tendency to portray as alien and threatening.

Towards a Renegotiation of the United Kingdom’s EU Membership

2. Although support for the United Kingdom’s continued membership is regularly re-affirmed by governments and most political parties, there can be no question that the current inquiry is taking place at a point when the desirability of this membership is being most openly and forcefully questioned among voters, campaigners and politicians. The political saliency of the issue has not been so great since the early 1980s. With public opinion remaining for the most part unenthusiastic about European integration—whether the status quo or further integration—and increasingly inclined to express a view on the United Kingdom’s position within the EU, debate on alternatives appears set to remain a feature of UK politics until such time as a referendum is held and its outcome addressed.

3. The likelihood of a referendum is high and not simply because of the political saliency of the continued membership issues. The EU Act (2011), irrespective of whether it requires or not a referendum for a treaty change, has heightened expectations of a referendum being held. In the current political climate, it is extremely difficult to envisage a future government being able to resist popular and parliamentary calls for a referendum even if it can provide a completely water-tight legal case for ratification of a treaty change being exempted from referendum requirement under the EU Act (2011). Irrespective of the formal focus of the referendum, the vote would be treated by many campaigners and voters as a question of whether the United Kingdom should remain in or alter its relationship with the EU.

4. Many opponents of the United Kingdom’s continued membership of the EU advocate withdrawal and the establishment of an alternative relationship, often along the lines of the European Economic Area or the complex, multi-agreement bilateral relationship that Switzerland has with the EU. These are dynamic forms of relations in which the non-member state takes on a substantial proportion of the obligations of EU membership without a formal role in their adoption, an important point often overlooked by supporters of such relations for the United Kingdom.

5. A key feature of the emerging debate is, however, the preference to consider “renegotiation of membership” as some form of middle way between the status quo and withdrawal.

6. Assuming such a focus is maintained, it raises the question of what alternative forms of EU membership are possible and which would suit UK interests best. However, and importantly, consideration of options cannot be undertaken simply from a UK perspective of what would be desirable. EU membership, it cannot be forgotten, is regulated by unanimous agreement among the member states as contracting parties to the EU’s constitutive treaties—the Treaty on European Union and the Treaty on the Functioning of the European Union—and so renegotiation would have to take place with their active consent and potentially be ratified by them.

7. It is not the case that the United Kingdom could dictate the terms of any renegotiated form of membership. The interests of the other member states both individually and collectively would have to be addressed. It is to be expected that the EU’s institutions will also seek to influence the substance of any renegotiations with the European Parliament likely to demand a role in the formal approval of any change. As regards the collective interest, any renegotiated form of membership would set precedents for other actual and would-be members as well as the terms of accession governing enlargement. Renegotiation would have implications well beyond the narrow terms of the UK’s continued membership.

One Membership, but Degrees of Membership

8. Formally, there is only one form of EU membership: membership. Other forms of membership have been proposed (eg affiliate membership) but no treaty provision has ever been drafted to enable them. If a state wishes to become a member of the EU, it has one option: membership. Established practice is that it assumes all existing treaties as well as all other primary and secondary legislation—the acquis. Opt-outs are exceedingly rare and highly specific. Moreover, acceding states are obliged to subscribe to the acquis politique of the EU, ie its often loosely worded political ambitions, including “ever closer Union”.1

9. In practice, certain forms of contractual relationships have been presented as a form of (eg “associate”) membership. Legally speaking, however, these are not a form of membership of the EU, but a form of relationship with the EU. This is irrespective of the fact that the intensity of the contractual commitments in some relationships is so great (eg the European Economic Area) that the non-member state assumes many of the obligations and receives many of the benefits of membership and in some cases, notably where Schengen participation is concerned, is actually more of a member than certain member states (eg the United Kingdom). However, one important and highly sought benefit of membership that has never been granted to a non-member state has been representation in the EU’s institutions and therefore participation in EU decision-making.

10. Although legally there is only one form of EU membership, in practice various degrees of membership exist. On the one hand, not all member states are members of the eurozone. Member states can be divided into three categories: eurozone members—“ins”; member states that have not yet met the criteria to become part of the eurozone—“pre-ins”; member states—“outs”—that have either previously signed up to economic and monetary union and subsequently decided not to join the eurozone (Sweden, Denmark) or have always had an opt out (United Kingdom). On the other hand, not all member states participate fully in Schengen activities or the area of freedom, security and justice: the United Kingdom, Ireland and Denmark have a partial membership of these areas due to various opt-out/opt-in arrangements. Furthermore, the United Kingdom and Poland have a special status vis-à-vis the Charter of Fundamental Rights,2 and Denmark has a politial opt-out from defence cooperation. And then we have the recently established forms of enhanced cooperation (ie on cross-border divorce, an EU patent).

Formalizing Tiers of Membership

11. Each of these arrangements alters the degree of a state’s membership and has been developed following negotiation between the member states. Each—with the exception of the eurozone opt-outs—also remains rather fuzzy, the boundaries shifting as the relevant acquis evolves and opt-ins are exercised. None has been formalized through the creation of a particular form of named membership that is made available—explicitly or implicitly—to others, whether current or would-be members. Only at the time that the relevant treaty change was agreed (eg Maastricht, Amsterdam, and Lisbon) was the variable degree of membership established.

12. The unscripted emergence of the variable degrees of membership and the fact that they have remained ad hoc arrangements reflects a widespread reluctance to formalize tiers of membership. At least five reasons can be advanced:

securing agreement on what constitutes a second or third etc. tier of membership would be exceptionally difficult given the integrated nature of the acquis and the fact that unanimous agreement among the member states would be required;

member states have studiously avoided any situation where they might be classified as a second-class member as with all certainty would be the case if tiers of membership were established;

formalizing tiers of membership would necessitate a debate on the balance of rights and obligations associated with each tier leading potentially to differentiated levels of institutional representation and decision-making involvement;

the existence of formalized tiers of membership could, and potentially would, necessitate a fundamental re-working of how the EU enlarges (eg regarding which tier should be the basis for negotiation) and oblige the EU to admit applicant states to some form of membership earlier than would normally be the case; and

if certain rights of membership (eg relating to institutional representation or decision-making) were clearly associated with only specific obligations being undertaken, a non-member state meeting such obligations under a contractual arrangement with the EU could legitimately claim such rights.

13. While the possibility of EU member states formalizing tiers of membership—whether via political agreement or formal treaty change—cannot be ruled out, precedent suggests there would be little appetite to do so. The default option of the EU and its member states has always been for any deviations from “full” membership to be negotiated on an ad hoc basis and only when absolutely necessary to secure agreement on a wider set of treaty reforms. The preference for flexibility is also reflected in the decision not to specify the minimum content of any agreement governing relations with a member state that decides to leave the EU through the withdrawal clause in Article 50 TEU introduced by the Treaty of Lisbon.

14. Moreover, the question should be asked as to whether other member states actually support the idea of formalized tiers of membership. Past proposals for differentiated forms of integration and of establishing an “avant garde” of member states have generally attracted little support beyond the most integrationist member states. Most member states have feared relegation to a second or potentially lower tier. Among those member states has been the United Kingdom. There is currently little, if any evidence, to suggest that member states would be receptive to any formalization of tiers. Reaching unanimous agreement among the current 27 member states would be a major challenge.

Obstacles to Renegotiation

15. The history of the European integration has been long been characterised by flexibility with ad hoc solutions often being generated to address the particular concerns of individual member states. This helps explain the unique nature of the United Kingdom’s formal participation as a member in the EU. Whether there is scope to secure a renogotiation or further refinement of that relationship is unclear. Precedent would suggest that the latter—refinement—may be possible, although media and academic accounts of successive rounds of treaty reforms reveal a persistent frustration with UK demands for exceptions, exemptions and other special treatment. It may be that the United Kingdom has at last exhausted the patience of other member states.

16. If a further refinement of the United Kingdom’s EU membership were possible, the question still remains whether the result would satisfy domestic demand for a more substantial renegotiation such that a UK government could win a referendum which in all likelihood would be perceived by many as a vote on whether the United Kingdom should remain in the EU or not.

17. How member states would respond to a UK demand for a more substantial renegotiation is unclear. It is likely that they would baulk at the prospect, not least because membership has always been—at least for member states—a carefully negotiated balance between rights and obligations in which all member states have had to compromise. If renegotiation were possible, it can be expected that it would only be possible in the context of a wider, possibly major, treaty reform process, during which the United Kingdom would be expected to make concessions to the other member states allowing them to pursue further integration. If so, the United Kingdom’s renegotiated—and reduced—form of membership would be accompanied by further integration among the remaining member states thus increasing the gap between “UK” and “full” membership.

18. As the gap—which already exists—widens, attention will undoubtedly shift to whether with reduced commitments and obligations the United Kingdom should retain the same level of membership benefits, notably regarding institutional representation and decision-making. The EU would be faced with its own West Lothian question, most obviously within the Council and European Parliament, but also potentially within other institutions (eg the Court of Justice) and the EU’s advisory bodies, the Economic and Social Committee and the Committee of the Regions. Existing practice means that MEPs are not excluded from debates and decisions relating to areas of EU activity from which the United Kingdom has opted out. In the Council, however, the United Kingdom does not have a vote in such situations.

19. A consideration that will undoubtedly influence the willingness of the other member states to consider a renegotiation is the fact that the result would further expose the inconsistency between the requirement the EU makes of acceding states to accept as a prerequisite of membership the acquis in full and the fact that a member state can negotiate down various, possible many of its, obligations while retaining the benefits of membership. The EU will undoubtedly want to avoid accusations of double-standards; it will also want to maintain at least a semblance of consistency in its approach to enlargement and the terms of accession. A UK government will also presumably wish to avoid accusations of double-standards. Could though a UK government, with its strong advocacy of Turkish membership, insist that Turkey only be admitted if it meets the criteria for membership in full when the United Kingdom is seeking to reduce its commitments and exempt itself from elements of the acquis which it finds incovenient and undesirable?

22 May 2012