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THE STATE OF THE EUROPEAN UNION
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been better if it had been possible to avoid this
transformation, as removing this phrase from
the treaties would require a review of primary
legislation (which is impossible), while declaring
in the conclusions of a European Council that
this ambition no longer applies to the UK con-
stitutes a weakness from any point of view
(Mangas
op. cit.
). As Mangas notes, this phrase
has been the object of continued criticism
among British public opinion, even though it
does not in itself have the power to lead to po-
litical union, bypassing the consent of its na-
tional parliaments.
The sovereignty section of the agreement
also affects the application of the control of the
principles of subsidiarity and proportionality.
The conclusions of the European Council stress
that the principle of subsidiarity must be applied
“as closely as possible to the citizen”, consider-
ing whether action at the EU level produces
“clear benefits” for citizens compared to what
could be achieved at the national level. The
agreement also gives national parliaments more
powers over the application of this principle, as
well as the principle of proportionality, strength-
ening their capacity to influence decisions
adopted by EU institutions. From now on, par-
liaments will be able to issue reasoned opinions
when they believe draft laws do not meet the
principle of subsidiarity within 12 weeks from
transmission of the draft. If the rejection repre-
sents more than 55 % of votes assigned to na-
tional parliaments (estimated at 16 parliaments),
the Council Presidency will include the item on
the Council agenda for debate. Following this
debate, the representatives of the Member
States on the Council will discontinue the pro-
posal, unless it is amended to “accommodate”
the reasoned opinions.
This modification of the main control mech-
anism for subsidiarity threatens EU legality by
allowing the Council to paralyse a legislative
process in the heart of the Commission until it
is modified, converting a warning procedure
(the so-called yellow card) into an absolute veto
(red card). This clearly introduces legal distor-
tions by altering the delicate and highly consoli-
dated balance of European institutions on a key
point such as the Commission’s right to legisla-
tive initiative (Mangas
op. cit.
), since it must find
other ways of overcoming the veto (such as
withdrawing its proposal).
Freedom of movement, immigration and
benefits
In his initial statement, David Cameron de-
manded that the UK be allowed to deny social
benefits (specifically tax credits) to any EU im-
migrant, in addition to the possibility of refusing
the payment of child benefits for children of EU
immigrants living in their country of origin. As
originally set out by Cameron, these demands
directly challenge the principle of equality
among workers in the EU. Nonetheless, he has
managed to achieve a complicated and ingen-
ious commitment in the form of the so-called
“emergency brake”, whose application can be
requested from the Commission by any Member
State that believes benefits paid to EU immi-
grants are causing an excessive burden on their
social services. The European Commission had
already admitted this mechanism before the ne-
gotiations began, meaning the debate in the
run-up to and during the Council was not about
the emergency brake in itself but rather about
how long it would last if applied. Cameron orig-
inally requested a period of 13 years; however,
the Visegrád group (the Czech Republic,
Hungary, Poland and Slovakia) presented the
Council with a counterproposal of five years.