Open Europe Blog

The Queen delivered her “Queen’s Speech” earlier today – which, for non-UK readers, isn’t her speech at all but rather the government’s, setting out its agenda for the forthcoming year (a rather odd ceremony but good opportunity to see Ken Clarke in a wig if nothing else).

For those interested in the ever-so-opaque EU dimension, the Queen said in passing:

“My Government will seek the approval of Parliament relating to the agreed financial stability mechanism within the euro area.”

And

 “My Government will seek the approval of Parliament on the anticipated accession of Croatia to the European Union.”

The latter won’t be much of an issue – most MPs will play along as further enlargement rightly enjoys buy-in across the political spectrum.

The former is a different story. This relates to the EU treaty change dating back to December 2010, when the Germans managed to get agreement for tweaking the Lisbon’s Treaty Article 136 to allow the eurozone’s permanent bailout fund, the ESM, to be put on a more legally sound footing (at least that’s how Berlin sees it). This treaty change has now finally come up for UK ratification in Parliament. Before carrying on, just to clarify, this is not the EU treaty change that Cameron vetoed in December 2011, and which gave rise to the separate Fiscal Treaty.

The December 2010 agreement didn’t cause a whole lot of fuss at the time, and MPs gave their preliminary approval. Back then, Cameron had far greater control over both events and his own backbenchers. And the UK media was still waking up to the massive – and ongoing – continental political shift unleashed by the euro crisis.

2012 is a different matter altogether.

The ESM won’t actually impact on the UK itself, so the ‘referendum lock’ wouldn’t kick in. However, the treaty change that Cameron vetoed back in December wouldn’t actually have had a direct impact on the UK either – that veto was about getting guarantees that UK interests were protected as the eurozone integrates further, and the rules of the game are effectively changed.

Exactly the same logic could apply to the Treaty change to put the ESM on legal footing. Like the Fiscal Treaty, the ESM will lead to greater integration in the eurozone (indeed, the two go together – see here), so Tory MPs could use the same line of reasoning they did leading up to the December summit in calling for the UK to block the measure, in return for EU concessions. Remember, an EU treaty change is not a change at all until it has been ratified by all member states.

Will they? So far, there are no signs that this issue is fully on MPs’ radar and the UK government prays it will stay that way. But a lot of things to look out for:

  • The UK government is likely to sell the measure as a guarantee that it will never again be forced to indirectly contribute to eurozone bailout funds – a few papers have already run with that story. At the same December summit, Britain won a political declaration and an EU decision that the article that forced it to contribute to the EU-wide bailout funds, the EFSM, won’t be used again (Article 122 – for background, see here and here). However, the legal status of this guarantee is uncertain. It is not part of the treaty change itself, and MPs may argue that a guarantee that isn’t anchored in the Treaties could well prove ineffective. After all, the UK has received guarantees before which proved to be pretty worthless (clue: Charter of Fundamental Rights, Working Time Directive). If MPs wake up to the legal ambiguity underpinning the ‘guarantee’ they may ask for something firmer in return for ratifying the treaty change.
  • The timing of the ratification will be crucial, i.e. if it coincides with some cataclysmic event or political row in Europe (there will be a few to choose from), it would make life potentially much more difficult for the UK government. The ratification certainly won’t happen before the summer’ that’s for sure. 
  • Under the current agreement between eurozone leaders, the ESM is supposed to be up and running by 1 July (in parallel with the temporary bailout fund, the EFSF). This is important, because without the ESM in force, the lending capacity of the euro bailout funds will be a lot lower than markets are expecting, meaning more market nervousness, in particular as Spain is struggling.  
  • To make matters even more complicated, the treaty change itself isn’t actually what’s needed to approve the ESM in eurozone countries – for that, eurozone leaders have agreed a separate ‘ESM treaty’ which is now going through national parliaments in the eurozone. As you’d expect, this is by no means plain sailing as the treaty – for obvious reasons related to taxpayers’ cash – is subject to controversy in Germany and the Netherlands, which are still to ratify it. Before the ESM treaty can become operational and lend money to countries and banks, it needs to be approved by eurozone countries accounting for at least 90% of the contributions to the fund (meaning that Germany, France, Italy and Spain have an effective veto).
  • And this is where things get rather bizarre.  Even if all euro countries manage to ratify the ESM treaty, the Germans originally said that they absolutely need the separate EU Treaty change for the ESM to be fully legal. However, since the UK won’t have ratified the EU treaty changes by 1 July, the ESM will be up and running before the ‘vital’ Treaty change designed to make the whole construction legal is actually ratified in national parliaments. In other words, expect another batch of court cases to soon land in the in-tray of the German Constitutional Court in Karlsruhe.

Pretty messy – but then again, we’re talking eurozone politics and EU ‘law’. That one short line in the Queen’s Speech hides so many complications…

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