 Beth capacity go ahead ladies and gentlemen it's very nice indeed to see so many of you here to look at the burning issue of the day and indeed it is a burning issue I don't know if any of you who are not in a law faculty noticed it but that you came through the corridor but we did a mini referendum this morning see how people might vote in the referendum and the results were quite dramatic in that it was 150 voted to remain compared to the 12 who voted to leave and the two who were undecided. So at least in a rather unselected group or maybe self-selected group of Cambridge students there's a strong impetus to stay. But nevertheless as we know the opinion polls are pointing in rather the opposite direction at the moment Some things don't work well right now, but it's a new worry set out there and a lot of counterveiling crosswinds. Obviously what David Cameron has managed to negotiate is of great interest. What we're going to do is to do it basket by basket and have a look at some of the things that he has negotiated with Donald Tusk and others y gweithwyr yw'r gweithwyr, y gweithwyr yw'r gweithwyr sydd ymlaen yma'r gweithwyr yma. Ond mynd i amlaen nhw'n fieisio'r gweithwyr ydym ni'n gwneud o'r gweithwyr yma, yw'r rhan o'r gweithwyr, yw'r argyfrifiadau, yw'r gweithwyr yw'r gweithwyr. Rydym ni'n credu'r bod direction ar Ffyrdd Cenneth Armstrong yw'r gweithwyr o ffarsgwyd 1 a 2, Dr Judy Smith, three, I will talk a little bit about basket four and then Marcus Gearing and Albertine Albor's Lorenzoll join us shortly are going to talk about sort of cross cutting issues which apply across all of the baskets. We have five speakers ten minutes each and what I suggest if you're happy is we do each basket and then perhaps take a few questions per basket and then move on to the general topics. I should say this whole event is being recorded for audio purposes so if anyone who would like to leave now because they don't want their views heard or recorded please be aware of that fact otherwise I'll hand the floor over to Professor Armstrong. Thanks Catherine. So I'm good to talk about primarily talk about the provisions relating to economic governance and competitiveness but I thought it might just be useful because I'm first up to give a little bit of a lie of the land of the nature of the new settlement framework and I've been wrestling with this image in my mind for most of the morning of what we're trying to think about what the different elements of the framework add up to anybody who's had a look at it will be probably somewhat perplexed by the bewildering array of different measures adopted by variously the heads of state meeting the European Council, the European Council itself, the Council of the EU and the Commission variously adopting statements, declarations and occasionally adopting decisions. What struck me about this was that it was a bit like the anti-missile flack that aircraft sometimes deploy. It wasn't a single instrument that everybody could get heated and angry about. It's this multiplicity of different sorts of texts that you've got to try and navigate and put together and they themselves refer to bits of other legislation and it's all quite dense and it strikes me that this is complexity as a kind of defensive shield in a way. It's a way of not having a single target for particularly I think for for your skeptics to argue round about. So in the one hand I think what it usefully does is tell us that there's quite a rich normative environment in which this debate is taking place but also that it's complex they may not necessarily add to clarity and particularly when we think about how this is going to be explained to the voters who will then be making decisions. More specifically the framework of the new settlement starts prefaced with the decision of the heads of state and government meeting within the European council and as we have heard the different baskets which relates to the different bits of the Christian negotiation section A on economic governance, B on competitiveness, C on sovereignty, D on social benefits free movement and E its application. The attach to this is a statement of the heads of state and government and the council decision on the effective management of banking union and euro integration, a European council declaration on competitiveness, a European commission declaration on subsidiarity implementation and burden reduction and then finally a European commission declaration on a safeguard mechanism. So that's the interlocking framework of the new settlement. So I'm going to talk about the economic governance and the euro. The single currency I think was presented as a natural complement to the single market, one market, one currency but I think what we're increasingly seeing then is the tensions that are emerging within EMU and its relationship to a single market, a single market of 28 states, economic and monetary union and now also banking union of 19 states or in the case of the banking union those other states that want to join in with it and in terms of the legal framework the European banking authority is there to facilitate the single market, single rule book for the single market rules for 28 member states and yet banking union the establishment of the resolution mechanisms etc are there for those participating states in the euro zone or those who wish to wish to join and I think then this is where we see one of the main lines of anxiety and that's the most substantive real part, part from maybe the free movement of worker side, the most substantive element of the renegotiation is how can the UK position itself in relation to economic integration within and integration within the euro zone while remaining committed to the single market which is what of course it wants to retain and to prevent any discrimination within the single market as a consequence of the decision making processes and structures that will take place in the banking union and particularly the fear that as powers are transferred to the European central bank away from national bank banking authorities that it will be exercising influence over the European banking authority in areas where putting in place essentially rules that have the appearance of applying to everybody but in fact are more in the interests of the euro zone so it's this fear of a form of discrimination between participants and non-participant states that is lies behind much of what the UK is concerned about also then within the council minister itself the influence of the euro group has an informal meeting of finance ministers and the extent of which the euro group meets informally first of all and then meets formally within the council is the legislative institution and again is acting in a sense on block in a way that then prevents non-participating states being able to veto or hold back on what has been proposed so these are the the kind of institutional background concerns I think so I think what is interesting about the tone of the document on what is actually said when the decision of the head of state of government is it starts off not starting with the anxieties of the UK but it starts off with a very strong statement that EMU is here single currency banking union we need to deepen integration of the euro zone that's its starting point then it moves on it does that that's not itself called into question but then it moves into the need then for mutual respect between euro zone and participating states in banking union and those who choose not to and the language that is used to describe this kind of mutual respect is very much lifted from the provisions that deal with how to manage enhanced cooperation in the EU that is to say those let those measures within the treaty that try and deal with differentiated rulemaking in the EU how to protect the relative powers rights and competencies of those who participate and those who don't participate so it's about recycling that language I'm putting in trying to put it put that in place as as he said principles to guide relationships interestingly the scope of application of these principles of mutual respect extend to those rules that might be adopted by way of an intergovernmental agreement not just internal EU rulemaking as such but also anything by way of an inter international agreement between states and that reflects the increasingly porous boundary between internal and external when it comes to economic and monetary union as we know the the european states have used the european stability mechanism the treaty instability coordination and governance as an external international treaty mechanism for reaching agreement so the this idea of we need some mutual respect also is in principle extending out to any international agreement that may be adopted most specifically on banking union the the texts clarify the banking union not surprisingly only applies to credit institutions are located in eurozone countries or countries that have opted into banking union there's something quite curious though when it starts talking about secondary law that is looking at post legislative rulemaking implementing acts that may be adopted or delegated acts that might be adopted to flesh out the banking union framework does say that secondary law may need to be adapted for banking union non banking union states that there may be different rules within the union and it's unclear exactly how this differentiated integration is supposed to operate at this delegated rulemaking level is it simply that we have a the same sets of implementing rules but just that they will necessarily apply differently to those states that are participating those that don't or do we actually get different rules different texts for those participating those who don't the the the wording in the the text that is very woolly about what that's supposed to mean and also the different the role of the european banking authority is somewhat different depending upon how these secondary acts are adopted typically the european banking authority will draft technical rules which are then adopted by the commission without the commission really reformulating them it's understood the european banking authority is the expert well with the banking union european banking authority then will be heavily influenced by the european central bank within that so there's interesting to see whether then much of the principles which are designed to deal with these insiders outsiders are really focusing on the legislative level and yet maybe not so much clear how they operate when it comes to this kind of post legislative delegated rulemaking again i think we need a bit more clarity on what might go on there because it seems to me that actually much of their reality of decision making may take place in this post legislative phase of delegated rulemaking delegated implementing acts and the language for me is rather too woolly to be clear on what we're supposed to expect other elements dealing with fact financial stability supervision and resolution crisis measures that are put in place to help eurozone states is to be made clear that this doesn't entail any budgetary responsibilities for for member states that there are not members of the eurozone intriguingly when it comes to support measures that are adopted not because of states themselves agree to put their hands in their pockets and bring some cash to the table but money that actually comes directly from the EU budget there was is a fear then that there will be kind of two budgets operating within the european union one for those who are eurozone states and one who aren't that clearly isn't going to be the case but the what is required is a mechanism to reimburse any non eurozone states in the event that those funds are are going to be called upon so how exactly that reimbursement mechanism is is going to a firing of funds back we need to see more on how that will will work and again relatively obvious and there's not a lot i think we would all agree when we look across the text we see an awful lot that is simply description re describing things we already know are things that are just so obvious but they're made explicit so again if you're in a state that isn't participating in banking union then financial supervision resolution remains with your national authorities although it'll be subject though to the common EU rulebook particularly with regard to systemic financial risks the euro group the euro group itself is given express recognition within the treaties in article 137 and in protocol 14 it is there to facilitate discussions amongst the finance ministers of the member states whose currency is the euro the heads of state and government decision reiterates however that the council as the council of the european union is the legislative institution empowered by the treaties to adopt and share the responsibilities with the european parliament and that nothing that the euro group does should interfere with the allocation of responsibilities to the council as a whole of all 28 member states their deliberations even if some of them will in the end not vote on the measures which are being adopted and there is then this mechanism to refer issues to the european council in the event that there is a a disagreement between member states between particularly the non-euro states who are fearing what may be being adopted what might be adopted within the council at the past of the eurozone state so a mechanism for referring the issue up to the european council and this then links specifically to a decision of the council on effective management of banking union and euro area integration so say something very quickly about that i would do if i could get it sorry skipped on way too fast so the decision of the council on banking union and euro euro area integration tended to create a mechanism to manage potential divergences between the preferences of eurozone and non banking union non banking union states and as as yet unspecified number of states there's simply a blank in the text can can raise their concerns about what is going to be proposed for adoption by the council and they can raise their concerns about its impact on them this then prompts simply a discussion in the council now one would have thought that even absent this instrument if a group of states had concerns they might be able to prompt a discussion in the council it's not obvious that we need to have a mechanism for this to happen but the council presidency and the commission are to seek a solution and there's hints and reminders of the you need a compromise here on which decision making is to be paused moment of reflection let's try and see what the consensus lies and then come back with a view now it's going to place a lot of pressure then on the the rotating presidency of the the council acting with the commission to try and reach an agreement on that and of course the consequence may be that the decision then gets referred upstairs to the european council using the mechanism we've just described in order to reach some form of conclusion that in itself has put with some of the the biggest problems i think because of the fear that what it does do is bypass the system that has qualified majority voting in the council in the ordinary legislative process and punts it up to an institution the european council which operates by way of unanimity and consensus the fear then is that we're recreating a veto right at the european council level taking it out of qualified majority voting in the council now the text itself says it makes clear that this is referrals without any prejudice to the normal operation of the union legislative procedure but my understanding is that there is some desire for a better clarification of language on that i'm out of time on the competitiveness side there is very little to say is there is nothing there you wouldn't have expected to see and at last it just describes much of what's already going on there isn't a whole heap that i would say that this particularly brings to the table and it was always an agenda that the uq was in favour of anyway so i'm not sure what else there was to say so thank you very much can i so as well i've taken back to the main screen i'm afraid i don't have a powerpoint presentation i come here neither as a lawyer nor as somebody that does powerpoint so i apologise for both of those things on the other hand i'm also aware that not all of the audience are lawyers so i'm going to cover the thorny issue of sovereignty and with apologies to the audio recording because a show of hands doesn't really help i just thought i would start as i did in brosles last week asking people how many of you actually wake up in the morning and think as your first thought when you're looking in the mirror sovereignty right okay um two usual suspects that i might have expected one being andrew duff um one person i can't put a name to um another colleague so not very many people admit to waking up and saying sovereignty is the most important thing that it really matters but if you are bill kash or john redwood or one of the eurosceptics in the house of lords sovereignty is one of the big issues and it is very much a political issue so the fact i'm coming here not as a lawyer possibly isn't a disadvantage because if you read the various documents donald tusk's letter and the various draft declarations that come with it there isn't very much in there that you would say was legal there are a few clarifications and there are a few points that are building on what david cameron thinks he wants but what i want to do whereas kenneth gave the background to the legal position i'm going to give a couple of minutes of where i think the political context is because i think in order to understand why sovereignty matters it's not the legality of it so much as the politics of it the whole concept of reform renegotiation referendum is about david cameron's way of dealing with party management of holding his party together of talking to the people of the united kingdom and persuading them that britain is better off in the european union and persuading his partners in europe the other 27 heads of state and government that britain is serious about remaining in the european union but that we need change and that is how the whole renegotiation is predicated that cameron needs to persuade his party that remenian is a good thing although he has consistently said he rules nothing out that if the deal isn't adequate he could campaign to leave i don't think there is anybody that really believes that cameron is going to turn around after a european council meeting and say sorry guys this renegotiation has gone wrong i'm going to lead the brexit campaign so the assumption for all parties whether within the conservative party the british media those ordinary citizens of the uk who can be bothered to take any notice of what's going on in the renegotiation and our partners in europe that actually cameron basically wants to stay in but he needs to change the tons of engagement and sovereignty is one of the issues that goes back to the origins of integration it was one of the themes before britain joined it was one of the themes that came up in the 1975 referendum and it's one that those who want to leave the european union have been talking about time and again and in particular what a lot of those people want to leave the european union will say is we never had to say we didn't know that we were going to lose sovereignty nobody ever told us it was about a political union i only voted to join a common market almost all of those statements are factually incorrect the referendum in 1975 wasn't about joining anything it was about staying in the european economic community or common market so unless you were an MP or a member of the house of lords you hadn't been voting to go into anything at all but the whole idea has become a little bit vague and people forget the terms of the debate or even the debate that went on in the late 1940s when one foreign minister from another member state talked about a bonfire of the sobranties because the idea behind european integration was one where you developed mutual trust where states and particularly the peoples of europe would come closer together and because of mutual trust would want to cooperate and that was what underpinned the whole concept of ever closer union but that has become one of the features of hate for british eurosceptics ever closer union is seen as pernicious and the debates in parliament dance on their heads or angels on heads of pins talking about whenever closer union got into the treaties was it in the founding treaties did it only come in at the time of the single european act wasn't it something that john major had won for us at master it and so on and so forth well ever closer union of the peoples goes back to the treaty is of rome but isn't intended as something that undermines national interests or the role of the nation state and is meant to be seen i would suggest in a constructive light but it's one of the three aspects of sovereignty that david cameron has been talking about since the bloom bug speech of january 2013 so kathryn mentioned the work for baskets that he was trying to renegotiate economic governance and competitiveness being the first two with competitiveness as kenneth says actually there's not very much to say because it's far less about renegotiation than simply flagging up the areas where the current commission particularly timmermans is actually trying to reduce the burden of regulation but it needs to be sold as something that is in the british national interest something that the uk is doing well but the third area of sovereignty cameron had broken down into three areas ever closer union was the first and in many ways it seemed quite likely that the other member states would say we're committed to it but it's been very obvious for the last two decades at least arguably since the negotiations in 1991 over master it that essentially the uk was not committed to ever closer union so a protocol that says britain isn't signed up to ever closer union is not something that anybody would be terribly surprised about and it wouldn't impede further integration for others so i had long been saying i'm sure we'll get something on that or the prime minister will it's not something personally i would have had on the wish list and i actually think ever closer union is a good vision to have but wasn't part of the prime minister's vision so ever closer union and the idea that britain doesn't have to be signed up to that is probably not a surprise and the EU co document 416 makes very clear this is the long document that covers all all the baskets that references to an ever closer union among the peoples of europe do not offer a basis for extending the scope of any provision of the treaties or of EU secondary legislation so that one is meant to deal with the skeptics and say europe isn't going to take over it's not going to insist on ever more powers but just in case you were further worried we will go back to talking about subsidiarity and i was thinking when i was listening to keneth that if you're not a lawyer a lot of the issues of banking union and economic governance are quite difficult to follow and for most ordinary people who don't follow european integration in detail the concept of subsidiarity doesn't mean very much either and the associated term of proportionality is so misunderstood that when i raised it in the house of lords um before christmas the minister was a little confused and said he was terribly sorry he would have to write to me um and there was a sort of echo going round the chamber and the only person in the chamber apart from me who seemed to know what proportionality meant was Nigel Lawson who is now leading conservatives to britain and seems to be running vote or the front person for vote leave so that was a bit disconcerting but subsidiarity is part of the prime minister's demands for change wanting decisions to be taken at the most appropriate level but the conservative manifesto of 2010 was calling for changes on powers repatriating powers that weren't needed and in the course of the last parliament the balance of competence is reviewed that was undertaken rather suggested that the balance was about right but nothing needed to be repatriated and the yellow card system that was introduced in the lisbon treaty that was meant to allow for powers to be or for the commission proposals to be reviewed by national parliaments very few yellow cards have been issued to so far one of them the commission listened to one of them they didn't but broadly speaking the proposals that come forward from the commission don't breach subsidiarity the proposals seem to be at the right level if they're proposing european level legislation it's about right but occasionally maybe the legislation could be disproportionate and so there is a reference proportionality in one of the draft documents and a suggestion that maybe the there will be a need to look at whether the proposals are proportionate as well as meeting the principles of subsidiarity so again the prime minister seems to be getting something of what he wants and in one of the documents that is ostensibly dealing with competitiveness it also looks at so the draft european council declaration competitiveness covers aspects of subsidiarity so bringing those two things together and an annual review of whether the the european union is doing things it doesn't need to and if it is maybe it could send some powers back to the member states so all of that's great the final point though is the red card what the house of commons europeans grouping committee wanted was a red card that says the uk parliament can block things it breaches subsidiarity we can just say we don't like it it'll stop unsurprisingly that idea didn't get taken very far the idea that one national parliament would be able to block legislation clearly isn't going to be acceptable to other member states or the european parliament but what is being proposed in the current draft is that a majority of national parliaments 55% saying that draft legislation breaches subsidiarity would cause the heads of state and government to stop legislation they would just say this clearly isn't right we will no longer proceed with the proposals on the other hand the current arrangements mean that a yellow card for national parliaments to say there's a problem requires a third of parliaments to be saying that and a blocking minority in the council of ministers when you have qualified majority voting requires 31% of the weighted votes so the idea that a red card suddenly requires 55% of national parliaments to be saying we want to block something you can understand why the skeptics are perhaps saying this doesn't really seem to be progress but suddenly the threshold has been raised significantly so there is an issue there that needs a little bit of addressing and while david Cameron is rather keen to say there is a red card there is i think a concern that that red card is unlikely ever to be triggered if there is an agreement on the proposals as they are currently drafted so i think the subsidiarity aspects and ever closer union probably give the prime minister what he wants the red card is good in name it sounds better than a yellow card if you're somebody that wants to be blocking european legislation but if you actually want something to work in practice i think that one is still open to debate thank you very much julien kenneth now in one sense i've selected myself the most technically complicated of the baskets because this is the area where there is so much dispute so much misinformation and what i've done on the handout is to take all the limbs of the basket basket d and work through it in a rather legal fashion which will promptly turn off at least half of the audience but what i will try and do is just to flag up some of the headlines in each of the different sections under five different headings and then that will anyone who would like to see further there are more detailed notes so the blue is the text which is in the draft decision of the heads of state and there are also supplements from the commission or what the commission is committing itself to do so five five main points that i want to look at first point that you've got a nice introduction which encapsulates david camren's problem and that is the asymmetrical nature of migration in the EU in other words many more people have come to the uk than the uk expected and that's not terribly surprising because if you just look at the pay differentials in terms of the minimum wage the minimum wage in poland is 409 euros a month in remania it's 217 and in the uk it's nearly 1400 so crude figures already show that and this is recognised in the introduction and furthermore the introduction to basket d talks about the fact that our social security systems are different and that's also true because to put it very crudly and i do oversimplify in continental europe their systems are more insurance based whereas the british system is much more based on the fact that if you are poor you will get cash benefits to top up and thus the perception is poor people do very well out of the british model and so that is presented as the context in which all of the other measures are put forward so that's the introduction second point the next aspect of the basket which is concerned article 45 of the treaty and article 45 is the main provision on free movement of workers and most of the text reiterates what is already well known and is basically a cut and paste from the treaty itself however where it gets interesting is about halfway through paragraph a the bit that says in addition if overriding reasons of public interest such as encouraging recruitment reducing unemployment protecting vulnerable workers and so forth free movement of workers may be restricted now why that's interesting is twofold for lawyers it's interesting because it doesn't appear to distinguish between direct and indirect discrimination it seems to allow these objective justifications to justify both and secondly it's interesting because reducing unemployment and encouraging recruitment are there this sounds to me very much like british jobs for british workers and if that's what's being envisaged here that really does make quite a difference in the text of what you've got in this basket the next provision which is dealt with is article 21 now article 21 is the provision on the in the treaty on the rights of citizens to move and reside freely now the treaty itself already makes clear that citizens have got the right to move and reside freely subject to the limitations and conditions laid down in the treaty and actually a lot of the text here in the draft decision reflects what's in the treaty so the first paragraph reflects what's in the treaty the second paragraph is also a statement of what's in the citizens rights directive which basically says if you're not economically active so if you're not a worker or self-employed you've got to have sufficient resources again totally unremarkable the third paragraph reflects the fact that the decision of the court of justice in a case called dano was manner from heaven for the negotiators dana dano basically said for those who are not familiar with it that someone who was perceived to be a benefit tourist would not be entitled to social assistance in the host state for lawyers what's interesting about this particular provision is that dano just looked at the fact that she she was Romanian living in Germany dano just looked at the fact that uh she had no money and therefore by definition she didn't have sufficient resources and she couldn't get those sufficient resources from the German state the in um this case if you look at closely at the text in the third paragraph it talks about the fact member states have the possibility of refusing to grant social benefits to persons who exercise their rights to freedom of movement solely in order to obtain social state social assistance this actually seems to tighten up the ruling in dano and limit the circumstances in which dano can be availed it can be prevailed upon and then the fourth paragraph deals with work seekers and that i don't have that much to say because it doesn't say that much more than the citizens rights directive already says then the fourth element of the basket um concerns derogations i exceptions from the rules on free movement now david Cameron had said he wants to get rid of ne'er do wells beggars homeless and other undesirables and make it very difficult for them to come back what have we got is not quite what he was looking for but um there's some interesting points in there the first bit um is a statement of the obvious it's not in the citizens rights directive but implicit there those enjoying the right to free movement shall abide by the laws of the host state there is then quite a long section on abuse and i'm afraid this bit is really technical and detailed and in the time a lot of to me i can't go through each limb in term but the my thoughts are set out for you in the text now as you can see the text itself of the draft decision says in accordance with union law member states are able to take action to prevent abuse of rights and fraud focusing in particular on marriages of convenience um with third country nationals for the purpose of making use of free movement as a route for regularising unlawful stay in a member state or for bypassing national immigration rules applying to third countries now this is not new at one level it's certainly not new that the um uh EU is trying to deal with abuse of law it's in the citizens rights directive and there the focus is on marriages of convenience it's slightly surprising it only refers to marriage of convenience and not to forced marriage as well the commission guidelines and other documents make a big play on forced marriages too but what is intriguing and what may be at state here a stake here is that surrendersing the surrendersing doctrines at stake now surrendersing doctrine for those of you not familiar with it basically says uh if i a british person i marry a pakistani husband and he comes um to the uk directly from pakistan and the uk government don't like the look of him and refuse to admit him under uk immigration law what we can do is to do what's called do a surrendersing which is to go to germany live there for two years and take advantage of our EU rights my right as an EU citizen to go and work in germany and i can bring my pakistani husband with me we do it under EU law and then we come back to the uk after two years or so and the uk authorities are obliged to admit my pakistani husband under EU law that appears to be challenged by the combination of the draft decision and also a draft declaration um the details of which um are spelled out um towards the bottom of page four of my notes not only is surrendersing at stake but so is the um idea which the court very firmly um rejected in a case called metoc atop of page five the so-called prior lawful residence principle now this doesn't sound very exciting but it's actually really important under the prior lawful residence principle it says that before i can marry a third country national and exercise my EU rights that third country national must already have prior lawful residence in one of the member states of the european union so my pakistani husband who with whom i entered into a marriage either in the uk or in um pakistan it used to be the case that he could join me in germany under EU law the acric acrich case said no that's not true he's got to have prior lawful residence in an EU member state to engage um EU law there was lots of criticism of the decision and metoc expressly reversed that decision it's come back in via the back door through this council decision so there are serious implications in this decision for the fate of um two fundamental pillars of the rights of third country nationals the other aspect on derogations concerns people the uk or other member states perceive of as being bad i a threat to public policy now it's sort of fairly bread and butter material um that uh you can only invoke the public policy derogation to keep bad people out if um it's their personal conduct and their personal conducts got to be pretty serious and they've got to constitute a genuine and sufficiently serious threat to a fundamental interest of society what you've got we're now heading 4.3 in my handout what you've got now is a dilution and thus it will be much easier for governments to throw out or keep out people they perceive of as being bad it's now personal conduct has got to likely represent not actually represent a genuine and sufficiently serious threat furthermore as you can see if you cast your eye a bit further along the text in determining whether the conduct of an individual poses a present threat to public policy member states may take into account past conduct of the individual concerned well the case law has always said basically past conduct is pretty irrelevant past conduct has now become much more relevant and the threat may not always need to be imminent that is new and furthermore member states may act on preventative grounds so long as they are specific to the individual concerned again this is the first we have heard of it in quite this context although of course we know in other fields the EU has allowed preventative measures through the operation of the precautionary principle the rest of the decision then goes on to look at changes to secondary legislation and this is the two things that you will have heard most about in the press the first one is exportability of child benefit David Cameron was shocked to discover that it's possible and indeed has always been possible to export family benefits to another member state so if I am polish and I'm working in the United Kingdom and I've got children and I earn less than 42,000 a year I will get child benefit and I can export that child benefit back to Poland now David Cameron said he wanted that stopped he has not achieved that what he's got instead is a sort of indexation of the benefit so the idea being we're not told about the detail I'm now towards the bottom of page six the option to index such benefits to the standard of living in the member state where the child resides now of course all of this has been drafted on the premise that the money is being sent back to Poland and Lithuania but the consequence of this is of course if I happen to be a Luxembourg national working in the UK and I want to send my child benefit back it's going to cost the UK a whole lot more then you've got the emergency break which does not do what it says on the tin because the emergency break the way it's been sold is that we can keep stop paying in work benefits for four years to migrant workers now the text here is dense and complex but what I want to flag up is first of all it isn't a break in the traditional sense of putting your foot down and everything stops what it is instead is a process by which the member state notifies the exceptional situation which exists to the commission the commission examines the notification and notifies the council and the council can by means of an implementing act authorizing the state concerned to restrict access to in work benefits and by in work benefits I mean tax credits for example are a good example so one is the thing that David Cameron has particularly exercised about for a graduated period of up to four years now there is an awful lot of uncertainty here not least the various figures in square brackets which have yet to be resolved what is perhaps the most remarkable statement is that in the draft declaration accompanying the decision we are told that the EU already understands the commission already understands that we are already in this crisis situation there and thus the UK can expect the break to be applied what is so remarkable about this is the total absence of any evidence to show that we are in a crisis situation and indeed Jonathan Portes has done a lot of work trying to get information out of the government as to precise nature of the crisis but if you look about halfway down page eight he produces statistics to show that of those claiming tax credits 3.9 million of British that's 85% 6.4% are EU nationals and 8.8% are non EU nationals now if you just look at the crude statistics that does not look like a crisis to me but maybe I've misunderstood what's meant by a crisis finally the last point is changes to primary law now there were the emergency break and the child benefit reform that it will be index linked the commission is committed to start work as soon as possible on amending the secondary legislation which can be done by qualified majority voting as soon as possible there is only one envisaged reference to primary law that is the treaties itself and that is come the next accession treaty there might need to be a longer period for transitional measures than there have been previously it's really remarkable this because a lot of people would argue that some of the changes I've already referred to require more than just amendment to secondary legislation particularly some of the changes to the derogations for example which have not had the media coverage and yet the only area identified as anything to do with primary law is prospective in respect of the next enlargement that they might need to be longer transitional arrangements and here we're just told that the position expressed by the United Kingdom in favour of such transitional measures is merely noted and nothing more than that so the bottom line of what I'm saying is there is a lot of stuff here there are a lot of changes and you can understand from the prime minister's point of view why some of these changes are really important to deliver on his objectives but he has not got everything he wants but that's all together surprising is it because it was ultimately a negotiation and in any negotiation you're not going to get everything you ask for but it's certainly not the black and white picture that your skeptics and indeed your phobes think it is thank you very much given we've talked now about the four baskets before we move on to the more horizontal questions people have any questions they want to ask we've got about five ten minutes to take any questions yeah it's a question come comment um and I think I see that the proposers is even more when they're dressing the new than the newton on the panel with the partial exception of the issues to do with migration first of all because none of these changes will affect court of justice of european union decisions they don't actually change primary legislation in which case you know the commission can say whatever it wants later the court of justice confirms that that's not compatible with law and we're back you know that there's no change but I mean moving to the package on competitiveness which was only touched on briefings past you know you can build out slightly more more now I mean the US ambassador to the EU in the McKenzie's joint lecture and who talked at length and in dire terms last time about particular aspects of the EU policy and they were largely around data protection about the the threat which which those hugely restrictive provisions pose in his in in his perspective but also the perspective to a large extent of the UK government to the digital economy to links with the rest of the world bearing in mind that we're talking about bans on the transfer of personal information even to close linking countries like the United States and to threats on many other fundamental human rights free with movement free with expression like to a fair trial because the law is very very difficult to pin down and he mainly talked about free with expression but I think it's wider than that what have we had since we've had the general data protection regulation past which will come into effect in two years with vastly expanded provisions restricting the transfer of information vastly expanded restrictions on the flow and use of information with with new penalties of up to 20 million euro even for a sole individual doing things or 4% of annual global turnover which will amount to many billions the UK didn't even vote against that in the council despite it going against the UK position in other words this is largely as far as I can see window dressing it's not actually challenging the commission by the way the commission used the same figures as they used in the 2012 proposal as to the great benefits of this agreement even though the actual legislation was based to largest upon the parliament's version which has many more restrictions in other words is a huge amount of hot air but if you've ever examined the detail it's not there on competitiveness I think that that that is a legitimate thing to get across okay thank you thank you very much Andrew um yes thank you very much all three of you um um Kenes Dostelig I think the answer to his query is that the regulations on both the single supervisory mechanism and the banking authority will have to be changed and of course the the technical uh putting into effect of effectively two rule books will have to be a complex and continuous because as always uh change rules uh process through either the implementing axle delegated elements and in all of that process the position of the parliament is extremely important and none of you I think with respect and yet m m m m m m mentioned that part of it so I thought I fought Cameron has certainly neglected to prepare the Europeanokiq part of this extra pressure On that you will say that if the British requested an exemption from the ever closer a union clause although it in my own view that would have been kindly regrettable I think it would have been permitted, ac mae'n rhaid i ddod o'u llwyddo ddod, yn rhaid, y cwmffinwn i ddod oedd gyda'r ddod, oedd y cyd-ryd y cyfal y bydd, ac mae'r ddod o'u llwyddo, oedd y gallu arweithio arweithio arweithio, ..a phoes y mawr o'r colli, bla bla bla. Ychydig yn eich ddiforol y bydd yma yn 28 ychydig... ..y'r ddiforol, a'r dwylo sy'n fwyaf o'r rhaid i'r unig... ..y'r ddiforol yn ei unig. Al wnaeth wrth i wedi'u perffodus y Llywodraeth yn y deall yng Nghymru, yw y Prif Weinidog, yw cerddifol ar y Diego Llywodraeth, mae'r seksau, mae'n cael ei melygen o yr uned yn y Ysgol, wrth gwrs yma, dan mae'r bwysig, sy'n mynd y mwynhaeth a'r oes o fffrwng. Cynyddu'r ddefnyddio ddim yn yr Ysgol yn ddeithlus, ddim yn gallu, dwi'n ddeithas o'r ddau'r lle chi tynnu'r adegol yn ddefnyddio ddsydd, a chi'n ddyntbiad bod ychydig i'w troi ddim yn oed. Rwy'n dangos gweithio. Rwy'n ddefnyddio fel hynny, a dwi'n ddech chi i'w ddweud, Mae'r bodi amddai i'n ffordd i'r cwrs. Mae'r Ysgrifennidau dechrau deunydd Charlotte Bryant. Mae'r argumentau erbyn i gael bod gwybod eu bod yn dweud yn bwysig o'r p Davies Aelodau Cymru. Mae'r argumentau erbyn i'n dweud yn dweud yn dweud yn dweud yn ddegredig. Yn dweud yn dweud yn dweud yn dweud ei hunain, i'n dweud yn dweud yn dweud yn dweud. Felly, y dyliadau dynol yw'r fforddau cyfridol yn ystod yn y dda ar y ffordd. Fy oeddsbeth dyfodol fod yn gyfweld i fod yn gyflym yn gweithio'r gyrfa'i gwasanaeth a'u gweithio'n gweithio'n gweithio'n gweithio, yn cael ei fod yn gweithio'r lleidio a'u gweithio'r gweithio'n gweithio, mae'n rhaid i'r cyfrifoldau. yn ei fod ymlaen. Mae'n cael ei bod yn gallu'n chwyn bod yma. Yn hyn a'r cyd-dwn yn dweud y ffordd, os yw'n cymoedd rhagor ychydig yn ei fod yn ôl eu hyddwyr yma, yw maen nhw'r cyd-dwn yn bobl. Mae'n melyn yn bwysig i gyllidag ysgrifennu a'r rhaid o'r Даerlu'n gwneud beth oedd yn ymlaen. Mae'n angen i'r maean ddaf yn cael ei hyn o'r ddaf yn ein bod yn cael ei ddadig. Felly, yn y peth 10, mae'n ddiddordeb bod y Gweithreithiaeth ym Mhwy Llywodraeth, yn y blaenau cyngor, yn ymweld y cyfnodol, rydyn ni wedi'i ei ddweud, ac yn ymweld y rhan i'r cyfnodol yn eich gweithraeth yn y mynd i ei ddweud. Rydyn yn ysgrifennu'r cyfrannu, ysgrifennu'r cyfrannu wedi'i ddweud, ac yn ysgrifennu'r cyfrannu'r cyfrannu'r cyfrannu, ac yn ysgrifennu'r cyfrannu'r cyfrannu. Mae'n cael ei gael cyllid yn cael ei hollwch mewn cyfathol. Mae'n fawr o'r cyfrifio y pethau oedd y gallwn i'r cramle yma. Mae'n gael y fawr oedd yn y rhydd, yn y rhydd, o'r redd, o'r ideaeth y DU yn ymgyrch i'w sylwun o'r cyfrifio sydd yn fawr, ac mae'n gwybod am y cerdd, mae'n ddwy i'r problemau. Mae'n gwybod i'n cael ei hollwch i'r cyfrifio yma, i gael o'r fawr o'r rhan o'r cyfnodeol, o'r llunio cyfnodd, o'r bŵs o'r bwysigol, o'r gweithio cyfnodd, o'r iawn. Y cyfnodd cymaint yn y ddiamd! Mae gennym yn y ddiamd ymlaen i'r ddiamd. Mae'r rhan o'r cyfnodd o'r ddiamd. Mae'r ddiamd yn y stagolau mewn cyfnodd, oedd yn cynnig o'r dda i'r ddiamd. ac mae'r cyhoedd yn arweinyddol i'r cyfnod sydd yn ymwneud. Mae'r cyfnod sydd yn fwyaf y bydd hynny'n ei wneud. Dwi'n rai'n gael ar y ddweud y gwrdd i'r gweithio, mae'n mwyaf i'r cyfnod i'r cyfnod i'r llyfr yn ddweud. Yes, thank you very much, Catherine. Thank you very much to the organisers. I wanted to inject a slight change in perspective. So we're all very familiar with the scathing headlines, with the commentary, especially here in the yellow press. But we might be less familiar with the perspectives of other member states on the tusk proposals and, you know, foreshaddering what might happen at the meeting and how these proposals are going to be worked out. The European media is actually quite divided, right? Even the sort of right-of-centre Frankfurt or Argymmein Zeitung titled that under a photo of David Cameron with his sleeves sort of turned up, said Prime Minister Cameron presenting his hunting trophies. And I think that's quite a remarkable image, right? That's the feeling that many in the rest of the European Union got, that here is a European Union under pressure, facing quite a few crises in other areas. And here is a Prime Minister who seems to ruthlessly, for his own benefit, abuse the relative weakness or perceived weakness of the European Union in this moment in time, especially with the tight timing. So many media reports, the French Le Monde or El Païs, come back to the timing of the referendum, which leaves very little time. And they both highlight that the end of June date is really quite soon, in which basically leaves member states virtually no wriggle room, no room for further discussion in order to maybe avert some of the proposals that they disagree with. The French Le Monde, for example, talked about arm wrestling between the EU and the British government and professed that probably in the broader scheme of things, the British Prime Minister won this arm wrestling game. The German der Spiegel also titled that there was a Brexit trap, right? Either we go with the proposals by Cameron and we hang some of the fundamental principles of EU law out to dry or we don't go with them and then risk that the Brexit referendum will definitely go down south with all the negative consequences that might have happened in the rest of the union. Der Spiegel points out that actually there are several EU member states where dissatisfaction with the EU is much higher. They basically quote a statistic saying that 84%, as opposed to 54% of Brits, are telling that the EU doesn't respect them or their national priorities at all. And while many Brits feel very patriotic, there are several member states that feel much more patriotic than the British in a recent survey. The most scathing commentary and I think something that we as EU lawyers or EU scholars should not completely neglect came from the German equivalent of the BBC. They quoted the genuine flexion before Cameron. So the downfall of the EU before the British Prime Minister saying that with these proposals in the long term the EU becomes a kind of laughing stock because it's very clear that especially the emergency break procedure is not just for Britain. It could be used by all relatively wealthy EU member states with well-established social systems and it then makes a mockery out of the principle of nondiscrimination and free movement of workers where we were actually originally trying to break down barriers that stand in the way of worker mobility and the opposite might happen because these proposals aren't just for the United Kingdom points this editorial out and I think that is something we need to maybe take into account. So what's the perspective of other member states? I don't think this is by and large a very done deal yet. I think sometimes if we only read the British media we get the impression that everybody else just wants what the Council President Tusk has negotiated but I don't think that we should ignore the grumbling from governments and especially the people in other EU member states and so I wouldn't be surprised if the Prime Minister couldn't get much more than he already received in these proposals and I think the French Prime Minister put it quite ably. He said in an interview that this was the ultimate. In his view France has now done everything to keep the United Kingdom in the European Union. It also means that France is not willing to go much further than the Tusk proposals and I think anyone who doubts that the European Union might somewhat irrationally turn around after a Brexit vote and present Britain with the harshest of exit conditions shouldn't be surprised. Thank you. Thank you. I'm actually following up on the Guardian today that the Austrian Minister said he was going to use the emergency break with the bigot so it's not just confined to a British problem. Fandie, can I introduce you to Albertina Arbor-Therens, who's also a reader-in-law in the law faculty and she's going to talk about what these documents actually mean legally. Is it worth more than a can of beans? I don't know. Let's see. Good afternoon and good evening. Almost everybody. My colleagues have been looking at the substance of the proposals so I'm going to have a look at the actual form and effects of these proposals. There are three main points that I would like to consider against the background of Mr Cameron's assertions, his insistence that the measures are going to be legally binding and irreversible and also the intention to file the decision with the UN as an agreement under international law. So the first point that I would like to consider is the actual legal nature of this proposed decision. If we look at the letter of the President of the European Council it refers to the fact that the proposals would take the form of a legally binding decision of the heads of state. But what does this actually mean? Essentially, as a matter of EU law, when we talk about decisions and we think of article 288 of the treaty, decisions are one of the types of legally binding acts in EU law. Normally the most common types of EU decisions are the ones that are binding on certain addresses but this is a different type of decision and that is not clear who is going to be the addressee will be some kind of sui generis decision. Now article 288 does accommodate that type of decision. In fact there are some presidents in that, for example, when the heads of the state met within the European Council in 2009 they adopted one of these decisions which was intended to provide some kind of reassurance and legal guarantees to the Irish electorate so that they would be encouraged to vote yes in the second referendum for the ratification of the Lisbon Treaty. That decision was also proclaimed to be legally binding but the truth of the matter is that the legal effects of any such decision would depend on the existence of an authority under the treaty to take this type of decision and it is not clear that the European Council does have this authority. The next question, even if we take the view that this would be legally binding, is the question as to whether this decision could be reviewed by the Court of Justice. So here there are again two different ways of looking at this. One, if we took this to be a decision of the European Council, the European Council is one of the EU institutions under article 13. According to article 263 of the treaty, the legally binding acts of the EU institutions can be the subject of an action for anowment and also such a decision could be the subject of a preliminary reference on validity or on interpretation. A such a decision will be far from irreversible. Of course another position to take is that this is not really a decision of the European Council but a decision of the heads of the state meeting in the European Council that is not specifically mentioned in article 263 as being reviewable and therefore that it could not be reviewable by the Court of Justice. Now a second way of looking at this as well would be to consider this proposed decision as an intergovernmental decision or in other words a self-standing international agreement that would tie in with the declaration that the intention is to file this decision with the UN as an agreement under international law. Again a precedence does exist in 1992 the members of the European Council faced with a negative referendum in Denmark on the ratification of the Maastricht Treaty at the Edinburgh European Council. They adopted another legally binding decision that then the UK and Denmark registered as an international agreement. So this decision could then be considered as an international agreement between the member states and thus to be subject to the rules of international law. Now living aside the question of international law, there are people who are much more knowledgeable in that field than I am. A matter of EU law I would say that such an agreement would not be able to change the primary law of the EU. The Court of Justice said as early as in the Wangen delus decision that the treaty was more than agreement that created neutral obligations between the contracting states. The treaty according to the court created a new legal order of international law for the benefit of which the member states had limited their sovereign rights and the subjects of that legal order are not only the member states but also the peoples of those member states and the system is also endowed with its own sovereign institutions. Therefore it seems that the value of filing this as an international agreement would add the most amount to a kind of declaration of intention that or commitment on the part of the member states to set in motion the treaty change or a kind of agreement to interpret the existing treaty. A second aspect that I would like to consider within this general heading of how enforceable these proposals would be is the rather tentative suggestion in Mr Taske's letter that the members of the European Council should be prepared to discuss the possible incorporation of some elements of these proposals into the treaties. So that is, as I say, quite tentative, but then more troubling is the fact that there are two firmer references within the actual draft decision. One in paragraph 7 at the end of the section on economic governance and another one at the end of paragraph 1 on the section on sovereignty on the process of creating an ever closer union where in the square brackets a form of words has been added to say that the substance of these sections will be incorporated into the treaties at the time of the next provision in accordance with the relevant provisions of the treaties. But how certain or likely it is that this is going to be the case. Of course it remains to be seen whether this form of words finds its way into what will be the final version of the decision. But to begin with is clearly controversial the fact that here you have a decision of a quite indeterminate legal nature that seems to be announcing treaty change. And that is a problem because if we look at article 48 of the Treaty on European Union is quite clear that the treaties can only be amended through the ordinary and the simplified procedures for revision of the treaties. That introduction of these changes into the treaties will be straightforward is therefore far from clear. So let us look at that in a little bit more detail. The ordinary revision procedure in article 48 of the Treaty necessitates the setting out of a convention. That convention is crucially formed not only by the members of the European Council but also by representatives of the national parliaments, the European Parliament and the Commission. If under that ordinary provision procedure the European Council tried to go ahead through simply setting out a conference of representatives of the member states rather than setting up a convention they would only be able to do that with the consent of the European Parliament as set out in article 48, 3 and 4 of the Treaty. And even in the case that the European Parliament gave its consent that would have to be ratified by all the member states. Equally we talk about simplified revision procedure in articles 48, 6 and 7 but although it's a simplified revision procedure it turns out to be that it's quite a demanding procedure for introducing changes to the treaties. The European Council would have to act by unanimity. They would have to consult the European Parliament and the Commission and any decision would have to be approved by the member states. So in the light of all that it suggests that it's far from evident that the changes introduced by this decision would find their way very easily into the treaties. First of all because of the complexity of those procedures of revision. Secondly because we all know the lack of appetite that there is for treaty reform especially if you remember everything that happened with the ill-fated constitutional treaty and the Lisbon Treaty more recently and the fact crucially that it's not just up to the European Council but to other very important participants like the Commission and the European Parliament to be involved. So it is unclear even if these words really are reflected in the final version of the decision how legally binding this is going to be because any changes have to go through proper treaty revision. And then one final point and I conclude with this. Another aspect of the draft decision that seems to be contentious is the section at the end of the basket on social benefits and free movement which talks about changes to EU legislation and my colleague Catherine has talked about the substance of that. But essentially it says that the Commission would submit proposals to amend the regulation on social security systems and the regulation on free movement of workers. But one thing that is very clear is that both those measures were measures adopted by the ordinary legislative procedure. So it's not just about the Commission. The Parliament would have to agree to those changes and it's far from clear that that would happen. So forgive me for going so fast over those three main points but the idea that I was trying to put across is that it's far from clear the legal nature and the really the enforceability of these proposals. Thank you very much. Thank you both particularly to Albertina who's really given the poison challenge of having to try and divine what on earth all of this is all about. We have about four minutes left. Are there any questions that you'd like to raise? Specifically for Marcus and Albertina or more generally for the panel or any comment that you'd like to make? Just quickly to Marcus. There is I think also a fear abroad that the British are now going to supplement their catalogue demands with something else. We've seen the Prime Minister flip-flop in his aspirations since Bloomberg and there has been a talk at Westminster of an act of the British Parliament to further tell the authority of the courts with respect to the charter for instance and if that happens I can assure you that one thing is up to Albertina if you interpret through the international law a statute of an organisation you are obliged to be faithful to the substance of that primary law of these things that we've been speaking of I think that is not proven and the Irish and Danish presidents aren't really presidents because they were trying to bring into force treatise that had been signed and agreed that is to say they were going with the grain of integration but the British are for the first time unpresidently are trying to breach their own terms of membership this hasn't ever happened before and I hope it never happens again. I want to ask a question about the steering which is all the other countries which countries you think is most likely to be told by the professor. Any other questions before I go back to the panel? Yes, another question. It's not just an issue of whether the other members don't like or don't like what the UK might achieve from this it's what they might get out of the deal and what signs are there of issues which are part that might be inclined to hang on to the UK people if they get something themselves. Marcus, one minute. Excellent questions. Andrew's fear that they might supplement the UK might try to supplement something else is, I think, quite right and I would share his impression that this deal is predicated on good faith on both sides if suddenly your schedule is turned around and undermined this deal that would not be taken lightly or might have been institutions nor the other member states. I'm not sure which member state is most likely to be told. I think some of the eastern European member states have voiced very strong concerns about some aspects of the proposals and with the fear that was basically expressed in the third question that some of the other wealthier for market, for austerity, government might piggyback for their own political purposes on some of the generalized options that not only the UK then would have but all the member states would have. I think this is a really difficult juggling game for the European institutions and I wouldn't be surprised if we would be faced with one of those summits that maybe ends before... We haven't had one of those since I think it's been named or something but memory is still strong enough that one of those summits could certainly occur and I wouldn't be surprised because I think some noises from some capital cities aren't very pleased with some of the experts. Well thank you on that cheerful note of a sort of never-endum of negotiations preparing for the referendum. Can I thank very warmly all of the speakers for their contributions to you, for your participation and to Amy who did all the hard work as always. Thank you very much indeed.