The EU should respond carefully, watching the ongoing evolution in positions being taken by David Cameron. Look for acceptable solutions to what is more of a high risk political game within the UK than a matter of great substance for the EU.
Consider the basic parameters of the situation. Cameron started the process with a very poor understanding or experience of the EU, driven by the slogans of his eurosceptic Tory MPs. He has been on his own steep learning curve. His government’s own comprehensive researches informed him that “repatriation” of EU competences was neither justified nor feasible politically. So these demands have evaporated.
At the same time he has become aware that secession from the EU could quite possibly lead to secession of Scotland from the UK, and that is a political legacy that he does not want. So he will be desperate for a solution.
Real and pseudo solutions
Cameron has also now spent much of his time since re-election touring Europe to test the market for his possible demands. From this he has now a sense of the red lines of other member states, e.g. on the free movement of people.
As a result the process becomes one of arranging some real, and some pseudo solutions for a mixed bag of issues, some involving intricate negotiation of technicalities, some arranging wording that can take care of various non-operational and rhetorical demands.
The ECJ helps to deal with intra-EU migration
In the first category comes the demand for non-discrimination in financial market regulations against non-euro member states. This should be negotiable.
Next is intra-EU migration and related issues of welfare benefits. Here there is the important distinction between migrants who are in, or not in the labour force. In all cases the non-discrimination principle should be indeed a red line. However for both categories the European Court of Justice has recently handed down judgments that help accommodate British concerns, namely the Dano case in November 2014 and the Alimanovic case now on 15 September 2015.
For non-active persons the Dano ruling of a case in Leipzig clarifies the competence of member states for determining rights to permanent residence and thence of social benefits. In the Alimanovic case, also in Germany, the court judged that member states could in certain circumstances deny non-contributory social benefits to migrants that were searching for work but were without employment.
These cases took Cameron by surprise, but forced him to admit that the court was helping achieve his objectives. The other member states in this situation should encourage Cameron to maximise the UK’s margin of manoeuvre opened by these cases, which do not require difficult “renegotiation”. It is also now known that the Commission will by December propose some amendment of EU law to reduce abuse of social welfare benefits by intra-EU migrants. We have to wait and see how far this satisfies Cameron.
Zig-zagging on labour rights
More broadly there are demands from Tory MPs for opting out again from EU labour rights regulations. Remember that the UK has zig-zagged on this, out under John Major, in under Tony Blair and still today.
The latest twist here is that the new Labour leader, hard-left Jeremy Corbyn, warns that if Cameron requests and gets a renewed opt-out here, he will fight this politically, which will undermine any sense that Cameron was truly representing a large majority of British political opinion. So other member states can be tough here, knowing that Cameron’s position is weak.
Rhetorical solutions for pseudo demands
Now to the pseudo demands, first of all the “ever closer union” phrase in the preamble to the EU Treaty. This is a harmless and nice but non-operational aspiration. It can be met by a post-dated cheque, i.e. an agreement that a future treaty will accommodate some flexible (and equally non-operational) language, distinguishing between the eurozone and the rest.
Then there is the request to avoid massive migrations from future EU enlargements. This can be met by emphasising that the nature of transitional arrangements in future accessions will have to be agreed unanimously.
Some “reform” desiderata are just normal ongoing business
Finally there is the category of EU “reform” desiderata that amount to normal ongoing EU business, where other member states can genuinely express their support, without however doing anything immediately just for the UK: trade liberalisation with the U.S. and Japan, etc., completing and developing the single market for services, energy and the digital sector, and cutting unnecessary EU red tape (which the Juncker Commission is already embarked upon).
All of this can fit well into conclusions to be adopted by the European Council, packaged with the other measures mentioned.
Pictures: Number 10 [CC BY-NC-ND 2.0], via Flickr; private [all rights reserved].