EU Referendum: back on the treadmill

26/12/2015

The source cited is an anonymous "French official with knowledge of the negotiations", which means that it is unattributed and unverifiable. Its evidential value is nil.

However, that hasn't stopped the legacy media's finest from running the story for the Boxing Day editions, despite the slender provenance of their stories. So far, we've see the Telegraph, the Independent and the Express run with it.

This, in itself, is interesting. Very often, the Christmas period will kill a story as it fails to leap the gap and the lose interest in it. But the fact that they're willing to run a non-story over the break suggests that there is a determination to keep the issue going, and to build on the momentum.

Sadly, this doesn't mean that the media is going to be any more careful in its choice of material, or expend any effort in verifying its sources. And nor can be expect any slowdown in the volume of uncritical re-tweeters, indulging the media coprophagia with homage of their own.

The thing is that, having regard to the strict terms of the treaties, and of recent ECJ judgements, there is almost certainly room to fudge a deal within the framework of existing EU law.

In terms of the ECJ, we have the Dano judgement, in which we were reminded that "free movement was a qualified right and not an unconditional one", and always had been.

Then there is the more recent Alimanovic case. In this, rather interestingly, the court extended (or clarified) the Directive 2004/38 right of a Member State to withhold benefits if the "become an unreasonable burden on the social assistance system".

Specifically, we see the court conceding that, while the grant of a specific benefit to a single applicant could scarcely be described as an "unreasonable burden", the Member State concerned is entitled to consider the accumulation of all the individual claims which would be submitted, in determining whether or not the burden was unreasonable.

This latter case also concluded that Member States were under certain circumstances permitted to refuse non-contributory cash benefits to foreign jobseekers, even though they constituted "social assistance" and were paid to their own nationals. Remarkable, these do not contravene the principle of equal treatment.

While it is often the case that the ECJ is extending the bounds of integration, what we are seeing here is the court gradually unpicking certain elements of free movement which, cumulatively, could give EU lawyers more room than is supposed. They may end up with enough wriggle-room to accommodate some of Mr Cameron's needs without needing treaty change.

By February, therefore, it is possible that the "colleagues" will have cobbled together something superficially convincing, that our Prime Ministers can parade as a concession.

Even with a complete deal on this particular issue though, Mr Cameron hasn't got enough to go to the country and make a convincing case. There are still another three "baskets" to be sorted – not least the "ever closer union" and protection for the non-eurozone.

It may be quite significant, therefore, that we see Reuter's John Lloyd bring up the Armellini article, which he applauds, telling us that a two-tier Europe (and with it Associate Membership) is an idea whose time, many more than Armellini believe, has come. It would be, Lloyd avers, "an enormous political transformation".

Thus, while the media is cranking up the treadmill and concentrating on the benefits issue, the wider agenda is still running free, and there "colleagues" have yet to focus on reining it in. But that is where the developments – and the interest – will lie.