How the EU negotiates

Over the summer UK government ministers, most notably new Foreign Secretary Jeremy Hunt, have been clocking up the miles traveling to EU member states primarily to discuss Brexit progress. This has been widely reported in the UK media as an attempt to bypass obstructive European Commission negotiators led by Michel Barnier.

Hopefully some of the countries concerned will be sympathetic to the UK and promise to help where they can. But as UK negotiators have hopefully told ministers frequently, ultimately it is the Commission that negotiates on behalf of member states. This fact will probably also appear in memos regarding lines to take that the Commission’s Brexit team will have sent to the governments of the countries concerned.

There should be little confusion over the role of the European Commission, member states (via the European Council), and the European Parliament. A recently updated EU document originally published in 2012, ‘Negotiating EU trade agreements – Who does what and how we reach a final deal’, is clear.

My own involvement as a UK official in negotiations over the Transatlantic Trade and Investment Partnership (TTIP), between the EU and US from 2013 to 2016, reinforces the key point: the Commission is in the lead, with member states and the European Parliament involved but distinctly secondary. Indeed one of the more regular conversations I had with US negotiators was to explain to them that the UK couldn’t intervene as they would have wanted. Member states can influence, but this is far from the power depicted in the UK media.

To see the point most clearly, consider the actual logistics of the talks. The Commission runs EU external negotiations and member state representatives are largely not present in the negotiating room.

Ahead of each round of negotiations, the Commission’s negotiating team will prepare all required position papers and texts, cleared through all of the parts of the organisation. Ahead of the negotiations as a whole they will have prepared the negotiating directive and assembled the team.

At the end of the negotiations it will be the Commission that recommends the final agreement, conducts a legal check, and translates it into all EU languages. In the case of Brexit, the Commission as the representative of the EU27 is the direct counterpart of the UK’s negotiating team.

Given that external negotiations must start and end with votes of the member states they are involved, but within mostly clear guidelines. When member states approve negotiating directives and the final agreement they will want to ensure their priorities are included. During negotiations the Commission will seek feedback before and after rounds from member states, as they seek to build an overall negotiating position that balances these interests.

Typically during the TTIP talks it was the larger countries with dedicated teams such as France, the UK and Germany who provided most feedback, compared to smaller countries where individual officials had to cover a number of different areas – one of the reasons why large member states tend to have more influence.

Interesting side-effects of all of this activity come in ensuring robust negotiating positions, as they have been checked by many eyes, and the Commission sometimes using member state positions as an excuse for not compromising with the other side, possibly not always fairly.

There are less formal opportunities for member states to exercise influence, though. Commission negotiators will frequently meet member state representatives, with larger countries again particularly keen to ‘walk the corridors’ of the Commission.

There are also informal groupings of member states, who will share information and lobbying efforts at times, and during TTIP the UK co-sponsored with Spain and Sweden an informal meeting of all member states. One step up from this informal activity is letters written to the Commission by ministers, typically from a group of member states.

The European Parliament does not have to approve the launch of trade negotiations, but as with Brexit will approve the final agreement, and is informed of progress. It will also pass resolutions on what it would want to see in an agreement, which although only advisory do have an influence on the Commission. So much so that it is not uncommon for the Commission and member states to seek friendly MEPs to propose amendments to put forward particular views.

That’s all fine in theory, you may be thinking, but at some point Chancellor Merkel and President Macron can just step in and take charge. Certainly as discussed the priorities of large member states carry weight, all the more so if these concerns are known to have come directly from the leaders. But in reality until much of an agreement is completed the leaders are happy to let the Commission negotiate according the parameters given – for they will know that reaching agreement will require compromise between the priorities of different countries, and that this is what the Commission is particularly good at engineering.

However the end of the negotiations, when there may be just one or two final issues to resolve, is the point where the political leaders frequently do step in to provide the final impetus. This is typically because only they can authorise a final movement in position that allows an agreement to be reached, and are aware of the political implications of doing so.

For the UK, the main question in the Brexit talks should not therefore be whether the Commission reflects member states’ thinking – it would go against all precedent if it did not. The question is which, if any, member states are going to be lobbying the Commission on behalf of UK interests, and on what issues are we likely to see member state leaders intervene where necessary at the last minute. It is for these purposes that now and in the future the UK government will need to be lobbying extensively across the EU.

David Henig is Director of the UK Trade Policy Project at the think tank ECIPE (European Centre for International Political Economy) and a former UK government trade policy expert

Disclaimer:
The views expressed in this analysis post are those of the authors and not necessarily those of the UK in a Changing Europe initiative.

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