The EU has behaved inflexibly during the Brexit negotiations. In doing so, it has ignored its own interests, which favour a close and collaborative relationship with the UK.
Because this is a debate haunted by “whataboutery”, let me make this clear: to say the EU has handled the negotiations badly is not to argue that the UK has handled them well.
On the contrary, it was divided at every level: public, political and parliamentary. It had few shared aims. The tone adopted by the government was frequently dogmatic and aggressive. Perhaps most strikingly, it failed to understand the EU.
The EU should of course defend its own interests as it sees fit. Nor should it be expected to undermine its own legal system to do the UK a favour. However, a continued partnership with the UK is self-evidently positive for the EU.
Start with trade. Outside the EU, the UK would be the EU27’s second-biggest export market for goods after the US, importing, for example, more than double the value of EU goods than Switzerland.
This is not about who needs whom more (a pervasive and annoying Brexiter totem). This is about preserving a flourishing economic relationship. Or rather, doing as little damage to it as possible.
And of course, Brexit is about far more than trade. Internal and external security are as important. In terms of defence, the UK provides an outsized share of the EU’s military equipment, as well as research and development, and technology, including data.
Theoretically, it might be possible to develop thick security and thin economic ties, but it is hard to see how this happens. Can a commercial competitor be a close ally outside the organisation?
Despite these considerations, the EU has behaved in such a way as to reduce the chances of securing a positive outcome. It did not need to do so.
Consider the supposed legal constraints. The UK, so the EU argument goes, has to choose between a Norway-style deal inside the single market and a free trade agreement, without options in between.
Michel Barnier, EU negotiator, suggested (incredibly) that allowing selective UK access would mean “the end of the single market and the European project”. I have no idea what causal reasoning lies behind this claim but, as Professor Stephen Weatherill points out, “the indivisibility of the freedoms is a political construct: the legal reality is already more messy.”
This is clear in the arrangements the EU has come to with other non-member states. The European Economic Area provides scope for barriers on cross-border trade and excludes significant swaths of economic activity, including fisheries and agriculture.
With Switzerland and Ukraine, Brussels was happy to allow cherry picking. Both apply EU rules in some sectors only. The Iceland-Norway Schengen Association Agreement provides for fast-track extradition. Yet Brussels has always stressed that the UK must be treated as a “third country like any other.”
So the EU’s approach to Brexit talks has not been about law but about political choices. Not least, the dominance of the commission. There has been a lack of member-state engagement and an egregious failure (with the exception of Ireland) to think about the longer-term relationship.
“EU unity”, in short supply on other substantive questions, was paraded as an end in itself, eclipsing the substance. The effect was to drive the UK away, not just from EU membership but from wider European co-operation.
Consider how the EU handled Theresa May’s Chequers proposals. Within a fortnight, Mr Barnier was reported to have rejected them. By the end of the month he openly criticised the then prime minister’s plan.
Then came her Salzburg humiliation. The EU abjectly failed to recognise how far Mrs May had moved. The fact that it cost her two of her most senior ministers ought to have provided a sign.
An internal EU document set out unconvincing objections to Chequers: its core claim was that the UK could gain an “unfair competitive advantage”. A series of rather aged economic studies were paraded but no impact assessment was commissioned. And the arguments were flawed.
The May government had signed up to the level playing field conditions to prevent unfair competition. Moreover, the EU separates goods from services in its deals with all other countries and there is no complete level playing field when it comes to services, even within the EU.
Perhaps Brussels was holding out to ensure a softer Brexit.
What did they expect after the Salzburg debacle? That the House of Commons would magically discover a majority for a referendum? That Jeremy Corbyn, Labour leader, would ride to the rescue? That a Remainer would succeed Mrs May at the Tory party’s helm?
The reality has been more predictable and more damaging to EU interests. Boris Johnson has set the UK on a path towards a far looser relationship with the EU. Neither side emerges with flying colours.
But the notion that a flawed UK made unreasonable demands on a rationalist, legally constrained EU does not fly. This is worth reflecting on as the negotiations move towards their second — and more important — phase.