Article 50 one year on: the EU institutions

The negotiations over phase one of Brexit have seen the EU member states maintain a unity that has surprised many in the UK. Despite early hopes in London that differing interests in different national capitals could be exploited, this has not, as yet, proven to be the case. The EU has also successfully imposed a structure and timetable on the negotiations that have suited its purposes.

Clarity and continuity

Since at least early 2016, the EU institutions have considered it imperative to agree and communicate a clear position on the Brexit question. EU leaders stressed that, although they hoped the UK would be a close partner in the future, it would be the UK government’s responsibility to come forward with proposals about the relationship, as it had been the UK that had voted to leave.

They emphasised, moreover, that any agreement would have to reflect the status of the UK as a third country, and balance rights with obligations. The process of the UK’s departure should, they said, be ‘swift’ and ‘orderly’, and a withdrawal agreement separate from a future trade agreement. The same message was repeated by an informal European Council of the 27 member states on 29 June 2016—the first opportunity the member states had had to meet since the vote.

This elaborated principles that have informed the subsequent process:
• negotiations would proceed only once the UK had formally notified the EU of its decision to leave by
triggering Article 50;
• any agreement between the EU and the UK must be based on a balance of rights and obligations;
• access to the single market must involve recognition of all four freedoms; and
• the EU27 would remain united.

The European Council, the European Commission and the Council of the European Union began their preparations from the moment the referendum result was known. They worked closely together, as well as with the European Parliament, while waiting for notification from London. The Treaty gives all four institutions a formal role in the process.

At the conclusion of the negotiations and on the basis of a proposal from the negotiator, the Council signs and adopts the agreement, which is then passed for decision to the European Council (qualified majority) and the European Parliament (simple majority).

The European Council and the Commission pledged to keep the European Parliament informed about the progress of negotiations. In a departure from normal practice in trade negotiations, the institutions agreed that representatives from the EU27 should be part of a committee that monitors the negotiations and keeps in close touch with the EU negotiator.

Work began in the Council Secretariat in July 2016 to review the legal issues. In the same month, Commission President Juncker proposed Michel Barnier, former Commissioner and former French foreign minister, as the EU negotiator. By September 2016, the Article 50 Task Force had been formed with Barnier at its head. The European Parliament, meanwhile, appointed Guy Verhofstadt as its representative and Brexit coordinator.

In December 2016 – more than three months before the UK formally notified the EU of its decision to leave – the EU institutions agreed their negotiating position. The European Council of 27 member states announced the principles (essentially, the same as those declared on 29 June) that would guide its approach, as well as how the Article 50 negotiations would proceed.

The EU institutions repeated these principles in public and in meetings with the UK government. In a major speech in Brussels, Donald Tusk underlined that the UK’s choice was between ‘no Brexit’ and ‘hard Brexit’.

The EU institutions began a parallel discussion about the future direction of the Union. The informal European Council in Bratislava was a first step in a dialogue between the leaders of the EU27 that was taken into successive summit meetings and supported by Commission President Juncker in his white paper on the future of the EU and associated initiatives.

The Article 50 Task Force took the view that transparency was essential and began at an early stage in the negotiations to publish its position papers. The information campaign continued in early 2018, when the Task Force began a series of seminars with EU27 officials that detailed how, across a range of areas and sectors, the UK’s status would change once it had left the EU. It has also issued a series of notices, alerting business to the changes that will ensue when the UK leaves and informing them about how they will need to adapt.

When formal notification from London reached Brussels on 29 March 2017, the European Council reacted quickly. In draft guidelines adopted two days later, it emphasized that the EU’s overall objective in the negotiations would be to preserve its interests. It reaffirmed the 29 June principles, and stated that the negotiations would be conducted as a single package: nothing would be agreed until everything was agreed.

The final version of the guidelines, adopted on 29 April, set out two phases for the negotiations: – the first, to provide clarity and legal certainty to citizens, businesses, stakeholders and non-EU member states on the effects of the UK’s departure from the EU, and to settle the UK’s disentanglement from the rights and obligations from commitments undertaken as member state, which would come to cover the UK’s financial settlement, the rights of EU citizens living in the UK, and the border between Northern Ireland the Republic of Ireland; and – the second, to reach an overall understanding on the framework for the future relationship.

Only after the successful conclusion of these phases under Article 50 would it be possible to proceed to a negotiation of a trade deal between the UK and the EU. The Council adopted the negotiating directives that would guide the Article 50 Task Force the following month.

Over the course of the first phase negotiations, the UK was forced to accept the structure imposed by the EU. The European Council agreed on 14-15 December 2017 that ‘sufficient progress’ had been made during Phase One for talks to continue to the second phase – though with a fudge on the critical question of the border between Northern Ireland and the Republic of Ireland – and a commitment that the UK would turn the terms of the Joint Report agreed by the two sides the preceding week into a treaty agreement.

In practice, the failure of the UK side to engage has meant that in practice the Commission has spent the three months between the December agreement and the 23 March European Council on drafting the withdrawal agreement; discussions on the future relationship have yet to begin. Tusk and Juncker have continued to remind the UK that there can be no bespoke agreement and that, as the departing state, it is responsible for proposing solutions.

When the UK reacted negatively to the draft withdrawal agreement issued on 28 February 2018, the EU institutions reiterated that the UK had to come up with proposed solutions to the border issue. The UK has now accepted the Commission draft as a basis for discussion, while still maintaining that some elements are unacceptable.

As the Brexit negotiations have proceeded, both the member states and the four EU institutions have remained remarkably united in their approach. Reiterating the four principles of 29 June 2016, and reminding London that Michel Barnier is the EU negotiator, not an agent of the Commission, the EU institutions favour a choice between existing models and have firmly resisted any attempt by the UK to negotiate a bespoke agreement that would create a new category of third country relationship different either from EEA membership or signatory to a free trade agreement.

Throughout the process, considerable effort has been expended, particularly by Tusk, in ensuring that all national capitals are on board. The organisational structures put in place for the negotiations also serve this purpose. Although the tone and sympathy of member states towards London varies among the EU27, no government has disrupted the common purpose. It remains to be seen whether this situation will endure once trade talks commence.

By Hussein Kassim, senior fellow at The UK in a Changing Europe. You can read the full report ‘Article 50 one year on’ here.

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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