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This is the second part of this post. The first part was published here and the third part is now here.
The preparation begins
After the referendum result came in, the EU’s leaders were quick to articulate how they believed Brexit should be dealt with. Announcing principles and objectives are one thing, mastery of process another. But in this respect, the EU also moved swiftly.
While those in the UK obsessed about the first two sentences of Article 50, those on the EU side focused on the following sentences:
“In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.”
Article 218(3) in turn provides (as far as is relevant):
“The Commission … shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union negotiator or the head of the Union’s negotiating team.”
Article 218 goes on to provide:
“4. The Council may address directives to the negotiator and designate a special committee in consultation with which the negotiations must be conducted.
5. The Council, on a proposal by the negotiator, shall adopt a decision authorising the signing of the agreement and, if necessary, its provisional application before entry into force.
6. The Council, on a proposal by the negotiator, shall adopt a decision concluding the agreement.”
In essence, the EU had to set up a number of hoops. They can be summarised as follows:
- negotiation guidelines are adopted by the European Council;
- the commission will recommend opening negotiations to the council of ministers and the latter will both authorise the opening of those negotiations and nominate the negotiator;
- the council will guide the negotiator through directives and through a special committee;
- the negotiator will propose when the agreement shall be concluded.
The exit agreement would need to be approved by a qualified majority on the European Council and approved by the European Parliament.
This process is set out at treaty level and, for those who take EU and its law seriously, it is the highest form of prescribed process. Within days of the referendum result, Donald Tusk, president of the council, and others were thinking through the process as a whole. The next stages were to start on the guidelines and identify a negotiator (and put together a negotiating team).
The guidelines — to be adopted at the end of this week — thus became the central document of Brexit. The appointed negotiator could only negotiate within their parameters. Once the guidelines were adopted they — and not any selfish influences exerted on the negotiating team by a member state or industry lobby — would determine the shape of Brexit. The only directives and supervision would come from a committee of the council.
The European Parliament’s effective veto also meant there was likely to be a further check on what would ultimately be approved. The negotiator was thereby to operate within two sets of limits, one from each of the two bodies whose approval was required.
So, from about July 2016 (if not before), those on the EU side concentrated on what these key documents would say. All this was openly stated — yet when the European Parliament recently put forward its draft resolution, and the European Council circulated its draft guidelines, there seemed surprise in the UK that the documents even existed. But they are as much a part of the Article 50 process as the notification letter itself.
In addition to the guidelines, there needed to be a negotiating team. The negotiator would have limited scope. He or she would be the servant of the European institutions, able only to work within the parameters of what the European Council would allow and (indirectly) what the European Parliament would approve. Nonetheless, it was essential to get this appointment right and to get the best team in place quickly.
As
early as 27 July 2016, Jean-Claude Juncker (president of the European Commission) identified Michel Barnier, former vice-president of the commission and French foreign minister, for the job. Mr Barnier was duly appointed by the European Council “chief negotiator” to lead a task force preparing for the UK leaving under Article 50.
By
14 September, the shape of the
task force (“TF50″ as it became known) was announced, and the vastly experienced trade official Sabine Weyand was appointed as Mr Barnier’s deputy. Mr Juncker is quoted at this point as saying:
“This new Task Force will be composed of the Commission’s best and brightest. They will help Michel Barnier to conduct the negotiations with the United Kingdom effectively, benefiting from the deep knowledge and rich experience available across the whole Commission.”
There was substance to this boast: TF50 was quickly pulling together an experienced and
capable team. Mr Barnier’s appointment took effect on 1 October and TF50 was moving quickly to develop its approach to the negotiations by the end of the year. Mr Barnier himself commenced a tour of all the EU27 member states to ensure each was on board and to ascertain what would be acceptable in the guidelines.
On 8 September, Mr Tusk visited Theresa May in London, just before the next meeting of the EU27 at Bratislava. His remarks were stark:
“My intention is to tell you about the agenda of the Bratislava meeting of 27 leaders next week. We decided to organise this informal meeting to discuss and to assess the political consequences of Brexit for the EU community. This doesn’t mean that we are going to discuss our future relations with the UK in Bratislava. For this, and especially for the start of the negotiations, we need your formal notification, I mean Article 50. And this is the position shared by all 27 Member States.
“To put it simply, the ball is now in your court. I am aware that it is not easy, but I still hope you will be ready to start the process as soon as possible. But I am convinced that at the end of the day our common strategy goal will be to establish the best possible relations between the UK and the European Union.”
The position was already well settled: there was unity, and there would be no negotiation without notification. In the background, the European Commission and the European Council were in advanced preparation for the next stage of the Article 50 process. Even the European Parliament, on 8 September, had
appointed Guy Verhofstadt as a representative and co-ordinator for the Article 50 process.
The EU stance in terms of both substance and process was solidifying: the train and the track were almost in place. And this was a month before Mrs May’s speech to the Conservative party conference in Birmingham in October.