“In the Light of the Guidelines”: Brexit and the European Council

By Darren Harvey

During her speech at the Conservative Party conference on Sunday, Prime Minister Theresa May stated that the UK would be notifying the European Council of its intention to withdraw from the EU in accordance with Article 50(1) TEU by the end of March 2017 at the latest.

Earlier that day, during an interview on the BBC with Andrew Marr, the Prime Minister was asked what will happen immediately after the notification to leave the EU has been made.

The Prime Minister responded:

“Well, it’s for the European Union, the remaining members of the EU have to decide what the process of negotiation is. I hope, and I’ll be saying to them, that now that they know what our timing is going to be, it’s not an exact date but they know it’ll be in the first quarter of next year, that we’ll be able to have some preparatory work, so that once the trigger comes we have a smoother process of negotiation.”

Shortly after this announcement, European Council President Donald Tusk took to Twitter, stating that once Article 50 had been triggered, the remaining 27 EU Member States would “engage to safeguard [their] interests” – thus suggesting that no preliminary negotiations shall be conducted prior to such notification.

This exchange raises a fundamental question about the Article 50 TEU withdrawal process that has not yet been fully considered; namely, what role will the European Council play in this process?

Overview

As is well known, the European Council was formally recognized as an EU institution by the Treaty of Lisbon reforms of 2009. According to Article 15(1) TEU, “The European Council shall provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof. It shall not exercise legislative functions.”

In terms of its composition, Article 15(2) TEU provides that “The European Council shall consist of the Heads of State or Government of the Member States, together with its President and the President of the Commission. The High Representative of the Union for Foreign Affairs and Security Policy shall take part in its work.”

With regards to its specific role in the Brexit process, Article 50(2) TEU provides:

“A Member State which decides to withdraw shall notify the European Council of its intention. 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.”

When giving evidence to the House of Lords Select Committee on the European Union, Professor Wyatt set out how the negotiation process would be conducted by the EU institutions:

“Under guidelines from the European Council, the Council applies the ordinary rules and sets a negotiating mandate for the Commission. The Commission will negotiate the agreement on the EU side. We have guidelines from the European Council and we have the negotiating mandate from the Council. The Council can nominate a head negotiator if it wishes, or the head of a team of negotiators. The Council can nominate a special committee that will work in conjunction with the Commission. The result is that the Commission negotiates but the national Governments are in the driving seat, and that will be very political. They will call the important shots.”

In light of this, following notification by the United Kingdom of its intention to withdraw, the first step to be taken by the EU side in the withdrawal process is for the European Council to issue guidelines for the EU’s negotiators. As shall be further discussed below, this is important not least because Article 50(3) TEU makes it clear that the two-year time period within which to reach an agreement starts running from the date of receipt of the UK’s notification.

Under the default rule set down in Article 15(3) TEU, the European Council shall meet twice every six months except, when the situation so requires, the President shall convene a special meeting of the European Council.

According to its website, there is a European Council meeting scheduled for 9th and 10th March 2017 – just a few weeks before Prime Minister May’s promised “end of March 2017 at the latest” notification date. Should notification be received after that scheduled meeting in the middle of March, however, it is likely that the European Council would convene another special meeting, rather than wait until the next scheduled meeting which shall take place on 22nd and 23rd June 2017. Note, however, that it could take several weeks to get all heads of state and government round the table again so soon after a previous European Council meeting, particularly if campaigns for national elections are underway.

Once convened, it will then be for the 27 Heads of State and Government to agree on the guidelines for negotiations.

A crucial question of procedure to be answered following the UK’s decision to “pull the trigger” with regards to Article 50 TEU, therefore, is how does the European Council provide the necessary guidelines for those negotiations?

This is by no means a trivial matter. The wording of Article 50 TEU seems unambiguous in requiring that the European Council issue guidelines prior to any negotiations commencing: “In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement…”

Given that the withdrawal agreement itself shall be concluded following the consent of the European Parliament and a Qualified Majority Vote in the Council, might the need to firstly agree upon guidelines in the European Council provide the only formal veto point for individual member states in the process?

The Consensus Requirement

According to Article 15(4) TEU, except where the Treaties provide otherwise, decisions of the European Council shall be taken by consensus. It has been said that consensus exists when a proposal is put forward and no objection is raised. Unanimity, on the other hand, implies that a proposal be put to a vote and that no negative vote be registered. Whereas in theory the difference lies in the formality of the procedure, in practice there is no difference since votes are extremely rare in the European Council. [Philippe de Schoutheete, ‘The European Council’ in Peterson & Shackleton (eds) The Institutions of the European Union (OUP 2012) p.50]

That being said, the Treaties clearly make a distinction between situations requiring a unanimous vote by the European Council (e.g. guidelines in the Common Foreign and Security Policy field) and areas where decisions are to be taken by consensus (e.g. guidelines in the area of Freedom, Justice and Security)

With regards to agreeing upon guidelines for the purposes of negotiating a withdrawal agreement, Article 50 TEU gives no indication as to the decision-making procedure to be applied. It would therefore appear to be the case that the default consensus rule will apply.

This conclusion is further supported, for example, by the explicit reference in Article 48(3) TEU that the European Council shall decide by a “simple majority”, or in Article 48(6) TEU to the need for the European Council to decide by “unanimity”. Consequently, had a specific rule deviating from the consensus rule enshrined in Article 15(4) TEU been intended, the drafters of the Treaties would have made this explicit in the text of Article 50 TEU.

In light of this, should the scope and content of the negotiation guidelines prove contentious within the European Council, the consensus rule dictates that discussions must continue until such a consensus is achieved. This has the effect of giving each Member State a de facto veto over the withdrawal negotiations by refusing to consent to the European Council’s decision establishing negotiation guidelines. After all, according to a close reading of Article 50 TEU, it would appear that without consensus there can be no establishment of negotiating guidelines, and therefore no move by the Union to negotiate and conclude a withdrawal agreement with the UK.

Of course, one would expect it to be in the interests of all parties concerned for the European Council to swiftly agree the general guidelines and thus move to the extremely complicated business of negotiating the withdrawal agreement itself as quickly as possible. It is important to keep in mind, however, that any hurdles encountered at this preliminary phase will not stop the two-year clock from running. Article 50(3) TEU is unambiguous when it comes to the two-year time limit within which a withdrawal agreement must be reached. The clock starts ticking from the moment the UK’s notification is received: “two years after the notification referred to in paragraph 2.”

It is therefore clear that once notification is received, any delay by the European Council in drawing up and agreeing upon the necessary guidelines will eat into the time left available for the actual negotiations to take place. What is more, the UK’s representatives are explicitly prohibited under Article 50(4) TEU from taking part in the European Council deliberations on the negotiating guidelines. As a result, once the trigger is pulled, the United Kingdom is entirely sidelined and unable to speed things up while the other 27 heads of state and government convene, prepare, debate and ultimately agree a common position.

Finally, from the EU’s side, as was noted above, European Council President Donald Tusk has indicated his unwillingness to even begin preliminary negotiations prior to a withdrawal notification being received. This stance has also been re-emphasised by the European Commission and the European Parliament’s chief negotiator Guy Verhostadt in recent days.

A lack of Consensus?

In terms of how likely a delay at this stage would actually be, much will depend upon the extent to which members of the European Council want to seize the guidelines as an opportunity to exert influence.

According to what might be considered the most likely approach, the European Council will merely set the general context within which EU-UK negotiations are to take place and articulate a set of basic principles to be observed throughout that process. If so, the European Council’s role at the outset of the withdrawal process is likely to be rather straightforward and the negotiations guidelines, being vague and uncontroversial in nature, shall be passed swiftly. Following on from this, the vast majority of the substantive content of the negotiations would then be left to the Commission and the Council.

That being said, it is important to note that the Treaties provide next to no guidance as to the level of detail that should be included in the guidelines issued by the European Council. Furthermore, those examples where we do have guidelines, such as the Area of Freedom, Security and Justice, are of little help when it comes to the unprecedented process of a member state leaving the EU.

With this in mind, it is surely not inconceivable that some of the EU’s 27 Heads of State or Government might wish to push a particular agenda or protect certain national interests via the negotiating mandate. For example, is the right of EU citizens to remain in the UK following withdrawal a matter to be left to the negotiation process itself or will certain EU Member States insist that the European Council set down in its guidelines that this is a non-negotiable issue from day one?

From a different perspective, will the Spanish government seek to place the status of Gibraltar and its future EU membership explicitly on the table at the outset by pushing for its inclusion in the guidelines which shall guide the EU’s side of the negotiations?

Remember, should no withdrawal agreement be reached within the proscribed time period, the UK’s membership of the EU shall simply come to end without any form of legally binding agreement governing either the “divorce” proceedings or any details of future UK- EU relations. The only exception to this would be for the European Council to unanimously agree to extend the two-year time period – a further aspect of the withdrawal process which potentially gives the European Council immense power over proceedings.

As such, the struggle for consensus amongst the EU’s 27 remaining members on the scope and content of the negotiation guidelines may not be an altogether straightforward process.

Conclusion

As is clear from the wording of Article 50(2) TEU, the European Council will be the first EU institution to react to the UK’s notification of its intention to withdraw from the EU. It will therefore potentially hold an immense degree of power and influence over the initial stages of the negotiations. Furthermore, given the need for its unanimous agreement to extend the two-year time limit, the European Council may also come to be the institution with a determinative influence on when and under what terms the withdrawal negotiations end.

Whilst common sense might well dictate that the European Council will agree on a broadly formulated and largely uncontentious position vis-à-vis the negotiation guidelines, one must nevertheless remain alert to the difficulties inherent in striving for consensus amongst 27 Member States.

5 comments

  1. Bernard O'Connor

    There are two classes of issues that could be raised by the Council: UK centric and EU centric issues. Gibraltar and the Sovereign bases in Cyprus are UK centric issues (from and EU perspective) as well as the financial arrangements needed. The MS (or, down the line, the Parliament) could come up with all sorts of EU centric pre-conditions for the giving of consent like specific internal market reforms.

  2. Andrew Chapman (@AndrewChapman50)

    According to Professor Wyatt (Q. 164), the Council sets a negotiating mandate for the Commission, under Guidelines from the European Council. He seems to get this from Article 218(2) and (4) TFEU, which he seems to be assuming will apply. I don’t see why this should be, since this will not be an international negotation but an internal EU one.

    Nor do I understand why we assume that the Commission will be the negotiator. Is there not something to be said for having a Chief Negotiator above the fray, so to say, who would not have so much in the way of institutional interests? Could this not be why the drafters of Article 50 left the Council free to select the negotiator?

    Andrew

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  5. Barry Van Danzig

    I have twenty years experience in EU legislation including a Judicial Review. The assumption that there is a two year time line for negotiations is wholly false. Paragraph 2 places an obligation to negotiate and agree and conclude an agreement taking account of the future relationship with the Union. There is nothing in paragraph 2 that limits the time for those negotiations to be concluded.

    Paragraph 3 simply states that once the agreement is in place or failing that after two years the treaties no longer apply to the state (exiting the EU). It does not state that the obligation to conclude an agreement is excused by the failure to conclude the agreement within two years.

    The proposed guidelines are exactly that, guidelines and these are common in EU law. “Statutory Guidelines” have no basis or standing in law. In a JR they are simply set aside. Furthermore the EU council, Parliament and committee have no status in law to interpret Article 50. The role of interpreter of clause 50 is the ECJ and the ECJ alone.

    It is my belief that there is no time limit on the concluding of an agreement under Article 50 even after the treaties no longer apply to the exiting member. Furthermore as the Union is obliged to negotiate an agreement they are not empowered to impose any alterations to our access to the single market and any such imposition would be unlawful. Therefore if the negotiations take longer than two years our trade continues unhindered until such times as we agree to any changes.

    This ought to be placed before the ECJ for clarification and I am trying to get together a group of companies that can do exactly that.

    Do please reply and comment so that if you have any concerns about my interpretation I can explain them to you.

    Barry Van Danzig

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