Can Europe stay united after Brexit?
The Brexit Process and the Exit Doctrine: The Leadership Role of the European Council
In order to understand the Brexit process, an analysis of the role of the European Council is essential. He has taken the lead in shaping the relationship with the UK, making key procedural and Union decisions. He put it into a narrative that emphasizes the achievements of the EU and the differences between members and non-members. Like the accession criteria, these guidelines and resolutions could become the exit doctrine.
To understand the Brexit process an analysis of the European Council’s role is essential. In the process of shaping the relationship with the United Kingdom it assumed the lead and took key decisions on the negotiating procedure and the EU’s goals. It framed its decisions in a narrative, which highlighted the EU’s achievements and the differences between members and non-members. Similar to the membership conditions, these provisions and decisions could become the EU’s exit doctrine.
The European Council and the difficult partner
In relation to the European Community (EC) and later the European Union (EU), the United Kingdom was considered a “difficult partner” from an early stage (George 1998, p. 1, own translation). Winston Churchill had called for the creation of the "United States of Europe" in 1946, but did not see his country as part of it (Churchill quoted in Gastgeyer 2005, pp. 47, 49). At the beginning of the unification process, the country decided against participating. Even after joining in 1973, it was often hesitant or even negative about further integration and preferred a relationship as Margaret Thatcher defined it in 1988: "Willing and active cooperation between independent sovereign states is the best way to build a successful European Community" (Thatcher 1988, own translation).
The European Council or the heads of state and governmentFootnote 1 of Member States have played a central role in determining the relationship between the EC / EU and the UK since the 1960s. At the 1969 summit in The Hague, which can be seen as the forerunner of the European Council, the heads of state and government of the six founding states decided to accept the country after its first two membership applications had failed due to resistance from Charles de Gaulle (Knipping 2004, Pp. 156-157). Since its founding in 1974, the European Council has repeatedly taken decisions on special concerns of the Kingdom: In addition to regular employment within the framework of budget decisions, its members also jointly agreed on exceptional rules for the country - for example on economic and monetary union at the beginning of the 1990s and later in the Schengen area (Wessels 2016, Chapter 4). These opt-outs were an expression of a differentiated integration (Tekin 2020, p. 2), which the other states allowed in order to be able to integrate themselves further.
The European Council also took decisions on Prime Minister David Cameron's requests to amend the treaty after he promised his constituents a referendum on membership in 2013 following a renegotiation of relations with the EU. In February 2016, in intensive negotiations, the panel decided on formulations that should facilitate Cameron's campaign to remain in the EU. However, the 27 other heads of state and government offered only largely cosmetic adjustments to procedures and no treaty changes with regard to the cornerstones of the Union (European Council 2016a).
In order to understand the negotiations with the UK after the referendum on June 23, 2016, in which 51.9% of UK citizens voted to leave, an analysis by the European Council is essential.Footnote 2 Based on its conclusions, this paper examines its role in the negotiations. As will be shown below, he has taken the lead in shaping the future relationship with the Kingdom and has made formative decisions about the process and Union objectives for that relationship. The latter is also reflected in the December 2020 trade and cooperation agreement. As the analysis of the conclusions from 2016 to 2020 shows, he put his determinations in a narrative that emphasized the achievements of the Union and the differences between members and non-members. Analogous to the accession criteria that he formulated in 1993, these specifications and resolutions could become the “exit doctrine” (Lippert 2019, p. 632; von Ondarza 2020, p. 92).
The European Council in the Brexit Process: A Review of Its Conclusions
Between the end of June 2016 and the UK's withdrawal from the EU on January 31, 2020, the European Council dealt with the UK's withdrawal and future relationship with the country in 19 of its 38 meetings. The European Council's deliberations on the exit procedure and the Union's negotiating position took place without British participation (Tab. 1).
The self-empowerment of the European Council as master of the procedure
The Treaty on European Union (TEU) assigns the European Council a specific role in the exit process: a state willing to leave must send its exit notice to the European Council. This issues guidelines for the exit negotiations. It also decides unanimously on a possible extension of the two-year negotiation period (Art. 50 TEU).
The European Council met immediately after the referendum on 28/29. June 2016 and discussed for the first time on 27 without the British Prime Minister possible consequences of the result for the Union. With this meeting, he took the lead in the subsequent Brexit process by defining key aspects of the Union's response and giving himself an important role in the process. He affirmed that the British exit must take place in an "orderly manner" on the basis of Art. 50 TEU (European Council 2016b, p. 1). As long as the kingdom was a member, its obligations and rights would not change. The country should initiate the exit process as soon as possible by posting an exit notice. Without this, “there could be no negotiations of any kind” (European Council 2016b, p. 1). Once the note is available, the European Council will set the guidelines for a withdrawal treaty. He assigned the European Commission and the European Parliament "to play their role to the full in accordance with the Treaties" (European Council 2016b, p. 1).
On December 15, 2016, the European Council made further procedural decisions and confirmed its key role in setting the EU position. He announced that the exit negotiations would be dealt with on a regular basis. After adopting the guidelines, the Council will decide to start negotiations on the recommendation of the European Commission and issue guidelines for the negotiations on the basis of these guidelines. The European Council called on the Council of the European Union (Council) to entrust the negotiations to the Commission. He also stated that representatives of the President of the European Council would attend all negotiation meetings (European Council 2016d, p. 2). It also regulated the close involvement of the European Parliament, whose consent is required according to Art. 50 TEU for the withdrawal agreement, in the procedure: The negotiator should be kept informed about the negotiations on an ongoing basis. He also invited the President of Parliament to his meetings (European Council 2016d, p. 3).
As a result of the British exit notice issued in March 2017, the European Council adopted its guidelines on April 29, 2017 and specified the procedure: the negotiations would be two-phase. First the most important issues of the exit would be clarified. Talks about the future relationship would then begin, but the formal conclusion would only be possible after the UK leaves the EU. Here, too, the committee gave itself a leading role, as it delegated the decision to determine when the results of the first phase would be sufficient for the second to begin (European Council 2017b, p. 4). The negotiations that followed were difficult. However, in December 2017 the European Council decided that the state of negotiations was sufficient to start the second phase (European Council 2017c, p. 1). The biggest problem in the exit negotiations was the question of how to keep the border between Northern Ireland and the Republic of Ireland open in accordance with the 1998 peace agreement after the UK had left the EU customs union and internal market. After further negotiations - which included the conclusion of an agreement that also failed three times in the House of Commons because of the settlement of this question, a change of prime minister and several extensions of the two-year Article 50 period - an amended contract was agreed in autumn 2019 (Bujard 2019). According to this, Northern Ireland - unlike the rest of the country - would apply internal market rules in the goods sector and EU tariffs even after leaving the EU. The border on the Irish island could remain open, but a customs and regulatory border between Great Britain and Northern Ireland would arise (Bujard 2020, p. 430). The solution to the border issue was important because it concerned Ireland, a member that shared a land border with the Kingdom and would feel the most severe economic effects of Britain's exit (European Parliament 2017, p. 32). On October 17, 2019, the European Council adopted the Agreement and the revised Political Declaration, a declaration of intent on the future relationship (European Council 2019c, p. 1).
On December 13, 2019, the European Council confirmed its role as master of the procedure in determining the negotiating process for the future relationship: it called on the European Commission to swiftly present a negotiating mandate following the UK's exit, and the Council to adopt it soon (European Council 2019d, p. 1).
The strong specification of the EU negotiating position
In addition to structuring the procedure, the European Council also decided on the negotiating position and showed that it would specify the “political objectives” (Art. 15 (1) TEU) for the EU in accordance with the treaty. Starting with the first meeting after the referendum and in September 2016 in Bratislava, he put his decisions in a narrative that highlighted the achievements of the EU and the differences between members and non-members.
In assessing the effects of the referendum on the unification process, the remaining members reaffirmed in June 2016 "to remain united and work together within the framework of the EU to meet the challenges of the 21st century and to find solutions in the interests of our nations and peoples" ( European Council 2016b, p. 2). In Bratislava he made it clear that he did not see the British vote as a reason for an end to integration: "Building on this common history, we are determined to lead the EU with 27 member states to success" (European Council 2016c, p. 1) .
In their declarations from June and September 2016, the 27 focused on the achievements of the Union and reaffirmed their determination to stick to the EU project: "The European Union is a historic achievement that has brought peace, prosperity and security to the European continent, and will remain our common framework ”(European Council 2016b, p. 2; also 2016c, p. 1).
The European Council also addressed the EU's shortcomings: “European citizens expect better results from us when it comes to ensuring security, jobs and growth and giving hope for a better future” (European Council 2016b, p. 2 ). In June 2016 he announced the start of a “political reflection” “in order to provide impetus for further reforms in line with our strategic agenda and for the further development of the EU of 27 member states” (European Council 2016b, p. 2). With these declarations, as well as those of Rome 2017, Sibiu 2019 and the strategic agenda 2019-2024 (European Council 2017a, 19.20, a, b), the 27 heads of state and government assigned Brexit only limited importance for the further integration process.
In April 2017 and March 2018 they adopted the guidelines for the negotiations on the exit and future relationship. They had already made the first stipulations in June 2016: A differentiated integration with opt-ins as a non-member, analogous to the opt-outs during membership, would not be possible with the internal market: “The prerequisite for access [...] is that all four freedoms be accepted ”(European Council 2016b, p. 2). In addition, a contract with the Kingdom requires a "balanced [s] relationship between rights and obligations" (European Council 2016b, p. 2).
In its 2017 guidelines, the European Council reaffirmed the goal of a close relationship in trade, the fight against terrorism and crime, and foreign, security and defense policy (European Council 2017b, p. 8; also 2018a, p. 2). However, he stated again, "every agreement [...] must be based on a balance between rights and obligations [...], while ensuring fair conditions of competition" (European Council 2017b, p. 3; also 2018a, p. 3 ). He also made a clear distinction between members and third countries: “Relations between the Union and a non-member state cannot offer the same advantages as membership in the Union” (European Council 2017b, p. 8; also 2018a, p. 3).
Regarding Britain's intention to leave the internal market, the panel agreed to negotiate a free trade agreement with the country after the country left the country. However, this could "not amount to participation in the internal market or parts of it, as this would undermine its integrity and smooth functioning" (European Council 2017b, p. 8). In 2018 he stated again that “the four freedoms are indivisible and there can be no cherry picking, i. H. participation in the internal market only in individual sectors, which would undermine the integrity and proper functioning of the internal market ”(European Council 2018a, p. 3). In addition, the heads of state and government referred to the decision-making autonomy of the Union and the equally autonomous role of the Court of Justice of the European Union. They rejected separate agreements on individual policy areas as well as bilateral negotiations with the Kingdom (European Council 2017b, p. 3).
In its 2018 guidelines, the European Council specified the Union's position on the future relationship. The key points were the goal of a free trade agreement for trade in goods without tariffs and quotas, but with appropriate rules of origin. An agreement is also wanted for the trade in services. Here, however, the scope would be more limited as the kingdom would be a third country. In the case of fisheries, the committee spoke out in favor of maintaining current access to mutual waters and existing quotas (European Council 2018a, p. 4). The EU also wanted judicial cooperation in criminal matters and law enforcement. This must also take into account that the country is a third country and not a Schengen country. The European Council again named "close cooperation [...] in foreign, security and defense policy" (European Council 2018a, p. 6) as a goal.
After the UK left the EU on January 31, 2020, formal negotiations on the future relationship began in March. The Council had previously adopted the draft negotiating mandate presented by the European Commission and based on the guidelines of the European Council (Council of the European Union 2020).
The signature of the European Council in the trade and cooperation agreement
The agreement concluded between the EU and the United Kingdom after difficult negotiations in December 2020 bears the signature of the European Council in many places. It shows the high level of protection he has taken for the internal market. It is the offered free trade agreement without tariffs and quotas, but with rules of origin in the trade in goods. It is supplemented by Level playing field- Regulations that go further than other EU trade agreements. It does contain agreements on trade in services, but these barely go beyond what more recent EU trade agreements usually include (Melo Araujo 2021). British participation in the internal market without maintaining the four freedoms is therefore not possible. Both sides continue to work together on issues of internal security, but the agreement reflects, as the European Council had previously formulated, that the Kingdom is a third country and not a Schengen country (Institute for Government 2021). The Union continues to make unilateral decisions on equivalence on financial services and data protection that are still open (Bille and Morin 2021).
But the European Council did not achieve all of its objectives. The agreement does not regulate questions of foreign, security or defense policy. London had refused (Bille and Morin 2021). Furthermore, there is no role for the Court of Justice of the European Union in the governance structure and in dispute settlement, as is the case with the Withdrawal Treaty (Fella et al. 2020, p. 15). In the fisheries sector, too, the EU did not reach its maximum position of maintaining existing regulations. However, the agreement is closer to what the EU wanted than to what the UK originally formulated as a goal (Stewart 2020).
In view of the usual controversies over central design issues in the Union, it is surprising that the discussions in the European Council, contrary to popular expectations, did not lead to a breakdown of the 27 during Brexit, but to a high degree of unity. The close coordination at the highest political level made it possible. This unity did not give London a chance to split the Union in the course of the negotiations and contributed to the European Council being able to play its key role so successfully. The 27 heads of state and government stuck to the jointly decided rejection of bilateral negotiations, represented the EU position and did not respond to British attempts to bypass the Commission. The same goes for the large member states: During Boris Johnson's inaugural visits in August 2019, Angela Merkel and Emmanuel Macron emphasized the EU position with regard to his call for the cancellation of the existing Northern Ireland regulation and did not negotiate unilaterally (Kahlweit 2019). The EU members showed solidarity with Ireland early on and only its Prime Minister Leo Varadkar negotiated bilaterally with Johnson on the Irish border issue in autumn 2019, which made it possible to conclude an amended treaty (Fleming et al. 2019).
In the negotiations on the future relationship, a more fragile front was expected, since the countries would be affected to different degrees by new rules, for example in fishing or trade. But the heads of state and government stuck to their guidelines until the end of the negotiations.
In contrast to the negotiations on the exit, the European Council did not deal as intensively with those on the future relationship - only at four of its 13 meetings in 2020. During the most extensive discussion in October, the heads of state and government made special arrangements to address this To be kept confidential: During this time, those involved were not allowed to have any mobile devices with them (Eder 2020). There were several reasons why they spent less time debating their relationship with the Kingdom in 2020. On the one hand, there were more urgent matters: The first priority was dealing with the health policy and economic effects of the COVID-19 pandemic. In addition, the adoption of the multiannual financial framework for 2021–2027 and a European Corona recovery fund was difficult and lengthy. The agreement on this, which was only reached in December 2020, had previously been blocked by Hungary and Poland due to the new rule of law mechanism to protect the EU budget (Gnauck et al. 2020). However, the 27 do not seem to have seen any need to change their guidelines.
In autumn 2020 there were differences. However, this did not lead to a split and single negotiations. In November, the heads of state and government of France, Belgium and the Netherlands called for the publication of emergency measures in the event of one No deals. The European Commission had not done this until then to avoid London seeing it as an indication that the EU had given up hope of an agreement (Moens and Von der Burchard 2020). Differences were also visible in the topics that were still open. For example, France declared in October that it was not ready to conclude an agreement at the expense of its own fishermen (Moens 2020). But even here there was no break. Even after the first of several talks between Commission President Ursula von der Leyen and Johnson in December, the British Prime Minister again called for bilateral negotiations with Macron and Merkel, which was rejected by the Union (Boffey and Elgot 2020).
Conclusion: on the way to an exit doctrine
The European Council was the central designer of the Brexit process and the new EU-UK relationship. With his decisions, which he put into a narrative that emphasized the achievements of the EU and the differences between members and non-members, he not only has the relationship with the United Kingdom, but also a lasting "exit doctrine" (Lippert 2019, p. 632; von Ondarza 2020, p. 92). Thus there is now a counterpart to the accession criteria that he formulated in Copenhagen in 1993 (European Council 1993, p. 13). The main points of his stipulations, which could become an exit doctrine, are:
A non-member cannot be better off than a member. Anyone who wants to have rights must take on corresponding duties.
Partial memberships are just as impossible after leaving (Lippert 2019, p. 632) as are opt-ins from non-members in selected policy areas.
Protecting the integrity of the internal market has the highest priority: selective participation is not possible, but only if the four freedoms are retained.
The solidarity of the members with one another (here with Ireland) is a central principle.
The procedure and the strategic decisions regarding the relationship with the future ex-member have become a "top priority" (von Ondarza 2020, p. 91) beyond the direct wording of the contract.
With its resolutions on Brexit, the European Council has not made any further flexibilisation of the forms of participation in the integration project, which would have been conceivable according to a flexibilisation of dismantling (Wessels and Wolters 2017, pp. 96-97). A “Europe à la carte” (Dahrendorf 1979) in which every state Pick raisins can, he has rejected again.
As with the fourth criterion of the accession catalog (European Council 1993, p. 13), it also made decisions here that affect the structure of the Union itself. He laid down the procedure in the institutional architecture: By setting the precedent, he interpreted the treaty rules with an impact on the future, with a clear assignment of tasks to the European Commission, Council and European Parliament. As in other cases of central importance for the EU system, he reserves the last word, but respects the rights of the Commission and Parliament and involves them in the process: only the Commission negotiates with the exiting state; Parliament is closely involved.
With these decisions, the European Council also made it clear within the EU that it is not possible to apply Art. 50 TEU to withdraw or renegotiate membership with the aim of getting rid of undesirable obligations but retaining rights (Lippert 2019, p. 634). The extent to which these guidelines and stipulations, solidified into doctrines, deter potential future exit candidates will also depend on how the EU-UK relationship develops.
The EU was able to enforce this exit doctrine with the United Kingdom comparatively easily. Unlike under Theresa May, the Johnson government prioritized sovereignty over economic integration and would have refused any kind of partial membership.
The negotiations between the EU and the UK are not over. Decisions are still pending and the agreement contains various revision clauses (Bille and Norin 2021). So the future relationship is still in flux. In any case, however, the European Council will want to continue to play a key role in shaping it.
In this article, contrary to the ZfAS standard, the masculine grammatical form is used for personal nouns. The authors include people of all sexes equally.
For the British perspective on the Brexit negotiations and future EU-UK relations, see the article by Anand Menon and Matthew Bevington (2021) in this issue.
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Open Access funding enabled and organized by Projekt DEAL.
Dr. Birgit Bujard
CETEUS, University of Cologne, Gottfried-Keller-Str. 1, 50931, Cologne, Germany
Prof. Dr. Wolfgang Wessels
Correspondence to Prof. Dr. Wolfgang Wessels.
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