The Art of the Deal: the European Council and Brexit

Federico Fabbrini (Professor of European Law & Director of DCU Brexit Institute)

On Sunday 25 November 2018 the European Council approved the Brexit deal, giving its blessing to the draft international treaty regulating the orderly withdrawal of the UK from the EU and to the connected political declaration outlining the framework of future EU-UK relations. With few exceptions – including an interpretative statement requested by Spain (which gives it a veto on the application of any future agreement in Gibraltar), and a declaration pushed mostly by France (which reaffirms the need for the UK to respect the Paris Agreement on climate change) – the deal endorsed by the European Council is the one negotiated by the European Commission’s Brexit Task Force, after 18 months of intensive talks with the UK Government. In fact, the European Council explicitly thanked Michel Barnier for his tireless efforts as the EU chief negotiator and for his contribution in maintaining the unity of the 27 EU Member States.

The outcome of the European Council opens the door to the process of ratification of the withdrawal agreement on the EU side: this will require the approval by a qualified majority in the Council, and the consent of the European Parliament – but none of this is expected to be problematic, unless a case is brought in front of the European Court of Justice asking it to review whether the agreement envisaged is compatible with the EU Treaties. At the same time, the result of the special summit held in Brussels firmly shifts the ball on the future of Brexit into the UK’s court. Following the endorsement of the European Council, it is now for UK Prime Minister Theresa May to win Westminster’s support for the withdrawal agreement and declaration.

While much uncertainty remains whether the UK Parliament will eventually ratify the deal, two conclusions can be safely drawn from Sunday’s European Council.

First, the European Council went out of its way to facilitate Prime Minister Theresa May in her difficult efforts to steer the deal through Parliament. In fact, the political declaration on the framework of future relations is a long and detailed document – although one mostly deprived of any meaning and practical effect, since the parties commit only best efforts to discuss topics of common interest. Yet, this should help May in convincing Westminster that she did not just sign up to a withdrawal treaty that maintains the UK closely aligned with the EU, commits Britain to an indefinite backstop on Northern Ireland and requires it to pay large amounts of money to Brussels. The political declaration, in other words, is a lifeline which allows the UK Government to point for domestic purposes toward a long-term future of a promised land outside the EU.

Second, the European Council also made effectively crystal clear that there is no further space for any renegotiation of the Brexit deal. The 585-page withdrawal treaty and the 26-page political declaration is what is on offer from the EU side – and no re-opening of the deal should be expected by London. If one adds that with the European Parliament elections looming in May 2019 the EU is unlikely to be flexible in extending the UK membership of the EU beyond March 2019 (as this would imply the absurd result that European Parliament elections would also have to take place in a withdrawing Member State), this leaves Westminster with a stark choice: either take the deal on offer, or leave with no deal. Hence, those British politicians who think they can vote down the deal and go back to the negotiating table to get something better should take notice.

If the outcome of the EU summit reflects Brussels’ art of the deal, the European Council endorsement of the package negotiated by the European Commission also sends a strong signal of what are the costs of leaving the EU. In fact, forget the political declaration, which is just empty words. The real meat of the Brexit deal is the withdrawal treaty, with its legally binding obligations on the UK to maintain alignment to all EU internal market rules and an indefinite commitment to remain in a single customs territory with the EU as part of the Northern Ireland backstop. After years of rhetoric about how leaving the EU would allow the UK to take back control and sail free on the world’s oceans, the hard truth has come true: leaving the EU deprives a country of its voice within the common institutions, while forcing it to still abide by rules it no longer contributes to making. At a time of growing Euroscepticism in a number of countries, from Italy to Poland, the Brexit deal shows populists flirting with exit what leaving the EU really means.

 

Federico Fabbrini is Full Professor of European law at the School of Law & Government of DCU and the Principal of the Brexit Institute. He holds a PhD in Law from the European University Institute and previously had academic positions in the Netherlands and Denmark. He recently wrote an In-Depth Analysis, requested by the AFCO Committee of the European Parliament, on The Institutional Consequences of a ‘Hard Brexit’.