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What To Expect (From the EU Council) When You Are Expecting A Brexit Deal

Westminster. Featured image credit: UK Parliament via a BY-NC-ND licence.

 

What To Expect (From the EU Council) When You Are Expecting A Brexit Deal

 

 

Nikos Skoutaris (University of East Anglia)

The ardent proponents of Brexit have long argued that a Brexit deal would only be done at the very last minute. According to that mythology, during the final European Council, a panic-driven EU would concede to the demands of a robust and iron-willed British Government that would be prepared and determined to choose no deal over a bad deal. In such last chance saloon, the German and French leaders following the demands of their carmakers and champagne producers would exert pressure on Member States such as Ireland that might have objections over the final deal.

Alas, this has not exactly been the modus operandi of the Brexit negotiations. The Member States have long agreed on what the basic parameters of the Withdrawal Agreement should be: protection of the rights of EU citizens living in the UK and UK citizens’ living in the EU; the financial settlement; and ensuring that the Irish border remains frictionless in order the Good Friday Agreement to be protected. The latter has become the Schleswig-Holstein Question of our times. Those guidelines were given to the EU Commission negotiator Michel Barnier and his team and it was up to them together with their British counterparts to find the legally operable solutions to this conundrum after consulting with the Member States and the other EU institutions.

This means that unlike what often happens during negotiations for EU treaty amendments, it should not be expected that the details of the Brexit deal (if there will be one) will be ironed by the 28 Heads of States and/or Governments when they meet at the end of the week. In fact, Barnier had made clear that an agreement had to be reached on a technical level by the morning of Wednesday 16th in order to be presented first to the ambassadors and then to the EU leaders the following day. From the Commission’s point of view, such a sequence of events prevents the EU leaders from being faced with the unenviable and almost impossible task of sorting out the granular legal details that the Irish border arrangement needs.

So what to expect from this EU Council?

If the EU and the UK Government manage to find this elusive and ever narrowing landing zone and reach an agreement, the EU Council could then rubberstamp it hoping that there is a majority in Westminster which will also approve it. At the time I was writing this post, such a majority seemed possible but by no means certain.

If an agreement is not reached, then the position of the EU Council would very much depend on the state of the negotiations. In the event of a complete collapse, the EU leaders will review the level of preparedness for the looming no deal. In case the negotiations do need more time, the Heads of States and/or Governments would express their support to Barnier and his team and note their willingness to have another summit before Brexit takes place. What they would not do is to take an official position with regard to a possible extension before the UK Government officially asks for one. Instead, they will be waiting to see how the UK Government and Parliament will position themselves in light of the Benn Act, which legally compels the UK executive to seek for an extension in order to prevent a no deal.

So, even two weeks before the UK is supposed to withdraw from the EU, the sound of the can kicked down the road could still be the soundtrack of those eventful days.

The views expressed in this article reflect the position of the author and not necessarily the one of the Brexit Institute Blog

Nikos Skoutaris is an Associate Professor in EU law, University of East Anglia. His website focuses on Secessions, Constitutions and EU law. Follow him on twitter.

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