Brexit Institute News

Could the European Parliament Kill Off the Brexit Deal?

Francis Jacobs (formerly European Parliament staff)

The role of the European Parliament  in the adoption of the EU-UK Trade and Cooperation Agreement

Agreement on a Trade and Cooperation Agreement (TCA) between the EU and the UK may have been reached by the two negotiating teams on 24 December 2020, but it will only be final if and when it is approved by the European Parliament (EP) and formally ratified.

Article 218.5 of the Treaty on the Functioning of the European Union (TFEU) states that “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.” but Article 218.6 TFEU makes it clear that the Council may only adopt the final decision concluding the agreement “after obtaining the consent” of Parliament.  The EP cannot amend it but can say yes or no to the agreement as a whole, and thus has a potential veto and considerable power of leverage.

During the difficult last phase of the EU-UK negotiations in the late autumn of 2020, the European Parliament had called for any agreement to be adopted in sufficient time for it to be able to give its consent before the end of year deadline. The date for agreement between the EU and the UK was constantly slipping and when it was finally achieved it was too late for the EP to be able to give its consent at that time.

The pragmatic solution that was agreed between the EU and the UK was that the TCA would be given provisional application pursuant to Article 215.5 TEU and that the European Parliament would be given until the end of February (later extended to April 2021) to give its consent. The Council took this decision on 29 December 2020.

By accepting this before it had pronounced on the TCA, the EP had already made a concession. Commission President Von der Leyen’s Political Guidelines had made a commitment that provisional application of trade agreements would take place only once the EP had given its consent. Because of the chaos that a temporary no deal would entail in this very particular case, the EP agreed to accept the provisional agreement of the TCA before giving its consent. It made it clear that this was granted on an exceptional basis and should not be considered as a precedent for the future.

Procedures on handling the TCA issue within the European Parliament

The date that was decided by the EP for it to give its decision was during its part session in Brussels on 24 March. The European Parliament thus had under three months to consider the extremely long and technical TCA as well as the accompanying EU-UK agreement concerning security procedures for exchanging and protecting classified information.  This short period was, however, longer than the cursory two days that the UK government allowed the British Parliament for this.

In the first place the EP’s Foreign Affairs and Trade Committees were appointed as the EP lead committees, with two co-rapporteurs, the Dutch Socialist Kati Piri for the former committee and Luxembourg EPP member Cristophe Hansen for the latter. A relatively new feature of the EP rules was used, namely a Joint Committee procedure. All other EP committees were offered the chance of giving their views on the sections of the TCA within their area of responsibility, and most of them decided to do so.

The co-rapporteurs are responsible for producing a Draft Recommendation to the EP, containing a short procedural draft European Parliament legislative resolution approving or rejecting the TCA.

In addition, day-to-day monitoring of EP-UK discussions on implementation of the TCA (and of the earlier Withdrawal Agreement and Northern Ireland Protocol) continues to be handled by the EP’s UK Coordination Group which is led by German EPP member David McAllister and which had taken over from the EP’s previous Brexit Steering Group after the UK left the EU in January 2020. The Group also includes Bernd Lange, German Socialist chair of the International Trade Committee, the two EP co-rapporteurs, Nathalie Loiseau, the French Renew Europe chair of the Security and Defence Subcommittee and other representatives of the political groups.

Although the EP cannot amend the TCA it can, however, seek to provide more specific views on its contents in the form of an accompanying non-binding motion for a resolution, containing the views not just of the lead and opinion-giving committees but of all interested parties within the EP. A draft EP resolution to this effect is already being prepared by the political groups in the UK Coordination Group and the EP Conference of Presidents (the leaders of the political groups).

The EP decision to postpone its final vote on the TCA

In response to the UK’s unilateral move to extend grace periods under the Northern Ireland Protocol (a move which the Commission said is illegal and against which it has launched a legal challenge), the EP decided not to handle the matter on 24 March but to postpone it without a new date for its consideration being fixed. A week later the EP’s decision to postpone was again confirmed by its leadership.

Implications of the EP decision to postpone

What are the implications of this decision? Is there a mandatory new deadline? What are the courses of action open to the European Parliament and what might it seek to achieve?

In practice the current deadline of 30 April for the EP to give its decision has not changed. The EP has a scheduled plenary session in Strasbourg from 26-29 April and could vote on the TCA in the course of that week, preferably early on so as to give the Council time to formally adopt its decision.

The EP thus appears to have three main options at present, either to adopt or reject the TCA within the present time framework, or else to further postpone its vote until after the current deadline on 30 April.

The first option is to give its assent to the TCA, probably at its part session at the end of April. Most MEPs appear to accept that the TCA is far better than the alternative of no deal, has a number of useful features, and provides a framework for the possible future development of EU-UK relations. Its formal legislative resolution would be accompanied by a resolution, pointing out the reasons for giving its assent, and analysing the strengths as well as many weaknesses of the TCA, such as the lose-lose situation embodied in the UK’s non-participation in the Erasmus Programme, and how the agreement could be built on in the future.  It would also certainly insist on the need for full and proper respect and implementation of the Withdrawal Agreement and for the UK to fulfil all of its legal obligations.

The second option is to reject the TCA. The European Parliament has, of course, rejected international agreements in the past. In February 2010 it rejected the Swift Agreement between the EU and the US,  and a new agreement had to be negotiated. In July 2012 the EP also rejected the Anti-Counterfeiting Trade Agreement (ACTA), and, in this case, the agreement was not revived.

In practice, however, it would be much more politically (and economically) problematic to reject the TCA. The re-introduction of tariffs, the consequences at EU-UK borders and, in particular, on the island of Ireland, would lead to an immediate crisis. EU-UK relations are already very bad, but would become much worse.

The third option would be to request (or force) a further postponement beyond the current deadline of 30 April. Again there are EP precedents for such a postponement.  In 1988 the EP refused to give its assent to three Protocols in the EEC Israel Association Agreement, unhappy with conditions imposed on Palestinian exporters wishing to export from the occupied territories to Europe.  It was referred back to the EP by the Council, but the EP postponed giving its consideration to the Protocols for several months while the Commission negotiated with Israel to achieve concessions on Palestinian exports.  The EP then approved the Protocols.

Such postponement would, however, be more difficult in this case. Agreement on such a postponement would be required from the EP-UK Partnership Council led by Maros Sefcovic for the EU and by Lord Frost (succeeding Michael Gove) for the UK. The length of any postponement, whether for one month or for a longer period, would be determined politically and, in theory, could be renewed on more than one occasion.

The European Parliament is in an interesting position on the TCA. It has closely followed but not been directly involved in the negotiations on the TCA. It can, in theory, veto the agreement but this is unlikely. A threat to reject the TCA or else to postpone the EP vote on it does give the EP some leverage power, but once it has voted it will lose such power.

Whatever its final decision, the EP will certainly be seeking to give a much more detailed indication of its views on the specific contents of the TCA, as these will provide benchmarks for the future development of EP-UK relations.

In the second place it will want to register its strong protest at the recent unilateral actions of the UK government which undermine confidence not only in the proper implementation of the Withdrawal Agreement and Northern Ireland Protocol but also of the TCA as a whole.

Finally the EP will also be seeking to reinforce its own institutional position as regards implementation of the TCA and the Withdrawal Agreement and indeed democratic accountability as a whole, for example on the decisions of  the Partnership Council  and of the other joint bodies that could potentially modify the TCA. The EP will want to be more fully informed of what is going on, seek observers on the EU delegation to the Partnership Council, and be fully consulted on modifications of the TCA, on additional measures (such as on regulatory cooperation and the granting of equivalences in the field of financial services) or when there are breaches of the agreement.

To make real progress on some of the above, the European Commission has been requested to make a certain number of undertakings to the Parliament, ahead of the Parliament’s consent vote, with this perhaps being subsequently being backed up by a formal Inter-institutional Agreement between the Commission and the EP.

The next few weeks will certainly be interesting!

 

Francis Brendan Jacobs worked for the European Parliament from just before direct elections in 1979 until the end of April 2016. Much of his career was as a staff member on various European Parliament committees and from 2006-2016 he was the head of the European Parliament’s Information Office in Ireland. He is co-author (with Richard Corbett and Darren Neville) of the classic textbook, The European Parliament, now in its 9th edition. He is currently based in Ireland, giving lectures on the European Union at UCD, Maynooth and other Irish Universities, as well as in a number of other countries. His latest work, The EU after Brexit: Institutional and Policy Implications, was published in 2018.

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