Antonius Voluptarius

The UK might be in a weak position to get itself a favorable deal out of the Brexit negotiations. From the European side things won’t likely become easier with the duration of the negotiations. Inter-institutional relations might come under increased pressure and intra-institutional coordination could come under increased demand for democratic intervention.

One of the key aspects to consider when looking at the Brexit negotiations, which has until now not been very deeply in the purview of the public, is the interinstitutional balance. So far we know that Michel Barnier has been appointed as the chief negotiator within the European Commission, Didier Seeuws to run the UK task force for the Council, and Guy Verhofstadt to offer input for the European Parliament. It is understood that the European Commission holds the technical expertise and will be guiding when it comes to that. The Council UK task force will provide coordination between the member states’ positions, which will impact the European Council Brexit negotiation guidelines, and the role of the Council in the negotiations.

As mentioned publicly recently by Commission President Jean-Claude Juncker for example, it is considered very likely that the Brexit negotiations will take longer than 2 years. The implications of this fact have however not been worked out publicly to any major degree so far. What can reasonably be postulated is that, the longer the negotiations will take, the more room there will be for individual member states to bring in their own expertise on the impact of the Brexit arrangements on their constituencies and influence the autonomy of the European Commission to negotiate with relative autonomously based on its technical expertise. This will thus create the risk of indefinite negotiations with associated economic and political costs of uncertainty, if not haphazard agreements to reach certain deadlines.

In addition, the increased awareness by the EU27 of a potential reality outside the EU or having a tailor-made arrangement could trigger a shift of the power balance from supporting the legitimacy to take decisions through the technocratic channels of the European Commission, towards a Council heavy politicized process that would risk to make cherry-picking the norm rather than the exception. The Community method might thus well be at stake. It is therefore rightful indeed, for the Commission to come up with a new vision for the EU, so that it will be able to show to the member states and to the European citizens what the added value is of the very particular model of governance the European Union has.

On another plane, there is also the crucial relation between the Council, the member states and the European Parliament. As Guy Verhofstadt, the leader of the ALDE party, has already pointed out, that Euro parliamentarians might act in a rather nervous manner around Brexit as they will be approaching election time. It will thus also be hard to predict how easy or difficult it will be to reach the simple majority needed to reach the EU withdrawal agreement with the UK. If local constituencies were to become more involved, and are seen to have varying interests this might lead to further difficulty for the European Parliament to find a convincing majority for or against the EU-UK withdrawal agreement. A negotiating mandate will thus be particularly hard to define for Mr Verhofstadt, and so the main weight seems to ultimately remain with the European Council and the Council. This has important implications for the level of democracy of the agreement and the future of Europe.

One might argue that the heads of state which are ultimately democratically elected and controlled to various degrees by Parliaments are as a consequence also acting in a democratic manner when they act at the European level. The same counts for the ministers, which are represented in the Council. At the same time the work of the European Council is guided by a President (Donald Tusk) which is not directly elected, and neither is the staff of the Secretariat of the Council that supports the President’s work. This is still a simplification, but particularly in the context of Brexit it raises the important question of the involvement of the European citizens in this process.

If an important part of the mediating work between the European Council and the Council of Ministers is conducted by unelected officials and in a manner which is not very transparent at all to the public, one might question the democratic legitimacy of the outcome. Considering also that the future of Europe might well be less determined by summits and whitepapers, nor even so much by the paths to solutions on current policy problems of significance (Eurozone, social inequality, concerted external policy), and more by the process of reaching an arrangement between the EU and the UK (and potential other member states?!), it would only appear natural to think of ways there to increase the democratic legitimacy of this process.

Based on the understanding that the General Affairs Council deals with cross-cutting policy issues, including enlargement, institutional setup and the multi-annual framework, it is very likely this Council configuration will serve as the framework in which the EU27 will come to arrive at their part of the UK withdrawal agreement. Given that the decision makers in this body are generally ministers of foreign affairs, as well as the fact that these are, exceptions of election campaigns during the upcoming 2 year period there, not chosen by the people with an eye on the future of the EU-UK relationship, it might be pertinent for the European Council to look for an alternative configuration.

Although highly unconventional to consider, the European Council might wish to explore the option of utilizing article 15.1 of the Treaty on European Union to create a new Council formation that would occupy itself exclusively with the future arrangements between the EU and the UK. Member States could then appoint special ministers for this particular matter, chosen in a way as close as possible to the European citizens, i.e. if not through the influence of elections, then by special appointment/with strong influence of national Parliaments, depending on respective national constitutional arrangements.

The above would not only create a closer link between the Council and the European citizens, but also provide an impetus for European citizens to become engaged with the question on the future of Europe. If the British referendum was a democratic initiative, then so give a voice to the rest of the Europeans on what they believe to be a feasible new relationship with the UK.



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