Thursday, 28 July 2016

EU negotiators for Brexit

Michel Barnier
The President of the European Commission has announced that French politician Michel Barnier will lead the Commission's "taskforce" negotiating with the UK on Brexit - Commission announcement 27th July.   Michel Barnier, as Chief Negotiator, will be ranked at Director-General level and will take up his duties as of 1 October 2016.  The announcement states that - "In line with the principle of 'no negotiation without notification', the task of the Chief Negotiator in the coming months will be to prepare the ground internally for the work ahead. Once the Article 50 process is triggered, he will take the necessary contacts with the UK authorities and all other EU and Member State interlocutors."


The Telegraph 28th July looked at Michel Barnier's background and they note that he is likely to be "a tough negotiator and take a hard line on EU rules."  It seems that he has insisted that Britain will have to accept freedom of movement - "without exception or nuance" if it wants to retain access to the single market and also there will be no negotiation before notification of their farewell letter."

As almost everyone now knows, the exit route is via the Treaty on European Union Article 50.

Article 50(2) - "A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament."

TFEU Art 218(3) - "The Commission, ........, shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union negotiator or the head of the Union's negotiating team."  [My emphasis].

I read this as saying that it is for the European Council, and not the Commission, to authorise negotiations and to nominate the EU's lead negotiator.

The last European Council meeting was on 28th June - see the Conclusions.  The next meeting is in Bratislava in September.  The 28th June conclusions report that the UK Prime Minister informed the Council of the outcome of the referendum.  Nothing is recorded in the conclusions about the opening of negotiations (which would not take place unless and until the UK gives notice under Art 50 TEU).

On 29th June, the European Council (minus UK) held an informal meeting and made various observations about the UK referendum - see Informal meeting at 27 - Brussels, 29 June 2016 - Statement.

In June, it was announced that Mr Didier Seeuws had been appointed to lead a Brexit taskforce of negotiators.  Mr Seeuws will be working for the Secretary-General of the European Council (Mr Jeppe Tranholm-Mikkelsen).  The appointment of Mr Seeuws is considered at Open Europe 27th July where it is noted that:

"Article 50 states that the exit agreement between the EU and a departing member state “shall be concluded on behalf of the Union by the [European] Council, acting by a qualified majority, after obtaining the consent of the European Parliament”, and the Council has already appointed the veteran Belgian diplomat Didier Seeuws to lead its own internal Brexit task-force. Given the high stakes and political sensitivities around Brexit member states will want to maintain close oversight of the process as opposed to leaving it to the Commission (some member states place a large share of the blame for Brexit at the door of the Commission in the first place). In the end, it is the member states that set the negotiating mandate for the EU, meaning Barnier (as well as Juncker and his UK-sceptic Chief of Staff Martin Selmayr) could find their hands tied somewhat." 

See General Secretariat of the Council

A very good, and detailed, analysis of the Treaty provisions relating to leaving the EU is by Dr Philip Syrpis (of Bristol University).  Please see his article What next? An analysis of the EU law questions surrounding Article 50 TEU: Part One and also Part 2.

Also, please watch Chatham House 18th July - where Professor Sionaidh Douglas-Scott considers Brexit.

Notes:

Via Twitter ....


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8 comments:

  1. Andrew Chapman28 July 2016 at 22:15

    The Commission Press Release begins (http://europa.eu/rapid/press-release_IP-16-2652_en.htm):

    'President Juncker appoints Michel Barnier as Chief Negotiator in charge of the Preparation and Conduct of the Negotiations with the United Kingdom under Article 50 of the TEU' In charge of ... conduct.

    Then it says:

    'Today, President Juncker appointed Michel Barnier as Chief Negotiator in charge of leading the Commission Taskforce for the Preparation and Conduct of the Negotiations with the United Kingdom under Article 50 of the TEU.'

    So is he just to lead the Commission Taskforce? But if so, then why call him Chief Negotiator?

    Andrew

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    Replies
    1. ObiterJ29 July 2016 at 08:33

      The Commission Press Release gives the impression that Juncker appointed the Chief Negotiator but Mr Barnier is Chief Negotiator for the Commission. What the European Council will do is anyone's guess. They may choose to leave it all to Mr Barnier and his team.

      On one view, Juncker may have jumped the gun somewhat since the UK has not yet given formal notice under Article 50 of leaving but, of course, Cameron told the European Council the outcome of the referendum.

      Delete
    2. Andrew Chapman30 July 2016 at 21:53

      What would a 'Chief Negotiator for the Commission' be or do, if this is an office distinct from the Union negotiator of 218(3)?

      Andrew

      Delete
  2. Andrew Chapman28 July 2016 at 22:31

    'I read this as saying that it is for the European Council, and not the Commission, to authorise negotiations and to nominate the EU's lead negotiator.' Should this not be the Council (of the EU), rather than the European Council? Andrew

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    Replies
    1. ObiterJ29 July 2016 at 08:29

      It is European Council - i.e. meeting of Heads of State or Government.

      Delete
    2. Andrew Chapman29 July 2016 at 23:34

      Thank you, but could you explain this, please? 218(3): 'shall submit recommendations to the Council, which...' It seems to say that it is the Council, not the European Council (see eg TFEU Articles 235-6; 237-243) What am I missing? Andrew

      Delete
  3. Andrew Chapman31 July 2016 at 18:33

    A reply from Steve Peers, with permission, both to the specific Council/European Council question, and the matter of the Commission's authority to appoint the negotiator:

    'Yes, Article 218 refers to the Council. But Article 50 says the European Council sets overall guidance. The Commission may be assuming that it will be the negotiator or believe that there will be separate talks on trade issues, where it has to be the negotiator (see Article 207 TFEU).'

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  4. Andrew Chapman5 August 2016 at 07:42

    A reply to my enquiry on the subject from the Commission's UK office pointed to the Statement of the informal meeting at 27 - Brussels 29 June, and para. 3, which reads:

    'Once the notification has been received, the European Council will adopt guidelines for the negotiations of an agreement with the UK. In the further process the European Commission and the European Parliament will play their full role in accordance with the Treaties.'

    So the Commission will have a role in the further process. What can 'the Treaties' tell us about what that role will be?

    The reply from the UK office went on:

    'The appointment of Mr Barnier is in anticipation of a role (we do not yet know the extent of that role) that the European Commission will be called upon to fulfil following the decision of the Council of Ministers under Article 218(3).'

    Andrew


    ReplyDelete

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