We’ve written repeatedly that Brexit boosters and their allies in the UK media are acting as if the EU will accede to their pet wishes, for no logical reason whatsoever. The most common fantasies seem to that the UK has more bargaining leverage and that the EU needs to be nice and/or fair to the UK, when divorces rarely have those as driving considerations.
Yet more confirmation of the depth of this delusion comes in a Politico update on Brexit. Theresa May has announced that she will trigger Article 50 on March 29. Yesterday, the Financial Times described some of the key dates in the timetable. Notice how attenuated the start of the process is:
March-April 2017: EU-27 adopt guidelines
After Mrs May activates Article 50 on March 29 the EU will draw up “guidelines” on handling Britain’s withdrawal. Donald Tusk, president of the European Council of leaders, said this month that the EU could give a first response within 48 hours.
But the formal guidelines will need to be endorsed by a summit of the remaining 27 EU countries. Mr Tusk announced on Tuesday that the event would be held on April 29 — even though some countries are worried about holding a big gathering in-between the two rounds of the French election.
The guidelines — which will in part show how hard a line the EU is taking — are one of the most critical parts of the Brexit process. They are expected to specify priorities for the EU-27, principles that cannot be compromised, and the structure of the talks.
May-June 2017: EU-27 agrees negotiating directives
Once the guidelines have been decided, the EU-27 must formally nominate the European Commission as its lead negotiator and develop confidential directives giving the body a more detailed mandate. The commission will make a proposal and the EU will spend roughly four weeks discussing these terms. The mandate must then be approved by EU-27 ministers.
Negotiations cannot take place until this happens. Diplomats are pencilling in late May or early June for the start of formal face-to-face talks with the UK.
The UK is already, or one might say yet again, getting a warning of what the EU’s stance on “guidelines” or what is often referred to as “the shape of the table,” meaning negotiating parameters and process.
EU officials continued to tell the press, in this case Politico, that the UK will get no breaks in the negotiation process.
For instance, Theresa May has repeatedly acted as if Britain can ignore the EU’s demand for a squaring up of outstanding obligations, which the EU estimates could be as high as €60 billion. The UK’s House of Lords opined that the UK had no legal obligation to settle up, although they also said that if the UK wanted access to the European markets, they might need to think twice. It’s hard to imagine that anyone on the EU side of the table will be moved by a UK legal reading, particularly since the EU has the upper hand.
EU officials yet again nixed that idea, and sent another warning shot, that contrary to the UK’s repeated insistence, it will not negotiate a new trade deal in parallel with exit talks. From Politico:
EU leaders aim to use the legal requirements under Article 50 to force the U.K. to settle the most important “divorce” terms first.
“As in human relations, to get to the terms of a new relationship you have to go through an orderly divorce,” a senior EU official said. “First, it’s the money and the kids, the car and the flat.”
As we indicated from the very Brexit vote, the EU treaties do not allow for the EU to negotiate a trade pact with a member state within the EU. The country must be outside for the process to take place. That means Brexit first, any successor deal second. The Politico story gave more detail on the legal foundation:
Article 50 clearly requires that negotiators “take account of the framework” of a future relationship with the U.K. But EU officials and law experts said that the treaties also effectively block [chief Brexit negotiator Michel] Barnier from negotiating such a relationship — whether that is a free trade deal, some kind of association agreement, or something else.
To do so, Barnier must receive new negotiating directives under Article 218, which governs how accords are reached with “third countries or international organizations.”
“You cannot conclude an agreement on trade with the U.K. on the basis of Article 50 because the aim, the content, of the procedures are different,” said Jean-Claude Piris, who served as director-general of the legal service of Council of the European Union from 1988 to 2010, and worked as a legal adviser during negotiations on the Maastricht, Amsterdam, Nice and Lisbon treaties.
If the negotiators overstep their legal authority, Piris warned, the European Court of Justice could invalidate any deal they reach.
And although the EU has said it will present its official preliminary response by March 31, Politico indicated this is how the Eurocrats expect the negotiations to proceed:
On Tuesday, officials told POLITICO they expected negotiations to proceed in three stages, with the first stage beginning with setting the parameters and location of the talks, before focusing on the divorce terms.
The second stage would focus on terms of a potential transition period beyond Article 50’s two-year deadline if such a transition is needed. And the third phase, they said, would be the negotiations over a future relationship, but would begin only after Barnier requested and received a new set of directives from the European Council — “once we have clarity,” a senior EU official said.
The sources stated that everyone realizes things will go better if the talks are amicable. But with so much distance between the two sides, and the British history of demonizing the EU, it’s hard to see how that will come about.