Most evaluations of no-deal #Brexit scenarios (e.g. the @iealondon ones) seem to include some emergency last-second treaties between the EU and the UK that would be required. Does this work? People forget there are procedures. Read the thread to learn more.
1) you have probably read numerous comments along the lines of “it’s unrealistic to assume a deal after we haven’t reached a withdrawal agreement”. I’m not writing about that.
2) What I am writing about is procedure. Any treaty the UK and the EU conclude has to be concluded following EU law and procedure. This is what I am writing about.
3) First the obvious. The EU can conclude international treaties. If you like nerdy law stuff: Art. 47 TEU gives the EU legal personality. If you are more into practice I’ve linked a vanity search of EU treaties with the US. 147 of them. ec.europa.eu/world/agreemen…
4) So the EU does agreements. In which areas? That’s a question of EU competences. The EU cannot sign agreements in all areas. It needs a competence. (See Art. 216 TFEU)
5) Yeah. But politics will prevail, so we can ignore this, right? No. Where the EU does not have a competence, it remains with Member States. They are not fond of the EU meddling. Member States can, however, allow the EU to do stuff for them. If they don’t, the EU cannot. Period.
6) So OK. We’ve resolved the competence issue. What now? Now comes the procedure. The ordinary treaty procedure is in Art. 218 TFEU.
7) The procedure involves principally three actors: the Council, the Commission and the European Parliament. The Council is where the Member States sit. The Commission is the EU executive. The EP is directly elected.
8) What’s the procedure? Let me simplify: The Commission recommends opening negotiations to the Council, the Council authorises the opening of negotiations, nominates the (Commission) negotiator, adopts negotiating directives. The Commision negotiates.
9) The EP is informed at each step, finally the negotiator recommends signing, the Council authorises signing, for some agreements the Parliament now has to consent, for others it just needs to be consulted. And then the Council adopts a decision concluding the agreement.
10) For details read Art. 218 TFEU, it’s late, maybe I got a detail wrong or oversimplified a bit. But you get the idea.
11) Why so complex? Because the Member States don’t want the Commission running around negotiating without control. So the Council gets to determine stuff and control. Because we want democratic control. So the EP gets involved.
12) So it’s great we don’t have to deal with the EU anymore, right? Because everything is so complicated there, isn’t it? Sorry. But most countries with written constitutions have complex treaty-making rules. Federal countries more so.
13) If you think the EU is horrid, forget about treaties at least with all federal countries with a constitution, i.e.: the US, Brazil, Germany, Mexico, Canada, India etc. etc.
14) So what does this mean for our emergency situation? Can this not be waived? It looks like it takes time.
15) It does take time - and it cannot be waived. Because Member States want the Council control. Because we were afraid of the EU doing things quickly and flexibly.
16) And there’s another problem here: to officially give a mandate to negotiate emergency deals is not something either side really wants. Because it sort of looks like giving up on a Withdrawal Agreement.
17) Ha - late night workers here. @barthothingy rightly points out provisional application can make things quicker, but we still need mandate etc.
