EU preparations move forward as UK High Court judgement puts May’s timing into question

High Court judges throw a spanner in the wheel

The UK High Court last week rejected Prime Minister Theresa May’s claim that she has the prerogative to launch divorce proceedings vis-a-vis the EU under art. 50 in the Treaty. The ruling was portrayed in the media as derailing the whole Brexit progress. This is unlikely to happen. The Government immediately made an appeal to the Supreme Court. Whatever the verdict of the Supreme Court (that will be pronounced early next year) Prime Minister Theresa May has so many cards in her hand that it should be fairly easy for her to keep things under control.

Her trump card remains her overwhelming popular support on both sides of the Brexit divide in the UK. If the Supreme Court confirms the judgement, and May gets pushed into a corner, she may well resort to calling for a general election (capitalizing on the current weakness of the opposition). Realistically, this could only happen under three scenarios:

The first would involve the UK Parliament rejecting the application of article 50. Though a clear majority of MEPs belong to the “Remain” camp, it is highly unlikely that they would push their luck by rejecting the outcome of the referendum. Most will be aware that 401 out of the 650 members are elected in districts that voted yes to leaving the EU. The proportion of remainders is even higher in the House of Lords, but voting against “the people” could put the very existence of the Chamber in danger.

Second, the UK Parliament could force the government to unveil detailed plans for Brexit, which would substantially jeopardize their bargaining position with- the EU in future negotiations. However, the outcome of the deliberations is more likely to be a “wish list” (i.e. what they expect from negotiations) than a binding negotiation mandate.

Finally, Theresa May could play the early election card if Parliament imposed a popular referendum on the outcome of the art. 50 negotiations with the EU. Timing-wise this would be very difficult – negotiations are likely to run for the full two years, and a referendum at the end of the art. 50 process would make little sense. At that stage the UK would be faced with the alternative of either accepting what has been agreed or to leave the EU without any agreement – a truly hard Brexit.

None of the scenarios are therefore likely to become reality.

However, the timing could be affected and put in question May’s plan to trigger article 50 before 1 April next year. Delaying tactics could be pursued both in the House of Commons and in particular in the House of Lords. Questions of EU law could also arise and a recourse to the European Court of Justice for an interpretation of art. 50 cannot be ruled out (in particular on whether a decision to trigger art. 50 could be withdrawn). If that happened the start of negotiations with the EU would be substantially delayed.

The election of Donald Trump as the next US President has given encouragement to the Brexit camp in the UK

US elections

The election of Donald Trump the next US President has given encouragement to the Brexit campin the UK. They will look to him to provide a safety net via reinforced UK-US cooperation in the future. Despite Trump’s anti-trade rhetoric, they may also think he is more likely to begin talks on a trade deal with the UK. It would however take many years before the conclusion of a trade deal with the US becomes a reality. Until the UK has settled its future relationship with the EU, it will be difficult for the UK to make any trade agreements with third countries.

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Preparations for Brexit negotiations continue in Brussels and in EU Member States.

The legal scramble taking place in London is all too apparent in Brussels, and is generally seen as another example of the confusion in the UK surrounding the Brexit decision. In any case preparations in Brussels and in Member State capitals are moving ahead and starting to take shape.

European Commission

The future Chief Negotiator Michel Barnier is continuing his tour of Member State capitals, while his team back in Brussels is gradually being built up. Early questions regarding whether Barnier would become the main negotiator across the European institutions have now been largely answered. European Council President Donald Tusk and the Council Secretariat are satisfied enough with the promise that they will have a place in the future negotiation team.

Each of the Commission’s individual departments (Director Generals) have been asked to provide input to Barnier’s task force on the specific issues that will be affected in the art. 50 negotiations. A first batch of reports have landed on Barnier’s table and are currently being examined. The Commission’s Secretariat General, Legal Service, DG Trade, DG Budget and DG FISMA are expected to be heavily involved in this process going forward. Barnier also intends to consult each Commissioner individually, though discussions in the College of Commissioners will only take the form of regular reporting by President Juncker on the general state of play.

European Council

In the Council Secretariat, a special unit under the leadership of Didier Seeuws, former Head of Cabinet of Van Rompuy, has been working since July to map out the various issues. The unit reports directly to the Secretary General Tranholm-Mikkelson, who will continue to be the key person in the secretariat working closely with President Tusk and his Head of Cabinet Piotr Serafin.

Next week they will launch a consultation to gather the views and issues of each Member States. Tranholm and Serafin will have individual meetings with Prime ministers’ “sherpas” and Permanent representatives with the aim of preparing a negotiation mandate for negotiations with the UK.

From December onwards, President Tusk will enter the ray when the topic is discussed at a planned informal meeting of the European Council (without the UK) in the margins of the regular Council meeting on 15-16 December. This process is expected to continue in the early months of the new year. Contrary to earlier plans Tusk does not want to discuss Brexit at the informal Council meeting in Malta on 3 February. The purpose of the exercise is to be ready when the UK pulls the art. 50 trigger. The aim is to prepare a formal negotiation mandate at an extraordinary (ad hoc) European Council a few weeks later.

Member States

Member States are in the process of assembling their own internal Brexit units. In most countries these will be linked to the normal EU policy coordinating mechanism. The Nordic countries and France are the most advanced. Typically for Germany there are three entities involved – the Federal Chancellery, the Ministry of Foreign Affairs and the Ministry of Finance – to a large extent working independently. Most Permanent Representations in Brussels are also reinforcing their staff with personnel to deal with the Brexit file.

Member States are in the process of assembling their own internal Brexit units. In most countries these will be linked to the normal EU policy coordinating mechanism.

European Parliament

The European Parliament has appointed Guy Verhofstad as the anchorman for the Brexit file. There is some uncertainty surrounding which senior Parliamentarians will second him. For the moment, the Chairwomen of the Institutional Committee Danuta Hübner seems to be well placed. It has been decided that all Committees in the Parliament will discuss Brexit issues in areas under their responsibility. The EU Parliament secretariat is presently preparing background papers. This will take some time, so Committee discussions are not likely to get underway until February next year. Though the Parliament will not be directly involved in the negotiation process with the UK, the construction of the Council framework will include consultations with the European Parliament.

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