It was always a long shot to expect the European Council on 18/19 December to settle the UK renegotiations, notwithstanding that advances have been made since early November. Presidents Tusk’s and Juncker’s trusted men and women have engaged in intensive bilateral discussions with the European Council members’ Sherpas. Check-out for three of the four baskets defined by David Cameron in his November letter (competitiveness, economic governance, sovereignty) seems to be within sight.
The “competitiveness chapter” was never a big problem and “economic governance” with the vexed question of preserving the rights of the “non-euro” countries within a eurozone- dominated Union –is moving forward with various devices on the table that would allow one to postpone (but not veto) decisions if the rights of the minority were being threatened. Not everything has yet been solved, however; in particular, the scope of application for such a system has not been defined.
The “sovereignty” basket included an increased role for national parliaments. For a long time, it has been clear that the solution could not – as originally demanded by the UK – be a clear cut “red card” procedure that would force the Commission to withdraw a proposal to which a certain majority of national parliaments were opposed. The trick being devised was to paint the present “yellow” card sufficiently “red”.
An adequate political engagement from institutions should ensure that opposition from national parliaments is taken seriously. It seems that the buck has been handed to the Council: opposition from a sufficiently strong majority of national parliaments would trigger its refusal to deal with any contested Commission proposal.
More importantly, the UK has asked to be exempted from the “ever closer union clause in the treaty”. There was a reasonable hope that clever drafting based on the present numerous UK opt outs and last year’s European Council statement that “the concept of ever closer union allows for different paths of integration for different countries” could do the trick. The biggest risk has been that other member states (read Poland) would ask for the same. That would make life for the UK much more complicated.
Of course, it is well known that the devil is in the details. It is all very well to test ideas bilaterally with delegations but seasoned negotiators know that you risk getting surprises when delegations are presented with a paper for collective discussion. This has not yet happened.
However, this worry pales into insignificance compared with the challenge posed by the fourth basket on “immigration”. And here the UK Prime Minister last week upped the ante. He let it be known that his demand for a four year qualifying period for immigrant workers’ right to in-work benefits in the UK was a “sine qua non” – and even more worryingly, that the solution had to be anchored in a treaty change to be introduced here and now.
Any hope for a soft landing – building inter alia on the adoption of non-discriminatory legislation in the UK – was hereby dispelled. And, with that, any hope for substantial progress at the December European Council on the #Brexit file. Donald Tusk immediately decided that the UK discussions would take place only over dinner and be concentrated on those demands on immigration. The hope seems to be that a confrontation will clear the air – but of course it could also lead to a deadlock.
Was David Cameron hoping that this was the right moment to raise the stakes? Did he expect that the other member states would be anxious to settle the UK problem at any price now, thus allowing them to concentrate time and energy on crucial problems in other areas – not least the refugee crisis? If this was the calculation it was probably (once again) wrong. The refugee crisis could make a solution even more difficult.
Friday night’s dinner discussion might reveal that, while the great majority of member states are anxious to see the UK remain in the EU, this objective is not of the same existential character as overcoming the refugee crisis (where support from the UK until now has been almost non-existent). The situation of the German Chancellor is illustrative. Ms Merkel knows that if she were to side with Mr Cameron in an attack on what the new member states consider a sacrosanct principle of “non-discrimination of workers”, she would lose forever the chance of getting them on board for a genuine common refugee policy. And if she fails on that score this could lead to her own downfall, notwithstanding her success at her latest party conference. In turn frontier controls inside Europe would become permanent and Germany’s historic achievement in breaking down frontiers in Europe reversed. This is why she has constantly kept the line on non-discrimination and invited Mr Cameron to conduct his own negotiations with Poland and others. Which he has done – but without much success.
So in the end what this week’s summit will achieve in dealing with the refugee issue could be of far greater significance for Europe than the dinner confrontation with the British Prime Minister over “in-work benefits”. And, for most participants, rightly so.