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Deficiencies and Omissions in the Brexit Agreement the European Union's Shared Responsibility at the Failure of the UK Withdrawal Negotiations 1

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Deficiencies and Omissions in the Brexit Agreement the European Union's Shared Responsibility at the Failure of the UK Withdrawal Negotiations 1 7 / 2019 & Sabine Riedel Deficiencies and Omissions in the Brexit Agreement The European Union's Shared Responsibility at the Failure of the UK Withdrawal Negotiations 1 With the election of Boris Johnson as Chairman of the British Conservatives and his appointment as Prime Minister of the United Kingdom, a narrative has emerged in the German media that discred- its his person and thus severely strains future relations. They call him a "swindler", "monster" and "political seducer" who came to power through anti-European positions and populism. The message behind it tells us that he has nothing serious to offer the European Union, so further negotiations on the Brexit Treaty would be out of the question. The disreputation of political personalities, however, is a rhetorical stylistic device and not an objective analysis of the interests at stake in the back- ground. Could it be that not only British, but also "pro-European" forces benefit from the Brexit? Anyone who pursues this question will quickly find what they are looking for. Their motives and goals should be disclosed and discussed, because only such transparency creates room for a with- drawal agreement that satisfies both sides. Those who oppose this expose the EU member states to conflicts that cannot only escalate violently in Northern Ireland. Europe has had more than enough of this in its recent history. A "hard Brexit" is today understood as a "No-Deal dure. Since then, this scenario has been called Brexit", i.e. an EU withdrawal of the United King- "hard Brexit" (SZ, 23.8.2018). This new interpre- dom (UK) without a treaty. This was not the case tation gives the impression that this is above all a at the beginning of the negotiations. When the strategy of the British negotiating side. then head of government Theresa May applied for her country's withdrawal from the European The British have visions and concepts... Union (EU) on 29 March 2017, she made it clear Since Boris Johnson's appointment as the new that her country would leave both the EU Single prime minister, the fictional history of British re- Market and the EU Customs Union. In doing so, fusal has continued. It is said that he has ap- she wanted to regain complete control over na- pointed hardliners to his cabinet and is now work- tional borders and laws. This scenario was then ing "at full speed" on a hard Brexit. It is only occa- called "hard Brexit", while "soft Brexit" means that sionally mentioned that it is actually Brussels that the UK only partially terminates the EU treaty and has moved into a position of refusal (Die Welt, remains in the EU customs union, for example. 28.7.2019). While Theresa May long sought a So it was clear from the beginning that London majority for the negotiated withdrawal agreement, wants to cancel EU membership and conclude a Johnson now makes a U-turn. His government re- new free trade agreement instead. To this day, jects an EU treaty that leaves mutual relations un- EU negotiator Michel Barnier has rejected this po- regulated. This makes him a hardliner from the sition as a "cherry picking". He only agreed to a EU's point of view. withdrawal treaty and shifted the reshaping of mu- May and her Brexit Minister Dominic Raab rep- tual relations into an uncertain future. Since mid- resented exactly this position until shortly before 2018 there has been a threat of an unregulated the conclusion of the withdrawal agreement withdrawal if London does not accept this proce- (14.11.2018). They insisted on Article 50 (2) of 1 This is a translation [S.R.]: Konzeptionelle Defizite des Brexit-Vertrags. Die Mitverantwortung der Europäischen Union am Scheitern der Verhandlungen, Forschungshorizonte Politik & Kultur, FPK, Vol. 3, No. 6 (2019 Aug 12), 8 Seiten. 2019 Aug 18 Prof. Dr. Sabine Riedel, associated Professor of Political Science, University of Magdeburg, Senior Researcher, Stiftung Wissenschaft und Politik, [email protected] Sabine Riedel: Deficiencies and Omissions in the Brexit Agreement the EU Treaty, according to which the agreement sign of mistrust in the negotiations. The Commis- must define the EU withdrawal together with the sion is devoting very significant resources and "framework for future relations" (cf. Fig. 1). Michel committing great efforts to achieve an agreement. Barnier, on the other hand, interpreted this article This remains our goal. However, the outcome of differently and transferred all controversial ques- negotiations cannot be predicted." (Preparing for tions from the first draft agreement of 19 March the withdrawal, 19.7.2018, 2.b) As a result, Brexit 2018 to another treaty to be concluded later. In Minister Dominic Raab was forced to develop order to force London into this two-stage proce- contingency plans, too, so that British economy dure, it has since threatened to use an unregu- could also prepare itself in good time for an un- lated brexit (cf. Fig. 4 and 5). regulated EU withdrawal (Speech on no deal Because British Prime Minister May finally planning, 23.8.2018, cf. Fig. 4). gave in to Brussels' pressure, her Brexit Minister Raab was appointed new foreign minister in Dominic Raab resigned. In his opinion, “the UK the cabinet reshuffle under Boris Johnson, while should be ready to risk a no-deal Brexit in the face his successor as Brexit minister, Stephen Bar- of EU ‘blackmail’". (BBC, 15.11.2018) In his few clay, remains in office. With this personnel deci- months in office, he had to learn that the EU re- sion, the new prime minister is thus focusing on jected all constructive proposals. These include continuity and not on "radical overhaul" (BBC, the Chequers Agreement of 17.7.2018, with 24.7.2019). Changes concern not so much the which May wanted above all to resolve the dis- existing concept as their strategic approach. pute over the Irish-British border controls. She en- From now on London will emphatically demand a visioned a new free trade agreement with com- new trade agreement and for the first time use a mon standards for trade goods and EU rules on "No-Deal Brexit" as leverage. EU negotiator consumer and environmental protection. May and Michel Barnier recently confirmed that May had Raab assured that their proposal "respects the abstained from such a threat. “He also insisted constitutional and economic integrity of the UK Mrs May and her ministers ‘never’ told him during and the autonomy of the EU" (cf. Future relation- Brexit talks she might opt for no deal.” (BBC, ship, 17.7.2018, item 5.1; Riedel 2019, p. 7f.). 18.7.2019). The EU also rejected this British proposal and ... And the EU Commission defends its instead tightened the thumbscrews. Only two days after the Chequers Agreement was pre- two-stage Brexit model sented, the Commission reacted with emergency Against the advice of her Brexit Minister, Theresa plans for a "No-Deal Brexit". It says: “Contingency May was prepared to make further compromises planning for the worst possible outcome is not a with the EU. In mid-November 2018, she had ac- cepted the required two-stage Brexit model (cf. Fig. 4). But the EU Commission let May down at Figure 1: the decisive moment when she asked for addi- tional guarantees. Nevertheless, May was sure that Brussels would offer a new free trade agree- Article 50 2. of the EU Treaty ment after the EU withdrawal. But the majority of A Member State which decides to withdraw shall the House of Commons remained sceptical, notify the European Council of its intention. In the above all because this promise from Brussels did light of the guidelines provided by the European not come in the expected form (14.1.2019). They Council, the Union shall negotiate and conclude only received a vague Political Declaration an agreement with that State, setting out the ar- (19.2.2019). rangements for its withdrawal, taking account of Furthermore, in his legal advice of 5.12.2018, the framework for its future relationship with the the British Attorney General Geoffrey Cox con- Union. That agreement shall be negotiated in ac- firmed deficits in the withdrawal agreement. The cordance with Article 218(3) of the Treaty on the Functi oning of the European Union. It shall be sticking point is the Backstop rule: accordingly, concluded on behalf of the Union by the Council, the United Kingdom (UK) is leaving the EU Single acting by a qualified majority, after obtaining the Market and the EU Customs Union without North- consent of the European Parliament. ern Ireland. This autonomous region within the UK is "catched" by the EU (= backstop) so that it Source : https://eur-lex.europa.eu/legal-con- remains under the control of the EU Commission tent/EN/TXT/?uri=CELEX%3A12012M050 and the ECJ. As a result, customs controls are [13.8.2019] ; Blue highlighting: S.R. avoided at the border between Northern Ireland and the Republic of Ireland. Instead, controls take 2 FORSCHUNGSHORIZONTE POLITIK & KULTUR 7 / 2019 fgfgfgffgfgf Sabine Riedel: Deficiencies and Omissions in the Brexit Agreement place between Northern Ireland, which is still a Figure 2: member of the EU Single Market, and Great Brit- ain, and thus within the UK (see Fig. 3). After all, Geoffrey Cox: Legal Effect of the this transition phase can only be ended by a new Protoc ol on Ireland/Northern Ireland treaty between the EU and the UK. According to „7. Pursuant to Article 6.1. the UK as a whole (i.e. GB Cox, Northern Ireland's special status could pre- [Great Britain] and NI [Northern Ireland]) will form a single customs territory with the EU.
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