The EU's Response to Brexit: United and Effective 303126262X, 9783031262623

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PALGRAVE STUDIES IN EUROPEAN UNION POLITICS SERIES EDITORS: MICHELLE EGAN · WILLIAM E. PATERSON · KOLJA RAUBE

The EU’s Response to Brexit United and Effective

Brigid Laffan · Stefan Telle

Palgrave Studies in European Union Politics

Series Editors Michelle Egan, American University, Washington, USA William E. Paterson, Aston University, Birmingham, UK Kolja Raube, KU Leuven, Leuven, Belgium

Following on the sustained success of the acclaimed European Union Series, which essentially publishes research-based textbooks, Palgrave Studies in European Union Politics publishes cutting edge research-driven monographs. The remit of the series is broadly defined, both in terms of subject and academic discipline. All topics of significance concerning the nature and operation of the European Union potentially fall within the scope of the series. The series is multidisciplinary to reflect the growing importance of the EU as a political, economic and social phenomenon. To submit a proposal, please contact Senior Editor Ambra Finotello ambra. [email protected]. This series is indexed by Scopus. Editorial Board: Laurie Buonanno (SUNY Buffalo State, USA) Kenneth Dyson (Cardiff University, UK) Brigid Laffan (European University Institute, Italy) Claudio Radaelli (University College London, UK) Mark Rhinard (Stockholm University, Sweden) Ariadna Ripoll Servent (University of Bamberg, Germany) Frank Schimmelfennig (ETH Zurich, Switzerland) Claudia Sternberg (University College London, UK) Nathalie Tocci (Istituto Affari Internazionali, Italy)

Brigid Laffan · Stefan Telle

The EU’s Response to Brexit United and Effective

Brigid Laffan Robert Schuman Centre for Advanced Studies European University Institute Florence, Italy

Stefan Telle Robert Schuman Centre for Advanced Studies European University Institute Florence, Italy

ISSN 2662-5873 ISSN 2662-5881 (electronic) Palgrave Studies in European Union Politics ISBN 978-3-031-26262-3 ISBN 978-3-031-26263-0 (eBook) https://doi.org/10.1007/978-3-031-26263-0 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover illustration: Magic Lens/Shutterstock This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Brigid dedicates her contribution to this joint effort to golden haired Aida. Stefan dedicates his contribution to Daniela.

Foreword

Brexit is and continues to be a historic tragedy for all who believe in the political, economic and social benefits of European integration. The unprecedented departure of a Member State from the EU is at the same time a watershed moment in European history which has deeply transformed primarily the United Kingdom, but also the European Union, now often called EU27. How far this transformation can and will eventually go is still subject to some debate, also in the light of more recent crises and challenges which the EU is facing. With this very well-researched book, Brigid Laffan and Stefan Telle make a highly valuable and very persuasive contribution to this debate and show that in response to Brexit, the EU re-invented itself in many respects. Far from being just a recount of the technicalities of the Brexit negotiations, Brigid Laffan and Stefan Telle seek to place the techniques, tactics and procedures of these negotiations into the broader context of EU political strategy and framing. They make very clear that Brexit was not just another negotiation for the EU and not only about economics, but rather “a constitutional and even existential moment where the EU’s heart and soul are at stake”, as European Commission President JeanClaude Juncker often said. Today, it may be almost forgotten, but in the wake of the Brexit referendum on 23 June 2016, the danger of internal divisions or even of an unravelling of the EU was very real. It took experienced political leaders with clarity of vision, political experience and a

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lot of courage to keep the Union not only together, but to strengthen its unity and its attractiveness for the future. I recall one particularly relevant meeting for the EU’s strategy on Brexit in mid-July 2016 that confirms the overall assessment of Brigid Laffan and Stefan Telle. This meeting took place not in Europe, but on the other side of the planet, during the Asia-Europe summit in Ulaanbaatar, Mongolia in summer 2016. It is one of the huge advantages of the very active role played by the EU in the modern rules-based international system that its political leaders are meeting not only every six to eight weeks at formal or informal meetings of the European Council, but in addition at many international summits with our transatlantic allies, our partners in Latin America, in Africa and in Asia. The Asia-Europe meeting in Ulaanbaatar from 15–16 July 2016 was one where next to the political leaders of 20 Asian countries, practically all EU Heads of State or Government, the Presidents of the European Commission and of the European Council, the EU’s High Representative and many foreign ministers were present. It was thus also a first occasion for informal meetings among EU leaders at the margins of the summit to discuss, beyond the immediate responses already given to the Brexit referendum on 24 and 29 June 2016, the EU’s medium-to-long-term strategy. It was in a strongly air-conditioned hotel room in Ulaanbaatar, over many bottles of coca cola, that European Council President Donald Tusk, German Chancellor Angela Merkel, Dutch Prime Minister Mark Rutte (his country held the rotating presidency of the Council in the first half of 2016), Slovak Prime Minister Robert Fico (his country held the rotating presidency of the Council in the second half of 2016) and European Commission President Jean-Claude Juncker (my boss at the time) brainstormed about what the EU should do next as regards Brexit. At that moment, it was already clear that it would take quite some time until the UK would formally notify its request under Article 50 of the Treaty on European Union to leave the EU (in the end, this would only happen in March 2017). It was clear politically that the EU could not just wait and leave the initiative to the UK government on what do with Brexit. After years of negotiations with Britain on opt-outs, special solutions, carve-outs and even a New Settlement for the UK agreed by all EU leaders in February 2016, the EU could no longer just respond to British requests as in the past, but now had to get itself into the driving seat of events.

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After some discussion, consensus emerged on one important point: Brexit must not become the dominant narrative of the EU for the coming years. “Brexit is a negative story, and now with the referendum result, we need to put this behind us.” “The EU is much more than Brexit.” “Brexit must not pollute the important work we, as EU, will have to do in the years to come on trade, climate change, digitalization, migration, security etc.”. These were some of the sentences that I heard first from leaders in Ulaanbaatar, and that later should be repeated time and again. The result of the Ulaanbaatar meeting were two important taskings for the President of the European Commission: First of all, Juncker was asked to develop over the summer, with his closest advisers and in consultation with all capitals, a plan for a forward-looking, positive reform agenda for the EU that he should announce in this State of the Union speech, scheduled to be delivered before the European Parliament on 14 September 2016. Two days after the speech, the Slovak Presidency would convene the leaders of the EU27 for their first informal summit without the UK in Bratislava, the capital of Slovakia, where they should endorse Juncker’s positive agenda, thereby demonstrating the unity of the EU27 behind a common agenda for the future. Secondly, Juncker was asked to create clearly separate structures in the Commission to insulate the preparation and conduct of the Brexit negotiations from the Commission’s work on the EU’s positive agenda. Capitals would do the same in the offices of the Presidents and Prime Ministers of the Member States. This would help ensuring that the work of EU leaders could concentrate chiefly on delivering the positive agenda that would be decisive for the future attractiveness of the Union. All leaders would keep of course a close eye on the Brexit developments but would not allow this subject to distract them from, pollute or dominate their common positive EU agenda. Another issue was more controversially discussed during the meeting in Mongolia. Some argued that discretely, another attempt should still be made to convince Britain to remain in the EU. Others were strictly against, as the New Settlement of February 2016 had already been more than the EU should have reasonably given to the UK, and this with zero effect for lack of political leadership in the UK. It was President Juncker who solved this disagreement with a humorist comparison: “Let me tell you something from my personal experience”, he said. “When a girl leaves you, there are two ways to get her back. You can go down on your knees. Or you can look into another direction and show that you can very well live without her. In my experience, the second way

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has always worked better.” With some laughter, it was agreed that the clear focus should for now be on the positive EU agenda to be developed by the Commission President, while of course one should check from time to time whether the British authorities were really determined to go through with Brexit and all the harm that it would do to Britain’s reputation and economy. Notably Presidents Tusk and Juncker underlined the EU’s historic responsibility in this respect. The referendum result had of course to be respected. But the result had been very close, with 52 to 48 per cent. If Britain wanted to leave the EU, nobody could or should stop them. But if this course of action should ever be questioned within the UK, the EU should not ignore this. “We will not kick them out if they should ever consider reversing their unfortunate decision during the process”, this was the clear common understanding at the Ulaanbaatar meeting. It is remarkable that all the key points agreed in Mongolia remained an integral part of the EU’s political strategy on and framing of Brexit until the eventual conclusion of the Withdrawal Agreement in December 2020, prepared by the Commission’s dedicated and very hard-working Article 50 Task Force. With a lot of efforts, the EU27 delivered during this time strongly on the positive agenda outlined in President Juncker’s wellprepared State of the Union speech (in which Brexit deliberately was not mentioned once)1 that became later known as the Bratislava agenda. The successful conclusion of a very important trade agreement with Japan, the ratification of the Paris Agreement on climate change, a project to deliver free wireless internet to local authorities across Europe, the historic launch of the Permanent Structured Cooperation in defense matters, the transformation of the agency Frontex into a more powerful European Border and Coast Guard with a staff of up to 10.000 in European uniforms, the creation of a European Solidarity Corps for young volunteers—all this was done to make the EU more attractive to its citizens. And it was done in very good and often remarkably swift agreement between the European Commission, the European Parliament and all 27 Member States.

1 Jean-Claude Juncker, State of the Union speech, 14 September 2016, available

at: https://commission.europa.eu/strategy-and-policy/strategic-planning/state-union-add resses/state-union-speeches/state-union-2016_en

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The unity of the EU27 and of the EU institutions during the Brexit negotiations is often praised. It was however far from self-evident, but the result of a lot of hard work and discipline. The impressive unity did not mean that there were not from time to time different opinions or diverging interests on the EU side. There were indeed moments when an important leader questioned whether the “Irish question” really needed to be solved in phase one of the negotiations. There were moments when not all saw that a satisfactory solution of the “Gibraltar question” was of crucial importance not only to Spain, but to the EU27. During such moments, it was certainly very helpful that President Juncker, as ultimate political leader of the Brexit negotiations, regularly intervened and found sound solutions, on the basis of his vast experience in European politics, his unique political network and the premise that always had shaped his political approach, and which he used to formulate as follows: “There are no big and small countries in the EU, no more or less important capitals. This is the strength of the EU, that all have a say, that all are heard, and all are equally respected, whether they call from Malta or from Berlin. This is particularly the case when it comes to Brexit. They always argue with themselves and tear each other apart in London. We should always come to respectful agreement amongst ourselves in Brussels as we are stronger together.” Twice during the Brexit negotiations, the issue of a possible stop to or reversal of Brexit came to the table of the European Commission President. The first time was during the G7 meeting in Canada on 8/9 June 2018, when US President Donald Trump shocked world leaders gathered in La Malbaie with his attacks on the rules-based international system, his cancellation of the prepared G7 statement and his open friendliness to Russia and President Putin. When Trump departed early from the G7 meeting, the remaining leaders, still shaken by the events and the harsh tone used by the US President, sat together on the terrasse of the conference hotel. UK Prime Minister Theresa May and European Commission President Jean-Claude Juncker looked each other in the eyes and, without many words, understood that notably in the current geopolitical context, Brexit seemed like a truly foolish idea. They knew: While Russia poisoned the Skripal family on UK territory in Salisbury with the Novichok nerve agent and while the US President openly called into question the global peace and security order, the EU and the UK would be well advised to

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stand together, and not separately. As a result, I was tasked by President Juncker to explore, in a working lunch later this month in Brussels with David Liddington, then Deputy to Prime Minister May, whether we could not postpone Brexit for five years and in the meantime work on a new “European Security Council” that included the UK and reinforced the European response to the increasing threat from Russia.2 From today’s perspective even more than at the time, it was certainly worth trying. Regrettably, Prime Minister May’s government was already too much weakened at home at the time to be able to change course. The second time that the issue of a reversal of Brexit came to the table of the Commission President was at the end of December 2018. In spite of many compromises and openings on the EU’s side, Prime Minister May had been unable to win over a majority in the House of Commons to get the Withdrawal Agreement, negotiated with the EU, ratified. On Christmas eve, Prime Minister May called President Juncker—with whom she was on very good, mutually respectful terms—and asked him to help her to get an extension of the Article 50 deadline, which at the time ended on 29 March 2019. I was tasked by President Juncker to discretely meet Prime Minister May’s sherpa Olly Robbins, with whom I had developed a trusted relationship, and we sat together in Brussels on the second day of January 2019. Together, we prepared what was necessary to ensure an extension of the Brexit deadline, which later was agreed by the UK and the EU27. In the documents we prepared, we left the length of the extension open, and both argued in our own camps for a long deadline to help Prime Minister May to get the Withdrawal Agreement ratified. Until that moment, no serious talks on this had been held between Prime Minister May and Her Majesty’s opposition. It was clear to us that while in the British constitutional system such talks were highly unusual, they were now very necessary on the Withdrawal Agreement in view of the strong position of the hardline Brexiteers in the Prime Minister’s own party. To give time for this, Olly Robbins and I discussed an extension until at least the end of 2019 or even beyond. In contrast to others, President Juncker was very open to this idea. “If Britain is unable to leave, we will certainly 2 David Liddington himself referred to this working lunch towards the UK media, see

(in the usual sensational style of the UK tabloids): https://www.mirror.co.uk/news/pol itics/top-eu-chief-made-uk-18333990.

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not kick them out by being bureaucratic. If they cannot leave, we will be generous and extend the deadline, if needed for five years. History is watching us”, he said repeatedly, while always keeping the geopolitical context (Putin and Trump) in mind. On 21 March 2019, the European Council agreed an extension, but only until 22 May 2019. Thereafter, the European Council had to prolong the extension twice, in the end until 31 January 2020, the date by which the Withdrawal Agreement could finally be ratified. However, this now took place under a quite different, less constructive Prime Minister who had insisted on a revised Irish Protocol that certainly was less helpful to calming the situation in Northern Ireland than the one initially negotiated between Prime Minister May and the Commission. History will be the judge if a longer extension, as envisaged by President Juncker, could have avoided this result. I recall these events as they help to underpin the main conclusion of the present analysis of Brigid Laffan and Stefan Telle: The EU certainly maintained its unity and achieved its objectives in the Brexit negotiations because of the technical expertise, hard work and excellence of the dedicated Commission’s Article 50 Task Force and the distinctive institutional ecology created to manage these negotiations together with the Council and the European Parliament. The EU however also succeeded because of a clear common understanding, created right after the Brexit referendum at the highest level of the EU27, on the EU’s political strategy and framing that was firmly maintained throughout the negotiations. A very good and close cooperation between the President of the European Commission and the President of the European Council, their Heads of Cabinet and their Secretaries-General was in my view instrumental in order to achieve this result. Even though they had their occasional disagreements, notably on migration policy, Presidents Juncker and Tusk always saw eye to eye on Brexit and, together with their closest teams, managed to act as one during this challenging period, notably when it came to the controversial issue of an extension of the Article 50 deadline. I am very grateful to Brigid Laffan and Stefan Telle to document, with their impressive book and their sound analysis, the main lesson of the effective work of the EU on Brexit. On the big strategic issues in our world, the EU will be strong, united and successful if the key players work

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together hand in hand, putting common purpose ahead of institutional rivalries and individual economic interests. If we do this, we have nothing to fear. December 2022

Martin Selmayr Head of Cabinet of the President of the European Commission 2014–2018, Secretary-General of the European Commission 2018/2019, (writing here in a personal capacity without necessarily reflecting the official views of the European Commission)

Preface

This volume began life in 2019 at the European University Institute (EUI), where Brigid was Director of the Robert Schuman Centre for Advanced Studies and Stefan was a Research Fellow on the H2020 project InDivEU on differentiated European integration. Brigid vividly remembers 24 June 2016, when together with Gary Marks and Liesbet Hooghe she held an impromptu seminar at the EUI before a packed audience on the outcome of the referendum. The idea for a book was a result of an invitation for Brigid to deliver the 2019 JCMS Annual Lecture at the EP on 4 April 2019 entitled “How the EU27 Came to Be.”1 Brigid realised that there was a compelling reason to both widen and deepen research on how the EU as a compound polity addressed the challenge of a large member state leaving the EU, the first in the history of European Integration. This dovetailed with the work of the InDivEU research project because the UK was morphing from an opt-out country in the EU to a third country. In 2020, Brigid and Stefan embarked on the research for this volume, which involved analysing myriad official documents and interviewing many of those involved in handling this shock to the EU system. Despite the outcome of the referendum, the EU was determined to protect itself against contagion and any undermining of 1 Laffan B, ‘How the EU 27 Came to Be,’ JCMS Annual Review, 57: S1, 13–27.

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either the single market or the EU polity. The Brexit case reveals an EU that is robust and capable of mobilising its collective capacity and clout in defence of the model of integration and deep interdependence that it has nurtured for 60 years. Florence, Italy

Brigid Laffan Stefan Telle

Acknowledgements

We would like to thank our interview partners, whose readiness to share their first-hand insights into how the EU responded to Brexit provided us with an indispensable resource to make this book. In addition, we would like to thank the administrative staff at the Robert Schuman Centre for Advanced Studies for their tireless support. In October 2020, Brigid presented an early version of the book at the Yves Mény Annual Lecture. We thank the audience for their helpful comments. Special thanks go to Bobby McDonagh, Georg Riekeles, Frank Schimmelfennig, Paul Gillespie, Declan Kelleher and Liesbet Hooghe, who kindly commented on the manuscript. Their inputs enabled us to improve our argument and to keep the text focused. We thank David Barnes for his quick and competent language editing and Sarah Bernstein who so effectively set up the Zoom interviews. The making of the book benefited greatly from the stimulating research conducted in the Horizon 2020 projects “Integrating Diversity in the European Union (InDivEU)” and “Differentiation: Clustering Excellence (DiCE)”. Stefan thanks the public library of Hengelo, which kept its doors open through the COVID-19 pandemic. Any and all remaining errors are ours.

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Contents

1

1

Introduction: Responding to Brexit

2

Framing the Brexit Challenge

27

3

Creating Institutional Capacity

57

4

Building the EU’s Brexit Process

81

5

Structuring the Negotiations

103

6

The Withdrawal Agreement I: ‘Sufficient Progress’

129

7

The Withdrawal Agreement II: Deal or No Deal?

151

8

The Trade and Cooperation Agreement

183

9

Brexit Is Far from Done: Implementation of the Agreements

215

Conclusions: Process and Capacity

257

10

Epilogue

273

Index

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Abbreviations

AFCO AFET AP BSG CET CETA CJEU CoA CoP COREPER DEXU DG DUP EC27 ECB ECHR EEA EP EPC ERRU EU EU27 FCA FCDO FTA GAC

Committee on Constitutional Affairs Committee on Foreign Affairs Arbitration Panel Brexit Steering Group Central European Time EU-Canada Comprehensive Economic and Trade Agreement The Court of Justice of the European Union Court of Auditors Conference of Presidents Committee of Permanent Representatives Department for Exiting the European Union Directorate General Democratic Unionist Party European Council, without the United Kingdom European Central Bank European Convention of Human Rights European Economic Area European Parliament European Political Community European Register of Road Transport Undertakings European Union European Union, without the United Kingdom Facilitated Customs Arrangement Foreign, Commonwealth and Development Office Free Trade Agreement General Affairs Council xxi

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ABBREVIATIONS

GB IMA IMB JC LPF LSE MEP MFF MP NI NIP NNWN PC PCA PM PPA PUP SC SG SPS TCA TEU TF50 TFE TFEU TFUK TPC TSC TTIP TUV UK UKCG UKIP UUP VAT VP WA WTO

Great Britain Independent Monitoring Agency Internal Market Bill Joint Committee Level Playing Field London School of Economics Member of European Parliament Multiannual Financial Framework Member of Parliament Northern Ireland Protocol on Ireland/Northern Ireland No negotiation without notification Partnership Council Permanent Court of Arbitration Prime Minister Parliamentary Partnership Assembly Progressive Unionist Party Specialised Committee Secretariat General Sanitary and Phytosanitary Standards Trade and Cooperation Agreement Treaty on European Union Task Force for the Preparation and Conduct of the Negotiations with the United Kingdom under Article 50 TEU Task Force Europe Treaty on the Functioning of the European Union Task Force for Relations with the United Kingdom Trade Partnership Committee Trade Specialised Committee Transatlantic Trade and Investment Partnership Traditional Unionist Voice United Kingdom United Kingdom Coordination Group United Kingdom Independence Party Ulster Unionist Party Value Added Tax Vice President Withdrawal Agreement World Trade Organisation

List of Figures

Fig. Fig. Fig. Fig. Fig. Fig. Fig.

1.1 2.1 2.2 2.3 2.4 3.1 3.2

Fig. Fig. Fig. Fig. Fig. Fig. Fig.

5.1 7.1 8.1 9.1 9.2 9.3 9.4

Fig. 9.5

Analytical framework The UK government’s ‘New Settlement’ narrative The EU’s ‘New Settlement’ narrative The UK government’s Brexit narrative The EU’s Brexit narrative The European Commission’s Task Force Article 50 The European Commission’s Task Force for Relations with the UK The ‘Barnier Staircase’ Summary of the withdrawal agreement Summary of the trade and cooperation agreement The institutional set-up of the Withdrawal Agreement Dispute settlement under the Withdrawal Agreement Infringement proceedings under the Withdrawal Agreement The institutional set-up of the Trade and Cooperation Agreement Dispute resolution under the Trade and Cooperation Agreement

17 34 38 42 50 70 74 122 176 208 219 221 223 238 241

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List of Tables

Table 1.1 Table 2.1 Table 2.2 Table Table Table Table

2.3 3.1 4.1 4.2

Table 5.1 Table 6.1 Table 6.2 Table 7.1

EU and UK effectiveness in the Brexit negotiations The UK’s Brexit principles The EU27’s immediate response to the referendum outcome The EU’s negotiation guidelines of April 2017 The EU’s institutional ecology for Brexit Article 50 of the Treaty on European Union The European Council’s procedural arrangements for Brexit EU and UK bargaining strength and preferences on issue linkage Negotiating rounds in 2017 Starting Positions and agreement reached in Joint Report Negotiating rounds in 2018

9 41 46 49 62 85 89 110 135 147 154

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CHAPTER 1

Introduction: Responding to Brexit

23 June 2016 was a momentous date in the history of European integration. On that day, the citizens of the United Kingdom (UK) voted on whether their country should leave the European Union (EU) or remain a member state. At the close of polling, 51.9% of those who had voted had opted to leave the Union. By a narrow margin, the first member state ever was to secede from the EU. The EU’s response to this challenge would have major implications for its immediate and longer-term future. Brexit was yet another crisis in a series of major crises that beset the EU from the mid-2000s onwards. In 2005, the European Constitutional Treaty was rejected by voters in France and the Netherlands, indicating growing popular scepticism about the idea of “ever closer Union.” The constitutional crisis was followed, in 2010, by a major crisis of the common currency which tested the limits of solidarity between creditor and debtor states in the EU. Just as the economic outlook was beginning to improve, an unprecedented wave of refugees from the EU’s south-eastern neighbourhood overwhelmed the Union’s existing asylum system in 2015, and the member states failed to agree on a reformed European burden-sharing mechanism. This succession of crises, or poly-crisis, fed a widespread sentiment that the EU was divided and ineffective in delivering fair and effective policies (Zeitlin et al. 2019).

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 B. Laffan and S. Telle, The EU’s Response to Brexit, Palgrave Studies in European Union Politics, https://doi.org/10.1007/978-3-031-26263-0_1

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The UK’s decision to leave the EU was initially seen as the straw that could break the camel’s back. Brexit was perceived as “a profound shock for the project of European integration” that “challenged consolidated understandings on the finalit´e of the European project” (Fabbrini 2017: 267). On the one hand, there was a fear that a fragmented and fragile EU would struggle to speak with one voice and effectively negotiate with a united and determined UK. On the other hand, there were concerns that Brexit might trigger a domino effect among the remaining member states and initiate a wider disintegrative dynamic. But this is not what happened. Brexit galvanised key EU actors into action. Driven by fear and determination, the emerging EU27 resolved to respond to Brexit in a way that minimised the negative impact of this unwanted political event. Instead of disunity, the EU institutions and the 27 remaining member states immediately closed ranks and pursued a united approach to Brexit. British hopes of gaining the upper hand by playing the member states and the EU institutions off against each other proved misguided. The emerging EU27 stood together, agreed on what mattered most and overwhelmingly got what it wanted in the Brexit negotiations. As such, the EU’s approach to Brexit was not only “remarkably consistent” (O’Rourke 2019: 216) but also remarkably effective. Central to that effectiveness was the willingness and ability of the EU to exercise collective power. This book explores how the EU27 was able to muster a united and effective response to Brexit in a time of apparent fragmentation and alleged weakness. One explanation focuses on economic interests. In this view, the EU’s response was united because the member states had a shared interest in protecting the single market. And it was effective, because a “no deal” Brexit would have been much worse for the UK than for any individual member state or for the EU as a whole (Schimmelfennig 2018a; Schimmelfennig and Winzen 2020). This is a powerful and parsimonious explanation. However, it overlooks that the UK was itself an EU member state which had decided to leave the EU and the single market, acting against economic rationality. What resonated with British voters was the idea to take back control of British borders and laws from the European Union. And the UK was not unique in this regard. At the time of the Brexit referendum, Eurosceptic populist parties experienced unprecedented electoral successes in several member states (Kriesi 2014). We believe that an exclusive focus on the economic interests of the member states downplays the myriad challenges facing the

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EU. It also downplays the role which the EU institutions—the European Council, the Council, the Commission and the Parliament—played in the Brexit process. For the survival of the polity, it was important to show that membership mattered, both in terms of material benefits and political solidarity. We, therefore, argue that the EU27’s response to Brexit was not just about the single market, important though it was. It was about preserving the EU as a polity and as the central framework for the management of deep interdependence in Europe. The EU has a plethora of arrangements with countries beyond its borders that tie the EU’s neighbours into the Brussels system, but Brexit required it to draw a clearer distinction between being a member state and a close neighbour. We think that an explanation of the EU’s united and effective response to Brexit should look beyond the economic interests of the member states. In this book, we will explore the role played by the EU institutions and actors in actively constructing unity and in shaping the negotiation process in the EU’s favour. We identify two central elements in this process: issue framing and co-creation of collective capacity. Immediately after the British referendum in June 2016, the EU institutions discursively framed Brexit as a shock to the Union as a whole requiring a united response (Chapter 2). Because of this framing, the asymmetric impact of Brexit on member state economies and on the distribution of political clout within the EU did not become contentious. The initial framing of Brexit guided the subsequent build-up and mobilisation of collective capacity. This involved the creation of a novel institutional ecology dedicated to the management of Brexit (Chapter 3) and intensive inter-institutional coordination in developing a joint negotiating strategy (Chapter 4). The mobilisation of collective capacity in turn reinforced unity and transformed it from an aspiration into a practice norm. By the time negotiations with the UK opened in June 2017, the EU had developed three crucial procedural bargaining resources, which the UK lacked. First, the EU’s Brexit agenda enjoyed broad political support across the member states and EU institutions. Second, the EU had agreed on a set of clear and non-contradictory negotiating objectives. Third, the EU had achieved superior technical preparedness in terms of structuring the negotiation process and in formulating solutions to key Brexit challenges. These resources were key to realising the EU’s core objective of achieving an orderly withdrawal of the UK and in negotiating a new rulesbased relationship with the UK as a third country (Chapters 5–8). Finally,

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these bargaining resources served the EU in disputes over the implementation of the Brexit deal (Chapter 9). Whereas the UK repeatedly threatened to break international law by unilaterally disapplying parts of the Brexit deal, the EU developed practical solutions to concrete implementation problems. And while the future of the negotiated Brexit deal is uncertain, there are no indications that the EU’s united approach towards the UK is weakening.

Brexit: The Straw That Breaks the Camel’s Back? On the day of the referendum, NBC news asked “Is ‘Brexit’ the Beginning of the End of the European Union?” (Frangoul 2016). Such concerns were widespread in academia, too. Ben Rosamond speculated that “Brexit is likely to unleash disintegrative dynamics, which could see the EU stagnate into a suboptimal institutional equilibrium” (Rosamond 2016: 864). Other authors argued in 2017 that it was too early to assess whether Brexit “will represent a further step towards disintegration,” but that it surely would “add a further level of uncertainty and disruption to an already embattled European Union” (Schnapper 2017: 97). Heikki Patomäki (2017: 176) warned that to avoid “the likely possibility of disintegration, the EU would have to overcome its internal politico-economic contradictions.” The general mood of uncertainty after the Brexit referendum was captured by Ivan Krastev. In his book After Europe, Krastev compared the EU’s political situation in 2017 to the collapse of the nineteenth-century European concert of power in the First World War: The year 1917 was one that turned European history on its head. It started the great civil war in Europe that ended only in 1989. The year 2017 may end up being just as consequential. Pivotal elections in the Netherlands, France, Germany and most likely Italy may escalate the process of European disintegration. Greece may opt to leave the eurozone in 2017. Major terrorist attacks in a European capital, or armed conflict and a new wave of refugees on Europe’s periphery, could easily bring the union to the edge of collapse. Brexit and the election of Donald Trump have upended future predictions of Europe’s survival – and not in Europe’s favour. If the disintegration of the EU was only recently considered unthinkable, after Brexit it seems (in the eyes of many) almost inevitable. Europe has been shattered by the rise of populist parties across the continent, just as the migration crisis has transformed the nature of liberal democratic regimes. (Krastev 2017: 107–108, italics added)

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In June 2016, it was by no means evident that a crisis-battered EU would muster a decisive response to the British vote to leave. Indeed, the UK appeared to have some significant advantages over the EU. The UK is a unitary (if devolved) state in which decision-making power is uniquely concentrated by the principles of “parliamentary sovereignty” and “cabinet government” (Weale 2018). Moreover, the British Conservative Party had just won an outright majority in the 2015 general election and was therefore in a strong position ahead of the Brexit negotiations. In contrast to the unitary nature of the UK, the EU is a compound polity in which decision-making power is heavily de-centralised and requires coordination of the interests of twenty-seven highly diverse member states. In the recent euro and migration crises, disunity had hampered effective crisis responses. Therefore, the spectre of a “constraining dissensus” (Hooghe and Marks 2009) on Brexit loomed large within the EU in 2016.

The Puzzle: The EU’s United and Effective Response to Brexit Brexit did not trigger a domino effect in the EU. Indeed, in the wake of Russia’s War in Ukraine, the EU’s focus has shifted from countering disintegration to getting ready for a series of future enlargements. At the same time, the UK has experienced a period of severe political instability and economic dislocations since leaving the European Union. How did this happen? The Brexit negotiations revealed that it was not the EU27, but the UK, that struggled to clearly define and successfully defend its preferences. The EU27 responded with speed and resolve to protect the Union and insulate it from the aftershocks of the referendum (O’Rourke 2019: 206–237). In short, the EU’s response to Brexit was swift, united and ultimately effective. On the morning of the 24 June 2016, the day after the referendum, Donald Tusk, President of the European Council, declared in a press statement that the EU was “prepared for this negative scenario” (Tusk 2016). President Tusk was not faking the EU’s preparedness. Informed by the experience of renegotiating modalities of the UK’s membership in late 2015 and early 2016, Presidents Tusk and Juncker, their cabinets and key players in the Commission and the Council had prepared for a negative vote. There had been intensive work with the capitals on how the EU would respond in the event of a leave vote. Once the referendum outcome became clear, the EU swung into action. Less

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than two hours after President Tusk’s intervention, the four presidents of the EU’s decision-making institutions1 released a joint statement which affirmed the EU as the central framework for Europe’s political future: This is an unprecedented situation but we are united in our response. We will stand strong and uphold the EU’s core values of promoting peace and the well-being of its peoples. The Union of 27 Member States will continue. The Union is the framework of our common political future. We are bound together by history, geography and common interests and will develop our cooperation on this basis. Together we will address our common challenges to generate growth, increase prosperity and ensure a safe and secure environment for our citizens. The institutions will play their full role in this endeavour. (Four Presidents Joint Statement 2016)

This line was endorsed and expanded by the 27 heads of state or government at an informal European Council meeting of 29 June 2016 (European Council 2016a). At that meeting, the EU27 was born; and so was the status of the UK as a third state in the making. In the second half of 2016, the EU organised internally for the upcoming negotiations, creating a novel institutional ecology for handling Brexit and defining institutional responsibilities. On 1 October 2016, the Commission created a Task Force for the Preparation and Conduct of the Negotiations with the United Kingdom under Article 50 of the Treaty on European Union, to be led by Frenchman and former Commissioner Michel Barnier (Commission 2016). On 15 December 2016, the European Council agreed on a host of important procedural arrangements, naming the European Commission as the Union negotiator and clarifying inter-institutional relations (European Council 2016b). When British Prime Minister Theresa May triggered Article 50 on 29 March 2017, the EU gave a display of unity by adopting its negotiating guidelines in record-setting time at the special European Council meeting of 29 April 2017 (European Council 2017). These guidelines specified the EU’s negotiation objectives as well as certain preferences regarding the organisation of the negotiations. At the press conference after the summit, President Tusk emphasised the “outstanding unity” of the EU27 in agreeing on the guidelines: 1 Donald Tusk (European Council), Jean-Claude Juncker (European Commission), Martin Schulz (European Parliament) and Mark Rutte (Rotating Presidency of the Council of the European Union).

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I want to underline the outstanding unity of all the 27 leaders on the guidelines for our negotiations with the UK. (…) We now have unanimous support from all the 27 member states and the EU institutions, giving us a strong political mandate for these negotiations. (Tusk 2017)

On 22 May 2017, the Council of the European Union, in Article 50 format, adopted negotiating directives, authorised the opening of negotiations with the UK and formally nominated the Commission as the EU negotiator (Council of the European Union 2017). When the negotiations began on 19 June 2017, the EU was united and ready to negotiate. Across the channel, Theresa May had lost her parliamentary majority in an ill-fated electoral gamble on 8 June 2017. The election result cast doubt on May’s Brexit course and significantly increased the risk that a potential agreement with the EU would not find a majority in the House of Commons. Over the course of the negotiations, EU unity was actively maintained and never seriously questioned, not even in critical moments when a “no deal” outcome was looming. The second proposition of this book is that the EU’s response to Brexit was effective. Our benchmark for effectiveness is the distance between the initially stated negotiation objectives of a party and the negotiation outcomes. An effective outcome furthermore involves few unanticipated costs in obtaining the negotiation objectives. Uncertainty and compromise are important elements in negotiations, especially if negotiations follow a “pie-increasing” or integrative logic. As the book will argue, however, the Brexit negotiations followed a distributive logic whereby neither side was particularly willing or able to compromise on key demands. Hence, by stressing the importance of initially stated objectives and the absence of unanticipated additional costs, our definition seeks to ensure that negotiation failures cannot be rationalised or obfuscated. According to this measure, the EU’s response to Brexit was effective because the EU largely achieved its initially stated objectives without crossing its red lines and without incurring significant unanticipated costs. The UK, by contrast, only partially achieved its objectives, dropped some key demands and incurred significant unanticipated costs (see Table 1.1 for a summary). The genesis of the negotiations objectives of both parties will be discussed in more detail in Chapter 2. Here, a brief overview is enough to illustrate our point. The EU’s core objectives were formulated early on and remained the same throughout the negotiations. First, the EU sought an “orderly Brexit” which would minimise the negative

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economic and political costs of the UK’s withdrawal for EU citizens, member states and the Union as a whole. Regarding future relations with the UK, the EU sought a “close relationship,” but one that protected the integrity of the single market and respected EU decision-making autonomy. Crucially, the EU sought a “balance of rights and obligations” in a negotiated deal and stressed that a “non-member of the Union, that does not live up to the same obligations as a member, cannot have the same rights and enjoy the same benefits as a member” (European Council 2017). The UK’s core objectives evolved over the course of the negotiations. Under Prime Minister Theresa May, the UK wanted to regain sovereign control over UK laws (no CJEU) and borders (no free movement) by leaving the EU single market and customs area. At the same time, May’s government also wanted a close trade deal with the EU to minimise the economic costs of Brexit (HM Government 2017). Under her successor, PM Boris Johnson, the balance between trade and sovereignty objectives shifted decidedly towards the latter. In the end, the Johnson administration accepted a high economic price tag for regaining formal control over UK laws and borders. Put more cynically, that was the price Johnson was willing to pay to “get Brexit done.” The Brexit negotiations began in June 2017, with the EU insisting that talks about potential future relations would only begin once “sufficient progress” on a series of withdrawal issues had been made. The UK strongly opposed but grudgingly accepted this negotiation structure. After a preliminary agreement on key withdrawal issues had been reached in December 2017, the negotiations repeatedly came to the brink of collapse before a Withdrawal Agreement (WA) was eventually reached in October 2019. The WA secured the EU’s preference for an “orderly withdrawal” on the main substantive issues of citizens’ rights, a financial settlement and the Irish border. To get that deal, UK Prime Minister Boris Johnson agreed to regulatory controls between Northern Ireland and Great Britain, which Theresa May had categorically excluded. A further agreement on the future EU-UK relationship was reached in December 2020, just days before the UK would have automatically crashed out of the EU’s economic orbit at the end of the agreed transition period. From an EU perspective, the agreement protected the integrity of the single market with innovative level playing field provisions and robust dispute resolution mechanisms. The UK obtained a “thin” trade deal, which included quota- and tariff-free access for UK goods to the single market but was weak on services, which constitute the core of the UK’s economy.

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Table 1.1 EU and UK effectiveness in the Brexit negotiations European Union

United Kingdom

Objectives

• Negotiate an orderly withdrawal and close relations with the UK to minimize the costs of Brexit for the EU, the Member States, and citizens

Red lines

• Integrity of the EU’s single market • Autonomy of EU decision-making

Outcome

• The WA and the TCA ensured an orderly Brexit, preserved the integrity of the EU’s single market, as well as the EU’s decision-making autonomy

Unanticipated costs

• Conflictual post-Brexit relations with UK, which affect the implementation of the Brexit agreements

Effectiveness

High

• Leave EU to take back control over UK borders, money, and law • Negotiate an ambitious trade deal with EU to minimize the economic costs of Brexit • No CJEU • No free movement • Regulatory autonomy • Independent trade policy • No regulatory border in Irish Sea • WA and TCA enhance UK control over its borders, money, and law, and allow for regulatory autonomy and an independent trade policy • Thin trade deal with EU • Regulatory border in Irish Sea • Conflictual relations with EU affect implementation of agreements • Thin trade deal harms UK economy • Damaged international reputation • UK territorial integrity further unsettled • Increased political polarisation and volatility Low

For the EU, Brexit involved few unanticipated costs although the implementation of some parts of the Withdrawal Agreement (WA), especially the Northern Ireland Protocol (NIP), has prevented the emergence of a stable relationship with the UK which has generated costs for both parties (see Chapter 10). For the UK, however, Brexit created additional unanticipated costs. First, Boris Johnson’s Brexit is economically more costly for the UK than it would have been under Theresa May’s more ambitious economic partnership with the EU. Theresa May’s softer

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vision of Brexit would have eliminated barriers to the movement of goods and thereby reduced the costs of economic exchange for goods (Baker, 2018). Second, the UK’s international reputation as a reliable partner has suffered from its repeated threats to disregard international commitments (i.e. the Internal Market Bill and the Northern Ireland Protocol Bill). This has not helped the UK’s “Global Britain” strategy of substituting EU membership with worldwide bilateral trade deals. The UK has struggled to agree major new trade deals such as with the United States or India. Third, the Brexit process destabilised the constitutional settlement of the UK, especially concerning the relationship between Westminster and the devolved regional governments. Brexit has re-ignited Scottish calls for an independence referendum and Irish re-unification is more likely after Brexit than before (Keating 2021). Finally, Brexit did not resolve the question of British membership of the EU. Instead, public attitudes for and against EU membership have stabilised into political identities (Hobolt et al. 2021). Today, most British voters think of themselves as either “Remainers” or “Leavers,” each group constituting roughly half of the British electorate, signalling a continued polarisation of the British electorate along the communitarian-cosmopolitan divide. This outcome of the Brexit process raises two questions, which the present book seeks to address: 1. How can we explain the EU27’s united and effective response to Brexit? 2. What does the response tell us about the current nature of the EU? Why is it relevant to answer these questions? Brexit was the first time that an EU member state opted to leave the Union. As such, it constituted an unprecedented challenge to the core narrative of an “ever closer Union.” Gaining a better understanding of how the EU27 was able to muster a united and effective response can help us to better understand the dynamics of European (dis-)integration and the changing nature of the EU itself. Studying the EU’s response to Brexit reinforces the view that major crises do not automatically lead to greater fragmentation but may instead result in greater unity. We believe that Brexit shows how, and under which conditions, the EU can mobilise the capacity to define and project its key interests both internally and externally. Therefore, the insights gained in this book may be of relevance to the management of future challenges. The EU’s response to Brexit may well have revealed a more robust and resilient Union in the making.

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Do Economic Interests Explain the EU’s Brexit Response? But what made Brexit special? Why did it trigger a united and effective response from the Union? This section reviews the literature and identifies the gaps we seek to address in this book. Liberal intergovernmentalism is a good starting point to explore these questions. It is not only an established theory of European integration but also places great emphasis on international negotiations. Moreover, it has already been applied to the Brexit negotiations (Schimmelfennig 2018a, 2018b; Schimmelfennig and Winzen 2020), and it provides theoretical explanations of both the unity and the effectiveness of the EU in these negotiations. Intergovernmentalism puts state governments centre stage. At the heart of the intergovernmental perspective lies the assumption that states, as unitary and rational actors, base their policy choices on a cost-benefit calculus, minimising costs and maximising benefits. Liberal intergovernmentalism holds that government positions largely follow those of domestic economic interest groups (Moravcsik 1998). In this perspective, the position of member state governments on Brexit should be sensitive to how strongly the UK’s withdrawal would affect their core economic sectors. Governments of economically heavily exposed member states should prefer a soft Brexit to minimise the costs to their economies, whereas less exposed member states should prefer a harder stance towards the UK and prioritise the integrity of the EU single market. Studies show that EU member states would be affected differently in a variety of Brexit scenarios (see Mion and Ponattu 2019), with geographic proximity as a rough predictor of economic exposure. The primacy of national economic interests and the asymmetric impact of Brexit on member state economies should consequently produce divergent interests among the member states regarding Brexit. However, Frank Schimmelfennig (2018b: 20) has observed that “in spite of their diverse economic preferences, the EU-27 have made a strong show of unity on Brexit, and many of the more exposed member states have taken a particularly tough position.” Frank Schimmelfennig explains this puzzling reality by pointing to an “overarching common interest of the member states in preserving the integrity of the single market” because the “EU-27’s benefits from the single market strongly exceed their benefits from the bilateral relationship with the UK” (Schimmelfennig 2018b: 21). In this view, all EU member states had a greater interest in the preservation of the single

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market than in its trade relations with the UK. This view is further reinforced when we consider that the massive purchasing power concentrated within the single market—with its 450 million wealthy consumers— provides European economic and political actors with a resource to set global standards and project European interests globally via the socalled Brussels Effect (Bradford 2020; Damro 2012). Apparently, a united response to Brexit was in everyone’s economic interest, in stark contrast to the recent eurozone and migration crises. We do not contest the central importance of the economic interests of member states in the EU’s response to Brexit. Indeed, we agree that a shared interest in the protection of the single market was an important precondition for a united and effective response. Yet, this book’s contention is that similar interests do not automatically translate into united and effective action. We believe that the intergovernmental perspective is too quick in assuming that economic interests explain EU unity and effectiveness in the Brexit negotiations. First, it downplays the asymmetric economic consequences for the member states. While all the member states shared a strong interest in protecting the single market, some member states were going to be affected more severely by Brexit than others. And this asymmetric impact would be greater the more distant the EU-UK relations would turn out to be at the end of the negotiations. In other words, Brexit would produce relative winners and losers among the member states. More broadly, Brexit would weaken the camp of market liberal member states relative to those which were seeking a more interventionist and political EU (see Fabbrini 2021a; Chang 2017). Our point is not that the asymmetric impact of Brexit on the member states was their exclusive or primary concern. Yet, assuming self-interested governments, one might still have expected to see more bickering among the 27 over country-specific priorities and red lines. Second, and more importantly, liberal intergovernmentalism neglects the non-economic interests of the member states. As such, it can neither explain the Brexit vote itself, nor the UK’s choice of a hard Brexit. In this regard, Frank Schimmelfennig (2018b: 23) has pointed out that post-functionalism can “explain preference formation in the Brexit crisis more plausibly” (see also Czech and Krakowiak-Drzewiecka 2019). Postfunctionalist theory proposes that non-economic preferences explain the rise of a “constraining dissensus” on European integration in the postMaastricht period (Hooghe and Marks 2009). This raises the question of why non-economic preferences should explain the behaviour of the

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UK but not that of the other EU member states. Indeed, the increasing impact of European integration on “core state powers” (Genschel and Jachtenfuchs 2016) has led to sovereignty concerns and opt-outs from EU policies in a host of member states. Third, and most importantly, intergovernmentalism has a reductionist view of EU institutions. While the member states are seen as the masters of the treaties who coordinate their interests in the Council system, the supranational Commission and Parliament are primarily seen as “commitment mechanisms” with clearly circumscribed tasks. But this perspective downplays the independent agency of both supranational and intergovernmental institutions. Indeed, the literature on principle-agent relations has clarified that institutional agents often have both, the motivation (i.e. institutional survival) and the means (i.e. better information) to interpret their mandate creatively. Brexit posed an existential crisis to the EU and threatened to unsettle the EU’s institutional balance (Puetter 2017). Consequently, the EU institutions had a shared interest in protecting the EU polity, which provided them with a strong motivation to shape the Brexit process. We submit that this shared interest explains why interinstitutional competition was at an all-time low during the Brexit process. Instead, what characterised Brexit was intensive inter-institutional coordination and cooperation, making the EU institutions a key factor in forging and sustaining EU unity. We believe that the cooperative inter-institutional dynamics were also key for the effectiveness of the EU in the negotiations. The Brexit negotiations can be understood as a bargaining process between the EU and the UK. In the intergovernmental perspective, effective bargaining in EU exit negotiations depended on three aspects: the distance between the status quo and the preferred outcome, material bargaining power and supranational institutional factors (Schimmelfennig 2018a: 9). It is assumed that the negotiating party which is asking to change the status quo is in a weaker bargaining position than the party defending the status quo. In the Brexit negotiations, the UK was asking for change. The EU’s ability to agree to change was dependent on the position of the most changeaverse veto-player, which could be a member state or an institutional actor. But the influence of veto-players crucially depends on the applicable decision procedure. Intergovernmental voting under the unanimity rule, for example, would equip every member state with strong vetopower. The decision procedure for the withdrawals from the EU is laid down in Article 50 TEU, which states that an exit agreement “shall be

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concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament” (European Union 2012). Thus, not individual member states, but the European Parliament appears as the crucial veto-player. Concerning the post-exit relationship between the EU and the UK, Article 50 stipulates that an agreement “shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union” which states that the “Council shall act by a qualified majority throughout the procedure” for most types of agreements, while EP consent is usually needed. Yet, in February 2020, the European Commission’s recommendation for a Council decision on opening the negotiations envisioned Article 217 as “the appropriate substantive legal basis for the decision authorising the opening of negotiations” (European Commission 2020). Article 217 is the legal basis for an association agreement and requires unanimity in the Council. But two things matter. First, the use of Article 217 was recommended by the Commission, illustrating its agency in the process. Second, the recommendation clarifies that the “substantive legal basis for the signature and conclusion of the new partnership can only be determined at the end of the negotiations.” In other words, the decision rule was not clear until the very end of the talks. In the intergovernmental perspective, the EU also had an advantage over the UK in terms of its material bargaining power. The assumption is that the UK needed a deal more than the EU because “states that demand disintegration cannot credibly threaten the EU with no or outside agreements because such threats would turn them into net losers and inflict higher losses on themselves than on the EU” (Schimmelfennig 2018a: 10, see also 2018b: 21). While this is an intuitively compelling argument, it can be challenged on two grounds. First, the assumption that the UK could not afford to walk away from the negotiations prioritises economic rationality over other motivations. However, under both Theresa May and Boris Johnson the UK did threaten to walk away from the table. And under Boris Johnson the UK clearly prioritised national sovereignty over economic rationality. The UK’s threats and the sovereigntist rhetoric could be interpreted as brinkmanship by a weak actor. However, the extremely polarised and volatile domestic political situation in the UK contributed to a feeling that brinkmanship could involuntarily result in a “no deal” (Jones 2020: 55; Mariani and Sacerdoti 2020: 211; Barnier 2021; Fabbrini 2021b: 1). Second, internal divisions may well have prevented the EU from realising its

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potential material bargaining power in the Brexit negotiations. The UK naturally had an interest in enhancing and exploiting the EU’s internal fault lines. Consequently, after the referendum and during the negotiations the UK invested significant resources in a “divide-and-rule” strategy targeted at undermining EU unity. As the book will argue, the reason this strategy did not work was the immediate collective framing of Brexit by the EU institutions as a “common challenge” which required a “united response.” Finally, the intergovernmental perspective holds that supranational institutions do not generally play a significant role in inter-state bargaining concerning European integration. However, the literature recognises that they play a greater role in exit negotiations than in accession negotiations because they are “already present and entrenched” and because they have “a vested institutional interest in defending the status quo against disintegration.” Therefore, they are “powerful if they obtain a formal role in the disintegration procedure” (Schimmelfennig 2018a: 9). In exit negotiations, Article 50 TEU assigns central roles to the European Parliament and the (European) Council. Since supranational and intergovernmental institutions had formal roles to play in the Brexit negotiations, we believe that they merit greater attention when explaining the unity and effectiveness of the EU in the negotiations. They acted as the “defenders of the polity” (Schimmelfennig 2022). In the next section, we argue that institutional leadership was crucial in framing the EU’s collective response immediately after the British referendum. After the initial response, institutional capacities to handle Brexit were significantly expanded. Intensive coordination ensured that the interests of citizens and member states were accommodated and that dispersed resources were efficiently mobilised in the negotiations with the UK. This institution-centred perspective underlines that unity was not an automatic consequence of similar economic preferences. Instead, it was actively forged and maintained over the course of the negotiations by the key actors. Therefore, by taking seriously the agency of institutional actors, our approach helps to specify the practices which translated interests and resources into actual bargaining power, and the conditions under which this was achieved.

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Explaining EU Unity and Effectiveness: Issue Framing and Institutional Capacity The previous discussion has shown that understanding the EU’s united and effective response to Brexit requires us to look beyond the economic interests of the member states. This section develops an alternative framework for explaining the unity and effectiveness of the EU. The literature on governance provides a way to fill the gaps in the liberal intergovernmental perspective. In particular, the governance literature highlights the importance of institutions and processes in shaping and aggregating interests and in organising collective action. This process-focus in the governance literature helps to explain unity and effectiveness where purely interest-based accounts would predict otherwise. To explain the EU’s united and effective response to Brexit, we depart from Jan Kooiman’s (2003) conceptual distinction between first- and second-order governance. First-order governance concerns the political process of defining problems and agreeing on possible solutions. It is about finding answers to questions such as what is at stake? What should be done? And what can be done? Second-order governance concerns the problem-solving and representative functions of institutions. It is about designing institutional arrangements to address problems fairly and effectively by creating or mobilising the necessary resources and by giving voice to the affected stakeholders. Applying this perspective to the EU’s response to Brexit, we argue that the process of issue framing (first-order governance) helps to explain the EU’s unity on negotiation objectives and strategy. In a second step, EU unity facilitated the creation of the necessary collective capacity (second-order governance) to negotiate effectively. This involved both institution-building and institution-coordination. In both instances, we believe that the crucial factor was coordinated action by the EU institutions. In this regard, we go beyond arguments which attribute EU unity or effectiveness in the Brexit negotiations to the leadership of one particular institutional actor (i.e. Schuette 2021). Instead, we follow Vivien Schmidt’s call to take seriously the “discussions, deliberations and contestations” among the EU’s main decision-making institutions (Schmidt 2016: 2). While we can distinguish the Council, the Commission and the Parliament systems analytically, empirically “they are thoroughly intertwined and dynamically interactive” (Schmidt 2018: 10–11). We argue

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Unity

Capacity

Effectiveness

Objectives

Institution Building: Creating Capacity

Consistent Objectives

Institutional Coordination: Mobilizing Capacity

Political Ownership

Procedures Strategy

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Technical Preparedness

Collective leadership

Fig. 1.1 Analytical framework

that the dynamic interaction between the main EU decision-making institutions—guided by a shared understanding of what was at stake—was crucial in creating and mobilising the Union’s collective capacity to handle Brexit. None of this would have been possible without the collective leadership of key actors. Figure 1.1 summarises this volume’s analytical framework. The following paragraphs describe the individual elements of the framework in more detail. Issue Framing and Discursive Unity Applying Kooiman’s framework to Brexit, first-order governance was about defining what Brexit meant to the EU and how to respond. Importantly, Brexit was an unprecedented and highly complex challenge for the EU. While Article 50 TEU spelled out the formal procedure for the withdrawal of a member state, massive uncertainty remained regarding the kind of Brexit the UK would pursue and the expected effects of Brexit on the EU, its member states and its citizens. A political template for handling Brexit did not exist. This uncertainty about the nature and potential consequences of Brexit was not conducive to united and effective EU action. To act with purpose, the EU needed to come to a shared understanding of what Brexit meant. The key challenge was to find a definition of the problem and a political response which would accommodate the

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interests of all the main actors, i.e. member state governments, EU institutions and citizens. Issue framing is a communicative mechanism which can be employed to bring about common understandings of a complex political situation (Steinberg 1998). The theory of framing starts with the assumption that political challenges are not simply givens but are matters of interpretation and decoding. By highlighting and masking different aspects of a complex situation, issue framing can be used by political actors to produce persuasive and compelling stories of what is at stake and what ought to be done. Such compelling political narratives consist of a “problem frame” and an “action frame.” In this way, issue framing can nudge political actors into adopting certain perspectives and policy responses rather than others (Thaler and Sunstein 2009). Building on this perspective, Chapter 2 demonstrates that EU27 unity was first achieved at the discursive level by framing Brexit as a common challenge (problem frame) which required a united response (action frame). Key framing moments in this regard were the four presidents’ statement on 24 June 2016 and the “lines to take” adopted at the informal European Council on 29 June 2016. The nomination of Michel Barnier as the Commission’s chief negotiator on 27 July 2016 put a face on Brexit for the member states and European citizens. This framing served as the yardstick for organising the EU’s response to Brexit over the following months and years. In December 2016, the European Council specified the EU-internal procedural arrangements, and in April 2017 it agreed on the EU’s negotiation objectives and preferred negotiation structure. As the Brexit process unfolded, the initial framing was further fleshed out and translated into action. Within the institutions, “professional Europeans” (Foret and Rittelmeyer 2014) worked through the complex implications of Brexit, prepared dossiers and continually engaged with the member states. Throughout the negotiations, no key EU actor ever seriously questioned the framing of Brexit as a common challenge. An important reason why this did not happen lies in the institutional and procedural arrangements the EU developed in response to Brexit. Creating the Collective Capacity for an Effective Response Discursive unity was necessary but not sufficient for an effective response to Brexit. Second-order governance, then, was about creating the collective capacity to handle Brexit. We distinguish two aspects of this cocreative process: institution-building and institutional-coordination. After

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the referendum, each of the main EU decision-making institutions set up a dedicated institutional Brexit node. In this way, the EU did not only create the organisational capacity needed to handle Brexit, but this new “institutional ecology” also insulated the issue and prevented contamination of other EU dossiers. The Council established a Brexit Working Group, the Commission created a Task Force for Article 50 negotiations with the UK (TF50), and the European Parliament set up a Brexit Steering Group (see Chapter 3). The creation of separate institutional nodes was not an expression of institutional competition. Instead, the unity discourse ensured that the institutional hubs were nodes for coordination and collective action. As a result, the interests of citizens, member states and the EU polity were all equally reflected in the EU’s Brexit response, which, in turn, helped stabilise the broad institutional ownership of the agenda (see Chapter 4). Institutional coordination was important to mobilise and channel de-centralised resources towards the common agenda. Over time, a positive feedback loop developed in which the “unity discourse” fed the co-creation of capacity, while the emerging “institutional ecology” gave substance to the unity discourse and reinforced it as a practice norm. Effective Negotiations But how did issue framing and capacity building enhance the EU’s unity and effectiveness in the negotiations with the UK? We submit that they created resources which helped the EU withstand UK brinkmanship and divide-and-rule strategies, while steering the negotiations towards a negotiated settlement. The UK’s confrontational strategy towards the EU was rooted in domestic constraints, reflecting the two-level nature of international negotiations (Putnam 1988). In particular, Theresa May’s failed electoral gamble of 8 June 2017 gave supporters of a hard Brexit a de facto veto in the House of Commons over any agreement the government might potentially negotiate with the EU. From the beginning, therefore, the UK was divided on Brexit, and it remained divided throughout the negotiations. This constellation severely limited May’s room for manoeuvre to find a compromise with the EU, especially regarding questions of UK sovereignty. Consequently, the UK government adopted a distributive bargaining strategy towards the EU (Odell 2010) which consisted in trying to force the EU to make concessions

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on market access without giving way on sovereignty. Theresa May’s insistence during the negotiations that “no deal is better than a bad deal” can be seen as an attempt to strengthen the UK’s bargaining position by discursively constructing a credible alternative to a negotiated agreement. By repeatedly threatening to walk away from the negotiations, British Prime Ministers attempted to force concessions from the EU. They did this in the negotiations of both, the Withdrawal Agreement and the Trade and Cooperation Agreement. The critical challenge for the EU , therefore, was to maintain internal unity on its Brexit response and to keep working constructively towards an orderly withdrawal in the face of brinkmanship by successive UK governments. On the one hand, this meant that the EU had to remain united on the position that the UK’s threats to walk away from the negotiations were not credible. On the other hand, it also had to keep the member states committed to constructive engagement with the UK and make practical concessions where possible to reduce the risk of an accidental and costly “no deal” outcome. We suggest that the discursive framing of Brexit and the co-creation of collective capacity created resources to withstand UK brinkmanship and to push the negotiations towards a more integrative logic: the EU had a clear and coherent set of objectives and red lines, its approach rested on broad political ownership in terms of the substance and process, and its technical preparation was meticulous. These resources were crucial to translate the EU’s potential material bargaining power into effective negotiation practice. First, by the time the negotiations started in June 2017, the EU had formulated a coherent set of objectives and red lines, guided by the motivation to minimise the economic and political damage of Brexit for the EU and its constituents. The EU never lost sight of its core objective of minimising the cost of Brexit. Instead, it maintained a principled stance on its core red lines: membership must matter, there can be no cherry picking and any future relationship must rest on a balance of rights and obligations. In essence, the closer the UK’s economic relationship with the EU, the more obligations it would have to take on. In this way, the EU’s red lines defined a multi-layered zone of possible agreement, ranging from single market and customs Union membership to free trade arrangements to a no-deal scenario—with each involving fewer obligations. Clarity about its own objectives and red lines enabled the EU to formulate a range of model relationships to accommodate whichever form of Brexit the UK would ultimately choose.

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Second, the EU’s approach to Brexit enjoyed broad political ownership in the institutions and the member states. This meant that there were virtually no internal divisions on the substance or the organisation of the negotiations with the UK. It also meant that the political leaders agreed to delegate the day-to-day negotiations to a dedicated Task Force in the European Commission. Political steering was, thus, largely confined to European Council meetings where the broad parameters of the EU’s course were adjusted. Ownership was also reflected in the fact that the Commission’s leadership was never questioned after the issue had been settled in 2016. Instead, the EU institutions coordinated to reinforce the efforts of the Commission’s TF50 by supplying expertise and political support when the negotiations reached critical moments. Third, the creation of an entire institutional ecology for handling Brexit and the delegation of the negotiations to the Commission’s TF50 massively boosted the resources and expertise available to the EU negotiators. These resources translated into a high degree of technical preparedness, which ensured that the EU was generally one step ahead of the UK in the negotiations. This preparedness not only allowed the EU to structure the sequencing of negotiations according to its preferences but also to produce draft agreements which served to commit the UK to negotiated compromises. Finally, technical readiness allowed the EU to respond quickly and seamlessly to shifting UK positions while respecting EU red lines and identifying practical solutions.

This Book’s Contribution This book seeks to contribute to scholarly research on Brexit and to the literature on European integration more generally. The existing literature on Brexit is dominated by UK scholars and perspectives because of the salience of Brexit for the UK. These publications are concerned with explaining why Brexit happened (Clarke et al. 2017; Glencross 2016; O’Rourke 2019) or how it might affect the UK (Adam 2020) or the EU (da Costa Cabral et al. 2017; Martill and Staiger 2018). The present volume focuses neither on the causes nor on the long-term consequences of Brexit. Instead, the emphasis is on a rich analysis of the European Union’s response to Brexit. Moreover, while acknowledging the centrality of the single market in shaping the member states’ preferences and the EU’s bargaining power (Schimmelfennig 2018a, 2018b), the analysis focuses on the role of ideas, leadership and processes in mobilising the

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collective capacity of the EU. We believe that the EU’s response to Brexit sheds light on the nature of the EU at the beginning of the twenty-first century. In particular, the EU’s mobilisation of collective capacity in the Brexit negotiations indicated that the Union had become a more robust and resilient polity. Its response to Brexit was squarely about protecting the interest of the collective, which subsumed and accommodated the interests of its constituent units. In developing our argument about the roles of the processes of issue framing and capacity creation in explaining the EU’s united and effective Brexit response, we use the method of qualitative text analysis. Our primary data sources were twofold. First, we used official EU and UK documents and speeches to discuss the framing of Brexit and the creation of institutional capacity. The use of these documents was appropriate for this task because they contain information on the EU’s problem perceptions, negotiating objectives and procedural arrangements. Moreover, the continual release of official documents allowed us to trace the evolution of positions and arrangements over the course of the Brexit process. Second, we conducted more than 20 expert interviews with officials and politicians involved in the EU’s Brexit response. Expert interviews are ideal to gather information on internal processes of decision-making and the behind-thescenes dynamics between the various actors. Our interviews covered the Council system, the Commission, the Parliament, the Court of Justice and a selection of member states. They typically lasted 90 minutes and were recorded and transcribed for analysis.

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CHAPTER 2

Framing the Brexit Challenge

Introduction The outcome of the British membership referendum came as a shock to observers in the UK and the European Union (BBC 2016). Such moments of profound uncertainty can provide policymakers with “windows of opportunity” to collectively frame and nudge policy responses onto distinct pathways. This is because policy challenges are not just objective external phenomena to which political actors react. Instead, they are socially constructed. Therefore, in moments of novelty and profound uncertainty, well-positioned resourceful actors may influence how a political challenge is perceived and what an appropriate response should look like. This process is known as issue framing. Issue framing does not involve coercion but works by strategically highlighting or masking different aspects of the perceived challenge. This chapter argues that the unity and effectiveness of the EU’s Brexit response depended on how it framed Brexit as a challenge. This is not to say that interests did not matter. Instead, we argue that the active framing of the Brexit challenge in the immediate aftermath of the UK’s membership referendum was central to reaching internal agreement on the nature of the problem and on how to best respond. In the week after the referendum, EU leaders framed Brexit as a common challenge to the Union as a whole. This framing highlighted the importance of a united © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 B. Laffan and S. Telle, The EU’s Response to Brexit, Palgrave Studies in European Union Politics, https://doi.org/10.1007/978-3-031-26263-0_2

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response to achieve an orderly withdrawal and a close partnership with the UK as a third country. It masked the asymmetric economic and political consequences of the UK’s withdrawal for individual member states and potential disputes over institutional leadership in the negotiations with the UK. Issue framing was a signalling device, both to the EU itself and to the UK. It was about shock absorption and about reasserting the EU as a project for the future of the 27 remaining member states. The emphasis on a united response laid the discursive foundations for subsequent interinstitutional coordination and resource mobilisation, which were crucial for the EU to effectively engage with the UK (see Chapter 3 and 4). The chapter first argues that a focus on the economic interests of the member states is insufficient to explain the EU’s united response to Brexit. It then outlines an alternative explanation based on the theory of issue framing. The remainder of the chapter provides an empirical illustration of the theoretical argument. It compares the emergence of the EU’s and the UK’s Brexit narratives in the time between the “new settlement” negotiations (from October 2015) and the beginning of the Brexit negotiations (until June 2017).

Why Issue Framing Was Key to a United Response to Brexit Theories of European integration provide alternative explanations of how agreement in the EU comes about. They differ in terms of who they consider to be the pivotal actors, what motivates these actors and what constrains them. The introductory chapter has already suggested that a focus on the economic interests of the EU member states is insufficient to explain the EU’s swift unity on Brexit. On the one hand, it downplays the asymmetric economic impact of Brexit on the member states. On the other hand, it neglects the non-economic motivations of member states and EU institutions (see Chapter 1). To arrive at a common position, the EU member states need to formulate, communicate and coordinate their interests. In the EU, this is process is usually time-consuming and often divisive. Negotiations on treaty changes or the EU budget tend to last for months or even years. This contrasts with the swift and united response of the Union after the British referendum. Two additional factors made swift member state coordination unlikely. First, the outcome of the British referendum came as a surprise to most. David Cameron had explicitly asked the EU to stay out of the referendum

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campaign for fear that perceived EU meddling could strengthen the leave campaign. Consequently, the member states had little occasion or incentive to define their position on Brexit because the general expectation was that the UK would vote to remain in the EU. What coordination had taken place in advance of the referendum had been initiated by the leadership of the Council and Commission. Second, Brexit was a completely novel challenge for the Union involving great uncertainty and making it difficult for individual member states to immediately grasp its implications. This would have made it difficult for the member states to quickly formulate clear preferences and coordinate together. In this regard, too, the novelty and complexity of the situation gave an advantage to the centrally positioned EU institutions. In the immediate aftermath of the referendum, the collective role of EU leaders in the Commission, Parliament and Council came to the fore (Schmidt 2016). These institutions shared an interest in protecting the EU polity and its institutional order, notwithstanding potential disagreement about their precise roles in the Brexit process. Therefore, the Brussels-based institutional leaders were the natural actors to provide an initial assessment of what had happened and how the EU would respond. This is not to say that the EU institutions were unconstrained in their actions or that they had the ability to impose a joint approach on reluctant member states. However, while they did not have power over the member states, their central position accorded them the power to shape perceptions of Brexit (Morriss 2012; Pansardi 2012). The key mechanism in this regard was issue framing. Issue Framing: Defining the Problem and Suggesting Solution Issue framing refers to selectively highlighting and masking information and interpretations to shape a message in communicative interactions.1 While communication always involves an element of unintentional issue

1 Issue framing can be distinguished from equivalence framing. The latter involves “logically equivalent ways of making the same statement” (Druckman 2004: 672). Such formally equivalent ways of presenting information may nudge actors into changing their assessments and behaviour (Thaler and Sunstein 2008). The two approaches are similar in their focus on the processes of altering the accessibility of information but they differ in the sense that issue framing involves intentional omission or highlighting of information, while equivalence framing does not omit information.

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framing, it can also be used strategically to influence how an audience perceives and assesses a relevant issue. Here, we adopt Steinberg’s (1998: 845–846) definition of “framing as the process of deliberative and focused persuasive communication essential for the mobilisation of consensus prior to collective action and as the cognitive process necessary for orienting and sustaining collective action.” But how does framing generate agreement on sustained collective action? Kingdon (2014: 110) reminds us that there are “great political stakes in problem-definition.” Therefore, by providing a plausible interpretation of the nature and potential consequences of an event, issue framing can be employed to limit the scope of conceivable solutions and support the emergence of agreement on a policy response. In this sense, issue framing serves as an informal agenda-setting device (Pollack 1997: 101–102) which helps to mobilise and focus institutional resources. From this perspective, the effective deployment of resources depends not only on their availability but also on the “know-how” on where, when and how to deploy them (Vliegenthart and van Zoonen 2011: 103). Effective issue framing depends on interest-compatibility among the relevant actors, on the structural properties of the decision situation and on the agency of the framing actor. First, framing is unlikely to be effective when the relevant actors perceive their interests to be strongly divergent. Their perceived interests need to be similar enough to enable their incorporation in a convincing narrative. This was the case of Brexit. While Brexit would affect the member states differently and the EU institutions had diverse accountabilities, they all also had a shared interest in protecting the Union. Second, framing is particularly powerful when an issue is highly politicised (Leifeld and Haunss 2012: 386) and non-action is unattractive for the actors involved (Scharpf 1988). In addition, in complex situation in which audiences cannot easily grasp the totality of all the relevant aspects and potential implications of a problem, different narratives can appear equally reasonable and convincing. Arguably, all these conditions applied in the case of Brexit: it was highly politicised, unprecedented, complex and non-action was not a viable option. In terms of the conditions under which issue framing matters, Brexit seems to us to be a “most likely case” (Gerring 2007). Third, the process of framing involves agency. Issue framing works via the production, transmission and reception of frames. A frame is defined as an “interpretative schemata that signifies and condenses the ‘world out there’” (Snow and Benford 1992: 137, quoted in Steinberg 1998: 845).

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Frames are more powerful when they are integrated in a plausible narrative which answers two related questions: What is the problem (problem frame) and what needs to be done (action frame)? A narrative becomes hegemonic when the deciding actors are guided by it to such a degree that alternative framings of the issue lose credibility and receive little attention. In other words, hegemony signifies that the elements which are highlighted in the narrative are widely endorsed and those which are masked are widely ignored. While all discursive frames are fluid and contested, they “can become reified – made real – in institutions, industries, and cultural practices. Once reified, they don’t disappear until the institutions, industries, and cultural practices disappear” (Lakoff 2010: 77). At this point, the discourse becomes “locked-in” and sustains collective action. In other words, successful framing can generate path-dependence (Pierson 1996) towards the institutionalisation of specific interpretations of a policy challenge.

Framing Brexit: In the EU and in the UK This section will illustrate how Brexit was framed by key EU institutional actors. If issue framing shaped the EU’s response to Brexit, it needed to precede the actual negotiations with the UK. Accordingly, the empirical part of this chapter focuses on the time between the negotiations on a “new settlement” for the UK within the EU (from November 2015) and the start of the Brexit negotiations (in June 2017). The “new settlement” phase was important because it triggered the EU’s search for a common position vis-à-vis the UK’s demands (see Puetter 2017: 256). The referendum itself was a critical switching point. Whereas the “new settlement” had been about keeping the UK inside the EU, the postreferendum period was about organising its departure. By analysing the EU and UK narratives, we seek to highlight the agency of political actors and show how framing decisions mattered to outcomes. On the UK’s side, the British government but also Parliament, the devolved regions and the Leave campaigns were the key actors. On the EU’s side, the key actors were EU institutions and the member states. The documents analysed below represent a purposive sample taken from a larger corpus of documents with the intention of bringing out the key elements in the UK and EU Brexit narratives.

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The “New Settlement” Negotiations While the outcome of the 2016 EU membership referendum was a shock, the referendum did not happen in a political vacuum. Instead, negotiations on a new settlement for the UK in the EU in late 2015 and early 2016 served as a formative period for the EU27 and its positions vis-à-vis the UK. The “New Settlement” Narrative of the UK Government Euroscepticism in the UK has a long history (see Clarke et al. 2017; Gastinger 2021; MacMillan 2018; Sobolewska and Ford 2020; Startin 2015; Wellings and Baxendale 2015). However, the likelihood of Brexit significantly increased in 2013. In his “Bloomberg Speech” on 23 January 2013, British Prime Minister David Cameron stated that “democratic consent for the EU in Britain is now wafer thin” and that ignoring the question of EU membership “won’t make it go away” (Cameron 2013). Cameron then declared that he was “in favour of a referendum” on the UK’s membership of the EU. Yet, in his view a “vote today between the status quo and leaving would be an entirely false choice” because the “EU is in flux, and […] we don’t know what the future holds and what sort of EU will emerge from this [eurozone] crisis.” For the UK, Cameron concluded, the real choice should be “between leaving or being part of a new settlement in which Britain shapes and respects the rules of the single market but is protected by fair safeguards, and free of the spurious regulation which damages Europe’s competitiveness.” The promise of an EU referendum became a central plank in the Conservative Party’s electoral programme for the 2015 general election. The Conservative party manifesto described the EU as “too big, too bossy, and too bureaucratic” (Conservative and Unionist Party 2015). It has been suggested that part of the reasoning behind Cameron’s call for a referendum was party political (Adam 2020). On the one hand, taking a tough stance on the EU was seen as a strategic move to stop the drain of voters from the Conservative Party to the United Kingdom Independence Party (UKIP). On the other hand, a positive referendum result on the EU may have helped to re-unite the Conservative Party on the EU by taking the wind out of the sails of its Eurosceptic backbenchers. These motivations, however, were masked in the government’s discourse. In any case, the Conservatives won an outright majority in the 2015 general election. David Cameron followed through on his promise and

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initiated negotiations on “A new settlement for the United Kingdom in a Reformed European Union” by sending an official letter to Donald Tusk, President of the European Council, on 10 November 2015 (Cameron 2015). The letter identified four broad areas for reform: economic governance, competitiveness, sovereignty and immigration. With immediate treaty change off the table from the beginning, however, there were limits to what the UK could hope to achieve. After several months of negotiations with the EU, agreement on a new settlement was reached in February 2016 (European Council 2016c), prompting David Cameron to make the following announcement: I believe it is enough for me to recommend that the United Kingdom remain in the European Union – having the best of both worlds. We will be in the parts of Europe that work for us, influencing the decisions that affect us in the driving seat of the world’s biggest market and with the ability to take action to keep people safe. And we will be out of the parts of Europe that don’t work for us. Out of the open borders. Out of the bailouts. Out of the euro. And out of all those schemes in which Britain wants no part. (Cameron 2016b)

David Cameron also announced that a referendum on the question of UK membership of the EU would take place on 23 June 2016. In the following months, Cameron campaigned in favour of the UK remaining a member of the EU. His government stressed the negative economic consequences of a withdrawal from the EU (HM Government 2016) but the Remain campaign was widely seen to have failed to formulate positive reasons for EU membership. This approach was derided as “project fear” by the leave camp and ultimately did not resonate with voters to the same degree as the call to “take back control” (Adam 2020; Clarke et al. 2017; Glencross 2016). At the same time, the government did little to communicate—and therefore masked—the potential negative political and constitutional consequences of Brexit for the UK. How would Brexit affect the relationship between the central government and the devolved regions? How would it affect the Scottish independence movement? What would the consequences be for the Irish peace process and Northern Ireland’s place in the UK? How would the relationship between Parliament and the central government be affected? What was Brexit’s potential for electoral polarisation? These issues would emerge as critical questions

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Problem frame

Action frame

Low popular support for EU

Negotiate a better deal with EU

Highlighted Low domestic support for EU EU too big, too bossy, and too bureaucratic

Masked Electoral calculus (UKIP) Silence Euroscepticism in Conservative Party

Highlighted Government can negotiate a better deal Citizens will choose (referendum)

Masked Limited change possible within EU treaties Consequences of Brexit for the UK polity and politics

Fig. 2.1 The UK government’s ‘New Settlement’ narrative

after the referendum, when the new government of Theresa May struggled to define what Brexit meant (see Douglas-Scott 2017, 2020; Doyle and Connolly 2017; Esler 2021; Keating 2018, 2021; Sobolewska and Ford 2020; Tierney 2017). The UK government’s narrative about the new settlement with the EU is summarised in Fig. 2.1. It shows that the government developed a coherent narrative by selectively highlighting and masking various issues regarding the domestic consequences of EU membership, its ability to negotiate significant change with the EU and the consequences of the upcoming membership referendum. As such, the narrative held that EU membership undermined the democratic process in the UK, that the government could negotiate a better deal with the EU, and that the choice over EU membership was a matter for the British voters to decide in a referendum. Yet, the narrative did not achieve discursive hegemony. Instead, the leave camp’s alternative narrative—underpinned by the “Take back control” slogan—convinced voters that exit was more advantageous than the new settlement which the government had negotiated. The “New Settlement” Narrative of the EU In the EU, the appetite for accommodating the UK’s demand for a new settlement was low. On the one hand, the UK’s track record of opting out of core EU policies had given the country the reputation of being an “awkward partner” in the Union (George 1998; Ludlow 2018). On the other hand, with the euro and migration crises the EU was already fighting several other fires. Nevertheless, the exit of a large and wealthy member state would be a major destabilising event for an already battered Union. Consequently, key institutional actors argued in favour of constructive and united engagement with the UK while respecting

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the core principles of the Union. There are several reasons why institutional actors were key in this period. First, the new settlement had to be found within the current legal framework. This increased the importance of the legal services of the Commission and Council. Second, the member states entrusted the “new settlement” negotiations to the European Commission. For this purpose, the Commission set up a novel “Task Force for Strategic Issues related to the UK referendum” in late summer of 2015 under the leadership of Jonathan Faull, a senior British Commission official. While the Commission became the central node for technical engagement with the UK, the President of the European Council, Donald Tusk, was central in shaping the political discourse. On 7 December 2015, President Tusk summarised the state of the negotiations in a letter to the heads of state or government in the European Council (Tusk 2015). In the letter, President Tusk stated that the Council, “in close cooperation with the Commission, [had] held extensive bilateral consultations at Sherpa level with all Member States” and “discussed it with representatives of the European Parliament.” According to Tusk, these consultations had shown that the British demands were difficult for the EU, but also that “there is a strong will on the part of all sides to find solutions that respond to the British request while benefiting the European Union as a whole.” The letter concluded with a call to the member states and the institutions: All involved must take their part of responsibility. I will act as an honest broker but all Member States and the institutions must show readiness for compromise for this process to succeed. Our goal is to find solutions that will meet the expectations of the British Prime Minister while cementing the foundations on which the EU is based. Uncertainty about the future of the UK in the European Union is a destabilising factor. That is why we must find a way to answer the British concerns as quickly as possible. In times when geopolitics is back in Europe, we need to be united and strong. This is in our common interest and in the interest of each and every EU Member State.

This framing of the problem highlighted both the difficult nature of the UK’s demands and the destabilising consequences of a potential British exit. At the same time, it did not engage with the question of whether the UK’s demands may indicate a broader need for EU reforms, including the possibility of treaty change. In terms of the action frame, President Tusk’s letter contained some of the first expressions of important

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principles which would become central in the subsequent Brexit negotiations. First, a united EU was seen to be of great importance in a rapidly changing geopolitical context. Second, accommodation of the UK must not undermine the foundational principles of the Union. Third, compromise and constructive engagement were seen to be necessary. Fourth, coordination among EU institutions and the member states were seen as key to developing a joint position vis-à-vis the UK. Following Tusk’s suggestions, the conclusions of the European Council on 18 December 2015 emphasised that its members intended “to work closely together to find mutually satisfactory solutions in all the four areas at the European Council meeting on 18-19 February 2016” (European Council 2015). In the following two months, the Commission’s Task Force, in collaboration with the legal services of the Commission and the Council, negotiated with the UK. On 2 February 2016, two weeks before the targeted European Council meeting, President Tusk shared a draft decision on the new settlement with the member states (European Council 2016b), along with another letter to the members of the European Council (Tusk 2016a). The letter reiterated the key themes of the earlier documents: the seriousness of the challenge, the overarching objective of unity, the notion that compromise was necessary but could not undermine the principles of the Union and close coordination among the EU institutions. It added the important notion that “nothing is agreed until everything is agreed,” ensuring that the agreement would be acceptable to all EU actors. Tusk wrote: Keeping the unity of the European Union is the biggest challenge for all of us and so it is the key objective of my mandate. It is in this spirit that I put forward a proposal for a new settlement of the United Kingdom within the EU. To my mind it goes really far in addressing all the concerns raised by Prime Minister Cameron. The line I did not cross, however, were the principles on which the European project is founded. I deeply believe that our community of interests is much stronger than what divides us. To be, or not to be together, that is the question which must be answered not only by the British people in a referendum, but also by the other 27 members of the EU in the next two weeks. This has been a difficult process and there are still challenging negotiations ahead. Nothing is agreed until everything is agreed. I am convinced that the proposal is a good basis for a compromise. It could not have been drafted without the close and good cooperation of the European Commission. […] The clear objective is to have an agreement of all 28 at the February European Council. To

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succeed we will all need to compromise. To fail would be compromising our common future.

Agreement on a “new settlement” was indeed reached at the February 2016 European Council. The decision adopted (European Council 2016a) depicted the settlement as an instance of treaty-conforming differentiated integration (see Leuffen et al. 2013) and listed the corresponding precedents which had been established by the UK. This framing of the new settlement with the UK arguably masked the essentially disintegrative nature of the settlement. At the same time, it also masked the extent to which the Union had interpreted existing rules creatively to preserve unity and keep the UK in the EU. The EU’s narrative regarding the new settlement is summarised in Fig. 2.2. The framing highlighted the difficult nature of the UK’s demands and the willingness of the EU to engage in constructive negotiations to avoid a destabilising exit of the UK, provided that the foundational principles of the integration process were respected. In contrast to the UK government’s narrative, the EU’s narrative was adhered to by all the relevant actors (EU institutions and member states) and the masked elements remained uncontroversial, indicating it had achieved discursive hegemony. The Post-referendum Period: Making Sense of Brexit Despite the “new settlement” which David Cameron had negotiated with the EU, a majority of British voters chose to leave the Union on 23 June 2016. In the event of such an outcome, the European Council conclusion of February 19 had stipulated that the arrangements of the new settlement “will cease to apply” (European Council 2016c). Therefore, the referendum was an important switching point in the relationship between the Union and the UK. While the “new settlement” negotiations had been about keeping the UK inside the EU, the post-referendum period was about managing its departure. At the time, there was no shortage of interpretations of what Brexit would ultimately mean. After the referendum, the British government failed to produce a coherent narrative as the UK entered a period of political instability. In contrast, the EU’s narrative of a common challenge and joint action was endorsed by the institutions and the member states.

Fig. 2.2 The EU’s ‘New Settlement’ narrative

Validity of UK demands Possibility of EU treaty change

Masked

Challenging nature of UK demands Risk of a destabilizing UK exit

Highlighted

Stretching of EU rules and norms Disintegrative nature of settlement

Masked

Willingness to accommodate UK demands Ambition to protect EU principles

Highlighted

Action frame Constructive engagement

Problem frame

Risk of a destabilising exit

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The Brexit Narrative of the UK Government Commenting on the result of the referendum on the morning of 24 June 2016, Prime Minister David Cameron announced that “the will of the British people is an instruction that must be delivered” (Cameron 2016a). And while he emphasised that “stability will be important,” he also announced that he would step down as Prime Minister within three months. In fact, David Cameron left the post as Prime Minister on 13 July 2016 because the leadership contest within the Conservative party was quickly over. It was now up to Theresa May, Cameron’s successor as head of the Conservative Party and Prime Minister of the UK, to translate the result of the referendum into government policy. David Cameron had instructed the civil service ahead of the referendum not to prepare for a negative outcome (McGowan 2018: 54). As a result, generating the organisational capacity and procedures for handling the negotiations was a major challenge. And formulating an inclusive vision of what Brexit meant would prove to be an even more daunting task. A member of the EU’s Task Force 50 succinctly summarised Theresa May’s predicament: I think Madame May had the most difficult job, because she had to say what Brexit was. So, she had to say what was and what wasn’t. That was horrible. And then it revealed all the different divisions on this issue that existed and probably still exist. (Commission 8, Interview, May 2021)

Theresa May offered a first concrete vision of what Brexit meant at the Conservative Party conference in Birmingham in early October 2016, more than three months after the referendum (May 2016). In her speech entitled “Britain after Brexit: A Vision of a Global Britain” May acknowledged that “there is a lot of speculation about what that [Brexit] is going to mean” and she promised that “we will give clarity […] whenever possible and as quickly as possible.” In terms of timing, Theresa May committed to invoking Article 50 “no later than the end of March next year.” In terms of process, she expressed the conviction that government alone could trigger Article 50. This attempt to limit the role of Parliament in triggering the Brexit process was frustrated by the UK Supreme Court’s decision of 24 January 2017, which ruled that Article 50 could not be invoked without an Act of Parliament. In terms of substance, May distinguished between EU-UK relations, on the one hand, and a vision of a “truly global Britain,” on the other hand. Regarding the former, she argued that for her “there is no such thing as a choice between ‘soft Brexit’ and ‘hard Brexit’,” but also stressed that Brexit would deliver a sovereign UK:

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We are going to be a fully independent sovereign country, a country that is no longer part of a political union with supranational institutions that can override national parliaments and courts. And that means we are going, once more, to have the freedom to make our own decisions on a whole host of different matters, from how we label our food to the way in which we choose to control immigration. […] So it is not going to [be] a ‘Norway model.’ It’s not going to be a ‘Switzerland model.’ It is going to be an agreement between an independent sovereign United Kingdom and the European Union. […] We have voted to leave the European Union and become a fully independent sovereign country. We will do what independent sovereign countries do. We will decide for ourselves how we control immigration. And we will be free to pass our own laws.

The emphasis on national sovereignty in the UK’s future relations with the EU contrasted to May’s vision of a “truly global Britain” in which the UK would seek to benefit from the “economic and diplomatic opportunities of the wider world.” Further clarification of what Brexit meant for the British government followed in January and February 2017. In her “Lancaster House” speech, May spelled out her government’s negotiating objectives for exiting the EU (May 2017b), which were further substantiated in the “White Paper on The United Kingdom’s exit from and new partnership with the European Union” (HM Government 2017). In the White Paper, Theresa May argued that “after all the division and discord, the country is coming together” and she highlighted that her government was not approaching the “negotiations expecting failure but anticipating success.” Similarly, May’s Secretary of State for Exiting the European Union, David Davis, expressed the view in the White Paper that “the UK enters these negotiations from a position of strength.” The White Paper listed of twelve guiding principles for managing Brexit (see Table 2.1), accompanied by a promise to “provide certainty and clarity.” In addition to the objectives of greater national sovereignty (principle two), immigration control (principle five) and a global Britain (principle nine), which had already been expressed in May’s Birmingham speech in October 2016, the White Paper stated that the UK would seek a “wide reaching, bold and ambitious free trade agreement” with the EU (principle eight). The government also committed to strengthen the United Kingdom by securing “a deal that works for the entire UK” (principle three) and it vowed to protect the “strong and historic ties with Ireland” (principle four). The government furthermore committed to protect the status of EU and UK citizens (principle six) and the rights of workers in the UK (principle seven). In addition, future cooperation with the EU on science (principle ten) and on the fight against

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Table 2.1 The UK’s Brexit principles 1. Providing certainty and clarity—We will provide certainty wherever we can as we approach the negotiations. 2. Taking control of our own laws—We will take control of our own statute book and bring an end to the jurisdiction of the Court of Justice of the European Union in the UK. 3. Strengthening the Union—We will secure a deal that works for the entire UK—for Scotland, Wales, Northern Ireland and all parts of England. We remain fully committed to the Belfast Agreement and its successors. 4. Protecting our strong and historic ties with Ireland and maintaining the Common Travel Area—We will work to deliver a practical solution that allows for the maintenance of the Common Travel Area, whilst protecting the integrity of our immigration system and which protects our strong ties with Ireland 5. Controlling immigration—We will have control over the number of EU nationals coming to the UK. 6. Securing rights for EU nationals in the UK, and UK nationals in the EU—We want to secure the status of EU citizens who are already living in the UK, and that of UK nationals in other Member States, as early as we can. 7. Protecting workers’ rights—We will protect and enhance existing workers’ rights. 8. Ensuring free trade with European markets—We will forge a new strategic partnership with the EU, including a wide reaching, bold and ambitious free trade agreement, and will seek a mutually beneficial new customs agreement with the EU. 9. Securing new trade agreements with other countries—We will forge ambitious free trade relationships across the world 10. Ensuring the UK remains the best place for science and innovation—We will remain at the vanguard of science and innovation and will seek continued close collaboration with our European partners. 11. Cooperating in the fight against crime and terrorism—We will continue to work with the EU to preserve European security, to fight terrorism, and to uphold justice across Europe. 12. Delivering a smooth, orderly exit from the EU—We will seek a phased process of implementation, in which both the UK and the EU institutions and the remaining EU Member States prepare for the new arrangements that will exist between us. Based on HM Government (2017)

crime and terrorism (principle eleven) were envisioned. Procedurally, the government sought an orderly exit from the EU, ensured by “a phased process of implementation” (principle twelve), which meant that the UK was seeking a transition period between political and economic Brexit (see Armstrong 2020). Overall, it is noticeable that only two of the twelve principles—“Taking control of our own laws” (principle two) and “Controlling Immigration” (principle five)—played an important role in the referendum campaigns and might require exit from the EU. The

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remaining ten principles appear to be designed to mitigate potential negative economic and political consequences of Brexit. In this reading, the set of principles espoused in the White Paper can be seen as an indicator of how much the British government was struggling to develop a positive and coherent Brexit narrative. On 29 March 2017, the UK formally triggered the withdrawal process by notifying the President of the European Council of “the United Kingdom’s intention to withdraw from the European Union” (May 2017a). Theresa May’s letter to Donald Tusk stated that the vote to leave the EU “was no rejection of the values we share as fellow Europeans” but “a vote to restore, as we see it, our national self-determination” and added that the UK was seeking a “deep and special partnership […] as your closest friend and neighbour.” In terms of substance, Theresa May affirmed that the “United Kingdom’s objectives for our future partnership remain those set out in my Lancaster House speech of 17 January and the subsequent White Paper published on 2 February.” The framing of Brexit by the UK government is summarised in Fig. 2.3. What stands out is the significant number of issues that remained ambiguous and disguised, indicating that the UK government had missed the chance to use the pervasive uncertainty immediately after the referendum as a “window of opportunity” to forward a coherent and inclusive Brexit narrative. As a result, elements which were masked in the government’s narrative were subsequently mobilised by various political actors to challenge the hegemony of May’s narrative. They are briefly discussed in the following paragraphs. Problem frame

Action frame

Will of the people must be respected

Deliver Brexit

Highlighted Referendum result reflects democratic choice Government needs to respect the outcome of the referendum

Masked Consultative nature of the referendum Role of misinformation in Leave campaign Regional variation in vote

Highlighted Leave EU to take back control over UK laws, money, and borders Negotiate ambitious trade deal with EU Build a Global Britain Strengthen unity among regions of UK

Masked Institutional limits to executive power Risk of economically costly Brexit Risk of conflictual territorial politics in UK Lack of preparation and capacity

Fig. 2.3 The UK government’s Brexit narrative

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To begin with, the government’s narrative downplayed the consultative nature of the referendum. Instead, David Cameron argued that “the will of the British people is an instruction that must be delivered.” This framing bound the Conservative government to the outcome of the referendum. However, this was a political choice and not a legal necessity. Moreover, the narrative concealed the regional differences in the Brexit vote, thus marginalising the voice of those devolved regions which had voted to remain in the EU (Keating 2021). Furthermore, it masked potential institutional hurdles to the government’s ability to deliver Brexit, as a Supreme Court judgement of January 2017 indicated. It has been argued that Theresa May’s government was pursuing a strategy of executive dominance which was at odds with the idea and practice of parliamentary sovereignty in the UK (Weale 2018). As a result, Parliament and the devolved governments developed counter-narratives and actively pushed back on the government’s approach (Douglas-Scott 2017, 2020). The White Paper sought to moderate the potential negative economic consequences of leaving the EU single market and the customs Union. However, by its very nature, a new free trade agreement with the EU could not offer the same economic advantages as membership of the EU single market. In addition, the UK would likely have to accept worse terms in agreements with third countries, reflecting its reduced international economic clout in comparison with the EU (Mariani and Sacerdoti 2020). May’s optimistic narrative was all the more surprising since David Cameron had used a highly negative Treasury forecast (HM Treasury 2016) of the long-term economic consequences of Brexit to convince citizens to vote remain (Adam 2020). As such, the government’s post-Brexit trade plans were ambiguous and contested. Finally, the narrative discounted the limited degree of organisational preparedness and institutional capacity to successfully conduct negotiations with the EU and other countries. Theresa May decided to create two completely new government departments to manage Brexit: the Department for Exiting the European Union would oversee negotiations with the EU, while the Department for International Trade would be responsible for closing new trade deals with third countries. These departments, however, struggled to recruit appropriate human resources and develop organisational processes in time for the start of the negotiations (Adam 2020: 196; Bickerton 2018: 137; McGowan 2018: 54). In sum, the government’s Brexit narrative camouflaged many crucial questions

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and remained contested by alternative visions of Brexit, emanating from Parliament, the devolved regions and from within May’s own party. The Brexit Narrative of the EU27 How did the EU respond to the referendum outcome? In the immediate aftermath of the referendum, the EU institutions took a strong leadership role. Speaking in Brussels around thirty minutes after David Cameron had announced his intention to resign on 24 June 2016, the President of the European Council, Donald Tusk, outlined what was to become the Union’s remarkably consistent and dominant Brexit narrative: There’s no hiding the fact that we wanted a different outcome of yesterday’s referendum. […] I want to reassure everyone that we are prepared also for this negative scenario. As you know the EU is not only a fair-weather project. Over the past two days I have spoken to all the EU leaders, I mean Prime Ministers and Presidents as well as heads of the EU institutions, about the possibility of a Brexit. Today, on behalf of the twenty-seven leaders I can say that we are determined to keep our unity at twenty-seven. For all of us, the Union is the framework for our common future. I would also like to reassure you that there will be no legal vacuum. Until the United Kingdom formally leaves the European Union, EU law will continue to apply to and within the UK. And by this I mean rights and obligations. All the procedures for the withdrawal of the UK from the EU are clear and set out in the Treaties. (Tusk 2016b)

Only a few hours after Donald Tusk’s statement, the presidents of the European Commission (Jean-Claude Juncker), the European Parliament (Martin Schulz), the European Council (Donald Tusk) and the rotating Dutch presidency of the Council of the European Union (Mark Rutte) issued the following joint statement which further embedded the EU27’s Brexit narrative: In a free and democratic process, the British people have expressed their wish to leave the European Union. We regret this decision but respect it. This is an unprecedented situation but we are united in our response. […] We now expect the United Kingdom government to give effect to this decision of the British people as soon as possible, however painful that process may be. Any delay would unnecessarily prolong uncertainty. We have rules to deal with this in an orderly way. Article 50 of the Treaty on European Union sets out the procedure to be followed if a Member State decides to leave the European Union (Four Presidents Joint Statement 2016)

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Less than a week later, the heads of the 27 remaining member states confirmed this reading of the Brexit challenge in their concluding statement at the informal European Council summit of 28–29 June 2016 (European Council 2016d). The summit was the first of its kind in which the EU27 came together without the UK. As such, the meeting contained the first expression of the EU27’s position on Brexit. The outline of the statement had been prepared by the Council secretariat and the Commission. But the importance of the 29 June meeting was emphasised by a Council representative, who stressed that after the Leaders had met with David Cameron on June 28, they insisted on stronger language in the concluding statement to “make it clear that there will be no cherry picking” (Council 4, Interview, February 2021). The statement signalled that the EU would continue its approach of constructive engagement with the UK. At the same time, it formulated several novel substantive and procedural principles which built on the post-referendum statements by the Presidents of the European institutions and reflected the changed circumstances after the referendum (see Table 2.2). Foremost among these principles were the reassurance that there would be no legal vacuum as EU law continued to apply in the UK until exit, that the EU was seeking an orderly withdrawal based on the Article 50 procedure, but that there would be no negotiation without notification. Moreover, the statement clarified that the UK would become a third country with which the EU sought a close partnership, but that the four freedoms of the single market were indivisible. Finally, the member states and institutions expressed their commitment to the EU as their principal framework for cooperation, stressed that the EU27 would stand united in the Brexit negotiations and that they would work on a positive reform agenda for the EU. This immediate framing of Brexit in the first week after the referendum was crucial for EU unity and effectiveness. As the member states endorsed and further clarified the initial statements by the heads of the EU institutions, the EU had achieved broad ownership of the principles which would guide the negotiations. These principles subsequently served as guides for developing more detailed positions on procedural and substantive issues. The perceived need for a positive agenda found expression in the Bratislava Declaration of 16 September 2016, which stressed the member states’ determination “to make a success of the EU at 27” (European Council 2016e). The declaration outlined an ambitious political reform agenda and signalled the commitment of the member

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Table 2.2 The EU27’s immediate response to the referendum outcome 1. We, the Heads of State or Government of 27 Member States, as well as the Presidents of the European Council and the European Commission, deeply regret the outcome of the referendum in the UK but we respect the will expressed by a majority of the British people. Until the UK leaves the EU, EU law continues to apply to and within the UK, both when it comes to rights and obligations 2. There is a need to organise the withdrawal of the UK from the EU in an orderly fashion. Article 50 TEU provides the legal basis for this process. It is up to the British government to notify the European Council of the UK’s intention to withdraw from the Union. This should be done as quickly as possible. There can be no negotiations of any kind before this notification has taken place 3. Once the notification has been received, the European Council will adopt guidelines for the negotiations of an agreement with the UK. In the further process the European Commission and the European Parliament will play their full role in accordance with the Treaties 4. In the future, we hope to have the UK as a close partner of the EU and we look forward to the UK stating its intentions in this respect. Any agreement, which will be concluded with the UK as a third country, will have to be based on a balance of rights and obligations. Access to the Single Market requires acceptance of all four freedoms 5. The outcome of the UK referendum creates a new situation for the European Union. We are determined to remain united and work in the framework of the EU to deal with the challenges of the twenty-first century and find solutions in the interest of our nations and peoples. We stand ready to tackle any difficulty that may arise from the current situation 6. The European Union is a historic achievement of peace, prosperity and security on the European continent and remains our common framework. At the same time many people express dissatisfaction with the current state of affairs, be it at the European or national level. Europeans expect us to do better when it comes to providing security, jobs and growth, as well as hope for a better future. We need to deliver on this, in a way that unites us, not least in the interest of the young 7. This is why we are starting today a political reflection to give an impulse to further reforms, in line with our Strategic Agenda, and to the development of the EU with 27 Member States. This requires leadership of the Heads of State or Government. We will come back to this issue at an informal meeting in September in Bratislava Based on European Council (2016d)

states to the EU. The Bratislava Declaration was framed as “the beginning of a process” which would set “orientations for our common future together” at celebrations of the Rome Treaties in March 2017. The Rome Declaration of 25 March 2017 strongly re-affirmed the unity of the EU27: We will make the European Union stronger and more resilient, through even greater unity and solidarity amongst us and the respect of common

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rules. Unity is both a necessity and our free choice. Taken individually, we would be side-lined by global dynamics. Standing together is our best chance to influence them, and to defend our common interests and values. We will act together, at different paces and intensity where necessary, while moving in the same direction, as we have done in the past, in line with the Treaties and keeping the door open to those who want to join later. Our Union is undivided and indivisible. […] We have united for the better. Europe is our common future. (European Union 2017)

When Theresa May triggered Article 50 four days later, the European Council announced that it would agree on guidelines for the negotiations with the UK and that the EU would be represented in the negotiations by the European Commission. Furthermore, it stressed that “the Union will act as one and preserve its interests” in the negotiations and clarified that Our first priority will be to minimise the uncertainty caused by the decision of the United Kingdom for our citizens, businesses and Member States. Therefore, we will start by focusing on all key arrangements for an orderly withdrawal. We will approach these talks constructively and strive to find an agreement. In the future, we hope to have the United Kingdom as a close partner. (European Council 2017b)

The European Parliament set out its position regarding the Brexit process in a resolution on 5 April 2017 (European Parliament 2017). In terms of the general principles for the negotiations, the resolution was in broad agreement with the European Council statement of June 2016. It highlighted the importance of protecting the rights of EU citizens in the UK, the UK’s budgetary commitments to the EU, and the need to safeguard the EU’s external borders. On procedure, it welcomed the nomination of the Commission as the Union’s negotiator, endorsed a phased approach to the negotiations and underlined that the full involvement of the European Parliament was a necessary precondition for it to consent to any agreement reached between the European Union and the UK. Finally, it also called on the European Council to take “this resolution into account when adopting its guidelines defining the framework for negotiations and setting out the overall positions and principles that the European Union will pursue.” The Secretariat of the Council disseminated draft negotiation guidelines to the delegations of the 27 remaining member states (Council

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of the European Union 2017b). After the input of the member states, a slightly revised version of these guidelines was adopted on 29 April 2017 by the European Council. It clarified that “the European Council welcomes the resolution of the European Parliament of 5 April 2017” (European Council 2017a). The similarity in content between the EP resolution and the European Council guidelines suggests that the documents were the result of a closely coordinated effort. The guidelines confirmed that the “European Council will continue to base itself on the principles set out in the statement of Heads of State or Government and of the Presidents of the European Council and the European Commission on 29 June 2016” and “endorses the arrangements set out in the statement of 27 Heads of State or Government on 15 December 2016” (see Chapter 4). The negotiation guidelines of April 2017 confirmed the substantive and procedural “core principles” which had been developed in earlier documents (see Table 2.3). To strengthen the EU27’s negotiation position and avoid internal disunity, the guidelines specified that there could be “no separate negotiations” between member states and the UK and that “nothing is agreed until everything is agreed.” Moreover, the guidelines stated that the EU favoured a “phased approach” to the negotiations, separating the negotiations on the UK’s withdrawal from the negotiations on a potential future partnership. The notion of an “orderly withdrawal” was further specified to refer to the protection of citizen rights, the assurance of legal certainty, a financial settlement and the maintenance of peace in Ireland. In terms of a future relationship, the EU was prepared to negotiate an ambitious free trade agreement, but emphasised that this could not “amount to participation in the single market or parts thereof.” More specifically, the EU was seeking a “balance of rights and obligations,” would accept no “cherry picking” regarding the single market, and insisted that any future agreement would have to “ensure a level playing field.” Beyond a trade agreement, the EU “stood ready” to negotiate an agreement on security cooperation. Finally, the EU insisted that the UK was bound by the principle of “sincere cooperation” but would not participate in EU decisions related to Brexit. The guidelines were translated into a more detailed draft negotiation directive by the Commission (European Commission 2017), which was then approved by the General Affairs Council on 22 May 2017 (Council of the European Union 2017a). By acting immediately and in a coordinated fashion, the EU institutions were able to seize the “window of opportunity” in the week after

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Table 2.3 The EU’s negotiation guidelines of April 2017 I. Core principles • Close partnership • Transparency • Balance of rights obligations (No cherry picking) • Single package • Autonomy of EU decision-making • No separate negotiations II. Phased approach • Phase 1: Orderly withdrawal • Phase 2: Transitional arrangements • Phase 3: Future EU-UK relationship III. Orderly withdrawal Legal certainty The ‘negotiations should seek to prevent a legal vacuum once the Treaties cease to apply to the United Kingdom and, to the extent possible, address uncertainties.’ Citizens’ rights The EU seeks ‘reciprocal guarantees to safeguard the status and rights derived from EU law at the date of withdrawal of EU and UK citizens, and their families, affected by the United Kingdom’s withdrawal from the Union’ Financial Settlement ‘A single financial settlement […] should ensure that the Union and the United Kingdom both respect the obligations resulting from the whole period of the UK membership in the Union.’ Irish border For the EU ‘continuing to support and protect the achievements, benefits and commitments of the Peace Process will remain of paramount importance.’ Governance ‘The withdrawal agreement should include appropriate dispute settlement and enforcement mechanisms regarding the application and interpretation of the withdrawal agreement […] This should be done bearing in mind the Union’s interest to effectively protect its autonomy and its legal order’ IV. Future EU-UK relationship Free Trade The ‘European Council stands ready to initiate work towards an Agreement agreement on trade, to be finalised and concluded once the United Kingdom is no longer a Member State. Any free trade agreement should be balanced, ambitious and wide-ranging. It cannot, however, amount to participation in the Single Market or parts thereof, as this would undermine its integrity and proper functioning. It must ensure a level playing field, notably in terms of competition and state aid […].’ Security cooperation ‘The EU stands ready to establish partnerships in areas unrelated to trade, in particular the fight against terrorism and international crime, as well as security, defence and foreign policy.’ Governance ‘The future partnership must include appropriate enforcement and dispute settlement mechanisms that do not affect the Union’s autonomy, in particular its decision-making procedures.’ V. Sincere cooperation EU27 Before exit, the UK remains bound by the principle of sincere cooperation and the EU ‘expects the United Kingdom to recognise the need of the 27 Member States to meet and discuss matters related to the situation after the withdrawal of the United Kingdom.’ Avoid contagion ‘Negotiations with the United Kingdom will be kept separate from ongoing Union business, and shall not interfere with its progress.’ Based on European Council (2017)

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Problem frame

Action frame

Common challenge

United Response

Highlighted

Highlighted

Respect for the choice of UK citizens UK withdrawal questions the value of EU membership and poses significant challenges to the Union, the Member States, and EU citizens

Masked

UK will become a third country To minimize the negative impact of Brexit, the EU will negotiate an orderly withdrawal and a close future partnership EU will negotiate as one to protect the interests of the Union, Member States, and citizens

Masked

Failure to keep UK in EU Asymmetric impact of Brexit on EU Member States

Risk of EU disunity and a negotiation outcome which fails to showcase the value of EU membership

Fig. 2.4 The EU’s Brexit narrative

the Brexit referendum to disseminate a coherent narrative (Fig. 2.4). In this narrative, Brexit was depicted as a common challenge for the Union which required a united response. By depicting Brexit as a British choice, the narrative both externalised responsibility and masked the EU’s failure to keep the UK in the Union. Nevertheless, a positive reform agenda was formulated to boost the commitment of the member states to the Union. Regarding the UK, the narrative highlighted that a united approach was necessary to minimise the costs of Brexit for the Union, member states and citizens. The hegemonic position of this narrative is illustrated by the absence of contestation from the member states or institutional actors, as the following chapters will show.

Conclusions The comparison of the British and European Brexit narratives has revealed significant differences between the two. In the “New Settlement” negotiations, the EU highlighted the potential destabilising effect of a British exit and argued for constructive engagement with the UK to prevent this outcome. The referendum result was not understood as a failure by the EU to keep the UK in but as a sovereign choice of the British people. The EU institutions then immediately disseminated the position that Brexit was a common challenge, and that unity was required to achieve an orderly withdrawal and a close relationship with the UK. The inclusive framing of Brexit limited contestation to a minimum. As Chapter 3 and

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4 will show, institutional capacity building and inter-institutional coordination further reinforced unity and enabled a collective mobilisation of resources. At the beginning of the negotiations with the UK, the EU was united and well prepared. The picture of a united and well-prepared EU contrasts with the situation in the UK. During the negotiations of the “New Settlement,” the narrative of the British government was heavily contested and did not achieve discursive hegemony, as the referendum result showed. After the referendum, the government struggled to define a coherent vision of what Brexit meant for the UK and contestation by various institutional actors— Parliament, the Supreme Court, the devolved administrations—remained a constant factor. At the outset of the negotiations with the EU, the UK was neither united nor well prepared. Translating the decision of the UK electorate on EU membership into a coherent vision for Brexit had proven difficult and polarising within the UK political system.

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CHAPTER 3

Creating Institutional Capacity

Introduction Institutions are the conduit for law and policymaking and a visible manifestation of the existence of Europe’s Union. The EU’s institutional system has evolved and broadened over time but the key institutions were created at the beginning. Political and policy interaction in the Union is structured by collective institutions designed to represent the member states (i.e. the Council system), Europe’s citizens (i.e. the European Parliament [EP]) and the collective Union (i.e. the Commission, Court of Justice of the European Union (CJEU), the European Central Bank (ECB) and the Court of Auditors (CoA). The Council of Ministers and the European Council are usually classified as intergovernmental institutions and those representing the collective have a European, usually defined as supranational, mandate. The institutions work within treatydefined mandates and the norms and practices that have been built up in day-to-day policymaking. The Union’s collective institutions quickly mobilised in response to the shock of Brexit and were core to the development of the EU27’s governing capacity in the Brexit process. By adapting and expanding existing institutional arrangements, the EU created a tailor-made “institutional ecology” for handling Brexit. This became the arena within which individual and collective actors interpreted what Brexit meant and what © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 B. Laffan and S. Telle, The EU’s Response to Brexit, Palgrave Studies in European Union Politics, https://doi.org/10.1007/978-3-031-26263-0_3

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aims should be pursued by the Union in relation to the departure of the UK. A distinctive constellation of political and official actors embedded in the key institutions became the “exit managers.” These individuals engaged in a highly charged social process of analysis, interpretation and bricolage to prepare for and accomplish an orderly Brexit. The actors did not display the “intersecting rivalries –national, political, personal and institutional” between the Council, the Parliament and the Commission that frequently characterise EU policymaking (Desmet and Stourton 2019: 7). Rather than merely acting as agents of the member states, they worked in tandem to mobilise the collective power of the EU27 in the Brexit negotiations. The dedicated institutional ecology affected EU capabilities, shaped actor preferences and facilitated decision-making in all the phases of the Brexit process. As the referendum result percolated around the corridors of Brussels on the morning of 24 June 2016, these institutions and their leaders swung into action. There was much work to be done and many questions to answer. How would the Union organise itself to manage the unprecedented departure of a member state? What role would each institution play? Who would take the lead in the negotiations? Who would be the face of the EU as Brexit unfolded? And most importantly could a compound polity like the EU manage this major political event while limiting the inevitable damage? There was an acute awareness among senior EU leaders that this was not an accession process in reverse but a divorce that could, and most likely would, become divisive, disruptive and hostile. Driven by a conviction that failure was not an option, organising for Brexit became an urgent priority for the EU leaders. Those at the top sought to deploy the capacities of each EU institution and mould them into a formidable collective resource. The initial driver behind the creation of the EU’s dedicated institutional ecology for Brexit was an ambition to prevent the issue from seeping into other policy fields and disrupting the normal policymaking of the Union. For the EU, Brexit became a specific time-bound task with associated processes that had to be carved out from the Union’s regular governance structures. The aim was to create a “cordon sanitaire” within and across the institutions which served to reinforce the idea and practice of the UK as “a third country in the making.” The Union’s institutional leaders were conscious that UK politicians and officials would continue to attend prime ministerial, ministerial and working party meetings until they departed the Union. Given this, the EU27 wanted to ensure that

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those representing the UK could not use their continuing presence in EU policymaking to influence Brexit outcomes. One senior Council official argued that there was a determination that Brexit would not “pollute” the rest of EU business (Council 1, Interview, 30 March 2021). Because Brexit was perceived as a negative event with no redeeming benefits for the EU, the institutional leaders wanted to build boundaries around this disintegrative development. This represented “second order governing” in pursuit of collective capacity (Kooiman 2003). By crafting dedicated institutional nodes and a Brexit institutional ecology, the embryonic EU27 came to life and took shape.

Temporary Organisational Settings Temporary organisational settings have not received extensive attention in the scholarly literature on public policy and public administration. In the governance literature they have been associated with flexible “type II” governance (Marks and Hooghe 2004), while the planning literature discusses them as time-limited “soft spaces” (Allmendinger et al. 2015). Their typical characteristics are worth setting out as they reveal how the Union organised for Brexit. They illustrate the importance of the choices made in the period immediately after the referendum. According to Lundin and Söderholm (1995), when analysing temporary organisations, attention should be paid to the four “Ts”—task, time, team and transition. For these scholars, organising for action is the overarching theoretical framework that links the four “Ts” (Lundin and Söderholm 1995: 438). The focus on action and related analytical categories provides us with a framework to analyse the emergence and evolution of the EU’s institutional response. The specific tasks involved in handling Brexit, the role of time and the dedicated teams are the focus of the analysis. The transition from the dedicated institutional ecology to arrangements for the post-membership relationship with the UK is dealt with later (Chapters 8 and 9). The key elements for the purposes of this chapter are: • Task: Temporary organisational settings are usually created to achieve a specific task or tasks beyond the ordinary routines of public policymaking. They are purposeful and engage in goal-oriented action. Their mandate and the subsequent understandings of the tasks and aims to be achieved are developed within the temporary

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institutional settings matter. So too does the goodness of fit between the temporary organisation and its permanent institutional setting. Organising for Brexit was novel and not likely to be a repetitive task. The overarching task of the specially created institutional nodes, to borrow a political slogan from the UK, was to get Brexit done. • Time: By definition, temporary organisational settings are timebound. They are not designed to become permanent features of the macro-institution but are limited to the time needed to achieve the defined tasks. Because of the emphasis on action, specific time horizons and limits bring an element of urgency to their work. Time played a central role in the dynamic of Brexit from the outset and was built into the mandate as Article 50 TEU limited the time to reach agreement to two years, although there were opportunities to extend time horizons by unanimous agreement. • Team: Temporary institutions need to amass human capital, the individual officials who make up the team in these temporary organisational settings. In addition, decisions need to be taken on who will lead the teams and how they will interact with the wider organisational environment. Because of the temporary nature of each institutional node, the teams are aware that they do not engage in a permanent commitment but in a one-off time-bound assignment. Each team is built on the engagement and commitment of individual officials drawn together for the purpose of achieving the tasks mandated by their institutional leadership. Given the number of years involved in the Brexit process, there was turnover at all levels, although many officials remained for the duration of the entire process. In response to Brexit the EU resorted to temporary organisational settings which evolved as a dedicated institutional ecology embedded within the EU’s regular institutional framework. This was central to the emergence of the Union’s collective capacity. Capacity was built within each institution and in the continual cooperative interaction between the Brexit nodes across the institutions. Brexit was jointly managed by the EU27.

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The Command Centre The decision to establish a distinctive institutional ecology to manage Brexit was taken by the leadership of the EU institutions and these institutional nodes were part of the wider institutional setting, the macroframework of EU governance. Brexit was chefsache—a matter for the bosses—from the outset. The European Council was central. Beginning with the conclusions of the European Council of December 2016, the phrase “The European Council will remain permanently seized of the matter” became a staple of European Council conclusions (European Council 2016). The European Council was the command centre, it was the conductor of the orchestra and the vital source of political authority and leadership in the EU system (Bickerton et al. 2015; Van Middelaar 2013). Since its inception, the European Council assumed a growing role in the Union’s policymaking system and under the treaties was responsible for the general direction and priorities of the EU. Post-Lisbon, the European Council has a Council President located in Brussels with a mandate to prepare and chair meetings of the European Council, facilitate agreement and report to the EP after each meeting. The presence of a permanent President establishes a collective face for the European Council. President Donald Tusk (2014–2019) and Charles Michel (from 2019) were a highly visible and active participant in the Brexit drama. Given the competing demands on the heads of state and government, their role in the European Council was prepared by their Sherpas, their personal advisors on EU affairs. For the purposes of Brexit, the European Council initially met informally in EU27-format. After the UK triggered the withdrawal process in March 2017, it met as the European Council (Art 50) until the UK left the EU. In the Brexit negotiations, the European Council was the tasking institution, agreed on the negotiation guidelines, was the staging post for different phases of the negotiations and the crisis manager during ratification.

The Institutional Ecology The three dedicated institutional nodes to organise for Brexit were the Council Task Force (which later morphed into the Article 50 Working Party), the Commission Article 50 Task Force (which was later transformed into the Task Force for Relations with the United Kingdom), and the European Parliament’s Brexit Steering Group (which was followed

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Table 3.1 The EU’s institutional ecology for Brexit

WA

Council

Commission

Parliament

Brexit Task Force (26 June 2016) Working Party on Article 50 (22 May 2017)

Task Force Article 50 (1 October 2016)

Brexit Steering Group (6 April 2017)

Task Force for Relations with the United Kingdom (16 November 2019) Service for the EU-UK Agreements (1 March 2021)

UK Coordination Group (1 February 2020)

TCA Working Party on the United Kingdom (24 January 2020) Post-Brexit

UK Contact Group (3 June 2021)

by the UK Coordination Group). The transition from the institutional nodes that managed the UK’s withdrawal from the EU to those on the future relationship displayed considerable continuity, albeit with some changes of personnel and purpose as the objectives of the withdrawal phase were different to the future relationship negotiations (see Table 3.1 for an overview). The temporary institutional nodes in the Council and Commission appeared very quickly following the referendum in June 2016, whereas the EP’s Brexit Steering Group dated from April 2017. The Court of Justice of the European Union (CJEU) did not develop a unit to manage Brexit. Instead, the President of the CJEU appointed a lawyer to track what was happening on Brexit and to engage with the Council and Commission (CJEU 1, Interview, October 2020). We begin the analysis with the Council, as it was the first institution to create a task force. The Council On 26 June 2016, the Council was the first EU institution to create a dedicated institutional node under the leadership of Didier Seeuws, the former Chef de Cabinet of European Council President Herman Von Rompuy (The Guardian 2016). Belgian and a lawyer by training, Didier Seeuws had the experience to manage this novel task given his command of technical detail and his experience of the European Council in action. He was comfortable in the institutional milieu, had crisis management

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experience and knew the Sherpas who assisted their leaders on European Council business. The Secretary General of the Council, Jeppe TranholmMikkelsen, had asked Didier Seeuws two days before the referendum if in the unlikely event of a vote to leave he would lead a task force to organise for Brexit. The Secretary General was concerned that Brexit would seep into the normal work of the Council and be disruptive. A Council representative explained that the key motivation was to avoid “Brexit polluting everything else in a situation where there were many other things that had to be done as well” (Council 3, Interview, March 2021). Instead, a dedicated working group would take care of “all questions related to Brexit.” And according to the representative, “this way of thinking of isolating the problem […], and then also creating quite powerful structures and with very good people to deal with them, turned out to be effective.” The need for the EU and especially the European Council to respond collectively was an additional motivation. As the worst fears materialised on the morning after the referendum, Didier Seeuws found himself having to set up a new institutional node within the Council from scratch. He remained with the Brexit dossier until 1 February 2021 and so was a central player throughout the entire process. The Council Task Force began as a small team drawn from the Council Secretariat, from within the house. There was a determination to staff the unit with EU-level rather than national officials even though several member states offered to second national officials. This decision revealed a reflex in the Brussels system that Brexit would be most effectively managed with a collective European response into which member state preferences would be inserted rather than allowing national interests to spill over and dominate the collective response. This was reinforced by the decision that the later Council Working Party (Article 50) was also chaired by Didier Seeuws and not by the rotating Council Presidency, thus facilitating institutional continuity, coherence and shared knowledge. The early appointment of a Council Task Force in the week following the vote led to press speculation about the role of the Commission in the negotiations. It was suggested that the Council was attempting to take over and lead the negotiations. The spectre of inter-institutional rivalry and conflict arose. Such fears, which some in the Commission harboured, quickly dissipated as the creation of the Council Task Force was essentially driven by internal dynamics in the Council. In the immediate aftermath of the vote, the concern was to protect the working of the Council from Brexit contamination. Jim Cloos, who was the senior Council official

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preparing European Council meetings during this period, reported that “as far as my daily work was concerned, I was not dealing with Brexit. We had created this special task force precisely for that purpose” (Cloos 2021). The Brexit dossier was effectively corralled. The tasks undertaken by the Council Task Force during its early phase involved making sense of what had happened, planning the political and organisational response in the context of a departing state and assessing what all of this would mean for the operation of the Council as a core EU institution. The Council had a deep understanding and institutional memory of multiple accession processes, given the number of states that had joined the Union over many decades. But the withdrawal of a member state was unprecedented. In its early days, the focus of the Council Task Force was on preparing the Union’s political response with the President of the European Council and assessing how the EU should organise to manage the exit of a member state. The statement by President Tusk on 24 June 2016 and the informal meeting of the European Council on 29 June 2016 were prepared by the President’s cabinet, especially his chef de cabinet, Piotr Serafin, and key officials in the Council Secretariat. The European Council statement was worked on at a meeting of Sherpas on Sunday 27 June 2016. The principle established by the European Council that there would be “No Negotiation without Notification” (NNWN) afforded the Council considerable reflection time to prepare for negotiations as the UK did not formally notify of its decision to leave until 29 March 2017. This reflection period, from Autumn 2016 to March 2017, was used by the Council Task Force to develop the principles that would guide the negotiations with the UK on the Withdrawal Agreement (WA). Member state participation in the Council Task Force was drawn from the Permanent Representations in Brussels, which assigned officials to represent their member state in the working group, to coordinate domestic positions and to act as the conduit between the national capitals and Brussels. The Brexit officials worked closely with their ambassadors, who were also heavily engaged with the dossier. Officials from the Brussels-based Permanent Representations were augmented on occasion by experts from the national capitals. However, there was a cohort of member state officials located in Brussels who worked intensively within the Council system on Brexit for the duration of the negotiations. The esprit de corps that was built in Brussels radiated out to the member state capitals. The intensity of engagement is captured in the following quote

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from an official involved in the Council’s management of the process: “We went through these positions for hours and hours and hours. We argued back and forth with the Commission so that the Member States really understood why we took such and such a position” (Council 1, Interview, March 2021). The key substantive task of the Council Task Force was to draw up guidelines for the negotiations. As the guidelines had to be agreed by the European Council, the drafting was central to the talks and had to reflect the collective views of the 27 member states. Unusually for the EU, the Council and the Commission task forces collaborated on the guidelines, although institutional responsibility lay with the Council Task Force. According to one participant from the Commission, the working relationship “was very, very close” (Commission 3, Interview, April 2021). The first draft was concluded by the Council Task Force at the request of the Council Secretary General before Christmas 2016 but then Council officials worked with the Sherpas in two discussion rounds, augmented by a significant number of bilateral meetings with individual Sherpas. The objective was to go through the text so that the rationale and thinking behind the guidelines were agreed and the Sherpas could in turn brief their leaders individually. By the time the guidelines were formally adopted in April 2017, they had gone through several iterations and were fine tuned. The original text, which was an internal Council document, emerged from the iterative process of deliberation with the member states largely intact. This revealed a collective top-down response to Brexit rather than a process that was led bottom-up by the national capitals. The EU’s preferences were arrived at collectively because of the homework done within the dedicated institutional nodes and the intense engagement with the member states each step of the way. As one participant in the negotiations concluded, the “Member States wanted to be led on this” (Council 1, Interview, March 2021). The Council Task Force morphed into the Working Party (Article 50) in May 2017 and became the Working Party on the United Kingdom in January 2020, just before the talks on the future relationship began. Yet, throughout the Brexit process, the working method within the Council and across the institutions did not change.

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The Commission The Commission’s Task Force for the Preparation and Conduct of the Negotiations with the United Kingdom under Article 50 TEU (TF50) formally began its work on 1 October 2016. TF50 was described by one of its senior officials as “an island within the Commission” which processed all material relating to Brexit (Commission 7, Interview, April 2021). The appointment of Michel Barnier as Head of the Commission’s Task Force had been announced by President Jean-Claude Juncker as early as 27 July 2016. Speaking at the occasion, President Juncker highlighted why Michel Barnier was an appropriate choice for the EU’s Chief Negotiator: I am very glad that my friend Michel Barnier accepted this important and challenging task. I wanted an experienced politician for this difficult job. Michel is a skilled negotiator with rich experience in major policy areas relevant to the negotiations, namely as Minister of Foreign Affairs and of Agriculture, and as a Member of the Commission in charge of Regional Policy, Institutional Reforms and of the Internal Market and Services. He has an extensive network of contacts in the capitals of all the EU Member States and in the European Parliament, which I consider a valuable asset for this function. Michel will have access to all Commission resources necessary to perform his tasks. (European Commission 2016)

President Juncker did not want a technocrat to lead the Commission’s work on Brexit; he sought a political heavyweight to run the negotiations as this was a battle for the “soul and politics of the EU” (Commission 5, Interview, December 2020). President Juncker felt that he could trust Michel Barnier, that Barnier knew how the Commission worked and that he would be loyal to the Commission in undertaking his mandate. The choice was inspired, as Michel Barnier was French, a large member state and a close UK neighbour. He was an experienced EU Commissioner, had held major portfolios and was at home in the Berlaymont. Although he was appointed at the level of Director General, Michel Barnier was a seasoned politician, not an official, and was at ease when engaging with Commissioners, the European Council and the Council of Ministers. A member of the Commission’s TFUK pointed out that “Barnier was playing both levels, if you want … the administrative level in the Commission, Director General level, and at the same time, he was able to reach the political level of the Commission, which was composed of the

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members of the Commission” (Commission 2, Interview, March 2021). In the words of another member of the Task Force, “the network was really managed at many levels in parallel. And I think that’s also always the key to success” (Commission 6, Interview, 30 March 2021). Due to his intensive engagement with all the relevant stakeholders, Michel Barnier became the public face of the EU on Brexit, a veritable Mr. Brexit. Michel Barnier led TF50 under the authority of the Commission President with an administrative attachment to the Secretariat General (SG). In the eyes of the Commission, it “was important to have a very special structure within the Commission in direct dependence, administrative line, with the President” and “this is why both task forces [TF50 and TFUK] were created within the secretariat general” (Commission 2, Interview, 11 March 2021). From the beginning, TF50 was at the heart of the Commission and was underpinned by the authority of the President and closely linked to him, his cabinet and the powerful Secretariat General (SG). Martin Selmayr, in both his roles as chef de cabinet to President Juncker and later as Secretary General of the Commission, maintained a close watch on the Brexit negotiations and built a good working relationship with Ollie Robbins, Theresa May’s Sherpa. TF50 was a temporary organisation and so it was not seen as a competitor by the core policy Directorates General (DGs) and did not experience any pushback from them. Because of the nature of its mandate and President Juncker’s fiat, TF50 could call on the knowledge and resources of the DGs and expect their full cooperation. Michel Barnier established a process of continual engagement with a dedicated group of Directors General (DGs) without having to go through their Commissioners. The special status of TF50 in the Berlaymont was reinforced by the fact that access to its offices required passing through closed doors on the 5th floor which were only accessible with special badges. Unusually in the Commission, the flags of all the member states were prominently displayed in the corridors, a symbol that TF50 was working for the EU collective and not just the Commission. The Task Force had to be established from scratch and a team needed to be assembled. It was described by one of its members as a very large cabinet, not like a DG, as it was organised around a politician. Even before Michel Barnier formally re-joined the Commission in early October 2016, he began to proactively recruit a multi-national multi-disciplinary team of officials. His objective was to amass a formidable team of professionals dedicated to the task at hand. Stéphanie Riso, a French Commission official, and Georg Riekeles, a Norwegian Commission official, were

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among the very early recruits. Stéphanie Riso was an economist and had worked in the Cabinet of Commissioner Olli Rehn when Michel Barnier was Commissioner for Financial Services. At that time, she had engaged intensively with the Barnier Cabinet and was recommended as someone who would bring considerable expertise to the Brexit file. Moreover, just before she joined TF50 she worked on the Multiannual Financial Framework (MFF) in DG Budget, a critical issue in the Brexit withdrawal negotiations. Georg Riekeles was a member of the Barnier cabinet when he was Commissioner for Internal Market and Services but also worked for Michel Barnier in France when he was Minister of Foreign Affairs and Agriculture. At the end of August 2016, Michel Barnier met Stéphanie Riso and Georg Riekeles in the Berlaymont to begin to plan and organise the new unit, TF50. All of those involved in the early days saw TF50 as a start-up to be developed and nurtured into a living system. There was an initial discussion about the structure of the unit, recruitment of further staff and the substantive issues that would have to be addressed. This initial discussion formed the basis of a meeting between President Juncker, Martin Selmayr and Michel Barnier on the 13th floor of the Berlaymont, the presidential floor. The most consequential outcome of that meeting was a decision to ask Sabine Weyand to assume the role of Deputy Head of TF50. Sabine Weyand came to the TF50 from DG Trade, where she was co-negotiator on TTIP and CETA, and therefore had crucial expertise in EU trade policy, a vital strand in the Brexit negotiations. She had built a formidable reputation as a negotiator and was well known within the Commission, given her previous roles in the SG and in several cabinets. Michel Barnier had worked with her when he was Internal Market Commissioner because she was the Commission’s representative on Coreper 1 at the time. She sat side by side with Commissioner Barnier at the Competitiveness Council and was a major source of knowledge and advice to him. Her earlier role in the cabinet of Commissioner Pascal Lamy will also have brought her into Michel Barnier’s orbit as the cabinets of the two French Commissioners had worked closely together between 1999 and 2004. Sabine Weyand joined TF50 on its first day, 1 October 2016, and thereafter played a central role in the design of the task force, in building the team and planning the workstreams. Michel Barnier described her as a “brilliant woman, as adept politically as she is technically” (Barnier 2021: 18).

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The TF50 released organisational charts in April 2017 and in June 2018, which identified the core leadership team, its basic organisational structure and the division of responsibility within the unit. A comparison of the two charts indicates a high level of continuity in structure and staff. The apex consisted of the Chief Negotiator, Michel Barnier, his deputy Sabine Weyand, Nina Obermaier, an advisor to the deputy, and Stéphanie Riso. Riso was the senior official in charge of three sub-units, namely relations with think tanks and communications (Stefaan de Rynck), interinstitutional affairs (Georg Riekeles) and Legal Affairs (Eugenia DumitriuSegnana). Nina Obermaier came to TF50 from the European External Action Service (EEAS), where she had been responsible for relations with Switzerland among other dossiers. Stefaan de Rynck had worked with Michel Barnier as his spokesperson in the Prodi Commission and again in Financial Affairs. In addition, there were four units in TF50 responsible for substantive areas, notably cross-cutting policies and level playing field; the internal market and sectoral policies; budgets, spending commitments and programmes; and international agreements and customs, all led by a senior Commission official with relevant expertise and experience (see Fig. 3.1). In early November 2016, TF50 consisted of no more than 10 people but it expanded to more than 50 members during the negotiations (Commission 3 and 8, Interviews, April and May 2021). Apart from Article 50 TEU, which was important but brief, TF50 was faced with a blank sheet of paper on how to organise for the negotiations with the UK. Brexit had to be analysed and given content from the perspective of the EU27. It had to be translated from a political earthquake into manageable processes and substance. Michel Barnier described the task ahead in the following manner: “The work will be legally complex, politically sensitive, and will have important consequences for our economies and for our people on both sides of the Channel” (Barnier 2016). The key tasks facing the new unit in autumn 2016 were fourfold. The first task, which had already begun, was to amass the necessary human resources from across the Commission to create a professional and competent team and to mould that team into a functioning unit. The second was a political imperative which was core to how Michel Barnier would manage Brexit, namely a series of meetings in national capitals to gather intelligence on member state concerns (Commission 2 and 3, Interviews, March and April 2021). The tour of the capitals was vital to understand what the member states had in mind and how they would align. From the perspective of TF50, engagement was a device to

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B. LAFFAN AND S. TELLE Task Force for the Preparation and Conduct of the Negotiations with the United Kingdom under Article 50 TEU (TF50)

Chief Negotiator Michel BARNIER

Deputy Chief Negotiator Sabine WEYAND TF50.A Strategy, coordination and communication

Adviser NinaOB ERMAIER

Stéphanie RISO

TF50.A.1 Relations with think tanks and communication

TF50.01 Cross-cutting policies and level playing field

TF50.02 Internal Market and sectorial policies

Stefaan DE RYNCK

Nicola PESARESI

François ARBAULT

TF50.03 Budget, spending commitments and programmes Philippe BERTRAND

TF50.04 International Agreements and Customs Antonio FERNANDEZ-MARTOS

TF50.A.001 Inter-institutional affairs Georg RIEKELES

TF50.A.002 Legal Affairs Eugenia DUMITRIU-SEGNANA Organisation Chart version of 16/06/2018

Fig. 3.1 The European Commission’s Task Force Article 50 (Source European Commission [2018])

maintain unity, reduce uncertainty and limit surprises during the talks. Michel Barnier took his EU-wide role seriously. He did not see himself as representing the Commission, but the collective. The first round of condensed visits to the capitals, which was completed by the end of January 2017, provided TF50 with a matrix of member state interests that they would fashion into the common concerns of the EU. The third task was the necessary coordination with the other institutions, notably the Council and the European Parliament. The structuring of continual inter-institutional engagement kept all actors on board. The fourth was homework and assessment of what Brexit meant for the EU. Thus, from the outset there was a robust stream of political work supported by meticulous technical preparations. Michel Barnier was very attentive to the attitude and motivation of the Task Force from the outset. Borrowing from Georges Pompidou, he sought to build what he called a “collective morale” to guide his team’s actions and he asked the members of TF50 to be “amicable pros” (Barnier 2021: 21). For him, this meant being professional and competent to reflect the historic and serious task ahead but also “amicable within the team, amicable with the other Commission departments, and amicable

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with the outside world” (Barnier 2021: 21). From the beginning, TF50 was in mission mode, dedicated to the collective interests of the European Union and responsible for coordinating the Commission’s work on all issues related to the UK’s exit from the Union. According to one interviewee, “everything on the UK came to us and the DGs were very happy” (Commission 7, Interview, April 2021). This underlines the cross-sectoral nature of Brexit. All four tasks evolved in tandem, especially the political and technical workstreams. In response to Brexit, the notoriously fragmented and segmented European Commission had created a “one stop shop” led by a senior political figure and staffed by high-quality officials who saw themselves as working for Europe on this contentious dossier. The major substantive task of TF50 was to screen the entire acquis communautaire in conjunction with the Commission DGs to map the potential consequences of Brexit across all aspects of EU policy. This was a mammoth task given the size and complexity of the acquis, but a necessary one so that the EU could enter the exit negotiations knowing that it had done its homework and that its positions were well articulated and understood. The exercise was in many ways a rediscovery of the single market, the customs Union and the complex interdependence that characterises EU membership. The undertaking was a matter of sifting and assessing what aims the EU should pursue in the coming negotiations across different policy fields and what model of future relationship with the UK the EU wanted. Once the initial screening of the acquis was completed, TF50 began to engage with the Council, the European Parliament and the member states on a series of substantive subjects. Just as the Council Task Force engaged actively in pedagogy, so too did TF50. In autumn 2016 and early 2017, there were seven seminars on different topics involving officials from the member states, other EU institutions and MEPs. The purpose of the seminars was to develop a common understanding of the legal, technical and financial aspects of all the issues (Commission 3 and 7, Interviews, April 2021). PowerPoint presentations outlining the issues under discussion were openly shared on the Commission website and were accessible by the press, the public and UK officials. An official, not from the Commission, who was present at the seminars, concluded that by the end of 2016 TF50 had arrived at a clear idea of what needed to be included in the divorce settlement down to arcane subjects such as nuclear waste and goods that were on the market at the time of withdrawal (Parliament 1, Interview, November 2020). That official’s perspective was that “in terms of the

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scope of the issues that needed to be dealt with as part of the withdrawal process, I think the Commission had a pretty clear idea, pretty early … these seminars were designed to inform us and the Member States. When they designed those seven seminars, they were covering all the bases.” The Commission acted as the Union’s key knowledge institution in the Brexit process. It possessed the most extensive expertise on the key issues, which was garnered by its DGs and coordinated by TF50. There was one Brexit-related task that was not incorporated in the work of TF50, the complex exercise of preparing for a no-deal Brexit. Following the near breakdown of talks in December 2017 on the question of Northern Ireland (see Chapter 6), the Commission began to take the possibility seriously that a potential withdrawal agreement might not pass the House of Commons, hence opening the way for a no-deal exit. Within the Commission, a decision was taken to locate no-deal preparations in the Secretariat General to ensure that TF50 would concentrate on the negotiations. Moreover, preparations for no deal involved detailed complex work that was different to the workstream involved in the talks with the UK. From spring 2018 onwards, the Commission published a series of no-deal preparedness notices and outlined the unilateral temporary measures it would take in areas such as flights, financial services, road haulage and other areas that required an immediate response. By autumn 2019, the no-deal workstream involved 19 legislative acts, 63 non-legislative measures and 100 communications (European Commission 2019). Following the TF50 playbook, the Commission held seminars with the member states to ensure that all stakeholders were singing from the same hymn sheet. The message to the UK from the no-deal preparations was that it would become a third country overnight and that the EU would not engage in any negotiations designed to mitigate the impact of a no-deal exit. President Juncker strongly signalled to the UK that in the event of no deal it would in any event have to address the three key separation issues before the EU would come back to the table. TF50 remained in place until a withdrawal deal was reached with the UK in late 2019. It then was transformed into the Task Force for Relations with the United Kingdom (TFUK). TFUK began its work on 16 November 2019 and focused on the negotiations on the future relationship with the UK. Michel Barnier remained at the head of the new Task Force. TFUK was augmented by the addition of the “no deal” Brexit Preparedness Unit, which moved from the SG to TFUK. There was considerable continuity from TF50 to TFUK but also major changes in

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key actors. In June 2019, Sabine Weyand, who had masterminded the withdrawal agreement, moved to become Director General of DG Trade, one of the most powerful Commission DGs. During the withdrawal negotiations, Weyand had bridged technical and political issues in a highly effective manner. “She’s not a fonctionnaire,” said former European Development Commissioner Louis Michel, with whom Sabine Weyand worked as chief of Cabinet. “She is a technical expert, a manager, knows all the dossiers. But she also has got a strong political perspective” (Politico 2019). Sabine Weyand was replaced as Deputy Head of the Task Force by Clara Martinez Alberola, who had been Head of Cabinet under President Juncker. Given the salience of Brexit, she was already immersed in the dossier in the Cabinet but took on this operational role in the negotiations on the future relationship. Stéphanie Riso moved from TF50 to become Deputy Head of Cabinet under President von der Leyen when the latter took office on 1 December 2019. Paulina Dejmek Hack took over the Strategy and Coordination unit in TFUK. She was a senior official who had been in the Juncker cabinet and had previously worked with Michel Barnier when he was Commissioner for the Internal Market from 2009 to 2014. TFUK evolved from TF50, although its remit was broader because the withdrawal process had concentrated on a few discrete areas whereas the future relationship was all encompassing. TFUK was responsible at the same time for the negotiations on the future relationship and the management of the Withdrawal Agreement (WA). There were six units addressing the substantive issues in the negotiations that had been flagged in the Political Declaration which accompanied the Withdrawal Agreement. The six units included two horizontal teams, namely “Coordination, Planning and Administrative Support” and “Legal and Inter-Institutional Affairs” and four teams covering substantive issues (see Fig. 3.2). One of these, “Citizens, Union Programmes and Ireland/Northern Ireland,” was responsible for aspects of the WA and the negotiations on the UK’s involvement in Union programmes. The other three units covered economics, security, external relations, climate and energy. TFUK was slightly larger than TF50 because of the breadth of the negotiations and at its height had approximately 70 staff. The heads of these units took charge of a negotiating table with the UK together with someone from the relevant DG. After the conclusion of the TCA negotiations, TFUK was replaced with the Service for the EU-UK Agreements on 1 March 2021, located at the Commission’s Secretariat General and responsible

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Fig. 3.2 The European Commission’s Task Force for Relations with the UK (Source European Commission [2019])

for coordinating post-Brexit relations with the UK. With Richard Szostak, Stefan Fuehring and Marie Simonsen, the new service was staffed with members of the earlier task forces. Clara Martinez Alberola became the principal advisor on relations with the UK to the Commission’s Secretary General. As such, the EU ensured that crucial expertise was retained in the system even after the negotiations with the UK had formally ended. The European Parliament The European Parliament (EP) had to give its consent to the WA (Article 50 TEU) and the treaty on the future relationship (Article 218 TFEU), which made it a central actor in the politics of Brexit. The treaties did not envision a formal role for the EP during the negotiations, but it had the final say. With that in mind, Michel Barnier wanted to maintain close relations with the EP throughout the negotiations. Brexit mattered to the EP as an institution because it was about to lose its 73 UK MEPs. The EP met the week after the Brexit Referendum and issued the first of many resolutions on 28 June 2016. In the resolution, the EP drew attention to the importance of its consent and argued that it “must be fully involved at all stages of the various procedures concerning the withdrawal agreement and any future relationship” (European Parliament 2016). The

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precise manner of its engagement had yet to be decided. The resolution also indicated that the EP saw itself as a defender of the rights of European citizens, something which the EP “ran with all the way to the end” (Parliament 1, Interview, November 2020). There was considerable discussion within the Parliament on how best to organise for Brexit. The Parliament’s committees are the engine room of the EP. They draft reports and develop EP resolutions. However, it was felt that Brexit required a novel format. EP President Martin Schulz thought the Parliament needed to appoint a high-ranking MEP to shadow Michel Barnier in the Commission. The President consulted the members of the Conference of Presidents (CoP), the leaders of the EP’s political groups, but clearly favoured Guy Verhofstadt. The CoP, chaired by the EP President, is the highest political authority in the Parliament. President Schultz succeeded in getting agreement on Guy Verhofstadt as Brexit Coordinator in early September 2016. Guy Verhofstadt was supported administratively by the Deputy Director General and a small cohort of EP officials. By appointing one of their own to act as coordinator, the CoP was highlighting the salience of Brexit. Guy Verhofstadt was frequently referred to as the EP’s Brexit negotiator. He had a remit to report to the CoP at regular intervals. The appointment of Verhofstadt underlined the determination of the EP to be a player in the negotiations. He was regarded as “head and shoulders above everybody else. Just in terms of his experience, as a former Prime Minister, a former member of the European Council” (Parliament 1, Interview, November 2020). Earlier in 2016 Verhofstadt had represented the EP in the inter-institutional agreement negotiations on Better Law Making, which was adopted by the European Parliament on 9 March 2016. Thus, he had recent experience of engaging at the front line of inter-institutional relations. Very quickly Guy Verhofstadt became the EP’s Mr. Brexit. His two immediate objectives were to assert the role of the EP in the negotiations and to get the EP working on substantive issues relating to Brexit. The EP was not part of the negotiating apparatus per se but was informed and consulted every step of the way. The consent provision was the EP’s calling card in the negotiations. Guy Verhofstadt was determined that the Brexit negotiations would not follow the logic and routines of third country negotiations, in which the Commission negotiates and reports to a Council Working Party, with the EP only coming in once the negotiations ended. Guy Verhofstadt essentially said to the other institutions “If you keep us out. Well, then we’ll organise our own relations

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and negotiations with the UK Government. If you don’t involve us … well, then you can’t stop us talking to the UK Government in parallel” (Parliament 1, Interview, November 2020). These were not normal negotiations and so they required an additional EP presence, a sui generis arrangement in effect. One of the first things Guy Verhofstadt did was to commission the Parliament’s powerful committees to do a stocktaking of the likely impact of Brexit across the policy range, which produced multiple reports. In December 2016, the European Council agreed that the Parliament would be involved in the Sherpa process preparing European Council meetings, and that it would be briefed before and after General Affairs Council meetings (GAC). The proactive approach by the EP inserted the institution into the Brexit process. Prior to the formal UK notification, Guy Verhofstadt had become the point man on Brexit, engaging with the other institutions and meeting with many stakeholders. Once the UK notified the EU of its intention to leave on 29 March 2017, the EP created a novel structure to shadow the Commissioner and the Council’s task forces. On 6 April 2017, the Conference of Presidents (CoP) set up a Brexit Steering Group. As the supreme political body within the EP, the CoP was determined to maintain control of this dossier. The Brexit Steering Group emerged from the process of drafting the EP’s early Brexit resolutions, which had involved Guy Verhofstadt and political input from Elmar Brock (EPP), Roberto Gualtieri (Socialists) and Philippe Lamberts (Greens). The Brexit Group was chaired by the EP’s Brexit coordinator, Guy Verhofstadt and six additional parliamentarians: Elmar Brok, Roberto Gualtieri, Danuta Hübner, Philippe Lamberts, Antonio Tajani and Gabriele Zimmer. Following the 2019 EP elections, Elmar Brok, Roberto Gualtieri and Gabriele Zimmer were replaced with Pedro Silvia Pereira and Martin Schirdewan (European Parliament 2017). The Steering Group consisted of powerful high-profile MEPs within their own groups and in the Parliament who had many years of experience of working together in the Committee on Constitutional Affairs (AFCO) and other EP committees. The EP could not establish a task force akin to the Commission’s TF50 and the Council’s Task Force UK as it could not formally discriminate against the UK MEPs. According to an EP official, the Parliament had to “devise a kind of Parliament Article 50 without saying it” (Parliament 1, Interview, November 2020). They did this by establishing the EP’s aims and principles for the negotiations, which any group wanting to be part of the Brexit Steering Group would have to sign up to. This effectively excluded the ECR involving the British

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Conservatives and the Farage group (members of the EFDD and later independents). The Brexit Steering Group ceased to operate once the UK left the EU on 31 January 2020. The EP had approved the Withdrawal Agreement on 29 January, just two days earlier. The Steering Group was replaced with the UK Coordination Group (UKCG), which was chaired by the Chair of the Foreign Affairs Committee (AFET), MEP David McAllister. This marked a departure from the sui generis nature of the Brexit Steering Group under Guy Verhofstadt. In 2019 there was disquiet within the EP about the BSG, especially about its power and authority (Bressanelli et al. 2021). Many in the EP concluded that the “complete absence of the EP’s formal preparation of plenary votes through committees was noted and regretted. Several actors felt excluded from the Brexit process” (Bressanelli et al. 2021: 18). For the negotiations on the future relationship, the EP reverted to the Parliament’s powerful committees to shadow the negotiations in addition to one representative per political grouping, including those that had been excluded from the BSG. The task of UKCG was to coordinate the work of the EP on the negotiations and to monitor the work of the Chief Negotiator. The centre of gravity in the EP moved from the CoP to the committees. By then the principle of involving the EP closely in the process was well established. The UKCG had two main interlocuters in the system, Michel Barnier on the future relationship negotiations and Commission Vice-President Maroš Šefˇcoviˇc, who co-chaired the EU-UK Joint Committee responsible for the implementation of the Withdrawal Agreement.

Conclusions The EU responded to Brexit by creating a distinctive institutional ecology to manage the UK’s withdrawal and the future relationship. The initial driver was the perceived need to insulate the management of Brexit lest it seeped into day-to-day policymaking and might prevent the normal operation of the EU system. The Union’s institutional leadership was conscious that UK ministers and civil servants would continue to participate in all aspects of EU governance until the UK formally exited. The creation of unique institutional nodes was also important because it enabled the Union to concentrate its political and technical capacity and leverage the capabilities of each institution. The Council and Commission task forces and the EP’s BSG and later UKCG acted as the organisational

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core of Brexit-related activities within their institutions. The political and official staff in the three institutional nodes constituted formidable teams united in a shared aim of protecting the EU as a powerful member state left. The Union’s deliberate creation of institutional capacity was a display of collective power that revealed the maturity of the EU as a polity, a polity prepared to defend itself. The European Council was the source of political authority and overarching leadership, and the Council subsystem provided an arena to manage relations across the member states and downwards to the national capitals. The Commission was the primary source of human capital and substantive and technical knowledge. It was also at the front line in the negotiations with the UK. The European Parliament drew on its right of consent to ensure that it was not a side player in the Brexit negotiations. The legitimacy of the EU’s Brexit response required an active buy-in by the Parliament. An important feature of the EU’s response to Brexit was the visibility of key actors, Michel Barnier in the Commission, Donald Tusk in the European Council and Guy Verhofstadt in the EP, as well as key members of the European Council. The EU’s response was not led by so-called faceless bureaucrats but by political heavy hitters. Moreover, the Union’s institutional ecology was built on unprecedented levels of consultation and cooperation within and across the institutions and with the member states. Together, the EU managers of Brexit interpreted what Brexit meant, communicated it and developed strategies for the forthcoming negotiations (see Chapter 4). Finally, a characteristic of the teams which worked on Brexit was their conviction that their work mattered, that how the EU responded to Brexit would have long-lasting consequences for the polity. This was summed up by one interviewee in the following way: “We were really feeling that we had a mission and that we had to deliver” and we had “a deep, deep conviction that we had to do this right” (Commission 8, Interview, May 2021). Instrumental and normative goals were intertwined and provided a motivating framework for those involved. An “esprit de corps” evolved within and across the dedicated institutional nodes, armed as they were with a clear task that they considered crucial for the Union.

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European Parliament. 2017. Brexit steering group. Available at https://www.eur oparl.europa.eu/brexit-steering-group/en/home. Accessed 12 October 2022. Kooiman, J. 2003. Governing as governance. London, Thousand Oaks and New Delhi: Sage. Lundin, R.A., and A. Söderholm. 1995. A theory of the temporary organization. Scandinavian Journal of Management 11 (4): 437–455. Marks, G., and L. Hooghe. 2004. Contrasting visions of multi-level governance. In Multi-level governance, ed. I. Bache and M. Flinders, 15–30. Oxford: Oxford University Press. Politico. 2019. Brussels’ Brexit bad cop goes global. Available at https:// www.politico.eu/article/the-bad-cop-sabine-weynand/. Accessed 12 October 2022. The Guardian. 2016. Belgian diplomat to head EU’s Brexit Taskforce. Available at https://www.theguardian.com/politics/2016/jun/26/belgiandiplomat-to-head-eus-brexit-taskforce. Accessed 12 October 2022. Van Middelaar, L. 2013. The passage to Europe. New Haven: Yale University Press.

CHAPTER 4

Building the EU’s Brexit Process

Introduction Policymaking in the EU is inherently complex, involving horizontal and vertical interactions across the member states, among EU institutions and between the EU collective and the participating states. Day in day out multiple actors with diverse roles and preferences strive to keep the sprawling system of EU governance functioning. The Union’s collective power emerges from the intricate and continual interaction of these actors. At the same time, disagreement among the key actors involved in EU decision-making regularly leads to confrontational relations, turf battles and decision-making paralysis. The EU’s institutional constellation and periodic episodes of treaty reform introduce a competitive element into EU decision-making, with each institution having an incentive to safeguard or increase its influence vis-à-vis the other institutional actors. Resolving disagreements among EU institutions is time-consuming and the outcome is by no means certain. As a result, the EU has occasionally failed to bring its potential collective capacity to bear on a specific policy challenge. This was not the case in relation to Brexit. Article 50 of the Treaty on European Union (TEU) stipulated clear roles for the EU decision-making institutions in the process. From this starting point, therefore, an effective response to Brexit required two things. First, it required the EU institutions—representing the member © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 B. Laffan and S. Telle, The EU’s Response to Brexit, Palgrave Studies in European Union Politics, https://doi.org/10.1007/978-3-031-26263-0_4

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states, the citizens and the EU as a whole—to agree on a joint strategy. Second, it required the institutions to work together to create synergies among their dispersed institutional capacities. According to Vivien Schmidt, it is the “discussions, deliberations and contestations” among the Council, the Commission and the parliament that drive the integration process (Schmidt, 2016: 2). Charles Sabel and Jonathan Zeitlin (2008: 273) have argued that growing intensity in horizontal and vertical coordination is integrating the various EU institutional actors into a “novel whole.” This concertation of engagement and capabilities was crucial in the EU’s effective response to Brexit. This chapter analyses how the EU succeeded in translating its potential collective capacity into real collective capacity in the Brexit withdrawal process. First, it outlines how the EU built internal procedures which connected and mobilised its dispersed institutional capacity to handle Brexit. Second, it explores the practices of transparency and inter-institutional coordination that reinforced unity and mobilised institutional resources. Finally, the chapter evaluates the individual role of the EU’s chief negotiator in forging what came to be called the Barnier method.

Foundations: Article 50 and Procedural Arrangements In the EU, an evolving polity which incorporates established states, agreeing on procedures and institutional settings to govern big challenges is a crucial source of its capacity to act collectively. Scholars such as Tömmel (2016: 407) argue that EU governance is predominantly about the creation of appropriate procedures and institutional settings, what Kooiman (2003) defines as second-order governance. Agreed process is the means through which multiple actors develop and upload their preferences and bring their capabilities and resources to bear on collective decision-making. Clear procedural rules provide all actors with assurance of how things will be done and establishes decision-making pathways. Process and procedures create the coordination mechanisms and staging posts that enable the polity to act. EU process begins with the institutional roles and responsibilities established by the treaties, but like all systems of public policymaking it is an admixture of the formal and the informal. This section examines the foundations of the EU’s Brexit process. It first shows how the EU used Article 50 to reduce uncertainty about the consequences of the British referendum and to structure its

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own response around the notion of no negotiation without notification (NNWN). The section then explores the detailed procedural arrangements, agreed on in late 2016, which ensured broad actor involvement and defined clear responsibilities. Article 50: Follow the Rule Book! When confronted with the outcome of the referendum, the EU immediately and collectively looked at the treaty provision on exit, Article 50 of the Treaty on European Union (European Union 2012). This was the framework from which all else followed. A Council representative close to President Donald Tusk suggested that the EU’s very first ambition after the referendum was to calm markets and political actors by highlighting that the EU was united, and that Brexit would not cause legal uncertainty: The first thing the Union wanted to make sure was there’s no legal vacuum. No legal vacuum was actually the first mantra […]. We weren’t even thinking about the negotiations, yet. We were thinking about chaos in Britain, and in the Single Market in general. So, we wanted to assure everyone there would be ‘no legal vacuum’ … that the processes for Britain leaving the Union were perfectly clear and set out in the Treaties. (Council 2, Interview, December 2020)

According to Martin Selmayr “[t]he EU was never more strategic than in Brexit. Use Article 50, this was the tool” (Commission 5, Interview, December 2020). The Union clearly signalled to the UK that Article 50 was the legal and orderly exit route and, therefore, the one that must be followed. This reflex was classic EU governance: faced with a challenging issue “you turn to the rule book. And what is a rule book? Article 50. And we stick to our rule book” (Ireland 1, Interview, December 2020). There was some initial concern that the UK might try to circumvent Article 50 and act unilaterally. In fact, the EU’s initial contacts with the UK after the referendum played an important role in prompting the informal European Council meeting of 29 June 2016 to adopt a strict line. After the EU leaders had met UK Prime Minister David Cameron on 28 June, the EU “beefed up the language” of the concluding statement of the European Council meeting (Council 4, Interview, February 2021). That statement pointed out that the EU perceived “a need to organise the withdrawal of the UK from the EU in an orderly fashion”

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and that “Article 50 TEU provides the legal basis for this process” (European Council 2016a). Thus, Article 50 was the first building block in how the EU deployed process in the Brexit negotiations. In just 261 words with five subsections Article 50 set out the right of a member state to exit and the procedural avenue to withdraw from the EU (see Table 4.1). It stipulates that a member state departs the EU according to its own constitutional provisions. But the process of exit itself is governed by the EU’s legal framework (Hillion 2016). The head of the UK’s Legal Service concurred with this conclusion when in an interview he said that “It was very clear, right from the beginning, that it was the EU that was going to dictate the progress and the structure of the negotiations, and that all would be driven by its legal order and the requirements of the treaty, as it saw them” (Jones 2021). Article 50 furthermore clarifies that first formal step in the exit process is “notification” by the departing member state to the European Council of the intention to withdraw. Thus, it was up to the UK to notify the EU, and the timing of notification was entirely in the hands of the London government. Once notification was received, the EU would negotiate two separate agreements with the departing state based on European Council agreed guidelines. The first agreement would set out the terms of withdrawal, taking into account the envisioned “future relationship” with the EU. That future relationship would be negotiated once the member state had departed the Union under Article 218 of the TFEU, the provision for treaties with third countries. Article 50 also provides time limits for the withdrawal process. The EU treaties cease to apply to the departing state once a withdrawal agreement is ratified or failing that within two years of formal ratification. That twoyear period can only be extended by a unanimous vote in the European Council and in agreement with the departing state. Article 50 also clarified important institutional arrangements, specifying that the departing state could not participate as a member of the European Council or Council on matters relating to its exit. This, in essence, provided for meetings of the remaining member states, the EU27, in European Council and Council formats. As Ivan Rogers pointed out, the “Prime Minister is not in a room negotiating with the 27. That’s not how the exit game or the trade negotiation works, or was ever going to” (Rogers 2018). The departing state was a third country in the making. In sum, Article 50 established the political pre-eminence of the European Council, made provision for two agreements (withdrawal and the future relationship),

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Table 4.1 Article 50 of the Treaty on European Union 1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements 2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament 3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period 4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it. A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union 5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49 Based on European Union (2012)

established a two-year time limit on the period of negotiation except by mutual agreement and provided for the institutional emergence of the EU27. Within the EU it was recognised that the Article 50 process was drafted very much to enhance the negotiating position of the remaining member states and the EU institutions vis-a-vis the departing member state (Council 3, Interview, March 2021). For the departing state, it is of great importance that the two-year time limit applies from the moment of notification. After the membership referendum of June 2016, it was up to the UK to decide when it wanted to notify the EU of its intention to withdraw. By delaying notification, the UK could have gained extra time to engage in domestic deliberation and to flesh out what Brexit meant. The UK decided to notify the EU in March 2017. In the period since the referendum, PM May had failed to forge consensus on what Brexit meant inside her own party and cabinet. Meaningful consultation between the government and the devolved authorities and the political opposition had been limited. The former permanent representative of the UK to the EU, Ivan Rogers, concluded that the UK “forfeited at a stroke any leverage over how that

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process would run” by notifying in March 2017 without working out what it wanted to achieve from the Brexit negotiations before they began (Rogers 2018). The fact that the UK triggered Article 50 without having made much progress towards a shared domestic understanding of what Brexit meant had a lot to do with EU actions. Right after the referendum, the EU had increased the pressure on the UK to come to the negotiating table. It had done so by constructing a set of interconnected informal processes and procedures around the skeleton of Article 50. One that had major repercussions in the conduct of the negotiations was the “No negotiations without notification” (NNWN) mantra, which emerged within a week of the referendum. A Task Force 50 representative explained that NNWN “was decided at the highest level in the week after the referendum. By Juncker, by Tusk, by the European Council … I think Tusk had spoken to everyone before the referendum on how to react in the case leave won” (Commission 7, Interview, April 2021). It remains unclear who exactly was the original source of the mantra, but it has been attributed to Secretary General of the Council Secretariat, Jeppe Tranholm-Mikkelsen. In the immediate aftermath of the vote, he was very concerned about the potential for the Brexit process to disturb the orderly functioning of the Council system and was determined to protect the day-to-day operation of the system. In the lead up to the first informal EC meeting, Council officials and Sherpas agreed that NNWN should appear in the EC statement; in other words, it should become the prescribed procedure. The idea was endorsed by the leaders at the European Council on 29 June 2016, insisting that “There can be no negotiations of any kind before this notification has taken place” (European Council 2016a). The EU justified the NNWN mantra as an application of the rule book, Article 50. But NNWN was not a legal necessity. Instead, it was a strategic decision intended to protect the EU against any attempt by London to begin informal negotiations or to divide the EU by stoking internal tensions among the remaining member states. Moreover, NNWN “applied not only to the Member States, it applied also to the institutions. So, the institutions themselves made very clear that this applied to them” (Ireland 1, Interview, December 2020). NNWN reinforced the status of the UK as a country waiting in the departure lounge. A senior Commission official argued that the “delay in notification by the UK was ‘perfect’ in operational terms”. It allowed the Task Force [50] to assert itself, to develop a work stream, allowed Barnier to work with the House. On

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the other side of the channel, the UK had neither structure nor strategy” in the view of Martin Selmayr (Commission 5, Interview, December 2020). NNWN permitted the EU to collectively prepare for the negotiations by agreeing on common ground, focusing on substantive issues and preparing its strategy and tactics without being distracted by engagement with the departing state. It is important, however, to note that NNWN was initially not uncontroversial in the EU. Indeed, a Council representative suggested that the question of “when the UK should trigger and how hard we should push the UK for them to trigger” was one of “a few smaller conflicts that were not characteristic” (Council 3, Interview, March 2021). While the Council representative pointed out that the question “was quickly decided upon” (Council 3, Interview, March 2021), a Commission representative called the adoption of NNWN “a fateful decision, a very fateful decision.” In the latter view, NNWN forced Theresa May to rush into negotiations with the EU without having had time to consult on and define which type of Brexit the UK wanted. Instead, the Commission representative argued, we lurched into a seemingly never-ending set of deadlines. We go from one deadline to another, arguing about whether it should be extended, arguing about process. The great national debate about the future of the UK with its composition, […] it didn’t happen in a very structured way. And one of the reasons, I think, was that we found ourselves very quickly in the Article 50 process. (Commission 4, Interview, June 2020)

In sum, the discussion has shown that the EU employed Article 50 TEU strategically in the Brexit process to organise internally and to position itself vis-à-vis the UK. This was not a given outcome but had been negotiated between the EU institutions and the member states in the aftermath of the British referendum. As such, the EU’s usage of Article 50 illustrates the interplay between formal rules and institutional agency in the shaping of the EU’s response to Brexit. Procedural Arrangements: Broad Involvement and Clear Responsibilities Further important elements in the EU’s approach to Brexit were decided at a European Council meeting in December 2016 (European Council

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2016b). The EC27 endorsed a series of seven procedural and institutional provisions for the conduct of the negotiations (see Table 4.2). The December 2016 European Council set out the roles of the various institutions in the Brexit negotiations, fleshing out the provisions of Article 50. The role of the European Council was to agree on the overarching guidelines, which was followed by a decision of the General Affairs Council (GAC) to open negotiations based on a recommendation by the Commission and to appoint the Commission as the negotiator (European Council 2016b). The GAC and Coreper were given the responsibility to manage the negotiations between meetings of the European Council. They would be assisted by a dedicated Council Working Party with a permanent chair, Didier Seeuws (see Chapter 3). The role of the EP was also specified. It would have the right to participate in preparatory meetings for the European Council together with Coreper and the Sherpas. Moreover, the President of the European Council would inform the EP and engage in an exchange of views after every Brexit-related meeting of the GAC. The December 2016 meeting marked the handing over by the European Council of the day-to-day responsibility for Brexit to the Council and Commission in the specially created institutional ecology. This did not mean that the European Council relinquished overall political control. But in practice it spent little time formally deliberating on Brexit, which owed much to the effectiveness of the institutional ecology established to manage Brexit. Overall, the procedural arrangements specified a framework of relations among the EU’s main decision-making institutions—and their sub-divisions—which would govern the EU’s response to Brexit. The multiplicity of institutional actors (in bold in Table The nomination of the Commission as the Union’s negotiator (Table 4.2, provision 3) was preceded by “the only really stupid discussion” (Council 3, Interview, March 2021) between the Council and the Commission over who should be chief negotiator. A Council representative argued in hindsight that “we never intended to become the chief negotiator. We knew all the time that of course we could not do that … we do not have the expertise. The Council Secretariat is, at the end of the day, a very small organisation” (Council 3, Interview, March 2021). Nevertheless, the provision on building transparency and mutual trust (Table 4.2, provision 3) was rooted in the Council’s desire to ensure that the Commission acted in accordance with member state preferences in the Brexit negotiations. In particular, the stipulation that a representative of the Council

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Table 4.2 The European Council’s procedural arrangements for Brexit 1. The first step following the notification by the United Kingdom will be the adoption by the European Council of guidelines that will define the framework for negotiations under Article 50 TEU and set out the overall positions and principles that the EU will pursue throughout the negotiation. The European Council will remain permanently seized of the matter, and will update these guidelines in the course of the negotiations as necessary 2. After the adoption of the guidelines, the European Council will invite the General Affairs Council to proceed swiftly with the adoption of the decision authorising the opening of the negotiations, following a recommendation by the European Commission, and to deal with the subsequent steps in the process. The Council will also adopt negotiating directives on substance as well as on the detailed arrangements governing the relationship between the Council and its preparatory bodies on the one hand and the Union negotiator on the other. These negotiating directives may be amended and supplemented as necessary throughout the negotiations, to reflect the European Council guidelines as they evolve 3. The Council will be invited to nominate the European Commission as the Union negotiator. The Commission’s nomination of Michel Barnier as chief negotiator is welcome. To ensure transparency and build trust, the Union negotiator’s team will be ready to integrate a representative of the rotating Presidency of the Council. Representatives of the President of the European Council will be present and participate, in a supporting role, in all negotiation sessions, alongside the European Commission representatives. The Union negotiator will systematically report to the European Council, the Council and its preparatory bodies 4. Between the meetings of the European Council, the Council and Coreper, assisted by a dedicated Working Party with a permanent chair, will ensure that the negotiations are conducted in line with the European Council guidelines and the Council negotiating directives, and provide guidance to the Union negotiator 5. The members of the European Council, the Council and its preparatory bodies representing the United Kingdom will not participate in the discussions or in the decisions concerning it 6. Representatives of the 27 Heads of State or Government (Sherpas/Permanent Representatives) will be involved in the preparation of the European Council as necessary. Representatives of the European Parliament will be invited at such preparatory meetings 7. The Union negotiator will be invited to keep the European Parliament closely and regularly informed throughout the negotiation. The Presidency of the Council will be prepared to inform and exchange views with the European Parliament before and after each meeting of the General Affairs Council. The President of the European Parliament will be invited to be heard at the beginning of meetings of the European Council Based on European Council (2016b)

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would be integrated in the Commission’s Task Force and present during the negotiations with the UK was a sign of distrust in the Commission, if you want. We wanted our own people, who could debrief us. And also as a reminder to the Commission that you are not on your own. Why was that? Because after the migration crisis and after the financial crisis, many Member States … let’s be honest … had a lack of trust in the Commission. (Council 3, Interview, March 2021)

From the perspective of the member states, the procedural arrangements meant that the “Brussels machinery was getting into place” by the end of 2016, as a member of the Brexit unit in the Dutch Foreign Ministry explained (Netherlands 1, Interview, March 2021). In the Dutch view, the Council Working Group “really worked well” and “we really had a fairly good idea as to where the member states stood in the Council because of the working group that came together so many times” (Netherlands 1, Interview, March 2021). Indeed, as the next section will show, initial mutual suspicions among the EU institutions and member states quickly evaporated into a regime of full transparency and institutional coordination.

Transparency and Institutional Coordination The EU had used the time after the British referendum to create a novel institutional ecology for handling Brexit (see Chapter 3). Given the existing institutional responsibilities and the novelty of the challenge, one might have expected to see a good amount of inter-institutional conflict and competition. However, the EU’s shared understanding of Brexit (see Chapter 2) contained institutional competition. Moreover, the procedural arrangements of December 2016 spelled out clear roles for the institution and clarified the relationships between them. They also included specific provisions which emphasised the importance of transparency and mutual trust among the various institutional actors. This section analyses why the EU adopted a robust transparency regime and shows how that regime facilitated inter-institutional coordination.

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Transparency: Internal Glue and External Weapon Transparency was the “glue” which kept the EU united during the Brexit negotiations. It was also a “weapon” which the EU used in the negotiations with the UK. A Council representative explained that from the outset, it was clear that this would have been a game with many leaks. And normally leaks are used to destabilise negotiations. So, we knew from the outset that if we weren’t totally transparent it would work against us. Therefore, we adopted a policy, which was endorsed by Coreper, of having full transparency. And transparency became a weapon for us and was not used against us. (Council 1, Interview, March 2021)

Europe’s institutional leaders understood that they needed to engage in proactive communication and control the political narrative around Brexit, especially the EU’s response. On the Commission’s side, Task Force 50 had spent considerable time in the second half of 2016 working on the “negotiation approach, or tactics, or strategy, or however you may call it” (Commission 7, Interview, April 2021). In early 2017, Task Force 50 was occupied with the problem of potential leaks. A member of the Task Force described this time as “a search for the right solution” and pointed to two key considerations regarding transparency: I think, part of it was influenced by previous experiences like TTIP and national parliaments not having ratified certain trade deals […]. But also, an idea that if you had leaks and information selectively going to certain capitals and not others, that this would be a recipe for disaster. (Commission 7, Interview, April 2021)

In the leadup to the UK’s notification, the European Ombudsman, Emily O’Reilly, wrote to the Commission and to the Council about the issue of transparency. The Ombudsman asked the Commission to set out the arrangements it intended to put in place to promote transparency and engage with stakeholders during the Brexit talks. She suggested that the “EU side indeed can only benefit from more transparency, as the reality of such tough negotiations sets in step by step on the UK side” (EU Ombudsman 2017a). For this reason, the Ombudsman encouraged “transparency and access to documents.” In a similar letter to the Secretary General of the Council Secretariat, the Ombudsman urged the Council “to adopt a proactive approach from the outset and give citizens

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access to relevant information and documents at the appropriate time and without the need to ask for them. This approach would highlight the Union’s determination not only to respond to, but also to anticipate, citizens’ legitimate need for information on the negotiations” (EU Ombudsman 2017b). The Commission publicly committed to a “maximum level of transparency during the whole negotiating process” (European Commission 2017) and European Council Guidelines of April 2017 highlighted transparency as one of the EU’s “core principles” in the negotiations (European Council 2017). Moreover, in May 2017 the Council published a document with detailed “guiding principles for transparency” under Article 50 TEU (Council of the European Union 2017). A corresponding document was released ahead of the negotiations on the future relationship in January 2020 (Council of the European Union 2020). For the TCA negotiations, a member of TFUK explained that “we kind of applied the transparency rules that we had developed as a reaction to the backlash in TTIP” (Commission 1, Interview, May 2021). The transparency guidelines aimed to strike a balance between channelling information to the public and enabling the EU to develop its positions and negotiate with the UK. The regime consisted of active engagement with the public, the European Parliament, national parliaments and stakeholders, involving the supply of timely information and engagement through meetings. Chief Negotiator Michel Barnier published a register of all the meetings held with organisations and individuals up to the end of the negotiations and only met organisations that were registered in the Transparency Register (Politico 2017). Transparency also involved publishing documents, notably agendas for negotiating rounds, EU position papers, non-papers and EU text proposals for the treaties. In addition, on a case-by-case basis documents produced by the Council Article 50 apparatus were released (Council of the European Union 2017). Transparency quickly evolved from an aspiration into an EU practice norm which guided the negotiations. In 2019, the Ombudsman to concludes that the “level of transparency achieved thus far is very high when compared to, for example, international negotiations that the EU has had” (EU Ombudsman 2019). The following quote by a former highranking member of the European Commission who was closely involved in the Brexit negotiations contrasts the EU’s transparency regime with the UK’s and highlights its effectiveness in reinforcing EU unity:

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The level of openness and transparency that he [Michel Barnier] spoke about from the beginning in dealing with Member States, the European Parliament and all sectors in Member States that were going to be impacted by Brexit was really refreshing. And it was a source of embarrassment, in my view, for the British to be able to see this openness and transparency on the European side. Because this wasn’t the normal way you did a negotiation. It was normally done in smoke filled rooms. But it was a really wonderful strategy that certainly contributed enormously to the unity of the European Union during all of these difficult years in the negotiations, right up to the present day. (Commission 9, Interview, December 2020)

Another Commission official and member of TFUK suggested that “all the transparency and reporting back […] was basically also very reassuring for Member States, because that allowed them to put Brexit really as number sixteen on the agenda and not as number one” (Commission 6, Interview, April 2021). A representative of the Brexit unit in the German Foreign Ministry stressed that transparency and engagement were key for member state buy-in: The handling of the process was key. And the handling […] was possible only because of the full consensus among Member States, who felt their views were expressed in a very proper way in that paper [the Council guidelines] and others. The Commission did not take over and say: now we will do it, and you have to follow. It was very good work in communicating, in building and strengthening the cohesion. And the method was full transparency and facts based and just sharing the evidence we have. […] And the coherence and the consistency were a hundred percent. I still do not see any alternative to that procedure. Anything different would have led to a more or less colourful catastrophe. (Germany 1, Interview, June 2021)

The same German representative explained, furthermore, that transparency was also important at the national level in Germany. To avoid political or economic actors looking for “more creative solutions or shortcuts,” they needed to “know the whole story,” which meant “a hundred percent” transparency with the German Parliament and industry (Germany 1, Interview, June 2021). A member of the Dutch Brexit unit confirmed that “the transparency, in terms of procedure, has really helped us a lot internally” (Netherlands 1, Interview, March 2021). The EU’s commitment to transparency and openness in the negotiations was not just a matter of publishing documents on various websites.

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It involved the proactive dissemination of information through a variety of different media. The use of traditional channels such as press conferences, statements and speeches was complemented by an active presence on social media, notably Twitter and Instagram. The Union’s Chief Negotiator, Michel Barnier, saw press conferences as important moments in the unfolding Brexit process. At his first press conference, held on 6 December 2016, he took the opportunity to provide an overview of how TF50 was preparing for the unchartered waters ahead (Barnier 2016). The message was intended to reassure the member states and EU institutions that TF50 was listening and would work and keep in dialogue with all relevant stakeholders. Moreover, Michel Barnier was at pains to emphasise that he understood the added value of the various institutions and could navigate the EU’s complex institutional ecology. He took the opportunity to assert the key principles that would guide the Union once notification was received. Two additional messages emerged, namely that time was short and that the EU was ready for notification. Given the trauma of the Brexit vote in June 2016, Michel Barnier’s first press conference was an exercise in highlighting the EU’s capacity to organise for and manage Brexit. Barnier demonstrated his state of mind and willingness to deploy a pedagogical approach to Brexit, providing the member states with crucial information needed to gain a realistic picture of the challenge ahead. He was determined to demonstrate “neither aggression, nor naivety, nor revenge” (Barnier 2021: 32). Describing himself as a teacher, Barnier sought to clearly explain the difference between withdrawal and the future relationship and drew attention to the consequences of Brexit. By December 2016, the Union’s Chief Negotiator was setting out his stall for the forthcoming talks with the UK. The EU’s transparency regime had the aim of preventing disunity due to information asymmetries among the various actors. Moreover, the European Parliament was continually kept in the loop with the specific intention of avoiding frictions during the ratification of a potential agreement with the UK. Transparency furthered the ownership by the member states of the EU’s Brexit response. And because transparency generated trust between the Commission and the member states, the former had more room for tactical manoeuvres vis-à-vis the UK and the latter could invest their limited resources on other policy fields. In some cases, like Germany, the EU’s transparency regime was even copied and used at the national level.

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Institutional Coordination: Mobilising Dispersed Capacity Political accountability and policymaking capacities are dispersed across various institutional actors in the EU. Because of this constellation, the EU suffers from endemic inter-institutional competition and often fails to realise its potential governing capacity. In responding to Brexit, however, a member of the TFUK identified “a totally different dynamic in the institutions” which was characterised by “a very, very, very kind of united front.” In the view of this official, the institutional coordination was “phenomenal” and the “professional experience of a lifetime” (Commission 6, Interview, April 2021). A Council official confirmed that “on Brexit, the inter-institutional competition, which is usually up to the max in everything, it was at maximum 10% the whole time,” and added that “the Parliament worked with us like a dream. The Commission were completely serious and realistic, always” (Council 2, Interview, December 2020). How did this extraordinary institutional dynamic emerge? Another Commission representative explained that “Barnier’s mantra” was that “we will keep the EU united if we tell everything to everybody at the same time.” Transparency and coordination worked together and were mutually reinforcing. According to Georg Riekeles, Task Force 50 used the “transparency policy to keep everybody on an equal footing” and “through the inter-institution working methods that were set up, everybody was constantly on board” (Commission 3, Interview, April 2021). The new institutional ecology meant that the EU “had a common horizontal structure within the Commission, within the Council, and with the Parliament” and its response to Brexit “was not decentralised with the DGs, not decentralised in a working party in the Council, not decentralised in a committee in the parliament” (Commission 1, Interview, May 2021). Task Force 50 met the Council Working Party under Didier Seeuws “two, three times a week […], explaining every single thing to the Member States to make sure that we were all in it together” (Commission 8, Interview, May 2021). For the Commission’s task force, the Council Working Party was “the engine of the coordination with the Member States” (Commission 8, Interview, May 2021). This assessment was echoed by another Task Force 50 member, who explained that it was “a very, very good decision by the Council” to set up the working party “exclusively to deal with UK matters” (Commission 6, Interview, April 2021). The same TF50 member stressed the importance of the

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fact that the working party had “a permanent chair in the Council,” who was “a very seasoned senior civil servant” (Commission 6, Interview, April 2021). This stable arrangement was “part of the success” because it enabled TF50 to work “very, very closely together” with the Council (Commission 6, Interview, April 2021). Besides the Council Working Party, TF50 also regularly met with the General Affairs Council (Commission 6, Interview, April 2021). Regular coordination at the political level was important also in relation to the European Parliament, which had to give its consent to a potential Brexit deal and saw itself as a defender of citizens’ rights. During the future partnership negotiations, meetings with the Parliament were usually held by Michel Barnier or Clara Martinez Alberola because they were both more political and high level. And while coordination with the EP was less intensive than with the Council, “the Parliament was really kept informed after each round, [and] before each round of negotiation” (Commission 1, Interview, May 2021). A member of the Commission TFUK confirmed that “Mr. Barnier would go there very regularly,” especially “in advance of the negotiation rounds and after the negotiation rounds” (Commission 6, Interview, April 2021). This pattern of engagement continued throughout the WA and TCA negotiations. It was only suspended when the negotiations with the UK entered the so-called tunnel of intensive and uninterrupted endgame negotiations when “you no longer kind of can have a regular debrief session” (Commission 6, Interview, April 2021). Besides the intensive contacts with the Council and the Parliament, TF50 also closely coordinated with the Commission DGs. Michel Barnier would “before each round and on a regular basis […] keep all DGs informed” (Commission 1, Interview, May 2021). The effectiveness of the inter-institutional working relations was confirmed by representatives of the Council and of the Parliament. A high-ranking Council representative explained that this is the area of the best cooperation between the Commission and the Council during the [Donald] Tusk years. Without doubt. I mean there were many others as well, but for sure this was the best. And it’s also both [Martin] Selmayr [of the Commission] and we [the Council] used Brexit always as the example of good inter-institutional cooperation. So, in a way, I think it was extremely important for the success, if you want. (Council 3, Interview, March 2021)

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This perspective was confirmed by a high-ranking member of the Council Working Party, who explained how the functioning of the EU’s transparency practice evolved over time. The representative pointed out that the provisions of December 2016 were negotiated in the early days […] with the mindset of ‘It’s good to know that we have somebody there’. But in the end the practice evolved as ‘How can we mutually support each other?’ So, it was not like how can we see this as reinforced trust? But more like how can we mutually support each other, and double check or have quick checks, throughout the negotiations? (Council 1, Interview, March 2021)

In this interviewee’s view, the Council’s seconded staff in the Commission Task Force “were not sitting there as the ‘Ears of Moscow’, but they were sitting there as a kind of useful person to double check with”; they worked “like a team” (Council 1, Interview, March 2021). On the side of the European Parliament, a representative underlined that Michel Barnier was always repeating the following “mantra”: “I am co-constructing the agreement with the Parliament and the Council and the Member States. This is not just me. I am working to build this new edifice together with the Parliament and the Council of Member States” (Parliament 1, Interview, November 2020). In the eyes of that representative, the Commission “worked very, very hard” to involve the Parliament and this approach “worked very well” (Parliament 1, Interview, November 2020). The intensity of inter-institutional coordination during the Brexit negotiations is well captured in the following remarks by a high-ranking Council member: The governance model ensured that they [the member states] had ownership of the positions that the Commission took. Because on each and every step – be it the famous Bible, up to each and every negotiation position – we went through it in our famous [Council] Working Party. […] We went through these positions for hours and hours and hours. […] So, it was really a very iterative process, which was very lengthy, with permanent feedback loops. […] So, the fact that the Member States were on a quasi-permanent basis in the loop was the life insurance for the survival of the Commission’s work. So, to me, the success of the unity is largely due to the governance model. (Council 1, Interview, March 2021)

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The time-intensive nature of these internal coordination processes was a potential weakness in the negotiations with the UK. In contrast to the EU, the “UK wanted continuous negotiations […] because they thought that would be in their interest” (Commission 7, Interview, April 2021). But the EU was afraid that continuous negotiations would “damage the transparency policy we had designed” because “once you’re in continuous negotiation, there’s no way you can still do that” (Commission 7, Interview, April 2021). For this reason, the EU insisted that the negotiations should be conducted in separate negotiation rounds with each round consisting of “a week of preparation, a week of negotiation, a week of washing up and a week of consultation” (Ireland 1, Interview, December 2020). Georg Riekeles, who handled inter-institutional affairs in TF50, argued that this arrangement enabled the EU “to cater for our inter-institutional needs … to have a proper preparation, discussion with Council and Parliament ahead of every round and after every round” (Commission 3, Interview, April 2021). To sum up, the experience of ratification problems in previous trade negotiations (especially TTIP) had taught the EU the importance of a robust transparency regime. In the Brexit talks, transparency was the glue that held the EU together and facilitated institutional coordination.

A Barnier Method? The EU’s approach to managing Brexit became known as the “Barnier Method” (Gostynska-Jakubowska ´ and Ondarza 2020; Schuette 2021). The label accords primacy to the Union’s chief negotiator, Michel Barnier, and reflects the fact that he was the dominant EU face of Brexit from his appointment in July 2016 to his departure from the Commission in March 2021. As the EU’s Chief Negotiator, Michel Barnier negotiated the Withdrawal Agreement (WA) and the Trade and Cooperation Agreement (TCA) with the UK. Michel Barnier brought distinctive qualities to bear on Brexit as it unfolded. From the outset, he had the “the reflex to say that the Commission had to behave differently in this file compared to others” (Commission 7, Interview, April 2021) and his personal style of courtesy and respect for his team and all those he met contributed to his efficacy as Chief Negotiator. In addition, he was a man of considerable patience, endurance and a capacity to explain complex issues. In his diary, Barnier identified his pedagogical role, as teacher and explainer, as crucial (Barnier 2021).

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Central to Michel Barnier’s approach was his commitment to collaboration and cooperation, beginning with TF50 and the wider Commission. Barnier listened to everyone, involved everyone and was deeply committed to developing a “collective morale” among members of the Task Force who he wanted to unite into a “formidable team” (Barnier 2021: 403). He developed the habit of sending a weekly note to Commission Presidents Juncker and Von der Leyen to ensure that they were always up to date on key developments. This was augmented by intensive engagement with the Director Generals of the Commission and regular reporting to the College of Commissioners. Michel Barnier’s commitment to transparency and pedagogy was unprecedented for the Commission when dealing with a third country. This established a style of negotiations in which the EU’s positions were publicly known, and all actors were informed of everything all the time. Transparency and pedagogy were crucial because Brexit was an unprecedented challenge and many member states had to be brought up to speed about its potential wide-ranging implications. Michel Barnier played a central, albeit not dominant, role in the EU27’s collective and cooperative governance of the Brexit process. Collective governance radiated out from TF50 to all other actors in the Brexit process on the EU side. The method was characterised by working hand in hand with the Council Working Party, the EC President and cabinet, the Council Secretariat, national governments and the EP on an equal footing. Michel Barnier was careful not to privilege some actors over others or some member states over others. He was exclusively in listening mode for the first two months of his mandate, working to get all key actors singing from the same hymn sheet. His visits to the national capitals were particularly significant. Cooperation and coordination were intensive and continuous, which reinforced a unity of perspective and trust. Beyond official channels, there was extensive engagement with civil society stakeholders. The “Barnier Method” should not be reduced to intra- and interinstitutional coordination, impressive although that was. A key feature of the Union’s approach was a blurring of the boundaries of the precise responsibilities of each institution and co-creation and co-construction of guidelines, principles and strategies. Ultimately, the Union moulded its multiple parts into a form of collective governance and power. The Commission negotiating teams were open to a member of the Council working party and the rotating Presidency. When the Council working

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party drafted the initial negotiating guidelines, Sabine Weyand and a small team from the Commission TF50 worked discreetly with the Council to work on the draft guidelines. After the Special European Council of April 2017, President Tusk highlighted that the negotiation guidelines “were adopted immediately after we started the summit, which bodes well for the negotiations. We now have unanimous support from all the 27 Member States and the EU institutions, giving us a strong political mandate” (Tusk 2017). Subsequently, the European Council endorsed the work of the Commission in its conclusions throughout the negotiations. The Special European Council meeting of October 2019 not only approved the Withdrawal Agreement with the UK but also reiterated “its gratitude to Michel Barnier for his tireless efforts as the Union’s chief negotiator and for his contribution to maintaining unity among EU27 Member States throughout the negotiations” (European Council 2019).

Conclusion This chapter has analysed how the EU27 crafted internal processes which reinforced EU unity, and which were conducive to the efficient mobilisation of institutional resources. The foundational procedures were enshrined in Article 50 TEU, which specified institutional roles and timelines for action. Article 50 was fleshed out with additional procedural norms, notably NNWN and transparency. The procedural element worked as the glue which connected the EU’s Brexit objectives (see Chapter 2) to the newly created institutional ecology (see Chapter 3). The EU’s dedicated institutional ecology was embedded in the Union’s macro-institutional framework, which facilitated and delivered interinstitutional cooperation. The management of the Brexit process was sufficiently distinctive that it became known as the Barnier Method, a testimony to Michel Barnier’s contribution to the EU’s response to Brexit. By June 2017, when the EU entered negotiations with the UK its investment in institutional capacity and its meticulous preparations had significantly strengthened its negotiating position vis-à-vis the UK. This argument is developed in greater detail in Chapters 5–8.

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References Barnier, M. 2016. Press conference: Introductory comments by Michel Barnier. Available at https://ec.europa.eu/info/news/introductory-comments-mic hel-barnier-2016-dec-06_en. Barnier, M. 2021. My secret Brexit diary: A glorious illusion. Cambridge: Polity Press. Council of the European Union. 2017. Guiding principles for transparency in negotiations under Article 50 TEU. XT 21023/17. Council of the European Union. 2020. Guiding principles for transparency in negotiations on the future relationship with the United Kingdom. XT 21010/20. EU Ombudsman. 2017a. Letter from the Ombudsman to President Juncker concerning information for the public on the upcoming negotiations aimed at reaching agreement on the UK’s withdrawal from the EU. Available at https://www.ombudsman.europa.eu/de/doc/correspondence/ en/76528. Accessed 13 October 2022. EU Ombudsman. 2017b. Letter from the Ombudsman to the Secretary-General of the Council of the EU concerning public information on the UK’s withdrawal from the EU (SI/3/2017/KR). Available at https://www.ombuds man.europa.eu/en/doc/correspondence/en/77306. Accessed 13 October 2022. EU Ombudsman. 2019. Closing note on the Strategic Initiative with the European Commission on the negotiations on the UK withdrawal from the EU (SI/1/2017/KR). Available at https://www.ombudsman.europa.eu/en/ doc/correspondence/en/109825. Accessed 13 October 2022. European Commission. 2017. The European Commission’s approach to transparency in the Article 50 negotiations with the United Kingdom. Available at https://ec.europa.eu/info/brexit-negotiations/european-commissions-app roach-transparency-article-50-negotiations-united-kingdom_en. Accessed 13 October 2022. European Council. 2016a. Informal meeting at 27. Brussels, 29 June 2016. Statement. Available at https://www.consilium.europa.eu/media/20462/sn0 0060-en16.pdf. European Council. 2016b. Informal meeting of the Heads of State or Government of 27 Member States, as well as the Presidents of the European Council and the European Commission Brussels, 15 December 2016. Available at https://www.consilium.europa.eu/media/24173/15-euco-statement.pdf. European Council. 2017. European Council (Art. 50) guidelines for Brexit negotiations. Available at https://www.consilium.europa.eu/en/press/pressreleases/2017/04/29/euco-brexit-guidelines/. European Council. 2019. Special meeting of the European Council (Art. 50) (17 October 2019)—Conclusions. EUCO XT 20018/19.

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European Union. 2012. Consolidated version of the treaty on European Union. Official Journal of the European Union, C 326/13. Gostynska-Jakubowska, ´ A., and N. von Ondarza. 2020. The Barnier method: Lessons learned from the EU’s institutional approach to the Brexit negotiations. In Towards an ambitious, broad, deep and flexible EU-UK partnership? ed. A. Aktoudianakis et al., 53–60. European Policy Centre. Hillion, C. 2016. Le retrait de l’Union européenne. Analyse juridique. Revue Trimestrielle de Droit Européen 52 (4): 719–734. Jones, J. 2021. Witness testimony, UK. In A changing Europe Archive, 6 May. https://ukandeu.ac.uk/interview-pdf/?personid=44845. Accessed 29 November 2022. Kooiman, J. 2003. Governing as governance. London, Thousand Oaks and New Delhi: Sage. Politico. 2017. A transparent Brexit? Available at https://www.politico.eu/art icle/a-transparent-brexit/. Accessed 13 October 2022. Rogers, I. 2018. Full speech: Sir Ivan Rogers on Brexit, University of Liverpool. Available at https://news.liverpool.ac.uk/2018/12/13/full-speech-sirivan-rogers-on-brexit/. Accessed 13 October 2022. Sabel, C.F., and J. Zeitlin. 2008. Learning from difference: The new architecture of experimentalist governance in the European Union. European Law Journal 14 (3): 271–327. Schmidt, V. 2016. The new EU governance: New intergovernmentalism, new supranationalism, and new parliamentarism, governing Europe: How to make the EU more efficient and democratic. 16. Rome. https://doi.org/10.3726/ b10699. Schuette, L.A. 2021. Forging unity: European Commission leadership in the Brexit negotiations. Journal of Common Market Studies 59 (5): 1142–1159. https://doi.org/10.1111/jcms.13171. Tömmel, I. 2016. EU governance of governance: Political steering in a nonhierarchical multilevel system. Journal of Contemporary European Research 12 (1): 406–423. Tusk, D. 2017. Remarks by President Tusk on the Special European Council (Art.50) of 29 April 2017. European Council. Available at https://www.consilium.europa.eu/en/press/press-releases/2017/04/29/ tusk-remarks-special-european-council-art50/.

CHAPTER 5

Structuring the Negotiations

Introduction When the negotiating teams met for the first time on 19 June 2017 in Brussels, the two parties were embarking on a process that would last 42 months, the outcome of which would have a major impact on the economies, citizens, businesses and politics on both sides of the channel. It was a negotiation involving secession not convergence, a breaking of the mould in the relations between the UK and its former partners. Although there was an underlying assumption that there would be a negotiated agreement, the spectre of no deal hung over the proceedings from the beginning to the end. The EU and the UK came to the table from different starting points (see Chapter 2). For the EU, Brexit was about limiting damage and delivering an orderly legal exit. For the UK, it was about asserting its independence while also retaining as much as possible of what it liked about EU policies. In particular, the UK wanted to retain access to the EU’s large and lucrative market. The parties were separated not just by preferences and interests but also underlying world views. The UK came to the negotiations with a sovereigntist outlook, whereas the EU was in its world view and practices a Union of deep interdependence characterised by the pooling of sovereignty. For the EU, Brexit was about protecting its model of interdependence from the UK’s sovereigntist assault. © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 B. Laffan and S. Telle, The EU’s Response to Brexit, Palgrave Studies in European Union Politics, https://doi.org/10.1007/978-3-031-26263-0_5

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The EU was determined to be effective in the negotiations with the UK, and it largely achieved its initially stated objectives while incurring only limited unanticipated costs. In contrast, the UK only partially achieved its initially stated objectives and incurred significant unanticipated costs (see Chapter 1). This outcome had a lot to do with how the EU enhanced its own position in the talks by structuring the negotiation process. This chapter submits that the two-level nature of Brexit— domestic and international—imposed a distributive bargaining logic on the negotiations. On the UK’s side, domestic veto-players significantly narrowed the government’s ability to make concessions on key issues of sovereignty. At the same time, the EU was united on the position that any future relationship with the UK would have to involve a balance between rights and obligations. Hence, neither side was in a position to make significant concessions to the other. Given this constellation, the UK adopted two distinct strategies: a divide-and-rule strategy aimed at undermining EU unity, and a strategy of brinkmanship aimed at forcing concessions from the EU by threatening a no-deal Brexit. This meant that the central challenge for the EU was to maintain internal unity and to keep working constructively towards an orderly withdrawal. In this scenario, a no-deal Brexit would only materialise if the UK unilaterally abandoned the negotiations. We argue that the EU’s success in staying united and constructive depended on a set of resources which derived from its meticulous and methodical preparations in advance of the negotiations (see Chapters 2– 4). First, the EU had developed a coherent set of objectives in which the integrity of the single market ranked higher than the trade relationship with the UK. This ranking of objectives blunted the UK’s brinkmanship because the EU would rather accept a no-deal outcome than jeopardise the integrity of its rule-based system. Second, the EU shielded itself against the UK’s strategy of divide and rule by forging broad political ownership on its Brexit response. Third, unity on objectives allowed the EU to meticulously prepare its strategy. This technical preparedness enabled the EU to put forward strong substantive arguments, parry vague UK proposals and structure the negotiation process to its own advantage. The EU mobilised these bargaining resources to impose an overall structure on the negotiations which gave it negotiating leverage. Critical to this was the “sequencing” of the negotiations. By separating “divorce issues” from “future relations issues”, the EU limited the UK’s options for issue linkages and abridged UK bargaining power. The EU also

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succeeded in establishing its own objectives as points of departure in the negotiations by releasing draft treaties. This forced the UK into the uphill battle in which it had to negotiate away from the EU’s positions. Finally, the EU deployed public communication to strengthen its bargaining position, among others by utilising the metaphor of “cherry-picking” to expose and reject the self-interested nature of the UK’s demands.

Negotiation Strategies and Bargaining Resources To understand the outcome of the Brexit negotiations, it is helpful to think of them as a two-level game (Putnam 1988). In this perspective, the bargaining power of actors in international negotiations is enabled and constrained by domestic factors. The strength of such constraints is central in determining the logic of negotiations. If internal constraints are weak, an integrative bargaining logic can uncover mutually beneficial compromises and realise positive-sum outcomes. If internal constraints are strong, however, the negotiating parties are more likely to adopt a distributive bargaining logic. According to this logic, the negotiating parties will try to minimise their own costs and maximise their own benefits, irrespective of the overall outcome (Fisher et al. 2011; Odell 2010). Successive UK governments faced significant domestic constraints regarding Brexit. To begin with, the governing Conservative Party was deeply divided between hard Brexiteers and those who preferred a softer form of Brexit. After its defeat in the general election of 8 June 2017, the Conservative Party entered a “confidence-and-supply” arrangement with the Northern Irish Democratic Unionist Party (DUP), which was for Brexit but against a regulatory border in the Irish Sea. If the government wanted to find a parliamentary majority on an agreement with the EU within the coalition, it would have to be acceptable to the various factions within the Conservative Party, as well as to the DUP. In other words, they could veto any deal which did not satisfy their key demands. But some of their demands contradicted each other. For example, Brexit could not be hard and soft at the same time. Arguably, this was the defining problem of the negotiations during most of 2019, and it was only resolved when new elections in December changed parliamentary majorities. The EU had clarified that it would not tolerate “cherry-picking” by the UK and that any deal would have to involve a “balance between duties and obligations”. In other words, the EU would rather let the negotiations fail than

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to jeopardise the overall integrity of its legal, institutional and political framework. This was seen as the best way to protect the interests of the member states and citizens and it was enshrined in the EU’s negotiating mandate (European Council 2017). As a result of this constellation, neither party was likely to make major concessions on key issues in the negotiations. And this meant that the negotiations were likely to follow a distributive bargaining logic. In a distributive bargaining situation, both sides attempt to force the opposite site to make concessions without giving in on their own core demands. It matters in this context that the UK was seeking a new relationship with the EU and that a no-deal outcome would have had more severe consequences for the UK. This meant that the UK needed to find ways to compel the EU to deviate from its initial objectives and red lines. To this end, the UK adopted two strategies which were aimed at undermining EU unity: divide-and-rule and brinkmanship. On the one hand, the UK tried to move the EU’s red lines by leveraging the expected asymmetric economic and political impact of Brexit on the member states. The hope was that by urging the governments of the most exposed EU member states to think about their own national interests, EU unity would break and the UK would be able to force concessions from the EU. On the other hand, the UK repeatedly used the threat of a no-deal outcome with the same purpose, based on the misguided assumption that influential member states would ultimately prefer to accept a slightly better deal for the UK than risk a complete failure of the negotiations. This approach prevailed in different variations under both Theresa May and Boris Johnson. Under Theresa May, the approach took the form of using domestic “weakness as strength” vis-à-vis the EU, stressing the risk of an involuntary no-deal outcome. Boris Johnson adopted a purer version of confrontational brinkmanship and repeatedly signalled that his government was prepared to walk away from the negotiations if the EU did not moderate its red lines. As such, the replacement of May by Johnson late in the WA negotiations can be seen as an intensification of the same basic strategy. However, neither the divide-and-rule nor the brinkmanship tactics delivered the desired results for the UK. Instead, throughout the negotiations the EU remained united and unwavering on its core objectives and red lines. In the face of persistent EU unity, the UK ultimately abandoned some of its key objectives and crossed its own red lines to avoid a no-deal outcome. We argue that the effectiveness of the EU was crucially enhanced by negotiation resources which derived directly

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from the initial framing of Brexit as a common challenge and the subsequent creation of a dedicated “institutional ecology” to handle the Brexit process. First, the EU had a coherent set of objectives and red lines which served to communicate both internally and externally that any future relationship would have to rest on a balance between rights and obligations. Moreover, the EU’s objectives were consistent and ranked: protecting the EU’s rules-based system was more important than trade relations with the UK. The price of British “cherry-picking” was seen as being greater than the price of a no-deal Brexit. For this reason, the EU was able to absorb intense UK brinkmanship without breaking ranks. The UK did not have consistent and ranked objectives. Theresa May tried to simultaneously maximise political sovereignty and minimise the economic impact of Brexit. Only the change to a sovereignty-first approach under Johnson established a ranking between political and economic objectives very late in the negotiations. Second, the collaborative process of shaping the EU’s response to Brexit generated broad political ownership within the EU institutions and among the member states regarding the EU’s approach to the negotiations. This was a key defensive resource against the divide-andrule strategy of the UK. Broad ownership was continually nourished by the EU’s decision to follow a strategy of full transparency and constant consultation. Because everyone knew everything and everyone’s interests were listened to, the UK was ultimately unsuccessful in playing the member states off against each other. The UK, by contrast, remained divided on Brexit throughout the negotiations. Even compromises which the government had reached with the EU regularly crumbled under domestic opposition. This drastically limited the UK’s room for manoeuvre. Third, coherent objectives and broad political ownership fed into a higher level of technical preparedness of the EU in comparison to the UK. As Chapter 3 showed, each of the three main EU institutions created a dedicated Brexit hub, mobilising and channelling distributed expertise in support of the EU’s negotiation efforts. Chapter 4 showed how these organisational structures interacted to form a productive “institutional ecology” to handle Brexit. As a result, the EU generally was one step ahead of the UK in the negotiation process. This preparedness allowed the EU to structure the negotiations to its own advantage, both procedurally and in substance. In large part, the EU was the shaper of the Brexit process while the UK was the taker. The remainder of this chapter will illustrate how the EU utilised these resources to structure the negotiation process in its favour.

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Structuring the Negotiation Process Negotiation theories suggest that the structure of the negotiation process may have a significant impact on the distribution of bargaining power among the negotiating parties. The assumption is that some arrangements may be more advantageous to one party than to the other. For this reason, the negotiating parties have an incentive to attempt to shape the procedural aspects of the negotiations to their own advantage (Odell 2010). Issue linkage plays an important role in this regard (Scharpf 1997: 128ff). If a negotiating party is weak on one issue but strong on another it may try to link the two issues to obtain a better overall outcome. In this scenario, the other party would have an interest in limiting its opponent’s opportunities to link issues, which it can achieve by dividing the negotiation process into distinct phases where each phase is dealing with specific issues. By making agreement on all issues in the first phase a precondition for initiating negotiations on the issues in later phases, the opportunities for linkages are reduced. Besides issue linkages, negotiating parties may also gain an advantage over the other side if they succeed in making their objectives the point of departure of the negotiations on specific issues. This creates an uphill battle for the opponent, who will want to move the point of mutual agreement back towards its own objectives. A negotiating party therefore has an incentive to try to make its own objectives the starting position on as many different issues as possible and to prevent the other party from doing so. In this context, clearly defined objectives and organisational capacity to act swiftly are crucial because they may enable a party to obtain a “first-mover” advantage by publicly proposing procedural terms of engagement and revealing substantive positions. Being the “latecomer” involves risks: On the one hand, the publicly known positions of the firstmover may come to determine the public discourse and generate pressure on the latecomer to formulate active rebuttals. To the extent that such rebuttals bind limited resources, the latecomer’s capacity to develop an independent negotiation strategy may be reduced. On the other hand, non-engagement is not necessarily a more promising strategy for the latecomer. Left unchallenged, the positions of the first-mover may come to dominate the public discourse. The first-mover may then try to depict non-engagement by the latecomer as an expression of non-cooperative behaviour and create reputational costs for the latecomer. The remainder of this section explores how the EU structured the negotiation process

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to its own advantage. It first discusses how the EU shaped the availability of issue linkages in a way that suited its objectives by introducing a “sequenced approach” to the negotiations. This leads to a discussion of how the EU tilted the negotiating table in its favour by establishing its positions on key issues as the point of departure in the negotiation. Issue Linkages: Sequencing and Package Agreements The European Council guidelines of April 2017 envisioned a “phased approach” to the negotiations and clarified that an “agreement on a future relationship between the Union and the United Kingdom […] can only be finalised and concluded once the United Kingdom has become a third country” (European Council 2017). Furthermore, it stipulated that each of the agreements should be concluded “as a single package” whereby “individual items cannot be settled separately.” Why did the EU want this particular structure for the negotiation process? One important reason is that Brexit was not about re-negotiating the terms of EU membership. It was about defining a new relationship between the EU and an independent UK. The UK had signalled its intention to become a third state by triggering Article 50 process. But a new relationship between the UK and the EU could only be concluded once the status of the UK had changed from member state to third state. Hence, there was a compelling legal argument in favour of a “sequenced approach” to the negotiations. Yet, the strict time limit of two years for concluding both agreements provided strong pragmatic reasons for conducting both negotiations in parallel, as this would allow to conclude an agreement on new relations quickly after the withdrawal. This pragmatic logic was, however, less compelling for the EU than for the UK. Consistent with their divergent objectives, the EU and the UK faced very different incentives regarding the linkage of issues. As stated above, the UK sought to regain political sovereignty by leaving the EU while also minimising the economic costs of Brexit. Leaving the EU was the easy part for the UK, as Article 50 TEU explicitly gives each member state of the EU the right to “withdraw from the Union in accordance with its own constitutional requirements.” In fact, it has been argued that, in contrast to other international treaties, the TEU “gives an exorbitant importance to the interests of the withdrawing State over those of the Union” (Bradley 2020: 387). Accordingly, the core challenge for the UK lay in negotiating a future relationship deal with the EU which would

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enable it to retain as many of the economic benefits of EU membership as possible. From the EU’s perspective, such an outcome was very unattractive as it would create an incentive for other member states to follow the UK’s path and raise broader questions about the EU as a rules-based system. It was highly unlikely that the EU would consent to such an outcome. Given this constellation, the UK had an incentive to link the negotiations on future relations (on which it was comparatively weak) to the negotiations about its withdrawal from the EU (on which it was comparatively strong) to achieve a more beneficial overall outcome. This would, for example, have allowed the UK to argue that it should get better access to the single market in return for paying its outstanding financial obligations to the EU. As such, the EU had strong reasons to insist that the negotiations about the future relationship could only begin after the UK had left the EU, or after key withdrawal issues had been settled. By introducing a sequenced approach to the negotiations, the EU wanted to limit opportunities for issue linkages and obtain an advantage over the UK (see Table 5.1). The EU’s insistence on a “sequenced approach” also rested on the assumption that the UK could not afford a no-deal Brexit economically. In this view, the UK government would likely accept the EU’s preference to settle critical “divorce issues” first because it had a strong interest in a trade deal with the EU. But this line of reasoning involved significant risks. As the referendum had shown, economic arguments did not resonate strongly with a large part of British voters and political elites, whereas the sovereign control of British borders and laws did. If the UK rejected the sequencing of the negotiation, the entire process could instantly result in a no-deal Brexit. But if the UK accepted the sequencing, it would be a very strong indication that a favourable trade deal was crucial to the UK and it would question the credibility of potential later threats to walk away from the sequenced negotiations. Table 5.1 EU and UK bargaining strength and preferences on issue linkage

Withdrawal negotiations Future relations negotiations Preference

UK

EU

Stronger

Weaker

Weaker

Stronger

Issue linkage

Issue separation

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The question of sequencing was one of the first major issues between the EU and the UK at the beginning of the negotiations in June 2017. Indeed, Brexit Secretary and British chief negotiator David Davis announced that it would become the “row of the summer” (Financial Times 2017), indicating that the UK was determined not to accept the EU’s proposal to separate “withdrawal” and “future relations” negotiations. Ultimately, however, the “row of the summer” did not materialise because the UK accepted the EU’s demand for a sequenced approach on the very first day of talks, on 19 June 2017 (The Guardian 2017). At the joint press conference with David Davis after the meeting, Michel Barnier summarised what had been agreed upon at the end of day one of the negotiations: Today, we agreed on dates. We agreed on organisation. We agreed on priorities for the negotiation. In a first step, we will deal with the most pressing issues. We must lift the uncertainty caused by Brexit. We want to make sure that the withdrawal of the UK happens in an orderly manner. Then, in a second step, we will scope our future relationship. We also agreed on how we will structure our talks. Our aim is to have one week of negotiations every month. And use the time in between to work on proposals and exchange them. […] Our objective is to agree on the main principles of the key challenges for the UK’s withdrawal as soon as possible. This includes citizens’ rights, the single financial settlement and the question of the borders, in particular in Ireland. The European Council can then decide on whether we can show sufficient progress or not. And if we can move to scoping the future relationship on trade and other matters. (Barnier 2017)

The quote illustrates that the EU had achieved its first major success on day one of the negotiations. By agreeing on a “phased approach,” the UK’s options for issue linkage were significantly reduced. This outcome weakened the UK’s bargaining position in terms of obtaining a favourable trade deal with the EU. For the UK, it was a major setback because it simultaneously confirmed the UK’s strong interest in a trade deal and limited its ability to get a favourable deal. Interestingly, the preferences regarding issue linkages were reversed when it came to the individual phases of the negotiations. In each separate phase of the negotiations, the EU preferred concluding one overarching “package agreement,” while the UK preferred concluding separate agreements on specific issues. One Commission representative explained that

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“the UK came from a place where they wanted to have a high number of separate self-standing agreements,” but the Task Force “realised very quickly” that this was “a dangerous path” (Commission 6, Interview, April 2021). In this view, if the EU wanted “to keep some leverage in this process,” it needed to “keep the various pieces together” to ensure that “if you have a problem in one area that you can actually retaliate and take measures in other areas of the agreement.” The representative argued that it was “precisely for that reason” that the UK “wanted to have separate agreements,” emphasising that “if you have a separate agreement on fish, a separate agreement on a level playing field, a separate agreement on trade in goods and services, it will be much more difficult to keep the governance and the sanctioning mechanism of that together.” The representative concluded that getting a package deal with overarching governance arrangements was “very, very important to the EU” (Commission 6, Interview, April 2021). Ultimately, the withdrawal negotiations and the future relations negotiations resulted in package agreements with overarching governance and dispute resolution institutions, in accordance with EU preferences. How can we explain the EU’s success in structuring the negotiation process? Why did the EU succeed in imposing a sequential approach in the negotiations, while also succeeding in obtaining package agreements in each individual phase? And why did the UK fail on both occasions to get what it wanted? The UK’s dependence on access to the EU’s single market is an important part of the explanation. But how the EU leveraged that advantage depended in large part on the bargaining resources which it had developed in advance of the start of the negotiations. First, the EU had clearly ranked and well-defined preferences regarding the outcomes it wanted to achieve in the negotiations with the UK. In particular, it had achieved an internal consensus on the view that minimising the costs of Brexit for the Union and its members could best be achieved by protecting the integrity of the EU’s rules-based system of international cooperation. This red line was even more important than the objective of an orderly Brexit. To protect the system, the EU was prepared to accept the economic costs of a no-deal Brexit. This ordering of objectives allowed the EU to insist on a sequenced approach, despite the risk that the UK may abandon the talks. As one representative of the European Court of Justice who was closely involved in the Brexit process said, “So, the Union thought the matter through and said ‘This is the way we want to do it. Sequencing.’ And although the UK didn’t like it, they went

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along with it because they had to get something” (CJEU 1, Interview, November 2020). The fact that the UK did not abandon the negotiations strongly signalled that it needed a trade deal with the EU and that it was unlikely to walk away from the negotiation in the future. Recognising this, the EU pushed its preference for package agreements in both phases of the negotiation. Second, the EU’s negotiating strategy and objectives enjoyed broad political support among EU leaders. This can be seen not only in the remarkable absence of internal disputes among the 27 member states and the EU institutions but also in the regular public endorsements of the Commission’s leadership in the negotiations. The following remarks by a leading member of the EU Task Force for future relations illustrate how agreement on sequencing was achieved and maintained: The British wanted to negotiate everything at the same time, the withdrawal and the future agreement. And this was discussed with President Juncker, with Michel Barnier, and it was decided ‘No.’ The political line was to be first we do the divorce. […] And this was very difficult at the beginning to accept by the British and to convince some Member States. So, this was done by President Juncker and by Michel Barnier. (Commission 2, Interview, March 2021)

When difficult decisions needed to be made, the Task Force 50 could rely on the personal and institutional support of the Commission. A former Commissioner who was closely involved in the Brexit negotiations explained that The top echelons of the Juncker Commission watched everything. Anybody that knows Mr [Martin] Selmayr well will know that he watches every line of the negotiations on an hourly basis. So, you can take it that they were very much centre stage with the Task Force every step of the way, in order to ensure that Mr. Barnier had a strong mandate, had strong support. And they helped him in every possible way proactively with the Member States. (Commission 9, Interview, December 2020)

Third, the EU succeeded in structuring the negotiation process because it was better prepared than the UK. Technical preparedness was intimately linked to the clarity of objectives and the broad political ownership of the EU’s approach to the negotiations. After the EU had established that there would be no negotiations without formal notification, it used the

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period between the June 2016 referendum and the start of negotiations in June 2017 to prepare for the talks. A high-ranking former member of the European Commission contrasted EU preparedness with the situation in the UK in the moment when the negotiations began: And all the various players on the UK side, they were snowed under with activity from the European Union side. And they didn’t have one piece of preparation ready for these negotiations or didn’t know what they wanted. And at the end of the day, the sequencing of the negotiations was a masterstroke by Juncker, Selmayr and Barnier in ensuring that the European Union were on the front foot from the go. (Commission 9, Interview, December 2020)

This meticulous preparation also enabled the EU to take advantage of the domestic political situation in the UK at the beginning of the Brexit negotiations. On 8 June 2017, the Conservative Party had received a terrible reckoning at the general elections which PM Theresa May had called. TF50 member Georg Riekeles confirmed that May’s weakened position helped the EU in pressing for a “phased approach”: After the elections, she [Theresa May] was clearly in a position of weakness. Rather than fighting about sequencing and pushing on that, I think a decision was made in Number 10 that they needed to get going with the negotiations very quickly to show that she was getting down to business. Get on with Brexit to try to wipe away the electoral defeat. […] That allowed us to set the conditions of how to organize these negotiations, doing the withdrawal first and concentrating on certain issues. That’s how sequencing came to be accepted by the UK.’ (Commission 3, Interview, April 2021)

In sum, Article 50 TEU provided a strong legal argument for a sequences approach to the Brexit negotiations. Yet, the two-year time limit presented a compelling reason for negotiating in parallel. Our discussion has highlighted how the EU leveraged the UK’s strong interest in a trade deal to structure the negotiations to its own advantage. In doing so, it was guided and supported by clear objectives, broad political ownership and a meticulous preparation. These resources enabled the EU to take advantage of the domestic political weakness of the UK Prime Minister at the outset of the negotiations.

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Staying One Step Ahead The EU also took advantage of its ability to make the first move on many procedural and substantive issues. For most of the Brexit negotiations, the EU was proactive, while the UK was reactive. This strategy forced the slow-moving UK to either react to EU proposals or be brandished for being non-cooperative. By being one step ahead, the EU was effectively throwing a stick into the UK’s efforts to roll out its own approach. The EU’s high-level technical preparedness was essential in staying one step ahead of the UK in a variety of ways. The EU knew what it wanted long before the UK did, and it had its dedicated institutional ecology for handling Brexit up and running when the talks began. During the negotiations, and consistent with its transparency regime, the EU usually published its own positions on specific issues before the UK. In particular, the EU produced and shared draft agreements in each of the two negotiation phases, translating tacit political compromises into concrete legal language. In this way, the EU put pressure on a reluctant UK in two respects. In the negotiations on the WA, the EU used the draft agreement as a commitment mechanism intended to publicly tie the UK to obligations it had taken on in the “Joint Report” of December 2017. In the TCA negotiations, the EU produced a draft agreement to overcome the UK’s strategy of “running down the clock.” By staying one step ahead of the UK in formulating and communicating positions, the EU’s positions often became the main reference points in the negotiations. Overall, this dynamic tilted the negotiating plane in favour of the EU and created an “uphill” struggle for the UK. As one high-ranking member of Task Force 50 argued, The two elements that made us successful in those negotiations were political commitment – very strong – and analytical capacity. But the third element, which was extremely important in those negotiations, is that we always had the lead in those negotiations. Because when they were discussing whether or not to send the notification letter, we were working on the issues. So, we always were a bit advanced intellectually in those negotiations […] so that we actually worked on our terms: ‘This is our offer. This is it.’ Rule zero of negotiations, that you encourage the discussions. If you put your terms on the table, what the other one is discussing is your thing. They can distance themselves from your thing, but this is still your thing. The gravity is your thing. (Commission 8, Interview, May 2021)

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In December 2017, the EU and the UK had come to a preliminary agreement on the “divorce issues” of citizen rights, a financial settlement and the Irish border in the so-called Joint Report. Based on that report, European Council assessed that “sufficient progress” had been made to warrant the opening of talks on the future relationship (see Chapter 6). However, the EU had reservations about the UK’s commitment to the Joint Report. A Commission official clarified that “the December [20]17 European Council got worried about possible backtracking by the UK on its commitments in the Joint Report” and therefore it “wanted this to be translated into a legally binding text that would also be part of the sufficient progress tests” (Commission 7, Interview, April 2021). The creation of this additional “firewall” was seen as “very urgent” because “statements by the UK let people in the capitals believe that this [Joint Report] was not as solid as people had hoped it would be” (Commission 7, Interview, April 2021). Therefore, after the European Council meeting of December 2017, Task Force 50 immediately began to work on producing a full draft treaty. A member of Task Force 50 explained that it was “the Himalaya to climb. We started from the bloody first recite to the last article of the last annex” (Commission 8, Interview, May 2021). The official explained that “we just wrote everything down” and, in parallel, also answered hundreds of questions from the member states. The Task Force “worked 24 hours a day” and was “just a machine at the time, a war machine on this thing” (Commission 8, Interview, May 2021). When the Task Force completed the draft, they shared it with the member states for comments and on 28 February 2018 the draft was published (European Commission 2018). In the words of the same Task Force 50 official, the UK “freaked out completely” because they “thought that that was their moment when they would come with all their complexities and little nitty gritty things that they wanted to protect in those negotiations” (Commission 8, Interview, May 2021). The UK’s reaction to the proposed Irish Protocol was particularly strong. Theresa May argued in Parliament that “no UK Prime Minister could ever agree” to it because it would “undermine the UK common market and threaten the constitutional integrity of the UK by creating a customs, a regulatory border down the Irish Sea” (BBC 2018). With the draft treaty, the EU had put public pressure on the UK to confirm its commitment to the Joint Report. And while the UK “hated” the EU’s version of the Irish Protocol (Commission 8, Interview, May 2021), it was strongly interested in agreeing on a “transition period” between the moment of withdrawal and the conclusion

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of an agreement on future relations. The same Task Force 50 member explained that the UK “wanted this transition so badly that we started to work on the [treaty] text,” adding and then we came to that moment […] where we started to ‘green’ some of the agreed parts of the text. Because we wanted to really demonstrate that we were making progress and to start locking-in some elements. And during those nights we went through the entire text, agreeing line by line. The transition was the most debated at the time, and then the [Irish] protocol was entirely red. We did not discuss any of that because they were contesting the very principle of it. (Commission 8, Interview, May 2021)

On 19 March 2018, the EU and the UK published a revised and colourcoded version of the draft treaty (Task Force 50 2018). The colour coding indicated the issues on which agreement had been reached (green highlights), issues on which agreement was expected to be reached soon (yellow highlights) and issues on which the positions of the two parties diverged considerably (no highlights). The work on the draft agreement also meant that the EU held off the talks on the future relationship until it got further assurances that the UK was genuine about the commitments made in the Joint Report. In this process, the EU leveraged its own human and institutional resources and utilised the UK’s strong interest in a transition period to install an additional “firewall” which would prevent UK backtracking on the Joint Report (Commission 7, Interview, April 2021). It was only after the colour-coded draft agreement was released in March 2018, that the European Council adopted a new set of guidelines “on the framework for the future EU-UK relationship” (European Council 2018). The EU repeated this approach in the negotiations on the future relationship with the UK, publishing a draft agreement on 18 March 2020 (European Commission 2020a). At that time, the future relations talks had only just begun and nothing substantial had been agreed yet. As such, the EU’s draft basically was a translation into legal language of the Political Declaration which had accompanied the Withdrawal Agreement. Again, the UK was slow to engage with the EU even though the transition period was set to expire on 31 December 2020, at which point the UK would crash out of the single market if no deal was reached. This convinced the EU that the UK was trying to build pressure by running down the clock on the negotiations. The EU’s draft agreement

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was, therefore, an attempt to bring the UK to the negotiating table. A TFUK representative explained that “we could have made progress much earlier” but the UK was “stalling”, and that this was maybe for tactical reasons, because there is this idea in Westminster, that had been expressed earlier by other negotiators on the UK site, that it always happens at the last minute … the EU always becomes more malleable the last days. Which I don’t think was true. And I think it was a miscalculation by the UK side to lose time. But okay that’s their calculation. (Commission 7, Interview, April 2021)

The UK’s “stalling strategy” consisted in remaining vague on many issues, making improbable demands and showing a willingness to negotiate only in relation to issues which it was most interested in. One Commission representative maintained that “there was not much progress” in the early months of the negotiations, suspecting that the UK was trying to play the limited time that was available, trying to advance on the issues that they were most interested in and trying to stall on those that were relevant for us. And that’s why, for us, on the other hand, it was very important to ensure that every table – such as trade in goods and more difficult tables, such as LPF or fisheries – would advance in parallel in order not to leave anyone behind. (Commission 1, Interview, May 2021)

While the EU did not entirely succeed in getting the UK to the negotiating table before autumn 2020, what the release of the draft treaty texts did was impose some of its structural preferences on the talks. A Commission representative explained that “the final agreement is certainly much closer to our initial draft than to the UK drafts,” especially “the overall structure, clearly, was our structure […] with having everything in one agreement” (Commission 6, Interview, April 2021). A representative of the Dutch Brexit Task Force was surprised that the “Brits let it happen twice, because for the withdrawal agreements, we also worked on the basis of a Commission text. And it happened again here, which is interesting because it is definitely an advantage” (Netherlands 1, Interview, March 2021). An explanation was provided by a member of TFUK, who stressed that

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the Commission has a formidable machine in terms of writing agreements, which we have been doing for 40 years. So, I think we clearly had the advantage from that point of view, which frankly the UK couldn’t have […] we had a bigger machine of people who are used to negotiating and drafting. (Commission 6, Interview, April 2021)

In conclusion, the discussion of the EU’s draft agreements showed how, in both negotiation phases, the EU mobilised its human and institutional resources to tilt the negotiating plane to its own advantage. In this way, it inserted additional layers of commitment into the process, tackled UK stalling, and established the structure and positions expressed in its own drafts as the basis for further talks. Effective Communication: The Case of “Cherry Picking” Unity on objectives, broad political ownership and technical preparedness also enabled the EU to engage in effective public communication during the negotiations. The EU used press conferences as a major communications channel throughout the negotiations. Michel Barnier held a conference with David Davis after each WA negotiating round. Joint press conferences were key in TF50’s communication strategy, as “they are the best way to mark off progress that needs to be made at each session” (Barnier 2021: 57). Although they were joint events, the press conferences were held at the Commission, never at the UK’s Representation, and Michel Barnier always spoke first offering a detailed assessment of the talks before handing over to the UK negotiator. London did not want these conferences but when they were informed that the EU would hold them anyway, they decided that David Davis would participate. Michel Barnier persistently used engagement with the media to highlight the need for clarification from the UK on the key issues in the talks and to constantly warn that time was short. In other words, the EU used public communication to increase the reputational costs of the UK’s strategy of vague positioning and reluctant engagement with the EU. At a press conference on 12 July 2017, when asked about a Boris Johnson quip in the House of Commons that the EU could “go whistle” if it expected the UK to pay an exit tax, Michel Barnier responded that “I am not hearing any whistling. Just the clock ticking” (Barnier 2021: 66; Euronews 2017). At times, the news conferences were testy, which underlined just how far apart the two sides were on substance for much of the negotiations. By

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the beginning of 2018, Brexit Secretary David Davis was reluctant to go to Brussels and he was present for just two press conferences before his resignation in July 2018. The practice of joint conferences continued under Davis’s successor, Dominic Raab, but thereafter ceased. Neither Steve Barclay nor David Frost engaged with the media together with Michel Barnier. The Union’s Chief Negotiator himself continued the practice of issuing statements and meeting with the press after all the negotiating rounds on the future relationship. The EU remained on message throughout the long and complex negotiations. Cohesiveness and discipline in relation to key messages is central to public diplomacy and political communication (Simunjak and Caliandro 2020). From 24 June 2016 onwards, the EU collectively agreed on the lines to take at each major juncture of the negotiations and ratification process. Even in difficult moments, such as when the House of Commons repeatedly failed to ratify the WA, the EU adjusted quickly and maintained unity (see Chapter 7). Message discipline was so prevalent that it was a shock in January 2019 when the Polish Foreign Minister broke ranks during an impasse on the Northern Ireland backstop by suggesting that “If Ireland was to ask the EU to change the deal with the British, the backstop provisions, so that they would only apply for, say, five years, the issue would be resolved” (Politico 2019). The suggestion was quickly rejected by Michel Barnier, the Dublin Government and other EU capitals. It was a rare example of a breach of message discipline among the EU27. The use of metaphors—often food-related—was another noticeable feature of the Brexit process. Metaphors play a central role in political communication (Boeynaems et al. 2017). They are not simply rhetorical flourishes designed to embellish a speech or text but also contain significant conceptual content (Lakoff and Johnson 1980). Metaphors help explain and justify a particular policy stance and counteract the messages of the other side in negotiations. They reduce the complex and abstract to easily communicated and accessible ideas and images. In an interview with the tabloid newspaper “The Sun” in September 2016, Foreign Secretary and later Prime Minister Boris Johnson explained that “Our policy is having our cake and eating it,” referring to the ambition of regaining control over migration while retaining broad single market access (The Sun 2016). It has been argued that the “cake metaphor” was a “key phrase” in the framing of Brexit (Dallison 2017; Musolff 2020).

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The EU’s response was an equally food-related metaphor: cherry picking. This metaphor was employed to suggest that the UK’s demands in the Brexit negotiations were self-serving and unbalanced. It also captured the EU’s determination that any future relationship with the EU had to be based on a balance of rights and obligations and respect the indivisibility of the four freedoms. The metaphor appeared early in the Brexit process, well before the negotiations began. At his first press conference in December 2016, Michel Barnier was emphatic that “cherry picking is not an option” (Barnier 2016). Speaking in Cologne on 9 January 2017, Chancellor Merkel argued that the EU could not allow UK cherry picking because this would be fatal for the remaining 27 states. For the Chancellor, it was clear “that access to the single market is only possible under the condition of adherence to the four basic principles” (Reuters 2017). In its guidelines of April 2017, the “European Council welcomes the recognition by the British Government that the four freedoms of the single market are indivisible and that there can be no ‘cherry picking’” (European Council 2017). The EU rebuffed British cherry picking, by arguing that UK demands and red lines were inconsistent with a balance of rights and obligations. On this, the Commission turned to a very visual form of communication: It published a graphic which depicted the different models of existing EU relations with third countries in the form of a descending staircase (see Fig. 5.1). Referred to as a “killer graphic” (Huffington Post 2017), the message was clear: The UK’s red lines—no CJEU, no free movement, no contributions, independent trade policy—excluded all but the thinnest partnership models. The graphic was first used by Michel Barnier at a meeting with the European Council (Art 50) on 15 December 2017 when preparing EU guidelines on the future relationship. Michel Barnier wanted TF50 to prepare a graphic “to show in visual terms the limitations of what one can do in the future relationship” (Commission 3, Interview, April 2021). The graphic used for the EC27 meeting emerged from an internal TF50 competition in which several staff were asked to prepare something that would be “visually simple and communicate immediately the limit imposed both by UK red lines and existing models” (Commission 3, Interview, April 2021). The Commission published the graphic online, and it became one of the most deployed visuals during the Brexit talks. According to TF50 insider Georg Riekeles, the Chief Negotiator “fell very much in love with it. So, then he took care of the communication and the constant advertising of this slide” (Commission 3, Interview,

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April 2021). The descending stairway from full EU membership to Brexit was extraordinarily powerful, as each step represented an existing model of an EU third country relationship. Just below membership came the European Economic Area (EEA), which was ruled out because of UK red lines. This was followed by Switzerland, Ukraine and Turkey, again all ruled out by UK red lines. At the bottom of the stairs represented by the Canadian and Korean flags was a Free Trade Agreement (FTA), which was where the UK was heading given its own red lines or, even worse, a no deal under WTO rules (European Commission 2017). The stairway became one of the most iconic visuals associated with the Brexit negotiations and was a powerful communication tool for the EU given the imagery of a country descending from full EU membership to a much weaker position. The message from the EU was that the UK was closing doors on itself with its own redlines. In March 2018, PM May’s Mansion House speech spelled out the UK’s vision of the future EU-UK relationship and sought to address the EU’s “cherry picking” metaphor by arguing that “What would be cherry picking would be if we were to seek a deal where our rights and obligations were not held in balance. And I have been categorically clear that

Fig. 5.1 The ‘Barnier Staircase’ (Source European Commission [2017])

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this is not what we are going to do” (May 2018b). However, the EU saw things very differently. An internal EU27 assessment of the Mansion House speech accused the Prime Minister of “double cherry picking” by taking selective elements of member state and third country agreements (Politico 2018). The “cherry picking” metaphor had perhaps its most decisive impact on the negotiations at the European Council summit in Salzburg in September 2018 (see Chapter 7). At that meeting, the EU publicly rejected Theresa May’s so-called Chequers Plan, which envisioned UK access to the EU single market based on a “common rule book” and “facilitated customs arrangements.” The EU had adopted the viewpoint that the Chequers Plan involved incalculable risks for the single market. But it had not previously communicated this position because it wanted to strengthen Theresa May’s domestic position, which had been weakened by the resignation of several key officials in response to the plan. However, when Theresa May heavily criticised the EU’s unwillingness to move, the EU closed ranks and made it understood that Chequers was a “monumental exercise in cherry picking” (Ireland 1, Interview, December 2020). In this heated atmosphere, Council President Donald Tusk took to Instagram and posted a photo of himself with Theresa May next to a plate of cakes with the caption “A piece of cake perhaps? Sorry, no cherries” (Tusk 2018). Back in the UK, Theresa May described the EU’s stance as “not acceptable” and threatened to increase preparations for a no-deal outcome (May 2018a). Despite this, however, “the result of Salzburg was pretty clear. That was the end of the Chequers approach” (Commission 3, Interview, April 2021). After Theresa May resigned in summer 2019, her successor Boris Johnson reduced the UK’s ambition regarding its future economic partnership with the EU and asked for a Canada-style free trade agreement. At the same time, the UK continued to have “a very selective approach … they liked Canada, when it was near … Canada was the example when it suited them … on services, for example, they wanted much more than Canada” (Commission 6, Interview, April 2021). Michel Barnier reiterated the EU’s position that the UK was “looking to pick and choose the most attractive elements of the [EU] single market without the obligations. We cannot and will not allow this cherry picking” (RTE 2020). Faced with continued perceived UK cherry picking, the EU deployed another graphic (European Commission 2020b), which suggested that, based on geographic proximity and trade intensity, the UK “was not Canada” (Commission 1, Interview, May 2021). The agreement which was ultimately negotiated between the EU and the UK was very much at the bottom end of the famous Barnier staircase.

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Conclusion This chapter has argued that the divergent objectives of the EU and the UK in the Brexit negotiations had implications for their preferences regarding the structure of the negotiations. Because the UK had a weak position regarding the future relations talks, it was interested in linking those issues to the withdrawal negotiations to obtain a better overall deal. For the EU, the opposite was the case. The EU was in a weak position regarding the withdrawal negotiations, as Article 50 makes leaving the Union rather easy for the withdrawing state. To strengthen its position, it wanted a temporal ordering of the “withdrawal” and “future relations” talks as this would limit the UK’s opportunities for issue linkage. While Article 50 provided a legal rationale for a “phased approach” to exit negotiations, economic arguments spoke for parallel talks. But the latter were much more important to the UK than for the EU. As a result, the EU could press its preference on a sequenced approach. On the one hand, economic logic suggested that the UK would not abandon the negotiations. On the other hand, due to the ordering of its objectives, the EU could credibly argue that it preferred no deal to an unbalanced deal. While Theresa May entered the negotiations in a position of domestic weakness after losing the Conservative parliamentary majority, the EU was ready to push its case. Moreover, the EU often managed to stay one step ahead of the UK in the talks by mobilising human and institutional resources. The EU moved fast to make its own positions publicly known. For the UK, this meant that it either had to engage with EU positions instead of rolling out its own strategy, or be publicly exposed as an uncooperative negotiator. In this context, the EU’s strategy of publishing draft agreements had a threefold impact on the negotiations: it inserted an additional layer of commitment, brought the UK to the negotiation table and established EU texts as the basis for further negotiations. Finally, the EU’s savvy use of public communication and metaphors— especially that of “cherry picking”—was used to expose the unbalanced nature of the UK’s demands. The cherry-picking metaphor succinctly captured the EU’s reservations towards the UK’s demands and resonated with the public. As such, it was repeatedly used by high-level EU officials and politicians throughout the WA and TCA negotiations. Indeed, the metaphor got to the core of the UK’s Brexit conundrum. It was not easy to square the UK’s dual objectives of political sovereignty and economic interdependence. Boris Johnson would ultimately “get Brexit done” because he put sovereignty first.

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European Council. 2017. European Council (Art. 50) guidelines for Brexit negotiations. Available at https://www.consilium.europa.eu/en/press/pressreleases/2017/04/29/euco-brexit-guidelines/. European Council. 2018. European Council (Art. 50) guidelines on the framework for the future EU-UK relationship, 23 March 2018. Available at https:// www.consilium.europa.eu/en/press/press-releases/2018/03/23/europeancouncil-art-50-guidelines-on-the-framework-for-the-future-eu-uk-relations hip-23-march-2018/. Accessed 14 October 2022. Financial Times. 2017. David Davis warns Brexit timetable will be ‘row of the summer.’ Available at https://www.ft.com/content/01396086-38ae-11e7821a-6027b8a20f23. Accessed 13 October 2022. Fisher, R., W. Ury, and B. Patton. 2011. Getting to yes. Negotiating agreement without giving in. New York: Penguin Books. Huffington Post. 2017. Hard Brexit explained in one ‘Killer Graphic’—How the EU ridiculed Theresa May’s ‘Red Lines’. Available at https://www.huf fingtonpost.co.uk/entry/michel-barnier-killer-graphic-brexit-theresa-maysred-lines-on-bespoke-model_uk_5a39497ce4b0fc99878f2058. Accessed 14 October 2022. Lakoff, G., and M. Johnson. 1980. Metaphors we live by. Chicago: The University of Chicago Press. May, T. 2018a. PM Brexit negotiations statement: 21 September 2018, HM Government. Available at https://www.gov.uk/government/news/pm-bre xit-negotiations-statement-21-september-2018. Accessed 14 October 2022. May, T. 2018b. PM speech on our future economic partnership with the European Union, HM Government. Available at https://www.gov.uk/government/ speeches/pm-speech-on-our-future-economic-partnership-with-the-europeanunion. Accessed 14 October 2022. Musolff, A. 2020. Having cake and eating it: how a hyperbolic metaphor framed Brexit, LSE Blog. Available at https://blogs.lse.ac.uk/brexit/2020/02/ 13/having-cake-and-eating-it-how-a-hyperbolic-metaphor-framed-brexit/. Accessed 14 October 2022. Odell, J.S. 2010. Three islands of knowledge about negotiation in international organizations. Journal of European Public Policy 17 (5): 619–632. https:// doi.org/10.1080/13501761003748534. Politico. 2018. EU accuses Theresa May of ‘double cherry-picking.’ Available at https://www.politico.eu/article/eu-accuses-theresa-may-of-double-cherrypicking-brexit/. Accessed 14 October 2022. Politico. 2019. 5-year backstop would resolve Brexit crisis, says Polish foreign minister. Available at https://www.politico.eu/article/5-year-bac kstop-would-resolve-brexit-crisis-says-polish-foreign-minister/. Accessed 14 October 2022.

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Putnam, R.D. 1988. Diplomacy and domestic politics: The logic of two-level games. International Organization 42 (3): 427–460. Reuters. 2017. Merkel says no ‘cherry picking’ for Britain in Brexit talks. Available at https://www.reuters.com/article/us-britain-eu-merkel-idINKBN14T1O1. Accessed 14 October 2022. RTE. 2020. EU cannot allow ‘cherry picking’ by Britain in Brexit negotiations – Barnier. Available at https://www.rte.ie/news/brexit/2020/0610/ 1146637-barnier-brexit/. Accessed 14 October 2022. Scharpf, F.W. 1997. Games real actors play. Actor-centered institutionalism in policy research. Boulder and Oxford: Westview Press. Simunjak, M., and A. Caliandro. 2020. Framing #Brexit on Twitter: The EU 27’s lesson in message discipline? British Journal of Politics & International Relations 22 (3): 439–459. Task Force 50. 2018. Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community. The Guardian. 2017. UK appears to capitulate on sequencing on first day of Brexit talks – as it happened. Available at https://www.theguardian.com/ politics/blog/live/2017/jun/19/boris-johnson-and-gove-both-back-mayas-tory-leadership-speculation-continues-politics-live. Accessed 13 October 2022. The Sun. 2016. ‘We’ll have our cake and eat it.’ Boris Johnson joins forces with Liam Fox and declares support for ‘hard’ Brexit which will ‘liberate’ Britain to champion free trade. Available at https://www.thesun.co.uk/news/ 1889723/boris-johnson-joins-forces-with-liam-foxand-declares-support-forhard-brexit-which-will-liberate-britain-to-champion-free-trade/. Accessed 14 October 2022. Tusk, D. 2018. A piece of cake, perhaps? Sorry, no cherries., Instagram. Available at https://www.instagram.com/p/Bn8Luwbjzf9/?hl=de. Accessed 14 October 2022.

CHAPTER 6

The Withdrawal Agreement I: ‘Sufficient Progress’

Introduction Following 44 years of membership, on 19 June 2017 negotiations on the UK’s withdrawal from the EU began in Brussels. It was a truly historic day, full of symbolism and emotion as the negotiators began the search for an orderly UK exit. The chief negotiators—Michel Barnier and David Davis—exchanged gifts and Commission President Jean-Claude Juncker joined them for lunch. At the press conference after the first meeting, Michel Barnier announced that both sides had agreed to a “phased approach” to the negotiations, according to which talks about the future relationship between the EU and the UK would only begin once “sufficient progress” had been made on three key withdrawal issues: citizens’ rights, mutual financial obligations and the question of the Irish border (see Chapter 5). This represented a clear and bounded agenda for the first phase of the talks. The decision on “sufficient progress” would be based on the political judgement of the European Council. The present chapter analyses how “sufficient progress” on the three central withdrawal issues was achieved. It looks at the period between June 2017 and the European Council summit of 14–15 December 2017, at which European leaders agreed that progress was “sufficient to move to the second phase related to transition and the framework for the future relationship” (European Council 2016). The complicated path of © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 B. Laffan and S. Telle, The EU’s Response to Brexit, Palgrave Studies in European Union Politics, https://doi.org/10.1007/978-3-031-26263-0_6

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the negotiations over the subsequent two years, including Theresa May’s failure to find a parliamentary majority for her deal in early 2019 and Boris Johnson’s success in getting Brexit done in early 2020, will be dealt with in Chapter 7. The determination of “sufficient progress” was an important moment in the Brexit negotiations because it increased the opportunities to link withdrawal issues to the future relationship (see Chapter 5). For the EU, “sufficient progress” was about obtaining robust commitments from the UK on the key withdrawal issues so the UK would not be able to use them as bargaining chips in the talks on the future relationship. By contrast, the fewer commitments the UK had to make to achieve “sufficient progress,” the greater its leeway to use withdrawal issues as bargaining chips in the future relations talks. The chapter begins by outlining the objectives of the two parties for this phase of the talks. Then it discusses how progress was made on each of them. The “Joint Report” of 8 December 2017 took stock of that progress and it served as the basis for the European Council’s determination of “sufficient progress” one week later (EU and UK 2017). The chapter concludes by contrasting the starting positions of both parties with the agreement reached in the Joint Report. The comparison shows that the EU had largely achieved its objectives on citizen’s rights and the financial settlement, but the compromise on the Irish border question was ambiguous and left the issue unresolved.

Starting Positions The EU and the UK pursued different objectives in first phase of the Brexit negotiations. The European Council guidelines of April 2017 established that withdrawal negotiations should precede talks about the future relationship with the UK (European Council 2017a). The Council directives of May 2017 authorised the negotiation of a withdrawal agreement and clarified that the “main objective of the Agreement is to ensure an orderly withdrawal of the United Kingdom from the European Union” (Council of the European Union 2017). The directives also listed several priority issues, which “have been identified as necessary to ensure an orderly withdrawal of the United Kingdom from the Union.” These priority issues were citizens’ rights, the financial settlement, the situation of goods on the market, the Irish border, the status of British Sovereign Base Areas on Cyprus, the governance of the agreement, relations with third country partners and potential transitional arrangements.

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The EU would only begin talks on the future relationship once “sufficient progress” had been made on these issues. Three issues were of central importance to the EU: citizens’ rights, a financial settlement and the nature of the future external EU border on the island of Ireland. Regarding citizens’ rights, the EU wanted to preserve the rights which EU citizens living in the UK had already acquired or would still acquire before the UK’s exit. The issue was important for the EU as well as for individual member states. A failure to protect the rights of millions of EU citizens who had exercised their right to free movement to study, work and live in the UK would have raised serious questions about the legal status and practical value of European citizenship. At the European level, the European Parliament acted as a champion of citizens’ rights. And while the issue was of special importance to EU member states with sizeable diasporas in the UK—especially Poland, Romania, Portugal and Italy (see HM Government 2017)—it never became an subject of disunity in the EU. As the second central issue, the EU insisted that both sides needed to honour their mutual financial obligations which they had acquired during the period of the UK’s membership in the UK. This mattered to the EU for two key reasons. First, the UK was the third largest net contributor to the EU’s budget, behind Germany and France. Ensuring that the UK paid its agreed contributions to the EU was important for balancing the budget and delivering policies. Second, it was important to establish that a member state could not shirk its legal obligations by withdrawing from the community, as this would establish a potentially risky precedent. The question of the EU’s future external border on the island of Ireland was particularly tricky. The EU pursued two objectives. First, it wanted to ensure that the future external border on the island would not become a gateway for illicit imports into the single market. Second, it wanted to protect the Irish peace process, and especially the Good Friday Agreement (GFA) in all its dimensions. As such, the issue was a testbed for the EU’s ability and readiness to support its member states, especially small states, and it resonated within the EU as a peace project. Hence, the way in which the EU would handle the Irish border question would be an indicator of the value of EU membership. At the same time, the issue had a relatively high potential for EU disunity. It was easy to view it as an Irish problem rather than a problem of the European single market and European integration more generally. This chapter will show that the active highlighting of the single market and a normative dimension of the issue

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by Irish actors mattered for the inclusion of the issue in the withdrawal talks and unity within the EU. The UK’s Brexit objectives were announced by Prime Minister Theresa May in a speech at Lancaster House in January 2017 (May 2017). They were described in more detail in the government’s white paper on “The United Kingdom’s exit from and new partnership with the European Union,” which was released in February 2017 (HM Government 2017). According to the white paper, the overarching objective was “[n]ot merely forming a new partnership with Europe, but building a stronger, fairer, more global Britain too.” The white paper listed twelve priority issues but did not distinguish between “divorce issues” and “future relations issues.” Of the twelve priorities, only “Taking control of our own laws” and “Controlling immigration” were incompatible with EU membership and had played an important role in the Leave campaigns. For the UK, the main challenge was to square these two core Brexit objectives with the priority of “Ensuring free trade with European markets” (HM Government 2017). Of the three issues which the EU had identified as central for the determination of “sufficient progress,” the questions of citizens’ rights and the Irish border—but not the financial settlement with the EU— were among the UK’s priorities. On citizens’ rights, the UK’s objectives broadly mirrored the objectives of the EU. One important difference was that the UK white paper referred to EU citizens “who are already living in the UK,” while the EU position extended to citizens’ rights “which are in the process of being obtained” at the time of the UK’s withdrawal from the EU. Indicating the UK’s preference for a series of separate agreements (see Chapter 5), the white paper stated that the “Government would have liked to resolve this issue ahead of the formal negotiations. And although many EU Member States favour such an agreement, this has not proven possible” (HM Government 2017). Regarding the border with the Republic of Ireland, the white paper stated that the UK was “fully committed to the Belfast Agreement and its successors” and that it was also seeking to “secure a deal that works for the entire UK.” However, it did not indicate how both priorities could be achieved simultaneously and thus obscured what Daniel Kelemen (2018) termed the “Brexit Trilemma.” It was logically impossible for the UK to (a) leave the EU single market, while also (b) avoiding a border between Ireland and Northern Ireland and (c) avoiding a border between Northern Ireland

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and Great Britain. The UK’s dual priority regarding Ireland was inconsistent with its ambition to leave the EU. This would haunt the negotiations until the end and beyond. The issue of a financial settlement was absent from the priorities listed in the UK white paper. This was not surprising, since the EU’s demand for a financial settlement challenged the Brexit narrative, promoted especially by the leave campaign, that Brexit would have a significant and instant positive effect on UK public finances and free up money for public services (i.e. the National Health Service). When the negotiations began, the UK leaned towards the position that it had no financial obligations towards the EU after withdrawal, especially in the case of a no-deal outcome (see MacLellan 2017). In sum, the EU had stipulated three core substantive issues which it wanted to settle before Brexit. The UK’s priorities, however, were related to the time after Britain’s exit from the EU. For the UK, Brexit was about maximising political sovereignty while minimising the economic and political costs of leaving the EU. What the UK really needed was a trade agreement with the EU. By contrast, the financial settlement and the Irish border issue involved potentially significant costs for the UK. On citizens’ rights, both parties had similar interests. But why did the EU single out the questions of citizen, money and the border on island of Ireland for its “sufficient progress” test? The following statement by a Task Force 50 member provides an answer to this question and illustrates the degree to which EU and UK interests clashed in this regard: The three issues were just natural and came very very quickly. And that’s how we designed this idea of [a phased approach] because they were three extremely complex issues and three issues on which we could not fail. Because if we had failed on one of the three no agreement whatsoever was possible. So that’s why we […] enlarged the entry ticket to the negotiations to those three, saying ‘Look, we know that these are really complex issues, really politically difficult issues. And, therefore, we should face them now. Because we could spend months and years, agreeing the nicest deal ever ... [But] if we don’t resolve those three issues nothing would ever be agreed. So, let’s start with the difficult bit, and then we see how we go [from] there.’ And this is how we started. (Commission 8, Interview, May 2021)

For Task Force 50, the three issues of citizens’ rights, the financial settlement and the Irish border stood out as “tests of our capacity to have an orderly withdrawal” (Commission 3, Interview, April 2021). The EU singled out these issues well in advance of the negotiations, developed a

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benchmark for “sufficient progress” and devised a process for achieving it. Georg Riekeles of the EU’s Task Force 50 explained that the three issues were seen as chefsache, matters for Europe’s leaders. As a result, the EU “very quickly set its sight on the European Councils as key moments for stocktaking of the negotiations” and in the beginning of 2017 “pinned down on our calendar the European Council in October, and potentially the European Council in December, as the moment by which we would want to have seen significant progress on these three issues” (Commission 3, Interview, April 2021). The centrality of the three issues during the first phase of the talks up to December 2017 is apparent in the schedules for the first six rounds of negotiations. Table 6.1 provides an overview of the issues and the levels of engagement during the negotiations of the Joint Report. Two things stand out. First, the issues of citizens’ rights, the financial settlement, the Irish border and the governance of the agreement completely dominated the agenda. This “infuriated” the UK as they did not get to “talk about any of their agenda, and they had to be completely on our agenda, which, of course, was not nice for them” (Commission, 8, Interview, May 2021). The power asymmetry was particularly evident in the WA negotiations. Second, the issues of citizens’ rights and the financial settlement were usually dealt with at the technical level of “negotiating groups” but the Irish border and the governance of the agreement were discussed at the higher level of “coordinators.” This corroborates that Ireland was “a separate work stream that [EU coordinator] Sabine Weyand and [UK coordinator] Olly Robbins would keep at their level, which was different from the financial settlement and citizens’ rights” (Commission 7, Interview, April 2021). The two coordinators had quickly realised how complicated the Irish issue would be and adopted a cautious “step-by-step” approach which worked “at a different pace compared to citizens’ rights and the financial settlement” (Commission 7, Interview, April 2021). Progress on the three areas is assessed in more detail below, beginning with the financial settlement.

The Financial Settlement The EU and the UK had entirely opposite starting positions on the question of the financial settlement. While the UK argued that it would have no financial obligations to the EU after the withdrawal date, the EU insisted that the UK had acquired binding obligations while it was

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Table 6.1 Negotiating rounds in 2017 Round

Level of engagement

Opening meeting (19 June) Principals* 2nd Round (17–20 July)

Coordinators** Negotiating groups

3rd Round (28–31 August) Coordinators Negotiating groups 4th Round (25–28 September)

Coordinators Negotiating groups

5th Round (9–12 October)

Technical level Coordinators Negotiating groups

6th Round (9–10 November)

Coordinators Negotiating groups

Issues discussed Organisational matters and structure of negotiations Ireland + Governance Citizens’ rights + financial settlement + other issues Ireland + Governance Citizens’ rights + financial settlement + other issues Ireland + Governance Citizens’ rights + financial settlement + other issues Governance Horizontal issues, including governance Citizens’ rights + financial settlement + other issues Ireland + Governance Citizens’ rights + financial settlement + other issues

*Principals: Michel Barnier (EU) and David Davis (UK); **Coordinators: Sabine Weyand (EU) and Olly Robbins (UK) Based on European Commission (2017)

a member state. In the EU’s view, the UK was obliged to honour its commitments to the EU’s multi-annual financial framework (MFF), which ran until the end of 2020. According to Georg Riekeles, Michel Barnier always emphasised that “everything decided at 28 should be paid at 28” (Commission 3, Interview, April 2021). The financial settlement, known as the Brexit bill, became the first contentious issue immediately after the UK had agreed that the negotiations would follow a “phased approach.” According to a Task Force 50 member, the negotiations were “close to a crisis” in late July 2017 because the UK took the position that it did not owe any money to the EU (Commission 8, Interview, May 2021). During the second negotiating round (17–20 July 2017), the head of the Task Force 50 unit on “Strategy, coordination, and communication,” Stéphanie Riso, conveyed the EU’s frustration to Ollie Robbins, his deputy Kay Withers and HM Treasury Director General for International and EU affairs, Mark Bowman. Riso told her British interlocutors

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that “We can’t go on like this” and for three hours she “explained over and over again our positions and the financial commitments, which, from our point of view, must be covered by the financial settlement” (quoted in Barnier 2021: 69). Task Force 50 member Georg Riekeles confirmed that the financial settlement was “the first skirmish or the first fight with the Brits in the negotiations” and added that the EU made it clear “that negotiations would not move forward if they didn’t accept the principle of a financial settlement” (Commission 3, Interview, April 2021). Essentially, Task Force 50 told the British “either you recognise that you owe us something or this is the end of the negotiations” (Commission 8, Interview, May 2021). By threatening to abandon the negotiations over the question of money, the EU took a calculated risk. On the one hand, the UK had accepted a “phased approach” to the talks just weeks earlier. Consequently, the EU had reason to believe that the UK’s confrontational rhetoric involved a significant degree of posturing. On the other hand, the UK had a strong political interest in avoiding an early public recognition of significant outstanding financial obligations to the EU, because it would have contradicted a core message of the “Vote Leave” campaign. And if the UK had called the EU’s threat, a no-deal Brexit would have become a much more likely scenario, defeating the EU’s ambition to negotiate an “orderly withdrawal.” Because the stakes were so high, the emergence of the EU’s position needs further exploration. The idea of insisting on a financial settlement right at the outset of the negotiations emanated from Task Force 50. It was rooted in the belief that leaving the issue to the end of the negotiations would allow the UK to use it as a bargaining chip in pushing for a more advantageous settlement. This assumption, however, ran counter to conventional negotiation practice, according to which financial questions are resolved last. The following statement shows how Task Force 50 actively constructed EU support for this approach in the face of considerable initial hesitation: Most of the people will tell you the money comes at the end of the negotiation. You never start with the money. You start with everything else, and then you’ll go into the money. And we took the complete opposite view. And it was a hard sell, I must say, when I started with this idea. But I said ‘look, we will never survive this conversation if we don’t close it now.’ And I remember Juncker at the time even told me: ‘Look, this is an illusion, you won’t succeed. This will be adjusted at the end. And you

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cannot survive this completely crazy idea that we would agree a financial settlement with no figures.’ And we did agree on a financial settlement without telling the figure. (Commission 8, Interview, May 2021)

The position of Task Force 50 ultimately won the day, and the EU pressed the UK on the financial settlement right from the beginning of the negotiations. The talks continued to be “very hard up until the autumn” (Commission 8, Interview, May 2021). What ultimately resolved the issue was the recognition in autumn 2017 that the UK would not be ready to leave the EU in March 2019 without a “transition period.” The UK had signalled that it would be seeking an “implementation period” in the white paper of February 2017 (HM Government 2017). The EU’s negotiating directives specified that “transitional arrangements must be clearly defined, limited in time, and subject to effective enforcement mechanisms” (Council of the European Union 2017). A member of Task Force 50 explained that the EU realised that “in whatever world we would be at the time” of the UK’s withdrawal, “it was very clear that they needed this transition period,” adding and that was our golden leverage in those negotiations. So, we started to push on this beautiful leverage to say: ‘All right, transition period. That brings you to the end of the MFF. It means you pay the full MFF. Forget about all ideas of […] what is due, what is not due […].’ So, we just brought it sharp to the end of the MFF, which simplified the discussion on the financial settlement to a massive extent. (Commission 8, Interview, May 2021)

The Joint Report of December 2017 states that the “Parties have agreed a methodology for the financial settlement,” including a list of the components of the settlement and the principles for calculating its ultimate value (EU and UK 2017). To achieve this outcome, Task Force 50 had actively built political backing for its unconventional approach, enabling the EU to take a principled stance on the issue at the outset of the negotiations. Ultimately, the legal instrument of a “transition period” (see Armstrong 2020) helped resolve the issue: the UK got more time to prepare for Brexit and in return it would have to honour its financial obligations until the end of the MFF in 2020. The EU used the “golden leverage” of the transition period again in early 2018 to compel the UK to cooperate in translating the Joint Report into a legal text (see Chapter 5).

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Citizens’ Rights On citizens’ rights, the starting positions of the EU and of the UK were much closer than they were on the financial settlement. Both sides sought to protect the current and future rights of their own citizens who were living, working or studying in the territory of the other party. The UK took a somewhat more restrictive position than the EU, consistent with its core objective of limiting the free movement of EU citizens to the UK and it also preferred a standalone deal on citizens’ rights while the EU wanted an overall settlement. Nevertheless, the broad symmetry of interests explains why the talks on the issue of citizens’ rights were less confrontational than the financial settlement or the Irish border question, as the following statement by Task Force 50 member Georg Riekeles emphasises: Citizens’ rights started more constructively [than the financial settlement]. I’m not saying that there weren’t issues there, too. There was also a lot of politics going on. London was proposing to do a standalone agreement on citizens. This was in part a tactical position and a move to see if they could isolate the financial settlement and the Northern Ireland issue from the priority given to citizens. They probably had different ideas with this and there were real issues of substance to be discussed. But citizens moved along quite okay already from the first month.’ (Commission 3, Interview, April 2021)

The issue had a certain potential to test EU unity because the member states differed in terms of the numbers of their citizens residing in the UK. But the EU remained united on the issue. An important reason was the thorough engagement and consultation with the member states by Task Force 50 in advance of the negotiations. This process ensured that all the member states were committed to the same position on the issue, even though some member states were more exposed than others. The question of citizens’ rights “was a major concern” for several Central and Eastern member states “because they had so many of their citizens there [in the UK] and worried that they would be badly treated” (Commission 8, Interview, May 2021). But the “capacity of [Michel] Barnier to actually go there, listen, speak, try to convince, and being in this mood of being open to anyone” (Commission 8, Interview, May 2021), impressed on Task Force 50 that citizens’ rights “was a very important interest” for some member states. Barnier’s active engagement convinced those

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member states that their interests were in good hands with Task Force 50. In other words, Michel Barnier’s “personal engagement, open door, inquisitiveness, transparency and capacity to listen and register the interest of different groups […] brought Brexit down” to “every single capital” and “every single parliament” (Commission 8, Interview, May 2021). The European Parliament, too, was intimately involved in the issue. Especially, the head of the EP’s Brexit Steering Group, Guy Verhofstadt, emphasized the Parliament’s concern about citizens’ rights. A representative of the Parliament explained that “Barnier was quite happy for us to be quite vocal on that so that he could say to the Brits ‘Look, look, I got the European Parliament breathing down my neck on this, we need to find agreements” (Parliament 1, Interview, November 2020). This role of the European Parliament was confirmed by a representative of the Dutch Brexit unit, who stressed that the EP was “instrumental in making sure, on a topic like citizens’ rights, that this was really about real people’s interests what we were talking about.” As such, the Parliament helped to show that “also from the EU’s side, this was not just a bureaucratic or technocratic exercise” (Netherlands 1, Interview, March 2021). Overall, the negotiations on citizens’ rights were predominantly conducted at the technical level (see Table 6.1), with relatively little political intervention on either side. This did not mean that the negotiations proceeded without difficulty. Indeed, key questions, including the role of the European Court of Justice in protecting citizens’ rights, were still not settled when Theresa May came to Brussels on 4 December 2017 to strike a deal with the EU on the Joint Report. A Task Force 50 official explained that “the citizens part of the withdrawal agreement was not settled when she came. That was part of what was supposed to be settled on the fourth of December” (Commission 7, Interview, April 2021). No agreement was reached on 4 December, however, due to a last-minute intervention by the Northern Irish Democratic Unionist Party (see next section on the Irish border). But the remaining open questions were resolved until 8 December 2017 and the Joint Report spelled out that the aim of the agreement was to “provide reciprocal protection for Union and UK citizens, to enable the effective exercise of rights derived from Union law and based on past life choices, where those citizens have exercised free movement rights by the specified date,” i.e. “the time of the UK’s withdrawal” (EU and UK 2017). Therefore, the EU had secured its three key objectives in relation to citizens’ rights. First, citizens’ rights would not be dealt with in a separate agreement, as the UK had initially wanted.

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Instead, it would be part of an overarching agreement and subject to its governance and dispute settlement regime. Second, the agreement would not just apply to EU citizens who were already living in the UK, as the UK had wanted, but also to those who moved to the UK before the date of exit. Third, the agreement envisioned a central role for the CJEU regarding consistent interpretation of Union law.

The Irish Border The question of the Irish border involved high stakes for the UK and the EU, and especially for the Dublin Government. All parties were committed to protecting the Good Friday/Belfast Agreement (GFA), and the Irish peace process more generally, but the very fact of Brexit disturbed the political and institutional arrangements inherent in the GFA and brought constitutional and identity issues to the fore. The GFA and joint UK and Irish membership of the EU had rendered the border on the island of Ireland virtually invisible. Communities on both sides of the border revelled in the ease of contact underpinned by the absence of border controls and British army installations. The GFA fundamentally altered the identify politics of the border by allowing citizens in Northern Ireland to choose to be British, or Irish or both (British-Irish Agreement, 1998). By disturbing territorial politics within the UK, Brexit unleashed identity politics within Northern Ireland that proved difficult to control. In its white paper, the UK government stated that “no one wants to see a return to the borders of the past” (HM Government 2017). The European Council’s negotiating guidelines stipulated that the negotiations should work to “avoid the creation of a hard border on the island of Ireland” (European Council 2017a). However, the two sides had additional objectives which were at odds with one another. The EU would not accept an unregulated external border to its single market on the island of Ireland. The EU’s concern was that an unregulated entry of goods into the single market via Ireland could result in market distortions and question the integrity of the EU’s rules-based system. To avoid that and to protect the Irish peace process, the EU preferred a regulatory border between Great Britain and Northern Ireland. The UK, however, was committed to securing “a deal that works for the entire UK” and the governing Northern Irish DUP was strongly opposed to any solution which might question Northern Ireland’s position in the UK. After the snap election of June 2017, Theresa May was dependent on the DUP’s

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support to get an eventual Brexit deal approved in Parliament. This meant that a regulatory border between Northern Ireland and Great Britain was politically untenable. In the words of Theresa May, it was something no British Prime Minister could ever agree to (BBC 2018). The complicated nature of the issue was highlighted by Task Force 50 member Georg Riekeles: The Northern Ireland questions, the third issue, that was a different animal in terms of problem, in the sense that neither side really knew exactly how to deal with it. It had to be discovered as we went along. And it had to be teased out between us and the Member States and, in particular, Dublin. But it also had to be teased out, or ideas confronted, with the UK. And the engagements on that issue were never easy. (Commission 3, Interview, April 2021)

Assuming the UK would indeed withdraw from the EU, the Irish border question essentially had two possible solutions. Either there would have to be a regulatory and customs border between Northern Ireland and the Republic of Ireland or it would have to be between Northern Ireland and Great Britain. Advanced technical solutions could potentially reduce the “visibility” of the regulatory boundary but they were no substitutes for controls. A high-ranking member of the German Brexit unit described the resulting “blame game” in this way: So, the blame game is: who will be the bad guy? Will the UK have to build that customs wall between Northern Ireland and the UK? Very bad. Or will we between Ireland and Northern Ireland? Very bad for us. And nobody declared it a blame game. We said we are taking care of the people. And I think our solution is the better one. But I admit that seen from the UK side it doesn’t convince. But there is no way around a customs regime between the two parts. The problem is where the border is. (Germany 1, Interview, June 2021)

Because the Irish border question centred on a distinct geographical location, the issue lent itself to being framed in terms of particularistic regional interests. Therefore, this complicated issue had the greatest potential to cause EU disunity in the withdrawal negotiations. There was a real risk that some member states would take the position that the concerns of a small and peripheral Irish state should not jeopardise a negotiated deal with the UK. On the UK’s side, Theresa May’s dependence on DUP

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support ensured that the government could not ignore the question. On the EU’s side, unity on the Irish issue among the 27 member states had to be built and maintained, as the following statement by a high-ranking member of the Dutch Brexit unit shows: In my recollection there were a couple of times where the Polish delegate, especially in the General Affairs Council and sometimes also Coreper, in the first phase would say: “Okay, we are still only talking about the withdrawal and especially about the Northern Irish question. Important as it is, I think we should really […] start exploring the new relationship, because in the end of the day, that is the real big issue here.” So that was, I think, a challenge to the sequencing. And it was pretty decisively stopped by both the institutions and the other Member States. (Netherlands 1, Interview, March 2021)

The framing of the Irish border question as a European issue, with a practical focus on the single market, not an Irish issue, was key to maintaining the support of the other member states. Irish lobbying was crucial in making that link obvious to the member states. A high-ranking Irish interviewee suggested to us that Irish interventions were crucial for explaining the implications for the single market to the remaining member states: We insisted that Ireland be a box for the first phase. And that was because we simply couldn’t accept – and this is what David Davis tried to do all the time […] – we couldn’t accept that the Irish issue be relegated to the end game or the future relationship, where we would become a stone in the shoe, a chess piece, a card, you name it. […] But on the Irish issue, we knew that we had to get this right and that we also had to ensure that there will be no kind of picking at it by other Member States who were worried about the single market aspect of things ... because that was a bit of an issue we had to face in the early days ... you know, concerns by one or two partners about, ‘Does Ireland become the Trojan horse?.’ (Ireland 1, Interview, December 2020)

A high-ranking member of the German Brexit unit suggested that the Irish lobbying efforts were important but may not have been entirely decisive in shaping the German position: We didn’t see it as an Irish issue. We did see it as an issue for the single market. And we immediately understood the problem. And the Irish did a good job, but they didn’t change our minds on that. They enhanced

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a perception we already had. That there is a problem for us and there’s a problem for the single market. An open door controlled by nobody is a problem for the single market. So, the Irish did the job, but it was an easy job to convince us. It wasn’t a problem. (Germany 1, Interview, June 2021)

The German interviewee stressed that, besides the Irish themselves, it was German industry that was telling the government that the border on the island of Ireland was a single market issue. The export-oriented nature and the size of German industry probably made it a more vocal voice than industry in other member states. The interventions of the Polish delegates hint in that direction. Thus, Irish diplomacy was an important factor in explaining the implications of the border question to the less exposed member states and in ensuring that the issue was included in the first phase of the negotiations. Given the complexity and political sensitivity of the challenge, how did the two parties get to the agreement in the Joint Report of December 2017? Initially, the UK was very reluctant to engage on the issue at all. This was puzzling to many observers on the EU side and nurtured the perception that the UK was not taking the negotiations seriously. A member of the German Brexit task force thought that “the Brits didn’t give a damn. They felt so relaxed about it, that it was an easy game” (Germany 1, Interview, June 2021). Similarly, a high-ranking member of the EU’s Task Force 50 explained that you really had the impression that the British were totally unprepared for such negotiations, thinking that it was going to be like negotiating with a third country. Not very important probably. Very self-confident about their capacity, about the Foreign Office capacity, to negotiate such a thing. Thinking that they will keep their friends in the European Union that will help them also during the negotiation. That was totally wrong, completely wrong. They didn’t have any friend. (Commission 2, Interview, March 2021)

However, foot-dragging made sense from the UK’s point of view. On the one hand, the UK did not have much to win from engaging with the EU on the Irish border issue early in the negotiations. On the other hand, the EU had a strong interest in a solution which would protect the single market. A high-ranking member of Task Force 50 explained that the Irish question “really kept me awake at night” because it involved a risk that

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there could be a “really bad, permanent impact on the EU from Brexit through Northern Ireland” (Commission 8, Interview, May 2021). For the official, the Irish border question “was our Achilles Heel” because the EU was “completely dependent on the UK to agree to something on Northern Ireland” and “this was used by the UK throughout those negotiations.” In that view, the Irish border issue was a “mega challenge” because the EU “had to go find the partner, bring him to the table and force him to talk about something that he didn’t want to.” The official stressed that “the only reason why we survived was that May’s team at the time was convinced that a no deal would be a disaster. Not only for the economic consequences or all the rest of it, but geopolitically” (Commission 8, Interview, May 2021). Therefore, the EU adopted a cautious approach on the Irish border issue. As a Task Force member explained, “on Ireland, we decided to go slowly” and there was “a deliberate decision to have first a political discussion […] rather than the technical discussion which we had on citizens and the financial settlement” (Commission 7, Interview, April 2021). Both sides were trying to find a way forward on this extremely challenging political and technical issue. In early autumn 2017, the UK and the EU engaged in a joint “mapping exercise” of the north–south relationship to get a grip on the complex repercussions Brexit may potentially have on the island of Ireland. The UK government subsequently kept the results of the “mapping exercise” secret until Theresa May’s resignation as Prime Minister in June 2019 (O’Carroll and Rankin 2019). This led some observers on the EU side to speculate about the UK’s intentions when it had first agreed to the exercise. An Irish interviewee wondered “Did they think it would eat up time? Did they think the weight of all this stuff, about fisheries and bits and pieces of this, that and the other, would sink everything under a weight of impenetrable detail? Like wading through a telephone directory?” (Ireland 1, Interview, December 2020). But instead of having that effect, the interviewee thought that the mapping had “actually proved decisively just how important a solution in relation to the border was for the continuation of all of these areas” (Ireland 1, Interview, December 2020). In the end, the mapping exercise highlighted how intertwined the two parts of the island of Ireland were and the extent to which north–south relations relied on EU legal and policy frameworks. Given the lack of progress on the Irish border, the European Council meeting of 19–20 October 2017 concluded that “sufficient progress” had not been achieved and called “for work to continue with a view

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to consolidating the convergence achieved and pursuing negotiations in order to be able to move to the second phase of the negotiations as soon as possible” (European Council 2017c). Progress was made during the sixth round of negotiations, which took place on 9–10 November 2017. TF50 seized the initiative and began to draft the Joint Report with input from Ollie Robbins. The report went through a number of iterations but Downing Street felt that it received the penultimate version late in the process and its content on Northern Ireland came as a surprise. Before PM May went to Brussels on 4 December 2017 to sign off on a number of outstanding issues, notably on citizens, she reluctantly agreed to the section on Northern Ireland. When she arrived in Brussels for a working lunch with Commission President Jean-Claude Juncker, the expectation was that the deal would be closed that day. In fact, it was Jean-Claude Juncker’s explicit function to bring his political weight to bear in key moments of the negotiations. These moments were referred to as “Juncker moments” by a member of Task Force 50. They were “too important to leave only to Mr. Barnier” because “on the other side of the channel you had the Prime Minister. So, then you need to have the President of the Commission” (Commission 2, Interview, March 2021). Despite the high expectations, however, the talks failed because of a dramatic turn of events. At the technical level, the Joint Report had virtually been finalised. A high-ranking member of Task Force 50 explained how the agreement unravelled at the very last moment: One thing that I will never forget in my entire life is when we had agreed on this Joint Report, we go for lunch … Madam May, Monsieur Juncker. We are in the room outside. And then we see Madame May going out with her phone. And then complete chaos, and the UK delegation leaving. So, what the hell is happening? And then we are told the story. And I just cannot believe my ears ... that she has been agreeing on this Northern Ireland thing without having talked to the Northern Ireland people and Northern Ireland DUP. (Commission 8, Interview, May 2021)

The same Task Force 50 member suggested that a key reason for the failure to finalise the Joint Report on 4 December 2017 was the lack of transparency between key actors on the UK side. Neither Olly Robbins nor PM May had sought the backing of key players, especially the DUP, before flying to Brussels. There followed a torrid week in London as the PM sought to address the concerns of the DUP. The solution was found

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by introducing an additional article, Article 50, to the Joint Report, which clarified that “the United Kingdom will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom” (EU and UK 2017). However, Article 49 stated that “the United Kingdom remains committed to protecting North–South cooperation and to its guarantee of avoiding a hard border.” In paragraph 49, the UK made a commitment to the EU including Ireland, but in paragraph 50, the commitment was a domestic or internal one. From an EU perspective, paragraph 49 was the more significant one. Regardless, the incompatibility of UK preferences on tackling the consequences of Brexit for the island of Ireland became baked into the negotiations. And although the ambiguity of the text solved the immediate political problem, the Joint Report essentially left the Irish issue unresolved although the genesis of the backstop or Protocol was contained in the document. This haunted the EU throughout the negotiations. In the words of a Task Force member, the “text of the Joint Report on the Northern Ireland issue was bad … because it said everything and its opposite […]. Complete ambiguity to say the least, if not contradiction. It haunted us until the last day.” And even though the EU “had not been naïve” about the potential repercussions of the ambiguous drafting of the Joint Report, the crucial consequence was that the EU “struggled like hell on the protocol” for the rest of the negotiations (Commission 8, Interview, May 2021). This viewpoint was shared by others on the EU side. Indeed, there was a widespread suspicion that the UK was not genuine about its commitments regarding the border in Ireland. The sentiment was that the UK only really “wanted the determination of sufficient progress,” while remaining as vague as possible on substance (Ireland 1, Interview, December 2020). An Irish representative remembered that when the Joint Report was agreed, “David Davis said in London ‘Well, you know, we had to agree it, but we don’t really mean it’” (Ireland 1, Interview, December 2020). Overall, the Irish border was not just the most complex issue, but also the one on which the least progress had been made by December 2017. Despite this, the Joint Report was agreed on and the European Council determined on 15 December 2017 that “sufficient progress” had been made on the three core issues “to move to the second phase related to transition and the framework for the future relationship” (European Council 2017b). Table 6.2 contrasts the starting positions of the two parties with the agreement reached in the Joint Report. It gives substance

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Table 6.2 Starting Positions and agreement reached in Joint Report

Citizens

Money

Ireland

EU position

UK position

Joint report

Safeguard the status and rights derived from Union law at the withdrawal date A single financial settlement which ensures that the EU and the UK respect the obligations resulting from the whole period of the UK membership in the EU Avoid the creation of a hard border on the island of Ireland, while respecting the integrity of the Union legal order

Reciprocal protection should apply only to citizens who are already in the UK UK has no financial obligations to the EU after the withdrawal date

Reciprocal protection of status and rights acquired at withdrawal date UK accepts principle of financial settlement as well as a methodology for calculating its monetary value

Avoid return to borders of the past and secure deal which works for all parts of the UK

Avoid hard border on the island of Ireland (§49) and avoid a regulatory border between Northern Ireland and the UK (§50)

to the argument that, overall, the EU succeeded in achieving most of its key objectives in this first phase of the negotiations. Besides the progress made on the three core issues, the Joint Report also reinforced the EU’s preference for a “phased approach” and for the conclusion of “single package” deals.

Conclusions This chapter has analysed the first six months of the Brexit negotiations between the UK and the EU. On 8 December 2017, the two parties agreed on a Joint Report which outlined the progress that had been made on the three key issues of citizens’ rights, the financial settlement and the Irish border question. The Joint Report served as the basis for the European Council’s determination of “sufficient progress” on 15 December 2017 and so paved the way towards opening negotiations on the future relationship. Of the three core issues, citizens’ rights proved the most tractable due to the similar interests of both parties. While the exposure was greater for some EU member states than for others, Task Force 50 engaged in close consultations and coordination to ensure that

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all member states were on the same page. In the negotiations with the UK, Task Force 50 was aided by the vocal stance taken by the European Parliament. Concerning financial obligations, the EU took a principled stance and insisted that negotiations would not proceed if the UK did not agree to a financial settlement. The UK’s strong interest in a “transition period” was central in resolving the dispute on money. The UK eventually agreed to honour its financial obligations to the EU until the end of the multi-annual financial framework in return for extra time to adjust for Brexit. Finally, the Irish border question proved to be the most intractable issue, as is underlined by the ambiguous text of the Joint Report on this issue. Article 49 excludes a hard border on the island of Ireland, while Article 50 excludes a border between Northern Ireland and Great Britain. This ambiguous outcome enabled the UK to utilise the Irish issue as a bargaining chip until the very end of the Brexit negotiations. Nevertheless, the fact that a tentative solution was agreed on was a success for the EU, especially as the Joint Report committed the UK to stay aligned with single market regulations in the case that no mutually agreeable solution was found.

References Armstrong, K. A. 2020. The transition. In The law & politics of Brexit. Volume II , ed. F. Fabbrini, pp. 171–190. Oxford and New York: Oxford University Press. https://doi.org/10.5040/9781474264860.ch-003. Barnier, M. 2021. My secret Brexit diary. A glorious illusion. Cambridge: Polity Press. BBC. 2018. Theresa May: No UK PM could ever agree with EU draft. British-Irish Agreement. 1998. https://www.dfa.ie/media/dfa/eu/brexit/key documents/Info_Note_GFA_FINAL.pdf. Accessed 5 December 2022. Council of the European Union. 2017. Council (Art 50) negotiating directives. Available at https://www.consilium.europa.eu/en/press/pressreleases/2017/05/22/brexit-negotiating-directives/. Accessed 10 October 2022. EU and UK. 2017. Joint report from the negotiators of the European Union and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 TEU on the United Kingdom’s orderly withdrawal from the European Union. Available at https://ec.europa.eu/info/publications/ joint-report-negotiators-european-union-and-united-kingdom-governmentprogress-during-phase-1-negotiations-under-article-50-teu-united-kingdomsorderly-withdrawal-european-union_en. Accessed 18 October 2022.

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European Council. 2016. Informal meeting of the Heads of State or Government of 27 Member States, as well as the Presidents of the European Council and the European Commission Brussels, 15 December 2016. Available at https://www. consilium.europa.eu/media/24173/15-euco-statement.pdf. European Council. 2017a. European Council (Art. 50) guidelines for Brexit negotiations. Available at https://www.consilium.europa.eu/en/press/pressreleases/2017/04/29/euco-brexit-guidelines/. European Council. 2017b. European Council (Art. 50) meeting (15 December 2017)—Guidelines. Available at https://www.consilium.europa.eu/media/ 32236/15-euco-art50-guidelines-en.pdf. Accessed 18 October 2022. European Council. 2017c. European Council (Art. 50) meeting (20 October 2017)—Conclusions. Available at https://www.consilium.europa.eu/media/ 23512/20-euco-conclusions-art50.pdf. Accessed 18 October 2022. European Commission. 2017. “Brexit Negotiating Rounds 2017.” Available at: https://ec.europa.eu/info/brexit-negotiations/negotiating-documentsarticle-50-negotiations-united-kingdom_en#agenda. Accessed 13 December 2022. HM Government. 2017. The United Kingdom’s exit from and new partnership with the European Union. Available at https://assets.publishing.service.gov. uk/government/uploads/system/uploads/attachment_data/file/589191/ The_United_Kingdoms_exit_from_and_partnership_with_the_EU_Web.pdf. Kelemen, R. D. 2018. Brexit, Ireland and the Future of Europe, Conference and Launch of the DCU Brexit Institute. Available at https://dcubrexitinstitute. eu/wp-content/uploads/2017/12/Kelemen-DCU-Brexit-.pdf. Accessed 17 October 2022. MacLellan, K. 2017. UK not legally bound to pay into EU budget if no Brexit deal—Lawmakers, Reuters. Available at https://www.reuters.com/article/ukbritain-eu-budget-idUKKBN16B009. Accessed 17 October 2022. May, T. 2017. The government’s negotiating objectives for exiting the EU: PM Lancaster House speech, HM Government. Available at https://www.gov.uk/ government/speeches/the-governments-negotiating-objectives-for-exitingthe-eu-pm-speech. Accessed 12 October 2022. O’Carroll, L., and J. Rankin. 2019. Northern Ireland Brexit impact ‘mapping exercise’ finally released, The Guardian. Available at https://www.thegua rdian.com/politics/2019/jun/20/northern-ireland-brexit-impact-study-fin ally-released. Accessed 18 October 2022.

CHAPTER 7

The Withdrawal Agreement II: Deal or No Deal?

Introduction On 15 December 2017, the European Council determined that the Brexit negotiations had made “sufficient progress” on key issues to move to the next stage of negotiations. This was an important milestone towards the EU’s aim of negotiating an “orderly withdrawal” of the UK. The subsequent two years of talks involved translating the provisional agreement of December 2017 into a binding international treaty—a Withdrawal Agreement (WA). During this process of translation, the EU remained united and ultimately effective because it knew what it wanted, was well prepared and because the EU’s negotiators had broad political backing. These resources allowed the EU to resist the UK’s strategy of manoeuvring the negotiations to the brink of failure to obtain concessions from the EU. In the UK, PM Theresa May and PM Boris Johnson pursued different variations of the same strategy of brinkmanship. May’s government leaned towards the “weakness as strength” variation, signalling that domestic circumstances in the UK required concessions by the EU if it wanted to avoid an involuntary no-deal outcome. Boris Johnson’s government adopted the “madman” variation, signalling that his government was genuinely prepared to accept the costs of walking away from the negotiations if the EU did not agree to dropping the so-called backstop in the protocol on Ireland/Northern Ireland. While Johnson’s threat was © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 B. Laffan and S. Telle, The EU’s Response to Brexit, Palgrave Studies in European Union Politics, https://doi.org/10.1007/978-3-031-26263-0_7

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seen as credible by some on the EU side, solidarity with Ireland persisted and Johnson ultimately agreed to an outcome that involved a regulatory border between Northern Ireland and Great Britain. This chapter analyses the arduous process for translating the Joint Report of 2017 into the Withdrawal Agreement of October 2019. It is divided into four sections. The first section shows that the EU and the UK had different priorities after “sufficient progress” had been declared by the December 2017 European Council. While the EU was keen on ensuring that the UK was indeed committed to the Joint Report, the UK focused on its vision of the future relationship. In a dramatic culmination of events, the UK’s “Chequers Plan” was rejected by the EU at Salzburg in September 2018. The second section follows the intensification of the withdrawal negotiations after the Salzburg debacle. The so-called negotiating “tunnel” constituted a departure from the EU’s previous practice of full transparency and continual coordination with the member states. The EU and the UK reached an agreement in early November 2018, and it was endorsed by the European Council two weeks later. Section three details Theresa May’s unsuccessful search for a majority in the House of Commons to pass the agreement with the EU. Following significant internal debate, the EU resolved to grant the UK several extensions to the Brexit deadline. Even so, PM May failed to ratify the WA and resigned from her position on 24 May 2019. She was replaced as leader of the Conservative Party and Prime Minister of the United Kingdom by Boris Johnson in July 2019. The last section of the chapter shows how the negotiations evolved under the UK’s new leader. PM Johnson initially threatened to leave the talks if the Irish backstop was not dropped from the WA. But when the EU failed to fold, Johnson agreed to a revised version of the EU’s initial backstop proposal and called an early election in December 2019 to obtain a parliamentary majority for his deal.

Scoping the Future Relationship The European Council’s determination of sufficient progress on the divorce issues in December 2017 opened the path to talks on the future relationship. As Table 7.1 shows, however, the Brexit negotiations continued to focus on the divorce issues in early 2018 and the future relationship only moved to centre stage over the summer. In early 2018, the EU essentially held off the talks on future relations to obtain further assurances that the UK was genuine about the commitments contained in

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the Joint Report. It expected the UK to table the “specific solutions to address the unique circumstances on the island of Ireland” as outlined in the Joint Report. Having waited two months without any UK input, the EU unilaterally produced a full draft agreement, which was then utilised as a public commitment mechanism on the UK (see Chapter 5). In this way, the EU was installing an additional “firewall” between the divorce issues and the future relations talks (Commission 7, Interview, April 2021). Citizens’ rights and the financial settlement do not appear in the negotiation schedules after March 2018 (see Table 7.1). The negotiations now focused on two interrelated issues: future relations and the question of the Irish border. While the EU was working on its “firewall”, Theresa May’s government outlined the UK’s future relationship with the EU. May’s challenge was to strike a balance between the EU’s red lines and various domestic demands. Her ‘Mansion House Speech’ of 2 March 2018 was the first major attempt to do so. May stated that she wanted “the broadest and deepest possible partnership – covering more sectors and co-operating more fully than any Free Trade Agreement anywhere in the world today” (May 2018e). But she also argued that the agreement would “need to be tailored to the needs of our economies” because “every Free Trade Agreement has varying market access depending on the respective interests of the countries involved.” As the EU’s negotiation guidelines had warned against “cherry-picking” (see Chapter 5), May added that “if this is cherry-picking, then every trade arrangement is cherry-picking.” In support of that position, she pointed out that the EU granted “varying levels of access to the Single Market” to all its neighbours, “depending on the obligations those neighbours are willing to undertake.” In May’s perspective, the UK’s demands would only amount to “cherry-picking” if it were seeking “a deal where our rights and obligations were not held in balance” (May 2018e). The EU’s position was that the UK’s own red lines stood in the way of a more ambitious agreement. Given the UK’s wish to leave the single market and the customs union, only a regular free trade agreement, such as the EU had with Canada and South Korea, was realistic. This was the main message of Michel Barnier’s famous “Staircase Slide” (see Chapter 5). Task Force 50 spent considerable time on developing this line of argumentation and on ensuring that the member states were on board. As it had done in preparation for the negotiations one year earlier, the Task Force organised another series of seminars with the member

Technical sessions Coordinators Technical sessions Coordinators Technical and Coordinators Technical and Coordinators Technical sessions Technical and Coordinators Technical sessions Coordinators Technical sessions Principals’ meeting Technical sessions Coordinators Technical sessions Technical sessions Technical sessions Technical sessions Principals’ meeting Technical sessions Principals’ meeting Technical sessions Technical sessions Principals’ meeting

16–17 January 6–9 February

16–17 August 21–22 August

24–26 July

22–24 May 5–8 June 19–20 June 16–19 July

16–18 April

16–19 March

13–15 March

5–7 March

26–27 February

19–20 February

Level of engagement

Negotiating rounds in 2018

Date

Table 7.1

WA – remaining issues + Ireland + Future relationship Ireland + Future relationship

WA – remaining issues + Ireland + Future relationship

Financial settlement + Citizens’ rights + Transition + Other WA issues Ireland + Future relationship WA – remaining issues WA – remaining issues + Ireland + Future relationship WA – remaining issues + Ireland + Future relationship Ireland + Future relationship

Governance + Ireland + Other WA issues Future relationship Governance + Ireland + Transition Transition Ireland Transition + Governance Transition Transition + Financial settlement + Citizens’ rights + Ireland + Other WA issues Transition + Governance + Financial settlement + Other WA issues Ireland + Transition Financial settlement + Citizens’ rights + Other WA issues

Issues discussed

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WA – remaining issues + Future relationship

Technical sessions Principals’ meeting Technical sessions Principals’ meeting Technical sessions Remaining issues – WA and future relationship

Remaining issues – WA and future relationship

Issues discussed

Level of engagement

Based on European Commission (2018)

5–6 September

29–31 August

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states and the European Parliament in early 2018, “discussing all the main topics, all the main themes of the future relationship. From trading goods and services to police and judicial cooperation” (Commission 3, Interview, April 2021). To prepare for those seminars, the Task Force “had to do homework before that,” which meant that in late 2017 it was “scoping and teasing out the issues and looking to existing agreements, to what extent they could be applicable or relevant, or not relevant” (Commission 3, Interview, April 2021). This work was done “together with the different DGs in the Commission” in order “to make sure that there was no improvisation and also that the Task Force or the Commission wasn’t moving ahead with its ideas on its own without any backing” (Commission 3, Interview, April 2021). The need for member state backing was never neglected. The outcome of this consultative process was the adoption of the EU’s guidelines for the future relations negotiations on 23 March 2018 by the European Council (European Council 2018a). In the guidelines, “the European Council confirms its readiness to initiate work towards a balanced, ambitious and wide-ranging free trade agreement (FTA) insofar as there are sufficient guarantees for a level playing field.” However, the guidelines also stressed that the repeatedly stated positions of the UK, […] limit the depth of such a future partnership. Being outside the Customs Union and the Single Market will inevitably lead to frictions in trade. Divergence in external tariffs and internal rules as well as absence of common institutions and a shared legal system, necessitate checks and controls to uphold the integrity of the EU Single Market as well as of the UK market. (European Council 2018a)

Consistent with the EU’s earlier messaging, the guidelines clarified “that there can be no ‘cherry picking’ through participation in the single market based on a sector-by-sector approach, which would undermine the integrity and proper functioning of the single market” (European Council 2018a). In the UK, the government adjusted its vision for a future relationship with the EU to accommodate various domestic demands. To address Northern Irish concerns about a potential regulatory border in the Irish Sea, the government proposed an all-UK backstop on 7 June 2018

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(HM Government 2018a), according to which the UK would essentially remain part of the EU’s customs territory. This “temporary customs arrangement” would eventually “be replaced by a permanent end state settlement, whose terms will need to be agreed by both parties.” From the EU’s perspective, it was problematic that the UK’s backstop proposal did not specify that the arrangement would remain in place “unless and until” an alternative arrangement was negotiated. Thus, while Michel Barnier welcomed the proposal as a sign that “the UK [is] engaging with us,” he also clarified that the proposal left open several significant questions, which the EU’s earlier proposal had explicitly addressed already (Barnier 2018a). Domestically, PM May’s proposal of an all-UK backstop received little pushback from the DUP or Conservative Brexiteers (Dunin-Wasowicz 2018). This changed with the announcement of the government’s socalled Chequers Plan for The Future Relationship Between the United Kingdom and the European Union on 17 July 2018 (HM Government 2018b). Brexit Secretary David Davis and Foreign Secretary Boris Johnson resigned in protest at the plan. Arguably, the core problem for David Davis and Boris Johnson was how Chequers sought to realise “frictionless access at the border to each other’s markets for goods.” Chequers consisted of two main elements. The first element was a “Facilitated Customs Arrangement” (FCA), which “would remove the need for customs checks and controls between the UK and the EU as if they were a combined customs territory.” The Chequers Plan stated that the FCA would become “operational in stages as both sides complete the necessary preparations.” This reflected the fact that the seamless functioning of the FCA would require data sharing and processing technologies that were not deployed at any border in the world, such as “machine learning and artificial intelligence [which] could allow traders to automate the collection and submission of data required for customs declarations.” The envisioned reliance on non-existent technologies for future customs relations was seen critically by Task Force 50, with one Task Force member suggesting that the UK’s proposals in this regard “were so bad. I mean not even thought through. Shameful, seriously shameful” (Commission 8, Interview, May 2021). The second component was a “Common Rulebook” for goods “covering only those rules necessary to provide for frictionless trade at the border” (HM Government 2018b). In this proposal, “the UK would make an upfront choice to commit by treaty to ongoing harmonisation with the relevant EU rules.”

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To ensure frictionless trade, in other words, the UK would stay aligned with EU regulations. This was anathema to Conservative Brexiteers such as Davis and Johnson because it undermined with the notion that Brexit was about “taking back control” over UK laws and borders. Task Force 50 saw the Chequers Plan as problematic because it was an effort to unpack the four freedoms. Nevertheless, TF50 outwardly adopted a constructive tone to help stabilise the weakened May administration. At the same time, it communicated the risks of the Chequers Plan to the member states to ensure that the EU was united on the issue. The Task Force’s approach is captured in the following statement by Georg Riekeles, a senior member of the Barnier team: In terms of the spirit and how we reacted to it, Barnier’s line – I remember very clearly – was to say that we will keep constructive in tone. He didn’t want to give it a red card immediately, or to be in a totally dismissive posture. He knew that he needed to give the government of Theresa May a bit of slack: ‘She’s come forward, they proposed something, now we’re discussing … In private, of course, the messages were much tougher. And in our explanation to Member States, they were also tough and clear in pointing out the risks that such proposals would carry for the EU ... and, hence, why they were not in any way acceptable. (Commission 3, Interview, April 2021)

Importantly, the position adopted by the EU towards the Chequers Proposal was not pre-ordained by member state interests. In fact, there were different perspectives on the issue among the member states, and also within Task Force 50 itself (Commission 8, Interview, May 2021). The Commission eventually rejected the Chequers Plan as a basis for further negotiations but not without considerable intra-EU deliberation. The major problem identified by the Task Force was the lack of adequate level playing field provisions given the degree of market access implied by Chequers. Beyond Task Force 50 and the Commission, several member states had initially considered that Chequers might be a basis for discussion. A Dutch Brexit coordinator explained that while “Chequers as such was unacceptable [it] could have been a basis, perhaps, to get somewhere” (Netherlands 1, Interview, March 2021). Asked whether any of the other member states were open to Chequers, the Dutch representative recalled that “Sweden was, by far, the most open to listening to what the UK was asking” and he added “we had the impression that there was some interest in some circles in Berlin, but that they really wanted not to lose

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France in this. So, they took a pretty restrictive line from the very beginning. And the Belgians were with us on this” (Netherlands 1, Interview, March 2021). Michel Barnier communicated the EU’s cautious position on Chequers at a press conference on 26 July 2018. Barnier said that the Chequers’ “proposals on security mark a real step forward” but he also stressed that “on our future economic relationship, it comes as no surprise that finding common ground between the EU27 and the UK is more difficult” and that “we are not at the end of the road yet” (Barnier 2018b). Just how rough the road would still become was brought into sharp relief at the informal summit of European leaders in Salzburg on 19–20 September 2018. Theresa May had been invited to share her perspective on the state of the negotiations with her European colleagues. PM May’s core message to her fellow heads was that “just as the UK has evolved its position [with Chequers], the EU will need to do the same” (May 2018b). The delivery of her message was not well received by EU leaders, who had deliberately toned down their negative position on the Chequers Plan to support May, who faced strong domestic opposition. A high-ranking member of the Council explained what happened in Salzburg: The understanding was that there would not be a big Brexit discussion in Salzburg ... that she [Theresa May] would have to survive until the Conservative Party Congress in Birmingham, a few weeks later [30 September]. So, the perception among Heads of State and Government and on our side, on Tusk’s side, was that she had breached that understanding by releasing an article in [the German newspaper] ‘Die Welt’ where she was super brutal on Barnier and our approach, and our position. And on top of it, she came to Salzburg over dinner. I think it was between Thursday and Friday. She was given the chance to kind of express herself on Brexit. And there she, in more polite terms, she essentially said the same thing as in the ‘Die Welt’ article. (Council 3, Interview, March 2021)

After sharing her position in Salzburg, PM May was unwilling to engage in dialogue with her fellow leaders. Her unwillingness to engage soured the atmosphere and led to a series of critical statements the next day. Council President Donald Tusk concluded the Salzburg summit by highlighting that “while there are positive elements in the Chequers’ proposal, the suggested framework for economic cooperation will not work. Not least because it risks undermining the single market” (Tusk 2018c). Tusk added that the success of the negotiations depended on “maximum

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progress and results in the Brexit talks” by the time of the October European Council, when the EU would “decide whether conditions are there to call an extraordinary summit in November to finalise and formalise the deal.” Later that day, Donald Tusk repeated this message in a now famous Instagram post (see Chapter 4). The post was received very negatively by the UK government. When updating the public on the Salzburg Council on the following day, Theresa May demanded more respectful treatment of the UK by the EU and argued that it was “not acceptable to simply reject the [UK’s] proposals without a detailed explanation and counter proposals” (May 2018d). She then increased the pressure on the EU by arguing that until the EU came forward with new proposals, “we must and will continue the work of preparing ourselves for no deal.” Overall, the Salzburg summit confirmed that the EU stood united behind Task Force 50 on the Chequers’ proposal. Importantly, this unity had been created over the summer of 2018, first within Task Force 50 itself and then, through, intensive coordination, between the institutions and member states. Unity in this key moment impacted the course of the negotiations. A member of Task Force 50 clarified that “the result of Salzburg was pretty clear. That was the end of that Chequers approach” (Commission 3, Interview, April 2021).

Through the ‘Tunnel’ to a Deal? In parallel with the talks on the future relationship, the negotiation of the Withdrawal Agreement had continued in the summer of 2018, notably on the Irish border question (see Table 7.1). The EU had long identified the European Council meeting of 17–18 October 2018 as the occasion by which an agreement would have to be reached to ensure sufficient time for review and implementation before the UK’s withdrawal on 29 March 2019. According to this timetable, the negotiators had about four weeks after the Salzburg summit to finalise the Withdrawal Agreement. On 11 October 2018, with one week to go until the much-anticipated European Council meeting, the negotiations entered their most intensive phase, the so-called tunnel. The tunnel meant that the two negotiating teams were in constant negotiations, day and night. During this phase, much less time was dedicated to coordinating positions with their political principles at home. In other words, the political leaders on both sides temporarily sacrificed close control over their negotiators to allow them to focus on finding a “landing zone” for the agreement. This strategy involved certain

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risks regarding the accountability of the negotiators, as the political principals had less power to ensure that the negotiators stayed within their mandate while negotiating in the tunnel. Due to the composite nature of the EU, close coordination of interests was particularly important, and the EU had invested great efforts in its transparency regime and institutional relations (see Chapter 4). Still, the tunnel presented a challenge to the EU’s preferred negotiation structure. In particular, there would be no breaks between distinct negotiation rounds in which Task Force 50 could brief the other institutions and the member states on the talks. A member of Task Force 50 explained that “there was definitively less contact” during the tunnel and “what you did not have, in particular, was briefing or transparency towards the outside world” (Commission 3, Interview, April 2021). However, this did not mean that the Commission “got ahead of the member states” because “by that time things had been worked through and discussed to such an extent with the Member States that there was a very good understanding of what one could do and should not do.” The tunnel was a tool for “finding the concentration of mind” so that the two teams could “thrash out an agreement” (Commission 3, Interview, April 2021). In other words, the transparency and the continual engagement with the member states by Task Force 50 throughout the negotiations had created high levels of trust among member states and institution and that trust was now turned into an active bargaining asset. Prior to this crucial phase, Michel Barnier met with Coreper to test whether he might have more room for manoeuvre but the member state ambassadors reinforced the importance of the guidelines and the limits they imposed. At the same time, the member states “accepted that there was a tunnel at that moment,” as a high-ranking member of the Council Working Group explained: We had a Coreper meeting right before the tunnel. Sabine [Weyand] and [Michel] Barnier came to the Coreper and they basically said: ‘Look, these are the ideas on which we are working.’ So, they explained what was going on. But they were not saying what the endgame would be. But at least they gave them the issues on the table. And then, at the end of the tunnel, they came immediately back to Coreper. (Council 1, Interview, March 2021)

At no stage did Task Force 50 forget the need to maintain unity. By the European Council summit of 17–18 October 2018, progress had been made on several fronts. What remained unresolved, Michel Barnier

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remembered later, was “the Irish question, which changes with each passing hour depending on the mood of the British and the multiple polemics and pressures coming from London” (Barnier 2021: 188). According to Barnier, the negotiations were characterised by a “no deal atmosphere” ahead of the European Council meeting (Barnier 2021). And indeed, no agreement was reached by the time of the October summit. At the press conference, President Donald Tusk explained that “not enough progress has been made” but that the EU wanted to “continue the talks in a positive spirit” and that Michel Barnier enjoyed the “full trust” of the EU leaders (Tusk 2018b). During this period, Michel Barnier became concerned about the close contacts which Martin Selmayr, Jean-Claude Juncker’s Chef de Cabinet in the Commission, continued to maintain with the British chief negotiator, Olly Robbins (Barnier 2021: 193). Barnier’s concern was that there might be side agreements. Michel Barnier reached out to Martin Selmayr to ensure that the “unique line” of the Commission was preserved. In substantive terms, the negotiations now focused mainly on the Irish question. In the second week of November, the EU negotiators sensed that the UK was serious about closing a deal (Barnier 2021: 198). And indeed, on the evening of 12 November 2018, Sabine Weyand and Olly Robbins, who were closely involved in the Irish dossier (see Chapter 6), reached a provisional agreement on the modalities of the UK’s withdrawal. What was still lacking was the approval of the UK government. According to Michel Barnier, Task Force 50 spent the next two days waiting for “white smoke to come out of 10 Downing Street” (Barnier 2021: 199). In the evening of 14 November 2018, the UK government approved the draft agreement. Immediately after the Cabinet meeting, Theresa May explained the decision: The choices before us were difficult, particularly in relation to the Northern Ireland backstop. But the collective decision of Cabinet was that the Government should agree the draft Withdrawal Agreement and the Outline Political Declaration – this is a decisive step which enables us to move on and finalise the deal in the days ahead. (May 2018c)

The negotiated deal contained a twofold solution to the Irish border question. To avoid a hard border on the island of Ireland, Northern Ireland would maintain “full alignment with those rules of the Union’s internal market and the customs union which, now or in the future,

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support north–south cooperation, the all-island economy and the protection of the 1998 Agreement, to apply unless and until an alternative arrangement implementing another scenario is agreed” (EU and UK 2018). To avoid a regulatory border between Northern Ireland and Great Britain, the protocol stated that “[u]ntil the future relationship becomes applicable, a single customs territory between the Union and the United Kingdom shall be established.” The UK had worked hard to obtain a different outcome and now faced the challenging task of ratification. For the Northern Irish DUP, continued regulatory alignment with the EU constituted a challenge to Northern Ireland’s place within the UK. For Conservative Brexiteers, the idea of a single customs territory with the EU was unpalatable. This constellation of interests would make it difficult for Theresa May to find a parliamentary majority for the deal. Task Force 50 was aware that “the signs were not good on her side” (Commission 7, Interview, April 2021).

Brexit Postponed: In Search of a Parliamentary Majority After the EU and the UK had agreed a deal in November 2018, the big question was whether Theresa May would find a majority for it in the House of Commons. Given the internal disunity of the Conservatives, their dependence on DUP support and their reluctance to reach out to the opposition for support, the odds were not in May’s favour. The challenge of ratification was evident from the beginning. From December 2018 to her resignation on 24 May 2019, PM May made every effort to get parliamentary backing from the House of Commons. But in one vote after another, there was a majority against her agreement. Initially, the EU was trying to support May’s search for a majority by providing further assurances. However, when it became clear in early 2019 that British Prime Minister would likely fail, the EU re-adjusted its course of action. The EU granted extensions to the Brexit deadline to prevent the talks from collapsing and to facilitate an increasingly likely change in British political leadership. The ratification process began badly for the Prime Minister. A first meaningful vote on the WA was scheduled for 11 December 2018. In the preceding days, however, the legal opinion of Attorney General Geoffrey Cox had raised concerns about the Northern Ireland backstop. Cox argued that there was “no unilateral right for either party to terminate this

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arrangement. This means that if no superseding agreement can be reached within the implementation period, the protocol would be activated and in international law would subsist even if negotiations had broken down” (Cox 2018). In other words, if no better solution could be found during the negotiations on future relations, Northern Ireland would not only have to maintain alignment with EU single market regulations but there would also be a regulatory border in the Irish Sea—potentially indefinitely. On 10 December 2018, Theresa May cancelled the vote and explained in Parliament that “while there is broad support for many of the key aspects of the deal, on one issue, the Northern Ireland backstop, there remains widespread and deep concern. As a result, if we went ahead and held the vote tomorrow, the deal would be rejected by a significant margin” (May 2018a). In response, a group of Conservative MPs launched a challenge to Theresa May’s leadership of the Conservative Party. While May won the vote of no confidence (with 200 to 117 votes), she promised that she would step down from her position as leader of the Conservative Party before the next scheduled election in 2022, further weakening her position (BBC 2018b). On 13 December 2018, the European Council reaffirmed that the WA “is not open for renegotiation” but also emphasised that the EU stood ready to find “alternative arrangements, so that the backstop will not need to be triggered” (European Council 2018b). The first of three attempts to get parliamentary approval, replete with spellbinding political drama, took place on 15 January 2019. Across Europe and especially in Brussels, the drama being played out in the House of Commons became compulsive viewing. In a historic defeat, the WA was rejected by a margin of 230 votes (432 to 202) (UK Parliament 2018). It was evident that ratification faced an enormous parliamentary hurdle. Instead of renegotiating the backstop, however, the EU’s strategy was to provide further assurances about the limited nature of the backstop and the EU’s sincere intention to find a better solution. The core ambition of the EU was “to try, through this approach, to have Geoffrey Cox sign off and vouch for it in a way, as the UK Attorney General” (Commission 3, Interview, April 2021). To this end on 11 March 2019, the EU released a document which listed additional commitments and had “legal force and a binding character” under the Vienna Convention on the Law of Treaties (European Commission 2019). A Task Force 50 member argued that these measures “put the burden a bit more on the EU to stop the backstop, so to say. And put the hurdle higher for not

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stopping it” (Commission 7, Interview, April 2021). On the following day, however, UK Attorney General Geoffrey Cox essentially repeated his initial opinion in the House of Commons, highlighting that while the additional reassurances had rendered failure of the future relationship talks “highly unlikely,” the “legal risk” that the backstop would apply indefinitely “remains unchanged” (Cox 2019). On the same day, the second meaningful vote took place in the House of Commons, resulting in a second rejection, albeit with a slightly smaller margin (391 to 242). A member of Task Force 50 recalled that Theresa May “was still short a lot of votes. It wasn’t narrow. And that was the end, I think. Then it was all out of her hands” (Commission 7, Interview, April 2021). When the speaker of the House of Commons, John Bercow, rejected a third meaningful vote on the WA, Theresa May formally asked the EU to extend the Brexit deadline on 20 March 2019 (May 2019b). A European Council meeting on 21 March 2019 granted a conditional extension of the deadline, specifying that if the House of Commons approved the WA before the original Brexit deadline, an extension until 22 May 2019 would be granted (European Council 2019d). If, however, the House of Commons did not approve the WA by the end of March, a shorter extension until 12 April would be granted. This accommodating response was not a foregone conclusion, and the possibility that the EU would take a tougher line was real. The deciding European Council summit was described by several high-ranking members of the EU institutions and representatives of the member states as “the first time there were some divisions in the unity” (Commission 7, Interview, April 2021). As such, the Council’s conclusions reflect a delicately calibrated compromise which was reached in difficult and open-ended discussions among the European leaders during the Council summit. While many member states were in favour of granting a longer extension to the UK, Task Force 50, French President Emmanuel Macron and the Netherlands were critical of the idea of an extension (Commission 7, Council 3, Council 4, Interviews, Spring 2021). A Council representative explained that “the first discussion on extension was a really tricky one” and “we could have ended up in a different world there” because “there was a push by some to get it over with” (Council 4, Interview, February 2021). The high-level debates eventually resulted in a broader readjustment of the EU’s strategy. Instead of trying to find ways to support Theresa May to get the WA passed, the EU now switched to an internal discussion on potential alternative scenarios. Task Force 50 member Georg Riekeles explained that

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As time was running out on the clock [after the second meaningful vote], the discussion then became much more EU27-focused. So, rather than discussing with the UK and trying to be helpful to them and hoping that they could get it through, it became more a discussion based on us. How do we deal with this because this is not going to work? And that went into this famous European Council [of 21 March 2019], where they discussed putting more time on the clock and those kinds of things […] which were essentially about how do we preserve essential EU27 interests, be it the political process, the European elections, the time question, how do we deal with a no deal if that’s what it comes to, etc. (Commission 3, Interview, April 2021)

But why did the EU struggle to define a united response to the British request for an extension? A combination of different factors provides a plausible explanation. First, the EU simply did not have enough time to “properly prepare” a united position on extension “because it was so political” and the “PermReps or Sherpas wouldn’t actually know what their leaders would say.” For that reason, the extension request provoked “long discussions” (Council 4, Interview, February 2021). Second, the EU had not had these discussions earlier because there was a widespread belief among EU leaders that the additional assurances which the EU had given in early 2019 would be sufficient to swing Geoffrey Cox’s legal assessment of the Irish backstop. Third, a majority of the member states disagreed with the stricter position of Task Force 50 because they worried that the negotiations might break down completely (Commission 7, Interview, April 2021). Finally, a longer extension of the Brexit deadline would have significant repercussions for political processes in the EU, such as the election of the European Parliament (23–26 May 2019). Arriving at a common position, therefore, also involved the most intensive coordination between the Council and the European Parliament during the entire Brexit negotiations (Council 4, Interview, February). On 29 March 2019, the House of Commons rejected the WA (without the Political Declaration) for a third time and Theresa May requested a second extension (May 2019c). The European Council of 10 April 2019 granted an extension “which should last only as long as necessary and, in any event, no longer than 31 October 2019.” In addition, the Council required that “[i]f the UK is still a Member of the EU on 23–26 May 2019 and if it has not ratified the Withdrawal Agreement by 22 May 2019 it must hold the election to the European Parliament in accordance with Union law” (European Council 2019b). Even now PM May had

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not yet given up on ratification. Over the next six weeks, May initiated talks with the Labour opposition to find a majority for the WA beyond the governing coalition. She presented a plan for a “new Brexit deal” which contained a “ten-point offer to everyone in Parliament who wants to deliver the result of the referendum” (May 2019a). The key point in May’s “new deal” was a commitment to seek “Alternative Arrangements to replace the backstop by December 2020, so that it never needs to be used” and that “should the backstop come into force, the Government will ensure that Great Britain will stay aligned with Northern Ireland.” In addition, the government promised to maintain high environmental and labour standards. Politics took over, however, after the Conservative Party performed dismally in the European Parliament election on 23 May 2019 (European Parliament 2019). While the Conservative Party finished fifth (8.9%), the Brexit Party received the highest share of the votes (30.8%). The result was widely seen as a rejection of Theresa May’s Brexit course. May understood that her time was up and she announced that she would resign as party leader in June and be replaced by a new Prime Minister in July (May 2019d). Theresa May’s had had the difficult task of spelling out what Brexit was. Doing so revealed a fragmented domestic landscape of countervailing interests. In this context, it made sense for May to use domestic constraints to compel the EU to moderate its demands, especially on the question of the Irish border. Yet her “weakness as strength” strategy ultimately did not work. Instead of re-opening negotiations on the Irish backstop, the EU first attempted to provide additional reassurances and ultimately agreed to conditional extensions. In this way, the EU prevented the negotiations from breaking down without giving in on substance. The next section will show that the more confrontational approach of Theresa May’s successor, Boris Johnson, also failed to break EU unity.

Getting Brexit Done Boris Johnson succeeded Theresa May as Prime Minister on 24 July 2019, one day after he was elected new leader of the Conservative Party (see Institute for Government 2019). PM Johnson adopted a more confrontational strategy than his predecessor, both domestically and towards the EU. In his first speech as Prime Minister, Johnson paid tribute to Theresa May’s efforts to deliver Brexit, but argued that “three years of indecision” had put in question the UK’s ability to honour the

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“basic democratic mandate” delivered in the 2016 referendum (Johnson 2019b). But Johnson also insisted that the “doubters, the doomsters, the gloomsters” were wrong; his administration would “restore trust in our democracy” and “fulfil the repeated promises of parliament to the people and come out of the EU on October 31[,] no ifs or buts.” Johnson also was “convinced that we can do a deal without checks at the Irish border, because we refuse under any circumstances to have such checks [,] and yet without that anti-democratic backstop” (Johnson 2019b). After the 2016 referendum campaign, Boris Johnson had established himself as one of the most prominent and outspoken supporters of a hard Brexit in the Conservative Party. Accordingly, one of his first manoeuvres as Prime Minister was a major cabinet reshuffle, ensuring that key posts were occupied by likeminded and loyal supporters (Lyons 2019). Crucially, Johnson replaced Olly Robbins in the role of the UK’s chief negotiator with David Frost, who had previously been Johnson’s advisor when the latter was foreign secretary. Asked whether and how the change of the UK’s chief negotiator impacted the talks with the EU, a Council official suggested that “loyalty is what defines success in such a job” and that David Frost “is certainly skilled in being the kind of negotiator a project like Brexit requires” (Council 2, Interview, December 2020). The official added that the unity of purpose between Boris Johnson and David Frost strengthened the UK’s negotiating position because “a political leader and their main negotiator must be on the same line, obviously” and that had not been the case with Theresa May and Olly Robbins (Council 2, Interview, December 2020). For the EU, the political changes which took place in the UK in the summer of 2019 generated considerable uncertainty about how the negotiations would continue. Georg Riekeles of TF50 explained how the Barnier team was preparing for different possible scenarios and intensified preparations for a no-deal outcome: It was very much a wait and see period. The team scaled down a little bit, Sabine [Weyand] left. We used the time to prepare for what could come in terms of new negotiation demands, in terms of what would happen in the case of a no deal. We put a lot of effort into preparing for how we would pick up negotiations. And also, how potentially one could pick up the negotiation again in case of a no deal. The backdrop of all this was what Johnson was saying: ‘Do or die … on the 31st of October we’re out with a deal or not.’ So, it’s clear that the rhetoric and also the new

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realities of UK politics were something that we were integrating into our work. (Commission 3, Interview, April 2021)

The new Johnson administration took more than three weeks to launch its first formal engagement with the EU. On 19 August 2019, Boris Johnson addressed a letter to the President of the European Council, Donald Tusk (Johnson 2019c). In the letter, Johnson expressed his hope that the UK would be leaving the EU “with a deal” on 31 October and he outlined three reasons why “the backstop cannot form part of an agreed Withdrawal Agreement.” First, Johnson argued that the backstop was “anti-democratic and inconsistent with the sovereignty of the UK” because it “locks the UK, potentially indefinitely, into an international treaty” which “provides no sovereign means of exiting unilaterally and affords the people of Northern Ireland no influence over the legislation which applies to them.” Second, Johnson maintained that the backstop was “inconsistent with the UK’s desired final destination for a sustainable long-term relationship with the EU” because it would prohibit the UK from regulatory divergence regarding environmental, labour and product standards, which, according to Johnson, was “the point of our exit.” Third, Johnson maintained that the backstop risked unsettling the “delicate balance embodied in the Belfast (Good Friday) Agreement,” which was “grounded in agreement, consent, and respect for minority rights.” Having rejected the backstop on these grounds, Johnson proposed that “alternative arrangements” should be put in place “as far as possible before the end of the transition period, as part of the future relationship.” Boris Johnson’s letter indicated that the UK followed a different approach to the Brexit negotiations under his leadership. There was a shift in the framing of the ideological underpinnings and objectives of Brexit. While Theresa May had sought to balance the objectives of political sovereignty and economic prosperity, the discourse adopted by the Johnson administration was steeped in the language of “democracy” and “sovereignty.” This language was arguably intended to galvanise political support among Eurosceptic Conservatives and the DUP for Johnson’s envisioned “new deal” with the EU. It also had the consequence of marginalising the UK’s second initial core Brexit objective: that of minimising the economic costs of Brexit. A member of Task Force 50 concluded that

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What is clear is that the previous government and the previous team, they were much more focused on economic issues and key economic sectors, than Johnson’s team. It was not that they didn’t ask for things, but it clearly didn’t have the same degree of priority […]. Week in and week out, the emphasis from the very top, in the person of David Frost, was on the political dimension, on sovereignty, it was on framing the whole thing in those terms. (Commission 3, Interview, April 2021)

Members of Task Force 50 got the sense that PM Johnson and David Frost “had this ideology very deep in them” and that for “Frost, Brexit is really a good thing, like he believes in it, he believes in independence” (Commission 8, Interview, May 2021). When asked whether the idea of sovereignty became the dominant way in which David Frost framed Brexit, a Council representative responded strongly in the affirmative and added that the Johnson administration was very different to PM May’s: May’s objective was to limit damage. She wanted to realise Brexit because she understood that that was the mandate given by the people. But she wanted to limit damage […]. And for her damage limitation was the UK still keeping a rather close relationship with the EU. And I think she really cared for Northern Ireland. I think Johnson is an opportunist who thought that the Brexit file was a perfect file to bring into power. He was seconded by another perfect opportunist, which was his chief negotiator [David Frost], who saw that this file could create a huge advancement for his career. […] So, there is indeed a big difference. And for them [Johnson and Frost], all these things were also quite ideological. I still recall that, for them, the benchmark was quite often will this pass the star chamber of the ERG [European Research Group]? Will this be explainable to the friends of the ERG? That was the bottom line. (Council 1, Interview, March 2021)

The second important message which emerged from Boris Johnson’s letter to Donald Tusk was that the Johnson administration would adopt a more confrontational approach to the EU. In making the removal of the backstop from the Irish Protocol his key demand while knowing that the EU had repeatedly refused to re-negotiate the protocol, Johnson’s letter intentionally increased the risk of a no-deal outcome. On this issue, the letter was described as “extremely worrying and unhelpful” by a high-ranking Irish interviewee (Ireland 1, Interview, December 2020). Alluding to the risk of “no deal,” President Donald Tusk remarked on

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24 August that the EU was prepared to “hold serious talks with PM Johnson” but that one thing I will not cooperate on is no deal. And I still hope that PM Johnson will not like to go down in history as Mr No Deal. We are willing to listen to ideas that are operational, realistic and acceptable to all Member States including Ireland, if and when the UK government is ready to put them on the table. (Tusk 2019)

Within Task Force 50, the risk of a no-deal Brexit was assessed very differently. While Chief negotiator Michel Barnier reportedly remained convinced that there would be a deal, a member of Task Force 50 reported that “a lot of times we were feeling, that he [Barnier] was basing this on a wrong analysis of what was going on in UK politics … or probably not taking the full measure of the change in the UK administration … or style of Johnson and Frost and Cummings” (Commission 3, Interview, April 2021). Given the increased uncertainty regarding the possibility of a no-deal Brexit under Boris Johnson, the key challenge for the EU remained to maintain unity on the question of the Irish backstop. A high-ranking representative of the Council stressed that among the member states “there was no chance that the position would change fundamentally. That had been established almost from the very beginning. And there was complete loyalty, or almost complete loyalty, with Ireland” (Council 3, Interview, March 2021). But another member of the Council remembered that “there were moments when some Member States got really nervous” (Council 4, Interview, February 2021). At one European Council meeting, German Chancellor Angela Merkel reportedly asked “the completely legitimate and obvious question: but what are you going to do if there is no deal?” (Council 3, Interview, March 2021). Several factors played a role in maintaining EU unity. First, it was suggested that “Ireland was a super effective player in this dossier” (Council 4, Interview, February 2021), explaining to Brussels and to the capitals the potentially existential implications of a no-deal outcome for peace and prosperity on the island. Second, and as a consequence, Ireland had “strong backing by the two Presidents”, Jean-Claude Junkers and Donald Tusk (Council 4, Interview, February 2021). For example, there was a certain moment when Tusk felt that there was a little bit more pressure mounting on Ireland. And that’s also why he decided to go to Dublin and

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have a speech or a session in the Parliament, I think, where he declared full loyalty with Ireland. […] That was also a signal, of course, to Berlin, and other bigger capitals, that we cannot sacrifice ... we cannot throw Ireland under the bus ... I think that was the framing. (Council 3, Interview, March 2021)

Interventions like these served to reinforce the already existing “really deep understanding [among the Member States] that the most important thing of all, and what could not be sacrificed at any time, was EU unity … because the moment that went then everything would be lost” (Council 3, Interview, March 2021). Ultimately, therefore, “even though there was nervousness on the part of some member states about the economic implications of no deal, the feeling was that you cannot abandon a Member State when such an issue of vital national interest is at stake” (Council 4, Interview, February 2021). The case of solidarity with Ireland demonstrates that EU unity did not emerge automatically from member state preferences but was actively forged and maintained through close and transparent coordination between the member states and the EU institutions. The impasse over the Irish backstop was eventually resolved, although not in line with UK preferences. Mounting domestic pressure on Boris Johnson in combination with the EU’s openness to continuing talks— while remaining firm on its substantive position—was crucial. Domestically, the so-called Benn Act of 4 September 2019 required the Prime Minister to seek a further extension of the Brexit deadline until 31 January 2020 in the case that the House of Commons had not agreed to a deal by 19 October (Benn Act 2019). The passing of the Benn Act frustrated Johnson’s strategy of running down the clock by proroguing Parliament from 9 September to 14 October—a move which was in any case declared void by the UK Supreme Court on 24 September. With the imminent threat of a no-deal Brexit off the table, Johnson had to switch strategies. His new strategy was to moderate his demands towards the EU in an attempt to quickly strike a deal. Capitalising on the political momentum of this hypothetical success, he could then call and win an early election, which would ensure the approval of his deal in Parliament. In the words of Georg Riekeles, a member of Task Force 50, I think that what this boiled down to was very much domestic pressure and it was the different events - the suspension of Parliament, the overturning

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of that, the Benn amendment - that basically forced Johnson’s hand. And then probably Johnson saw that he could do a deal on essentially the EU terms. He could accept things in the context of a revised Northern Ireland protocol ... that May had said that no British Prime Minister could ever accept. It didn’t seem to bother Johnson that much. I think he saw that he could do a deal and then riding on that wave he could win the elections afterwards and move on with his premiership on the basis of that. (Commission 3, Interview, April 2021)

In the following weeks, Johnson successively moderated his demands of the EU. Two events were crucial in this period. The first was a high-level meeting between Boris Johnson and the President of the European Commission, Jean-Claude Juncker, in Luxembourg on 16 September 2019. During that meeting, President Juncker reiterated “that it is the UK’s responsibility to come forward with legally operational solutions that are compatible with the Withdrawal Agreement” and he emphasised “the Commission’s continued willingness and openness to examine whether such proposals meet the objectives of the backstop” (Juncker 2019b). According to Georg Riekeles, “the Luxembourg lunch between Juncker and Johnson was the decisive moment” when “the penny dropped” and Boris Johnson understood “that there would have to be controls on goods between Great Britain and Northern Ireland … that there was no magic solution” (Commission 3, Interview, April 2021). Two weeks after the Luxembourg meeting, Boris Johnson presented the EU with a proposal for a new Irish Protocol on 2 October 2019 (Johnson 2019a). The crucial innovation was a proposed “all-island regulatory zone on the island of Ireland” which would “depend on the consent of those affected by it.” In this arrangement, Northern Ireland would stay aligned with EU goods regulations, eliminating the need for regulatory checks on the island. At the same time, Northern Ireland would remain “fully part of the UK customs territory,” allowing the UK to pursue an independent trade policy after Brexit. The proposal, Johnson argued, “removes the so-called ‘backstop’ in the previous Withdrawal Agreement.” The second important event took place one week later, on 10 October 2019, when Boris Johnson met the Irish Taoiseach Leo Varadkar in Liverpool. According to an Irish source, “there was a little bit of concern on the European Union side” before the meeting “that this was a risky idea” because “they wanted to make sure that the negotiating team in the hands of Mr Barnier was not put off track, and also that other Member States

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didn’t get into a bilateral conversation as well with the UK” (Ireland 2, Interview, December 2020). However, since the issue was of such existential importance to Ireland, Task Force 50 supported the meeting. Concerning the purpose of the meeting, an Irish source explained that “there was a feeling on the Irish side that Mr. Johnson didn’t fully understand the implications of the island of Ireland issues. […] So, it was certainly felt in the Irish Government that he needed a tutorial on the Good Friday Agreement and the fragility of the peace” (Ireland 2, Interview, December 2020). The intention was to heighten Boris Johnson’s awareness of the fact that his recent proposal “would have serious implications, one way or the other, for the Good Friday Agreement” (Ireland 2, Interview, December 2020). In their joint press statement, the two leaders “agreed that they could see a pathway to a possible deal” after having debated “the challenges of customs and consent” (Varadkar and Johnson 2019). An Irish interviewee argued that Johnson was primarily motivated to strike a deal “that would save himself from having to leave the office of Prime Minister” (Ireland 2, Interview, December 2020). After Johnson and Varadkar agreed on the outline of a new solution to the Irish border question, the negotiations focused on finding detailed solutions concerning customs procedures and controls in Northern Ireland, and the modalities of the consent mechanism. An agreement was reached on 16 October 2019 (Barnier 2021) and was endorsed by the Heads of State and Government at a special European Council meeting of 17–18 October (European Council 2019c). On the key issue of the Irish Protocol, a representative of the Council explained that “after many, many debates and many, many renegotiations and what have you, Boris Johnson signed up to the original backstop of Barnier [Draft Treaty of March 2018] with some lipstick here and there, but ultimately that’s what he did” (Council 4, Interview, February 2021). A member of Task Force 50 stressed that while Johnson’s ambition in August 2019 had been to “just kill the backstop,” the final agreement represented “a huge U-turn” in this regard (Commission 7, Interview, April 2021). According to the agreed solution, the entire UK would leave the EU’s customs territory, while Northern Ireland would stay aligned with certain EU regulations on goods (EU and UK 2019a). A consent mechanism was included whereby the continuation of the arrangement was dependent on the periodic consent of the Northern Irish Assembly. Crucially, the new solution meant that there would have to be regulatory checks between Northern Ireland and Great Britain. This is an outcome of which Theresa May had

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said in early 2018 “no UK Prime Minister could ever agree to” as it would “threaten the constitutional integrity of the United Kingdom” (see BBC 2018a). From this perspective, Johnson’s deal clearly contradicted one of the UK’s initially stated Brexit objectives, that of “strengthening the Union” by securing a deal with the EU which worked for the entire UK. Why did Boris Johnson agree to this outcome? On the one hand, the Benn Act had extinguished the threat of an imminent no-deal outcome while the EU kept insisting on protecting the single market and the Irish peace process. On the other hand, Johnson saw a pathway to side-lining the opposition of the Northern Irish DUP to the new Irish Protocol. If Parliament would not approve his deal before 31 October, he could argue that an early election was necessary to overcome the impasse, speculating that an electoral victory of the Conservative Party would render DUP support unnecessary (once Brexit was achieved, Johnson could then use DUP discontent over the protocol to backtrack on his commitments with the EU). The fact that the EU and the UK reached an agreement only two days before the Benn Act would have required the UK to request a further extension of the Brexit deadline put pressure on the House of Commons to approve the deal. Indeed, Boris Johnson and Jean-Claude Juncker announced at a joint press conference at the European Council summit that “[w]e have a deal. And this deal means that there is no need for any kind of prolongation” (Juncker 2019a). However, on 19 October the House of Commons frustrated the rapid ratification of the agreement by making its consent conditional on the prior passing of the EU (Withdrawal Agreement) Bill. This meant that Parliament would not be able to pass the deal by 19 October. Accordingly, the Benn Act now required Boris Johnson to request a further extension. Johnson did so on the same day by sending a letter to President Donald Tusk making it clear, however, that his view was “that a further extension would damage the interests of the UK and our EU partners” (Johnson 2019d). On 28 October, the EU granted a further extension until 31 January 2020 (European Council 2019a). In the meantime, the House of Commons rejected a government motion which would have enabled the passage of the Withdrawal Bill before 31 October by significantly limiting the time available for Parliamentary scrutiny. Having exhausted all opportunities to obtain parliament’s approval of the new Brexit deal, the UK government tabled a motion to hold an early election on 12 December 2019. While an earlier motion had failed

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on 9 September, the new motion passed with the support of the Labour opposition. In the subsequent election, the Conservative Party achieved a major victory (UK Parliament 2019a, b) running on a promise to “Get Brexit Done” (Conservative and Unionist Party 2019). The outcome of the election indicated broad public support for Johnson’s Brexit course and gave the Conservative Party an outright majority in the House of Commons. This meant that Boris Johnson was no longer dependent on DUP support to pass the EU (Withdrawal Agreement) Bill. Accordingly, the bill passed the House of Commons on 20 December and on 23 January obtained royal assent to become an Act of Parliament. On 29 January, the European Parliament gave its consent to the Withdrawal Agreement, thus ensuring an “orderly withdrawal” of the UK from the EU on 31 January 2020 (European Parliament 2020). Figure 7.1 summarises the content and structure of the Withdrawal Agreement. While having avoided a no-deal Brexit, there was considerable concern on the part of the EU that Boris Johnson was not genuine about the commitments he had signed up to in the Withdrawal Agreement. A member of Task Force 50 explained that when Boris Johnson.

Withdrawal Agreement Citizens' rights

Financial settlement

Transition period

Separation Issues

Protocol on Ireland

Protecting the rights of EU citizens living in the UK and UK citizens living in the EU (and their family members) at the end of the transition period, to live, work or study in their host country.

Agreement on methodology for calculating financial obligations. Ensures that the UK and the EU honour all financial obligations undertaken jointly while the UK was a Member State.

A transition period, until the end of 2020. EU law continues to apply in and to the UK. UK does no longer participate in EU institutions and governance structures. Can be extended once (max. two years.)

Ensuring an orderly withdrawal, notably through a smooth windingdown of ongoing procedures and arrangements applicable at the end of the transition period.

Avoiding a hard border on the island of Ireland, protects the allisland economy and the Good Friday (Belfast) Agreement in all its dimensions, and safeguards the integrity of the EU Single Market.

Governance Joint Committee and specialized committees Dispute settlement, enforcement & sanctions mechanisms

Fig. 7.1 Summary of the withdrawal agreement (Based on European Commission [2020])

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signed the new withdrawal agreement he didn’t care, as he showed by making declarations before the ink was dry, saying that there would be no controls down the Irish Sea ... whereas the agreement obviously said explicitly that there would be controls. So, it showed that it was a political approach that was taken to the whole agreement. (Commission 3, Interview, April 2021)

A member of the German Brexit unit argued that Johnson’s opportunism may have been a factor in getting to the Withdrawal Agreement. In this view, Theresa May “was limited in her options by her approach, which I think was very honest” but meant that “she failed to deploy all the power that Boris Johnson could … because he would promise things he never intended to keep. That made him more agile and more flexible” (Germany 1, Interview, June 2021). Echoing this, a member of the Dutch Brexit unit suggested that “Boris Johnson has been in denial of what he has agreed to, and he seems to get away with it as well” (Netherlands 1, Interview, March 2021). The Dutch representative added that this was “quite frustrating and quite actually worrisome to us because we do see a real risk of this whole Northern Ireland situation flaring up again and becoming very political very soon again in the next few years.”

Conclusions On 31 January 2020, the UK left the EU. Importantly for the EU the protracted negotiations—involving two UK Prime Ministers and three deadline extensions—had resulted in an “orderly withdrawal” and avoided a no deal at this juncture. With the ratification of the Withdrawal Agreement, the EU largely secured its three substantive core objectives: to protect the rights of EU citizens in the UK, to achieve budget security by agreeing on a financial settlement with the UK and to protect the single market and the existential interests of a member state by finding a solution to the Irish border question. The EU achieved this outcome by remaining united throughout with a working assumption that the UK would do a deal rather than face the chaos of exiting without one. Theresa May’s “weakness as strength” strategy failed to produce sizeable concessions from the EU. Instead, the EU used conditional extensions to prevent the negotiations from breaking down without, however, making substantive concessions. May’s successor, Boris Johnson, adopted a more confrontational negotiating strategy but in the end had to accept a revised Irish Protocol involving a regulatory border in the Irish Sea. During the negotiations on the WA, EU unity

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was not a given. Instead, unity was repeatedly affirmed and re-affirmed at key moments in the talks. This process was facilitated by the EU’s clear and non-conflicting objectives that it could deliver on. Moreover, broad political ownership ensured that Task Force 50 enjoyed room for manoeuvre during the tunnel phase of the negotiations. Subsequently, intensive coordination among the EU institutions and the member states helped to adjust the EU’s strategy when it became obvious that Theresa May would not find a parliamentary majority for her deal. On the complex question of the Irish border, unity was continually re-affirmed and never seriously challenged.

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May, T. 2019a. PM’s speech on new Brexit deal: 21 May 2019. Available at https://www.gov.uk/government/speeches/pms-speech-on-new-bre xit-deal-21-may-2019a. Accessed 19 October 2022. May, T. 2019b. rime Minister’s letter to President Tusk: 20 March 2019. Available at https://www.consilium.europa.eu/media/38668/20190320_may_let ter_tusk_extension.pdf. Accessed 19 October 2022. May, T. 2019c. Prime Minister’s letter to President Tusk: 5 April 2019. Available at https://www.gov.uk/government/publications/prime-ministersletter-to-president-tusk-5-april-2019c. Accessed 19 October 2022. May, T. 2019d. Prime Minister’s statement in Downing Street: 24 May 2019. Available at https://www.gov.uk/government/speeches/prime-ministers-sta tement-in-downing-street-24-may-2019d. Accessed 19 October 2022. Tusk, D. 2018a. A piece of cake, perhaps? Sorry, no cherries. Instagram. Available at https://www.instagram.com/p/Bn8Luwbjzf9/?hl=de. Accessed 14 October 2022. Tusk, D. 2018b. Remarks by President Donald Tusk after the European Council meetings on 17 and 18 October 2018. European Council. Available at https://www.consilium.europa.eu/en/press/press-releases/2018/10/18/ remarks-by-president-donald-tusk-after-the-european-council-meetings-on17-and-18-october-2018/. Accessed 19 October 2022. Tusk, D. 2018c. Remarks by President Donald Tusk after the Salzburg informal summit. European Council. Available at https://www.consilium.europa.eu/ en/press/press-releases/2018c/09/20/remarks-by-president-donald-tuskafter-the-salzburg-informal-summit/. Accessed 18 October 2022. Tusk, D. 2019. Remarks by President Donald Tusk before the G7 summit in Biarritz, France. European Council. Available at https://www.consilium.eur opa.eu/en/press/press-releases/2019/08/24/remarks-by-president-donaldtusk-before-the-g7-summit-in-biarritz-france/. Accessed 19 October 2022. UK Parliament. 2018. Government loses ‘meaningful vote’ in the Commons. Available at https://www.parliament.uk/business/news/2019/parliamen tary-news-2019/meaningful-vote-on-brexit-resumes-in-the-commons/. Accessed 19 October 2022. UK Parliament. 2019. General election 2019: Full results and analysis. Available at https://commonslibrary.parliament.uk/research-briefings/cbp8749/. Accessed 19 October 2022. Varadkar, L., and B. Johnson. 2019. Joint statement by Taoiseach Leo Varadkar and Prime Minister Boris Johnson. Government Press Office. Available at https://www.gov.ie/en/press-release/e3a113-joint-statement-by-an-taoise ach-leo-varadkar-and-prime-minister-bori/. Accessed 19 October 2022.

CHAPTER 8

The Trade and Cooperation Agreement

Introduction Once the Withdrawal Agreement (WA) was finalised and ratified, the EU and the UK shifted their focus to the next phase of the Brexit process, namely negotiations on arrangements governing their future relationship. This was a high stakes exercise for both sides with consequences for their economies, citizens, politics, businesses and neighbourly relations. Time was a major factor in these talks. The UK formally left the EU at midnight (CET) on 31 January 2020, which was followed by a transition period negotiated as part of the WA that came into operation immediately and was scheduled to end on 31 December 2020. During the transition period, the UK remained part of EU structures, notably the single market and customs union, but without representation or engagement in EU decision-making processes. As of 1 February 2020, the UK was no longer a member state but continued to incur the obligations of membership until the transition period ceased. The WA included a provision for a possible extension of the transition period until the end of 2021 or even 2022 if agreed jointly by the EU and the UK by 31 July 2020. However, UK legislation giving effect to the WA prohibited the London Government from seeking such an extension. In effect, the UK tied its hands in advance to signal to the EU that either there was a deal by 31 December 2020 or the UK would leave without a deal and proceed to © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 B. Laffan and S. Telle, The EU’s Response to Brexit, Palgrave Studies in European Union Politics, https://doi.org/10.1007/978-3-031-26263-0_8

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trade with the EU on WTO terms. Consequently, there was less than a year to negotiate the terms of the future relationship. The Johnson Government won the December 2019 election on a platform of “Get Brexit Done” and that was precisely what the Prime Minister intended to do. Getting Brexit done from Johnson’s perspective was about getting out from under the yoke of the EU acquis as quickly as possible. The EU remained open to the possibility of an extension while understanding that it was highly unlikely that the UK would pursue this even when faced with the disruption of COVID-19. A bridge between the WA and the TCA was envisaged in Article 50 in the form of a Political Declaration that expressed in legally non-binding language an agreed ambition for the future relationship between the two sides. Because it was a political—and not a legal—agreement, it did not play a decisive role in the negotiations, although it informed the EU’s negotiating position rather more than that of the UK. The Political Declaration concluded on 17 October 2019 aimed for “an ambitious, broad, deep and flexible partnership across trade and economic cooperation with a comprehensive and balanced Free Trade Agreement at its core, law enforcement and criminal justice, foreign policy, security and defence and wider areas of cooperation” (EU and UK 2019). The declaration allowed for cooperation in areas not covered by the text, and there were strong references to the shared values of both parties. Reference was also made to the unique context of the negotiations arising from the high level of integration between the EU and UK following decades of membership. Therefore, the Political Declaration urged that “the future relationship should be approached with high ambition with regard to its scope and depth and [we] recognise that this might evolve over time” (EU and UK 2019). The Political Declaration created the negotiating space for an EUUK partnership involving ambitious and deep cooperation across a wide range of policy areas. But its aspirations and potential were ultimately not translated into the negotiated outcome. From the outset it became clear that the Johnson government, although it had signed it off, “never liked the political declaration much because there were a lot of things in there, which they actually didn’t really agree with” (Commission 6, Interview, April 2021). The negotiations took off to a very slow start and the intensity of talks only picked up in the late summer of 2020. Following intense and continual negotiations in autumn 2020, the terms of the Trade and Cooperation Agreement (TCA) were finally agreed on Christmas Eve as

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the prospect of a no-deal outcome loomed. On Christmas Day, the EU member state ambassadors (Coreper 2) met to analyse the text in preparation for it to be signed on 30 December. The TCA was a bare bones deal, dramatically thinner than the existing interdependencies between the two parties warranted. It was the product of the priorities and starting points of the two sides. Effectively, the TCA was fashioned from the negotiating space left by the red lines of the two sides and, as became apparent during the talks, there was a narrow path to agreement. This chapter first outlines the starting positions of the EU and of the UK before analysing the evolution of the negotiations over the eleven-month transition period. The negotiations evolved in three distinct phases. Phase one lasted from the opening of the negotiations in March 2020 to a stocktaking meeting between high-level EU and UK representatives in June. Progress was very limited in this first phase. Phase two continued from July 2020 to the end of September, and although the clock was ticking, agreement remained elusive. Phase three involved the most concentrated period of engaged discussion and lasted from October 2020 to the signing of the agreement on December 30, one day before the deadline.

Setting the Scene December 2019 was a decisive month in the UK’s long and tortured exit from the EU. After two and a half exhausting years of negotiations, Boris Johnson finally broke parliamentary deadlock by winning an 80-seat majority in the general election. The scale of his victory allowed Johnson to get what he called his “oven ready” deal though the House of Commons on 9 January 2020 (House of Commons 2020b). The UK’s exit from the EU was assured. From the perspective of the EU, this offered clarity and ensured an “orderly withdrawal.” The next phase was about agreeing on a framework for the future relationship. Before talks could begin, the parties had to organise themselves and decide on the format of the negotiating rounds and a timetable. Once the EU concluded the WA with the UK in autumn 2019, Task Force 50 was transformed into the Task Force for Relations with the United Kingdom (TFUK). The EU opted to retain the tried and tested model that had proven its worth during the WA negotiations and by continuing with Michel Barnier as Chief Negotiator it also ensured continuity of

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personnel. In London, PM Johnson appointed David Frost Chief Negotiator in charge of the new Task Force Europe (TFE). The task force replaced the Department for Exiting the EU (DEXU), which was established by PM May in the immediate aftermath of the referendum in 2016. This too represented continuity as David Frost was Boris Johnson’s key Europe advisor and the negotiator of the WA in Autumn 2019. The replacement of DEXU signalled that Brexit-related work was moving decisively to Number 10, the Prime Minister’s Office. At the end of February 2020, the EU and the UK published a joint document on the terms of reference for the negotiations (EU and UK 2020d). The text identified the Chief Negotiators and the institutional support available for them. Eleven negotiating groups were created, which worked under the overarching umbrella of plenary negotiating sessions headed by the Chief Negotiators or their deputies. The absence of a negotiating group on foreign and security policy was an early signal that the UK did not want a formal agreement with the EU in this field, although it formed part of the Political Declaration. It was foreseen that negotiating rounds would take place every two to three weeks, alternating between London and Brussels, with each round involving an opening and closing plenary session to track progress. Given the condensed time available to the negotiators, it was anticipated that the talks would need to proceed at a brisk pace. The negotiations were scheduled to begin on 2 March 2020 and four additional negotiating rounds were foreseen before a High-Level Review planned for June. The prospects of an agreed outcome depended very much on how firm the red lines of the two sides were, their willingness to walk away from the talks and their readiness to overcome entrenched starting positions. The EU and the UK set out their priorities and starting positions in a series of high-level speeches and official documents in the lead up to the formal opening of negotiations in March 2020. The EU’s Starting Position The newly elected Commission President, Ursula von der Leyen, visited London on 8 January 2020. During her visit, she delivered a lecture at the London School of Economics (LSE) and met Prime Minister Boris Johnson. The Commission President was a student at the LSE in the 1970s, during which time she developed a warmth for the UK and deep admiration for its people. In her speech, she acknowledged that 31

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January, the UK’s last day as a member state, would be “a tough and emotional day. But when the sun rises again on 1 February, the EU and the UK will still be the best of friends and partners. The bonds between us will still be unbreakable” (von der Leyen 2020b). The lecture was constructed to signal both ambition and constraint. The ambition was to achieve a new partnership that “went well beyond trade and is unprecedented in scope.” But according to the Commission President, “the truth is that our partnership cannot and will not be the same as before. And it cannot and will not be as close as before – because with every choice comes a consequence. With every decision comes a trade-off” (von der Leyen 2020b). Before the formal launch of negotiations, Michel Barnier, the EU’s chief negotiator, made two noteworthy addresses in early 2020, one in Belfast (27 January) and one in Brussels (26 February). Barnier regarded Brexit as an exercise in damage limitation and argued that no one could convince him of the “added value” of the UK’s departure from the Union (Barnier 2020f). Trust and responsibility loomed large in the Belfast speech: responsibility to the EU collective, responsibility to explain to those affected by EU positions and responsibility to “engage respectfully with UK negotiators” (Barnier 2020f). The Brussels speech had more detail as it was delivered just after the EU published its negotiating mandate. While seeking an ambitious and lasting partnership, this could not be achieved without ground rules between the two sides (Barnier 2020g). Michel Barnier was at pains to stress that all international cooperation involves “a degree of rule-sharing, resource pooling and common governance.” According to the EU Chief Negotiator, this was not about giving up sovereignty or losing control but about “using your sovereignty to further the interests of your country” (Barnier 2020g). Intensive work went into the preparation of the EU’s official position. During December 2019 and January 2020, concentrated technical seminars were held with the member states to tease out and gauge the level of ambition of the Union and the Commission’s mandate. Building on the Conclusions of successive European Councils, on 3 February 2020 the European Commission published its recommendations for the negotiation directives that would constitute its mandate for the talks on the new partnership (European Commission 2020e). This formed the basis for deliberations within the General Affairs Council (GAC), which authorised the opening of negotiations on 13 February and approved the negotiating

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directives on 25 February 2020 (Council of the European Union 2020a, b). The directives were the formal representation of the EU’s starting position and key priorities for the TCA negotiations. The aim of the EU was to establish as “close as possible a partnership with the UK” covering trade and economic cooperation, law enforcement and judicial cooperation in criminal matters, foreign policy, security and defence and thematic areas of cooperation (Council of the European Union 2020a). The partnership should encompass a free trade agreement, a security partnership and wider sectoral cooperation where it was in the Union’s interest and be coherent in structure and embedded in an overall governance structure. The agreement should to “ensure a balance of rights and obligations.” The governance structure should contain dispute resolution mechanisms in which the CJEU would have responsibility for interpretating matters of EU law. Finally, it was crucial for the EU that the economic partnership be based on fair competition. Consequently, the EU wanted “sufficient guarantees of a level playing field so as to uphold corresponding high levels of protection over time” (Council of the European Union 2020a). The UK’s Starting Position PM Johnson delivered a major Brexit speech at Greenwich on 3 February 2020 (Johnson 2020a). In this speech, Johnson drew on what was for him Great Britain’s glorious past, especially the eighteenth-century settlement concerning who would rule the kingdom, a settlement that brought political peace and stability and launched the UK on a transformative journey. This past was invoked to emphasise that Brexit had solved and settled another major question of sovereign authority. The first half of Johnson’s speech was about Global Britain, a vision of a newly unfettered country ready to go out again in the world, a state “re-emerging after decades of hibernation as a campaigner for global free trade” (Johnson 2020a). In the second half of the speech, PM Johnson turned to the EU and described it as “our historic friend, partners and neighbours.” The Prime Minister aimed at a “thriving trade and economic relationship” with “our European friends” (Johnson 2020a). A considerable part of the speech was directed at tackling EU fears of a race to the bottom. The PM emphasised that the UK was.

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not leaving the EU to undermine European standards. We will not engage in any kind of dumping whether commercial or social or environmental, and don’t just listen to what I say or what we say, look at what we do. And I say respectfully to our friends that in all those three crucial areas the anxiety should really be on our side of the Channel not yours. (Johnson 2020a)

He argued that in many areas, UK standards were higher than those in other EU member states and that EU concerns were unnecessary. He went on to say that a Free Trade Agreement (FTA) should not “involve accepting EU rules on competition policy, subsidies, social protection, the environment, or anything similar any more than the EU should be obliged to accept UK rules” (Johnson 2020a). Moreover, the UK intended to “restore full sovereign control over our borders and immigration, competition and subsidy rules, procurement and data protection” (Johnson 2020a). Essentially, PM Johnson was asking the EU to trust the UK on future regulation without binding treaty provisions. In Brussels on 17 February 2020, UK chief negotiator David Frost gave another major speech which was different in tone and tenor but not dissimilar on the key issues to the Prime Minister’s speech. The tone was less friendly and more critical of the EU and European integration. David Frost outlined his journey from being a supporter of the EU to Euroscepticism. He clarified that “sovereignty is meaningful and what it enables us to do is to set our rules for our own benefit” (Frost 2020d). He went on to suggest that “we are going to have a huge advantage over the EU – the ability to set regulations for new sectors, the new ideas, and new conditions – quicker than the EU can, and based on sound science not fear of the future” (Frost 2020d). He introduced the concept of “sovereign equals” and stressed the need for the EU to recognise UK independence. For Frost and Johnson, the search for economic and political independence was the whole point of Brexit. Consequently, to think that the UK “might accept EU supervision on so-called level playing field issues simply fails to see the point of what we are doing. That isn’t a simple negotiating position which might move under pressure – it is the point of the whole project” (Frost 2020d). This line of thinking was fundamental in the UK’s negotiating strategy. For both Johnson and Frost, this was a continuation of the approach in the final months of the WA negotiations. Antagonistic discourse towards the EU involving tough talking

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and firmness set the tone of the UK’s approach to the future relationship negotiations (Usherwood 2021). The EU’s negotiating directives were matched in London by a statement by the PM in the House of Commons on 3 February 2020 (Johnson 2020b) and the publication of a more detailed Command Paper on 27 February 2020 (HM Government 2020d). These documents set out London’s starting point for the talks. The UK’s vision was crafted in the following terms: “a relationship based on friendly cooperation between sovereign equals, with both parties respecting one another’s legal autonomy and right to manage their own resources as they see fit” (HM Government 2020a, b, c, d: 3). The UK’s aim was to achieve an agreement somewhat like the EU-Canada Comprehensive Economic and Trade Agreement (CETA) that the EU signed in 2016, the Japan FTA that came into force in 2019 and the EU-Korea Agreement of 2011. In preparation for the talks, London expended significant effort on identifying EU precedents to buttress its demands. The dominance of a sovereigntist ideology meant that the UK would not countenance arrangements in which the UK did not have “control of its own laws and political life. That means that we will not agree to any obligations for our laws to be aligned with the EU’s, or for the EU’s institutions, including the Court of Justice, to have any jurisdiction in the UK” (HM Government 2020a, b, c , d: 3). Indeed, the document clarified that “if it is not possible to negotiate a satisfactory outcome, then the trading relationship with the EU will rest on the 2019 Withdrawal Agreement and will look similar to Australia’s” (HM Government 2020a, b, c, d: 3). On governance, the UK sought a series of individual agreements without an overarching legal or institutional framework. There was considerable pushback against the EU’s demand for protection against unfair competition and level playing field provisions. In the PM’s written statement to Parliament, he boldly stated that the UK would “in future develop separate and independent policies in areas such as (but not limited to) the points-based immigration system, competition and subsidy policy, the environment, social policy, procurement and data protection, maintaining high standards as we do so” (Johnson 2020b). On fish, the UK rejected the EU’s linkage of fish to market access. On trade in goods, the UK wanted customs and regulatory facilitation provided this did not impinge on its right to diverge from EU standards and law. Surprisingly given the dominance of services in the UK economy, its starting position on services did not privilege the sector. Its goal of mutual recognition

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of professional qualifications was an acknowledgement of the importance of staff mobility in the services sector. Although the UK accepted that in services the granting of equivalence was an EU unilateral decision, it asked for structured cooperation around the withdrawal of equivalence because of its importance to the City of London. The priorities and starting positions of the two parties revealed the key controversies and disagreements that would arise during the talks. These were level playing field provisions, fisheries, governance of the relationship and security cooperation. The latter was less controversial than the other three but significant nonetheless. The crunch points were starkly visible but just how wedded the sides were to their opening positions was unclear. In this context, it mattered that for the UK the concept of sovereignty was the dominant lens though which issues were assessed, as the speeches by PM Johnson and his Chief Negotiator highlighted. Thus, ideology and politics dominated the UK calculus, with economics as a secondary driver.

Slow Beginnings: Getting to June The formal talks opened in Brussels on 2 March 2020. The first phase of the talks was dominated by the impact of the Covid-19 pandemic on the modalities of the talks, a lack of movement beyond starting positions and a conceptual clash over the nature of the final deal. Therefore, this phase was about interrogating the texts of the other side rather than negotiating. For its part, the UK emphasised precedent and based its arguments on elements of what the EU negotiated with other third countries, arguing that it was looking for a Canada-like agreement. Precedent, according to an official in the TFUK, “was a very recurring word … anything that was unprecedented was not acceptable for the UK, so they needed to find precedents and they needed to find things that were not so EU-tainted” (Commission 1, Interview, May 2021). The EU’s position was that the economic ties between the EU and the UK were much larger than with Canada or Japan. Therefore, the UK deal could not be dusted down and taken off the shelf but would have to be sui generis. The impact of the COVID-19 pandemic was swift. On 19 March, Michel Barnier tested positive for Coronavirus and went into isolation, as did David Frost, his UK counterpart. As the pandemic raged across Europe and the continent went into lockdown, two negotiation rounds were cancelled. This did not halt all engagement between the sides but

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what occurred was low key and technical. In a repetition of its strategy employed in the WA negotiations, the EU mobilised its technical and human resources and, in a bold and unilateral move, published a Draft Legal Act on 18 March 2020 (European Commission 2020a). This amounted to a translation of the Political Declaration and EU negotiating directives into legal text. The text, a fully-fledged draft treaty, was 440 pages long. In addition, the EU published a separate draft text on Foreign, Security and Defence policy, although by this stage it was evident that the UK did not want a treaty in this area (European Commission 2020c). The EU was determined that the negotiations would revolve around legal texts rather than vague discussion, and it was determined to pin the UK down and not give it the initiative. Michel Barnier argued that the publication was to “prove that an ambitious and comprehensive treaty is feasible even within a limited time frame” (Barnier 2021: 327). In response, the UK tabled a number of draft legal texts. However, it only shared them with the Commission whereas the EU made its draft publicly available in its entirety. The differing approaches to transparency, apparent during the WA negotiations, were evident again. The UK draft legal texts covered trade, air safety, air transport and civil nuclear power, but not fisheries. Following the interruption in the talks, the first formal contact between the two sides was a videoconference between the chief negotiators, followed by a joint statement on 15 April. The statement underlined the need to make “real, tangible progress in the talks by June” (BBC 2020). The two sides reviewed the technical work so far and concluded that it was “useful to identify all major areas of divergence and convergence” (EU and UK 2022). The UK handed over two additional legal texts on energy and law enforcement, but not on fisheries even though the Political Declaration envisioned an agreement on fish by 1 July 2020 (EU and UK 2019). At this stage, the talks were still predominantly about clarifying text rather than searching for compromise and trade-offs. In other words, they were still at the level of pre-negotiations. According to a senior member of the Commission team, “the first couple of months were really repeating positions. We were explaining our mandate, they were explaining the UK position paper” (Commission 6, Interview, April 2021). Barnier and Frost agreed that there would be three further rounds of talks—20 April, 11 May and 1 June—before the high-level meeting on 15 June. All three rounds were conducted via videoconferencing given the strictures of the COVID-19 pandemic. This was technically demanding as

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each round involved more than 40 videoconferences. There were major concerns about the security of the exercise and the challenge from an EU perspective of keeping the national capitals informed. However, it was accepted that, given the pandemic, there was no alternative to resorting to videoconferencing. Following the three rounds, Boris Johnson and Ursula von der Leyen would take stock at the high-level meeting in June. The main question when the negotiations resumed in April 2020 was whether the talks could move from clarification to agreement on some issues. The April talks did not break the impasse. Following the negotiations, a statement from London concluded that there was some convergence in the core areas of trade in goods and services, energy, transport and civil nuclear cooperation (HM Government 2020c). However, there was a caveat concerning goods: the UK report suggested that the EU offer fell short of what was offered to other “sovereign states.” The statement went on to say that there was divergence on issues of principle in several areas, notably the level playing field. Specifically, it suggested that there would be no progress on the so-called ‘level playing field’ and the governance provisions until the EU drops its insistence on imposing conditions on the UK which are not found in the EU’s other trade agreements and which do not take account of the fact that we have left the EU as an independent state. (HM Government 2020c)

On fisheries, London claimed that the EU wanted its member states to retain the quotas they had under the common fisheries policy. The statement added that “[w]e will only be able to make progress here on the basis of the reality that the UK will have the right to control access to its waters at the end of this year” (HM Government 2020c). Michael Gove, Chancellor of the Duchy of Lancaster, in evidence to the House of Commons on 27 April, argued that there should be no difficulty in getting an agreement given that the UK was not asking for anything bespoke, new or tailor-made. We are asking simply for a series of off-the-peg arrangements, which replicate what the EU has with other countries. Agreement on the EU side to that would be consistent with precedent and should be relatively rapid to secure. (House of Commons 2020a)

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According to one Commission official who was closely involved in the negotiations, the UK wanted to “take the elements they fancied the most and hence build up a TCA or a partnership deal which was made up of the best parts of every international agreement the EU had” (Commission 3, Interview, April 2021). Michel Barnier, for his part, concluded after the second round of negotiations that the UK had failed “to engage seriously on a number of fundamental issues” (Barnier 2020c). From a Union perspective, the lack of progress in key areas was a challenge because the EU sought parallel progress on all issues to avoid horse trading at the end of the negotiations. Therefore, Michel Barnier argued that the UK could not, on the one hand, refuse to extend the transition period and, on the other hand, slow down discussions in significant areas (Barnier 2020c). The EU’s chief negotiator then went on to list the areas where the delegations were far apart, beginning with level playing field provisions. Barnier claimed that the UK “denounced the basic premise that economic interconnectedness and geographic proximity require robust guarantees” and he underlined that the EU negotiating mandate stated that “there will be no ambitious trade deal without an ambitious level playing field on open and fair competition” (Barnier 2020c). On governance, in addition to opposing a single governance framework, the UK was questioning the need for the inclusion of common values in the treaty and continued membership of the UK in the European Convention on Human Rights (ECHR) and it would not countenance a role for the CJEU in interpretating matters of European law (Barnier 2020c). In the area of police and judicial cooperation, data privacy was a major unresolved issue. Against this background, Barnier argued that if both sides wanted to make “tangible progress,” there was a need “to move beyond clarifications and put more political dynamism into proposals aimed at building compromises” (Barnier 2020c). While both sides agreed with the need for progress, fundamental differences of approach on key issues meant that the talks remained locked in discussions and clarifications with no evident closing of the gap between the two sides. This pattern was maintained in the third round of talks that took place between 11 and 15 May 2020. By then, the UK had tabled ten draft agreements (HM Government 2020b), including a fisheries framework agreement, the first substantial offer on fish from the UK (HM Government 2020a). Following the talks, David Frost made a statement, stressing “that we made very little progress towards agreement on the most significant outstanding issues between us” (Frost 2020a). From

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David Frost’s perspective, the lack of progress could be attributed to the EU’s “insistence on including a set of novel and unbalanced proposals on the so-called level playing field which would bind this country to EU law or standards, or determine our domestic legal regimes” (Frost 2020a). According to Frost, progress could only be made if the EU shifted its position. He flagged that the discussions on fish were useful, but that agreement could only be reached if the EU recognised the UK as an independent costal state post-Brexit. Similarly, Michel Barnier concluded after the negotiations that “this was a round of divergence, with no progress” (Barnier 2020e). Barnier claimed that the UK refused to discuss concrete, mutual and reciprocal guarantees and appropriate instruments in relation to social and environmental standards and conditions for fair competition regarding state aid and taxation. For the first time, Michel Barnier identified areas where the UK negotiating demands went beyond the Canada-style agreement it trumpeted. These were: • Almost complete freedom of movement for short-term stays for UK service providers; • Maintaining the existing single market arrangements in relation to electricity interconnection mechanisms; • Maintaining the same arrangements for British auditors; • Maintaining a system for the recognition of professional qualifications that was as complete and broad as within the Union; • Having co-decision with the EU on the withdrawal of equivalence in relation to financial services (Barnier 2020e). Given the dominance of services in the UK economy, these demands could be seen as an attempt to reduce the impact of Brexit on services. They revealed an inconsistency in the UK’s emphasis on precedent as none of the demands formed part of other EU FTAs. Consequently, they were perceived as “cherry picking” by the EU. Barnier clarified that the UK could not “pick and choose the most attractive elements of the single market” (Barnier 2020e). Moreover, Barnier matched David Frost’s demand for a change in the negotiations by saying that the UK needed to be more realistic and change its strategy (Barnier 2020e). However, both sides were holding firm to their opening positions and both wanted the other side to adapt its approach. There was no path to agreement in May 2020.

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During the week after the third round of talks there was an intense exchange of letters and claims and counter-claims between the two sides. David Frost released the ten embargoed draft legal texts he had tabled in the negotiations so that the member state capitals understood the nature of the UK’s approach. The UK chief negotiator continued to emphasise that London’s demands were within existing precedents, and in many areas, they were ostensibly less than what the EU offered other countries. He therefore found it “perplexing” that the EU should have any great difficulty agreeing to them and that the EU demanded “additional, unbalanced and unprecedented provisions” as a “precondition for agreement” (Frost 2020e). Frost wondered what “makes the UK, uniquely among your trading partners, so unworthy of being offered the kind of well-precedented arrangements commonplace in modern FTAs?” (Frost 2020e). He concluded that “so far what was on offer was a relatively low-quality trade agreement coming with unprecedented EU oversight of our laws and institutions” (Frost 2020e). The reply from Michel Barnier was swift. Barnier began by questioning whether “an exchange of letters regarding the substance of the negotiations is necessarily the best way to discuss substantial points” (Barnier 2020a). Moreover, he said that he hoped the tone adopted by David Frost, would not damage “the mutual trust and constructive attitude that is essential between us” (Barnier 2020a). The Union’s negotiator then turned to the substantive points in Frost’s letter. He responded to three issues. First, the only precedent that the EU was following was the Political Declaration agreed with the Johnson Government in October 2019 and there was “no model” or “uniform precedent to follow in EU trade policy.” The EU did not accept “cherry picking” from past agreements. Second, “given geographic proximity and economic interdependence, there must be robust level playing field safeguards to avoid distortions of trade and unfair competitive advantages” in areas such as state aid, competition, social and employment standards, environment, climate change and relevant tax matters. Third, “with regard to law enforcement and judicial cooperation, the EU has never previously offered such a close and broad security partnership with any third country outside the Schengen area” but some UK demands “go well beyond” the approach to precedents it claimed to follow (Barnier 2020a). Impatience was growing in the member state capitals. The Spanish Foreign Minister said on the BBC that the “most important thing now is to stop posturing, stop sending letters, to stop sending emails, sit down and negotiate – that’s what we

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need to see now” (Hughes 2020). Michel Barnier reiterated his demand for parallel progress on all aspects of the negotiations and called for a new dynamism to avoid stalemate. At the outset of the talks, the EU had prepared for a rational negotiation process by identifying benchmarks and milestones, negotiating table by table to jointly come to an agreement with the UK. However, it became apparent that this “never really worked because of a big lack of engagement by the UK on issues on which they perceived the EU to be defensive or have an interest, whereas they probably had less. So, they played this very tactically” (Commission 3, Interview, April 2021). When the delegations met between 2 and 5 June 2020, just before the high-level meeting, the omens were not good for progress. David Frost, in a written statement following the talks, concluded that “progress remains limited” but was constructive in tone (Frost 2020b). He also said that the talks were “reaching the limits of what we can achieve through the format of remote formal rounds. If we are to make progress, it is clear that we must intensify and accelerate our work (Frost 2020b). During the press conference, Michel Barnier concluded not only that that the fourth round had failed to make progress on the big topics, but that there had “been no substantial progress since the beginning of these negotiations, and that we cannot continue like this forever” (Barnier 2020h). The time constraints were such that the EU and UK would need to agree a deal by the end of October to ensure ratification by the end of December 2020. Michel Barnier suggested that the two teams should begin to meet in restricted format in the months ahead to concentrate on the most difficult issues (Barnier 2020h). He also said that the negotiations were “approaching a moment of truth” (Barnier 2020h). That moment of truth was the High-Level Meeting scheduled for 15 June 2020. The EU delegation to the High-Level Meeting involved Commission President Ursula von der Leyen, European Council President Charles Michel and David Sassoli, President of the European Parliament. On 15 June, they met UK PM Boris Johnson to take stock of the negotiations in the first four rounds and to identify a path forward towards agreement. Michel Barnier attended the meeting but did not participate actively in the talks. The EU’s insistence on parallel progress across all dossiers meant that progress was limited as the UK was unwilling to move on key EU issues. For the EU, parallelism was crucial because of a concern that the UK would pocket any concessions and because the unity of the member states was partly assured by seeking global progress (Commission

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6, Interview, April 2021). Boris Johnson’s attendance at the June meeting revealed that his early threat to walk away from the talks if substantial progress had not been made by June was a form of bluster. Although progress was limited, the UK government remained committed to the talks and PM Johnson sought an early political agreement. During the meeting, PM Johnson said “We need to put a tiger in the tank, Ursula” to which Charles Michel later replied “Yes, Boris, we are ready to put a tiger in the tank but not to buy a pig in a poke!” (Barnier 2021: 337). A terse joint statement was issued following the High-Level Meeting (EU and UK 2020a). Importantly, the statement confirmed that the UK was not seeking an extension, and therefore the transition period would end on 31 December 2020. This clarity was critical in the talks as it served to concentrate minds, either there was a deal by the end of December or the UK would exit without one. At the meeting, PM Johnson was clear about his red lines. First, there could be no role for the European Court of Justice in the UK. Second, the UK would have the right to determine future UK laws without constraint. And third, Johnson wanted an agreement on fisheries that shows Brexit makes a real difference compared to the existing situation (Barnier 2020b). An intensified schedule of meetings involving six different formats was pencilled in for July and August. This represented a ratcheting up of the talks in an effort to break the deadlock. The only reference to substance in the joint statement of 15 June was the hope that such talks would find “an early understanding on the principles underlying any agreement” (EU and UK 2020a). Following the June meeting, the EU began to take the UK’s red lines seriously. A senior Commission official concluded that after the meeting, the EU decided that if a deal was to be done it would “move away from the Court of Justice, we will move away from the dynamic alignment to EU law, and we will try to find a way to get an agreement on fisheries that will give the UK back something” (Commission 2, Interview, March 2021). The EU was hopeful that progress would follow from its shift in position and that the UK would reciprocate on key EU red lines. Both sides remained committed to reaching an agreement and there were compromises to be had, but time was short and the gap between the two sides on the big issues remained substantial.

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The Clock Ticks On: July to October The delegations met for the first talks in the intensified schedule between 29 June and 2 July. The agenda involved all the issues in the negotiations, and there was some innovation in process. Provision was made for two two-hour slots of direct talks between the chief negotiators and a slot for discussion of horizontal issues. The talks ended a day early and the chief negotiators did not meet for a second bilateral discussion and neither did the horizontal talks take place. This suggests that the negotiations were not yet ripe for such intensive engagement. Hence, the EU’s hopes for progress were dashed. After the negotiating round, David Frost issued a short statement in which he welcomed the fact that the talks were face to face and therefore gave “extra depth and flexibility to our discussions.” The talks were described as constructive and useful but David Frost was clear that “significant differences” remained between the two sides (Frost 2020c). In the lead-up to the round, Michel Barnier had already indicated that the EU was willing to move “on the fishing issue, governance, and some other issues where we are divergent, we are ready to work on landing zones respecting the mandate of the EU” (Financial Times 2020). The Union was also willing to agree an “operational and clever framework” for a level playing field but not at the expense of integrity of the single market (Financial Times 2020). Michel Barnier’s lengthy statement after the talks confirmed the EU’s solution-oriented approach, stating that “What Boris Johnson says and writes matters to the EU” (Barnier 2020b), meaning that the EU took the UK’s red lines seriously. Barnier continued by suggesting that the EU negotiators had “tried to understand how these three red lines can be squared with our commitment to a comprehensive new partnership” (Barnier 2020b). Barnier also signalled that the EU respected “the UK government’s political choice and we are ready to work on solutions” but that it “cannot and will not accept to foot the bill for the UK’s political choices” (Barnier 2020b). He furthermore provided an issue-specific breakdown of the progress the negotiations had made. The gap had narrowed in relation to social security coordination and Union programmes, and there was progress towards a single institutional framework but this would have to include robust enforcement mechanisms. Moreover, there had been good discussions on judicial and police cooperation although divergence remained. And intense discussions on transport and energy had taken place but the UK was seeking very ambitious, single market-like access (Barnier 2020b).

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Even though the talks were beginning to make progress in a number of areas, Michel Barnier was adamant that on two of the EU’s red lines—the level playing field and fisheries—the UK had failed to engage constructively and he concluded that a trade agreement was unlikely at this stage (Barnier 2020b). By the end of June 2020, equivalence in financial services was also at an impasse. At issue was access by the City of London to the single financial market. The UK Treasury was ready to grant equivalence to EU banks and investment companies but the EU was not ready to reciprocate until it had sight of the UK’s future regulatory plans. In April and May 2020, the EU had sent some 28 lengthy questionnaires to the UK Treasury and by the end of June it had received only four replies. Speaking to the Eurofi General Assembly in Brussels on June 30, Michel Barnier set out the EU position. Regarding the UK’s demands, Michel Barnier stated “I will be blunt: its proposals are unacceptable” (Barnier 2020d). He went on to give two reasons why they were problematic. The first was that the EU’s decision-making autonomy would be impaired and the second that the UK wanted to retain as many of the benefits of the single market as they could by helping London-run businesses operate on the continent with relative ease (Barnier 2020d). In early July, the EU stepped up its Brexit readiness communications, highlighting changes that would unavoidably take place on 1 January 2021 and warning that failure “to reach an agreement would lead to disruptions that would be more far-reaching” (European Commission 2020d). The key issues—fisheries, governance and the level playing field—figured prominently in the talks over the summer and in the early autumn. Following the sixth round of talks between 21 and 23 July, David Frost indicated that the UK would countenance a single overarching agreement. Moreover, the parties agreed to an Addendum to the Terms of Reference for the negotiations that allowed an accelerated pace of negotiations. Three further rounds took place between August and October. Before the eighth round between 8 and 10 September 2020, the EU indicated that it might soften its stance on state aid by accepting a dispute resolution mechanism without the CJEU. In his statement of 10 September, Michel Barnier argued: In order to maximise the chances of a deal, the EU has shown flexibility to work around the UK’s red lines and find solutions that fully respect the UK’s sovereignty, in particular with regard to the role of the European

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Court of Justice, the future legislative autonomy of the UK and fisheries. (Barnier 2020i)

Still, the Union did not accept that there was adequate reciprocity from London on the critical issues of a level playing field and dispute resolution mechanisms. This led Michel Barnier to conclude that “[s]ignificant differences remain in areas of essential interest for the EU” (Barnier 2020i). Ominously, the chief negotiator ended his statement by saying that the EU was intensifying its preparations for all scenarios on 1 January 2021, code for a potential no-deal Brexit. David Frost for his part stated after the talks that “the UK has consistently made proposals which provide for open and fair competition, on the basis of high standards, in a way which is appropriate to a modern free trade agreement between sovereign and autonomous equals” (Frost 2020f). Acute differences over fundamental principles continued to hamper agreement. Additional uncertainty, if not a full-blown crisis, was triggered by the UK government in early September. It announced that it would introduce a 60-page bill, the UK Internal Market Bill (IMB), in Parliament in September (UK Parliament 2020). The content of the bill provoked shock and consternation in the UK, the EU, Ireland and the US because the original version of the bill would break international law. This was confirmed by UK Secretary of State for Northern Ireland, Brandon Lewis, who admitted in the House of Commons that the bill would break international law in “a very specific and limited way” (Reuters 2020b, McClements 2020). The draft bill empowered UK ministers to unilaterally disapply certain provisions of the WA relating to the movement of goods between Northern Ireland and GB, as well as EU state aid rules that applied to Northern Ireland (Byrne Wallace 2020) By its own admission, the UK government was intent on passing legislation that violated the Northern Ireland Protocol (NIP), a legal text ratified by the UK government less than a year earlier, as part of the WA. Referring to the introduction of the draft law, a high-ranking member of the Council Working Party explained that the bill was “pretty shocking because nobody had expected this from the UK. You would expect this from Turkey. You could expect this from China or Moscow. But you will not expect this from the UK” (Council 1, Interview, March 2021). The IMB further eroded trust across the EU in the UK’s sovereign signature.

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But rather than collapsing the talks, the EU opted to address the issue by calling for an urgent meeting of the EU-UK Joint Committee responsible for the WA. Commission Vice-President Maroš Šefˇcoviˇc declared that “if the Bill were to be adopted, it would constitute an extremely serious violation of the Withdrawal Agreement and of international law” (European Commission 2020f). Yet, the EU was unwilling to let the talks collapse, as a member of TFUK explained: I think I could summarise the EU’s reaction as: We didn’t take the bait. Kind of let’s put this in the Withdrawal Agreement work stream. It’s an infringement, clearly. So let’s work on that there. Let’s not have it affect the future. And we’ll see later if you can have a future still. Let’s just continue negotiating because we’re now mid-September, we have a few more weeks trying to wrap up the future. And if, of course, by all means, the UK Internal Market Bill doesn’t go away, then we won’t conclude on the future because the Parliament won’t even let us, our Parliament … which was helpful for us … the Parliament said that they wouldn’t ratify the future if that violation stood. (Commission 7, Interview, April 2021)

For this member of TFUK, the Internal Market Bill “backfired in the sense [that] Member States said that we have to be very, very vigilant here on dispute settlement and governance and have adequate sanctions in case the UK does the same in the future later on” (Commission 7, Interview, April 2021). Another member of TFUK confirmed that the Internal Market Bill undermined trust in the UK and really reinforced the conviction of everyone on the EU side that the governance mechanism was so important [and] that you really need to have binding possibilities of going to the dispute settlement tribunal and taking action. So, I think that also really reinforced the EU view – from everyone, from the 27 – that we need to have very strong possible sanctions in this agreement. Because we see now that, indeed, there is a real risk that the commitments are not lived up to. So, it was a very, very important moment. It disturbed a lot of things, but I think at the end of the day it strengthened EU unity and it spectacularly backfired on the UK. (Commission 6, Interview, April 2021)

Therefore, the IMB served to reinforce those in the EU who wanted to legally pin down the UK. With less than three months to go before the December 31 cliff edge, the negotiations were stalled. The EU had

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moved from its maximalist positions on key UK red lines but this was not reciprocated by the UK team, which continued to stall on EU demands. There was no doubt in the EU that as the negotiations entered the final stretch the talks were “a war of nerves or a game of chicken” (Commission 3, Interview, April 2021).

Getting to Agreement: October to Christmas Eve The talks teetered on the brink of breakdown in early October as both sides demanded that the other side change track. At its meeting on 15–16 October 2020, the European Council reiterated its desire for “as close as possible” a partnership with the UK within the framework of the Union’s negotiating directives and called on the UK “to make the necessary moves to make an agreement possible” (European Council 2020). Europe’s leaders drew specific attention to the level playing field, governance and fisheries, the issues that had dominated the negotiations from the outset. On 16 October 2020, PM Johnson deployed an explicit threat of no deal in reaction to the Conclusions of the European Council, alleging that the EU had refused to negotiate seriously for much of the last few months, and given that this summit appears explicitly to rule out a Canada-style deal, I have concluded that we should get ready for January 1 with arrangements that are more like Australia’s based on simple principles of global free trade. (Reuters 2020a)

Evidence of a stand-off was reinforced when David Frost withdrew an invitation to Michel Barnier to a scheduled meeting in London on 19 October 2020. London was essentially saying that the talks were over unless the EU changed its approach. The EU responded by reiterating its wish for a deal but “not at any price” (von der Leyen 2020c). With time running out, the gap between the two sides on the most difficult issues remained as wide as ever. As it turned out, the political theatre and heightened rhetoric of midOctober was not a precursor to no deal. Instead, it set the mood for the final and critical phase of the talks. By October 22, the talks were back on track and entering the endgame. The two sides negotiated daily from 22 October to 24 December 2020. During this period, there was further political theatre and controversy but also an intensity to the talks that

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heightened the prospects of a deal. A clear indication of the endgame was the return to the negotiations of a senior member of the Von der Leyen Cabinet, Stéphanie Riso, who had played a major role in Task Force 50 in the WA talks. This signalled that the Commission President was taking the negotiations very seriously, that she wanted political oversight of what was going on and intended to provide the impetus for a deal. It also marked a second change of direction in the EU’s approach to the talks. Until then, the EU’s parallelism strategy, namely that nothing was agreed until everything was agreed, had dominated with the result that there was no jointly agreed text with just two months to the cliff edge. During the endgame, the negotiators became more discreet and there was relative silence from the two teams. The process of jointly drafting a treaty text began, a clear sign that progress was being made. According to one EU negotiator: The work has been extremely detailed and precise and technical. It involves going through the text, cleaning the text, a slow, excruciating process. It’s not the kind of thing where you can say yes we’re making huge strides. There’s been a lot of progress, and a lot of clearing the weeds. (quoted in Connelly 2020)

To add momentum to the talks, the EU decided to put everything on the table: “all our offers, what we considered for aviation, what we considered for energy, what we consider for MFF participation, what we consider for services, for goods, for rules of origin” (Commission 8, Interview, May 2021). This was a break with the principle of parallelism and was largely driven by the von der Leyen Cabinet. The EU would do everything to avoid a no-deal outcome short of giving up on its core principles. In the event of no deal, it wanted to be able to say it had tried everything and left no stone unturned. Effectively in the last weeks of the talks, the EU presented the UK with a choice: all that was on the table was within its grasp, but London had to address the EU’s difficult and controversial demands. Otherwise, there would be no agreement. By midNovember, following two weeks of intense talks, significant gaps on the big issues remained, according to the chief negotiators. The talks needed high-level political intervention. Commission President Ursula von der Leyen and UK PM Boris Johnson became more heavily involved as highlevel politics complemented the detailed technical work. A stocktaking

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phone call between the two principals on November 7 led to a commitment to redouble efforts to reach agreement, and they indicated that personal contact would be maintained as the talks evolved (RTE 2020). This did not immediately unblock the talks, but it facilitated the process and mobilised a joint search for solutions. By the end of November, despite intense engagement the core issues appeared as intractable as ever although both sides maintained that a deal was possible with one final effort. In a speech to the EP on 25 November 2020, Commission President Ursula von der Leyen declared that the talks had entered a decisive phase as time for a deal was running out. Von der Leyen was emphatic that the EU would not compromise on the integrity of the single market but was ready to be creative, her code for negotiating in problem-solving mode. She provided a reasonably detailed analysis of the sticking points in the talks. On state aid, she identified enforcement mechanisms as particularly problematic, stating “[w]e want to know what remedies are available, in case one side deviates in the future. Because trust is good, but law is better” (von der Leyen 2020a). For the Union, this involved robust governance mechanisms including robust enforcement capacity. Her assertion that “a strong governance system is essential to ensure that what has been agreed is actually done” was presented against the backdrop of the UK Internal Market Bill (von der Leyen 2020a). On fisheries, the Commission President acknowledged UK sovereignty over its waters but argued that there had to be predictability for EU fishermen who had been fishing those waters for decades, even centuries. The three issues highlighted as crucial by the EU from the outset were still on the table with just over 35 days to exit. December 2020 proved the decisive month in the negotiations as time was running out, and the choice was effectively a deal or no deal by default. The talks stalled in the first week of December when the chief negotiators issued a joint statement to the effect that the conditions for an agreement did not exist and that they would brief their principals on the state of play. Subsequently, Commission President Von der Leyen and PM Johnson steered the talks to their conclusion on 24 December. The EU was not likely to abandon the talks. Boris Johnson had to make the crucial call: deal or no deal. A phone call between the Commission President and the Prime Minister on December 5 acknowledged that there was progress in many areas but significant differences remained. Crucially, both sides stated that “no agreement is feasible” unless the issues of a level playing field, governance and fisheries were resolved (EU and UK 2020b). This

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was a decisive signal to London that it had to address the EU’s key red lines or the alternative was no deal. On 9 December, a second dinner involving President von der Leyen and Boris Johnson together with their chief negotiators and senior members of the negotiating teams concluded that a firm decision on the talks would be made by Sunday 13 December. On that date, a joint statement was issued acknowledging that the negotiating teams were working night and day to reach agreement and that both sides would go the “extra mile” to get to yes (EU and UK 2020c). Following two further weeks of non-stop talks, the EU and the UK signed the Trade and Cooperation Agreement (TCA) on 30 December, just one day before the UK’s formal exit from the Union. The substance of the agreement was finalised on Christmas Eve, 24 December 2020. The talks ended without a joint ceremony or ritual, there was no fanfare: Charles Michel and Ursula von der Leyen signed the TCA on behalf of the EU in Brussels before the text was flown to London for Boris Johnson’s signature. The three controversial issues—governance, level playing field and fisheries—went down to the last hours of the talks. In early December, the UK had begun to concede on the architecture of governance, a single overarching agreement, but governance of the level playing field provisions was challenging up to the final days because the provisions on this had to be translated into law. Clearly, agreement on the level playing field provisions was hugely controversial and inherently complicated. It was difficult because the UK effectively did not want any such provisions but this was a core red line for the EU. In the early months of the negotiations, the EU’s mandate and its published text were clear about the need for tools and instruments especially in relation to subsidies and non-regression because of a pervasive fear of unfair competition, given the UK’s determination to diverge. The original EU demand for dynamic alignment and a specific role for the Court of Justice set a high bar for agreement. For its part, the UK argued that the EU demand was unprecedented and unacceptable. For the UK, the level playing field demands were “too linked to EU rules, too linked to EU concepts, EU constructs” (Commission 1, Interview, May 2021). Following the June high-level meeting, the EU began to reflect on what it was trying to achieve and what its bottom line should be. Towards the end of the negotiations, the Commission established a small working group involving the President’s cabinet, DG Trade, DG Competition and the TFUK to analyse two key issues: (a) how to ensure a balance of rights and obligations if dynamic alignment was not possible and (b) what redress

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and enforcement mechanisms could be put in place to address unfair competition. In essence, the EU wanted some proper subsidy control, as close as possible to the rules that we have currently in the EU. Also going much beyond what is going on at the WTO level. And not only disciplines on the granting of subsidies, but also some enforcement mechanisms, in the UK and under the agreement, that would allow us to react, or stakeholders to react, in the case that subsidy is granted against our principles and this is causing injury to EU industry. (Commission 1, Interview May 2021)

Redress came in the form of unilateral rebalancing measures that either side could take before having to go to a formal tribunal. Moreover, the UK had to commit to having a structure in place to enforce state aid principles and rules. In addition, there was a provision obliging courts to recover illegal state aid in their respective jurisdictions. On regulation, the TCA provisions, both substantively and institutionally, went far beyond other free trade agreements that the EU had with third parties. Although the EU was ultimately willing to compromise on dynamic alignment and the CJEU, it fashioned a novel, experimental and innovative system that met its key requirements, and the UK was forced to move far beyond its opening position on this highly controversial set of issues. Concerning regulation in areas such as the environment and climate, and social and labour protection the parties agreed not to reduce standards (non-regression) below those pertaining at the end of the transition period. Both sides committed to effective enforcement and redress mechanisms. The agreed system was not co-designed with the UK. Instead, the EU was creative in search of a solution which the UK in the end could not refuse. If it did, the EU was prepared to run the clock down to no deal. Fish proved the other defining issue in the endgame even though the fishing industry represents a miniscule part of the EU and UK economies. The reason was that fisheries was a politically charged issue for both sides. For the EU’s eight North-Western costal states, it was inconceivable that an agreement would be reached that would exclude fish, and any agreement needed to give certainty to the EU’s fishing fleets. These states were closely involved as the endgame played out as they needed to agree to the ultimate compromise. Equally for the UK, it was a politically difficult issue bound up with the rhetoric of the UK regaining its independent status as

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a costal state. The Union’s opening demands were maximalist and unrealistic but so too was the UK demand for annual negotiations on access to its waters. Here the EU essentially used its market power to crudely say to the UK that without a deal on fish there was no privileged market access. Fish was not part of other trade deals but was essential to the EU for an overall agreement. From PM Johnson’s perspective, he needed a break point whereby the UK could negotiate with the EU annually about access. The agreed deal is that the EU returned 25 per cent of the quota in UK waters it had under the common fisheries policy to the UK and the system moves to annual negotiations after 2025. However, the EU regards 25 per cent as its final offer and any attempt to further reduce access is unacceptable to the EU. The EU retains the right and determination to impose conditions on access to its market, to effectively deploy its market power. Thus, while the UK held out until the last conceivable moment to move on the EU red lines, PM Boris Johnson was ultimately unwilling to opt for WTO trading conditions with its largest and nearest neighbours. Figure 8.1 summarises the form and content of the TCA.

Conclusions An agreed outcome to the negotiations was a major achievement given the speed with which the talks were conducted and, more importantly, Trade and Cooperation Agreement Trade, economic, social, environmental & fisheries Free, fair & sustainable trade Trade in goods, incl. customs & regulatory cooperation Services & investment Digital trade, intellectual property & public procurement Rules for fair competition and sustainability (Level Playing Field)

Connectivity, sustainability & shared opportunities Transport Energy Fisheries & natural resources Social security coordination Union programmes Thematic cooperation

Citizens’ security Law enforcement & judicial cooperation in criminal matters Protection of fundamental rights & personal data Data exchange Anti-money laundering

Governance Partnership Council and specialized committees Dispute settlement, enforcement & sanctions mechanisms Periodic reviews

Fig. 8.1 Summary of the trade and cooperation agreement (Based on European Commission [2020a])

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the clash of world views that permeated the talks. The EU did not want a no-deal outcome and was willing to accommodate UK red lines from June onwards. However, it was never willing to forgo its key priorities. It became creative and innovative in relation to a core red line, the level playing field, and used its market power to ensure that it got an outcome on fish that it could live with. The UK for its part ensured that, symbolically at least, it protected its sovereigntist red lines. It did so at the cost of its economy which was never the dominant calculus for the Johnson government during these talks. It quickly gave up on most of its demands on services and the deal was more in tune with the EU’s goods-heavy economy than with the UK’s service economy. Ultimately, PM Johnson opted for a thin deal, albeit one with no tariffs or quotas, rather than risk the chaos of a no-deal exit. In his remarks at the historic 24 December 2020 press conference, Michel Barnier concluded that “the clock is no longer ticking” (Barnier 2021: 401). That particular figure of speech had reached its resting place. However, the agreement was but the beginning of the UK’s conflictual and complicated post-Brexit relationship with the EU, which will be discussed in the next chapter.

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von der Leyen, U. 2020c. Tweet. EU-UK talks: the EU continues to work for a deal, but not at any price. Available at https://twitter.com/vonderleyen/sta tus/1317067827518574593. Accessed 26 October 2022. Reuters. 2020a. Factbox: British Prime Minister Boris Johnson’s statement on Brexit talks. Available at https://www.reuters.com/article/us-britain-eu-joh nson-quotes-factbox-idCAKBN2711M2. Accessed 26 October 2022. Reuters. 2020b. UK bill will break international law ‘in limited way,’ minister says. Available at https://www.reuters.com/article/us-britain-eu-lewis-lawidINKBN25Z1ZS. Accessed 26 October 2022. RTE. 2020. Johnson, Von der Leyen agree to ‘redouble efforts’ to reach deal. Available at https://www.rte.ie/news/brexit/2020/1107/1176566-brexit/. Accessed 26 October 2022. UK Parliament. 2020. United Kingdom Internal Market Act 2020. Available at https://bills.parliament.uk/bills/2775/stages. Accessed 26 October 2022. Usherwood, S. 2021. Our European friends and partners? Negotiating the trade and cooperation agreement. Journal of Common Market Studies 59: 115–123. https://doi.org/10.1111/jcms.13238.

CHAPTER 9

Brexit Is Far from Done: Implementation of the Agreements

Introduction The Withdrawal Agreement (WA) and the Trade and Cooperation Agreement (TCA) constitute the legal scaffolding of the post-exit EU-UK relationship.1 The WA brought 47 years of UK membership in the EU to an end on 31 January 2020. After a brief transition period, the TCA replaced the deep and wide-ranging membership relations with much loser arrangements on 1 January 2021. While the new framework represented a seismic change in the binding networks between the UK and its near neighbours, negotiating and ratifying the treaties was just the beginning of a new and different phase of Brexit. That new phase would require continual engagement to manage the relationship and flesh out the treaties (Cooley and Spruyt 2009). Agreements must be interpreted and transformed into a living system, and parts of the WA are intended to last for a very long time. All agreements have a dynamic potential and may evolve over time in a multiplicity of ways. Treaties may be built on to achieve deeper cooperation but may also be characterised by conflict

1 The WA and TCA are complemented by an agreement covering cooperation on the safe and peaceful use of nuclear energy, known as the EU-UK Civil Nuclear Agreement and an EU-UK Security of Information Agreement to enable the exchanged of classified information between the two parties.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 B. Laffan and S. Telle, The EU’s Response to Brexit, Palgrave Studies in European Union Politics, https://doi.org/10.1007/978-3-031-26263-0_9

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requiring dispute resolution. By the time, the TCA was agreed the dominant feeling on the EU side was one of weariness with the Brexit saga and a pervasive lack of trust in the UK as a reliable partner. The implementation of the WA began as the TCA was still being negotiated, thereby creating an implementation-negotiation overlap. Following ratification of the TCA, both treaties moved to implementation mode. The new arrangements replaced the UK’s active and equal participation in EU decision-making with a much thinner institutional relationship, with the UK as a third country. From the perspective of the EU, the WA and TCA were two pillars of one overarching framework to manage the relationship. They were therefore conceptualised as one package, not separate agreements that might be unpacked and unpicked. This overall framework was designed to manage and monitor the implementation of the treaties in addition to dispute resolution mechanisms to address differences between the parties. The institutional design followed the precedent of the EU’s other international treaties, but also deviated in some specific ways. EU-third country agreements are characterised by joint institutions, which are usually chaired on the EU side by the Commission, with its technical expertise acting as a filter for member state interests and concerns (Gastinger and Dür 2021). The Brexit agreements provided parallel institutional arrangements involving both a political and an official layer. In addition, the TCA committee structure is much broader than that of other EU free trade agreements because the Brexit deal went beyond a classical trade agreement to include areas such as energy, fisheries and a level playing field. What makes governance of the Brexit agreements unique is that the institutions must manage a weakening, not a strengthening, of the ties binding the sides. It must cope with divergence, the UK’s stated aim. Philip Rycroft, former permanent secretary of the DExEU, was at pains to make this fundamental point to the EU Scrutiny Committee of the House of Commons, saying “this deal was done about establishing a more distant relationship than the one that the two parties had hitherto, so this takes us into unique territory. I am not aware of anything similar in previous trade arrangements around the world” (Rycroft 2021). The management of divergence may well test the robustness of the institutional arrangements over time. In this context, the political environment in the EU, but most particularly in the UK, matters greatly. Much will depend on the individuals who populate this institutional framework. Jonathan Faull, a former senior Commission official, concluded in evidence to the

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House of Commons that the institutions will be “as good, and will be as successful, as the people who belong to those bodies and the instructions they receive from their superiors turn out to be” (Faull 2021). The EU prepared for the post-membership relationship by transforming the TFUK into a Service for EU-UK relations in the Secretariat General as part of its presidential services. The Commission sought horizontal oversight of the relationship rather than a decentralised approach dominated by the Directorates General (DGs). Secretary General of the Commission, Ilze Juhansone, issued a note in November 2022 specifying that requests for bilateral meetings by UK officials or stakeholders should be notified to the Secretariat General and should only be held if legally mandated arising from the agreements cited above or relating to the war in Ukraine (Fox 2022). The EU appears determined to manage the relationship in a highly centralised manner rather than allowing the UK to engage sector by sector. This chapter explores the issues that confront the agreements as living legal documents. More than two years after agreement on the TCA, UK-EU relations are not characterised by a stable modus vivendi, and implementation is taking place in a low trust environment, lacking good will. This is almost entirely—although not exclusively—because of the continuing controversy over the implementation of the Northern Ireland Protocol (NIP), a major barrier to normalising relations between the UK and its near neighbours. Major implementation deficits of international treaties are exceptional in relations between advanced industrialised countries, which highlights the continuing struggle to arrive at a new modus vivendi in the relations between the UK and the EU.

Implementing the Withdrawal Agreement Institutional Framework The institutional framework of the EU’s relations with third countries is very thin in comparison with the intensity of institutional engagement that characterises membership. EU-UK relations are no exception to this pattern. The Withdrawal Agreement (WA) made provision for the establishment of a set of formal bodies to oversee the management and monitoring of the agreement (see Fig. 9.1). The provisions include a political level with a Joint Committee (JC) at the apex, co-chaired by a senior UK Minister and a Commissioner, although there is provision

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for high-ranking officials to act as alternatives. According to Article 164 WA, the role of the JC is to facilitate the implementation of the WA and to seek “appropriate ways and methods of preventing problems” in the implementation of the WA (EU and UK 2019a). The JC exercises multiple and significant roles in implementation and is the highest political forum for dialogue and consultation between the two parties. Under Article 166 WA, the JC may make binding decisions or issue recommendations “by mutual consent.” It decides on and oversees the work of the six Specialised Committees and has a designated role in dispute resolution. The work of the JC is supported by a secretariat of officials drawn from the administrations of both parties. Since the first meeting of the JC in March 2021, the EU has been represented by a senior Commission Vice President, Maroš Šefˇcoviˇc. By late 2022, Vice President Šefˇcoviˇc has had four different UK interlocuters, the UK Chancellor of the Duchy of Lancaster, the Rt. Hon. Michael Gove (from March 2020), Lord David Frost, who was the UK’s Chief negotiator on the TCA (from February 2021), followed by the Rt. Hon. Elizabeth Truss, Secretary of State for Foreign, Commonwealth and Development Affairs from December 2021 following Lord Frost’s resignation from Cabinet. In turn, Liz Truss was replaced as Foreign Secretary by the Rt. Hon. James Cleverly MP when she became Prime Minister for just 44 days on 6 September 2022. James Cleverly retained the role of Foreign Secretary under Rishi Sunak, who replaced PM Truss on 25 October. The retention of James Cleverly, who is the EU’s main interlocutor, offered some stability amidst the chaos of British politics. The rules of procedure designed to facilitate the work of the JC and its Specialised Committees are found in Annex VIII of the WA. Provision was made for at least one meeting a year, but a meeting may be called at the request of one or other party to the agreement at any time. There is provision for the adoption of decisions or recommendations by written procedure between JC meetings. The member states may and do join meetings of the JC and its Specialised Committees, which is facilitated by the fact that they are held in hybrid form. The JC has met nine times since the ratification of the agreement, six times in 2020, twice in 2021 and only once in 2022. The decreasing frequency of meetings, with a single meeting in 2022, arguably reflects the deterioration in EU-UK relations since 2020 (European Commission 2022b). The official or technical layer consists of six Specialised Committees (SCs) covering discrete

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Joint Committee Specialized Committee on the Protocol on Cyprus

Specialized Committee on other separation issues

Specialized Committee on the Protocol on Ireland / Northern Ireland

Specialized Committee on Financial Provisions

Specialized Committee on the Protocol on Gibraltar

Specialized Committee on Citizens’ Rights

YEAR

Meetings

Meetings

Meetings

Meetings

Meetings

Meetings

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2

5

2

2

4

2021

-

-

4

2

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-

1

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-

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Fig. 9.1 The institutional set-up of the Withdrawal Agreement (Based on European Commission [2022b]. Updated 13 December 2022)

areas of the WA that report directly to the JC. The Specialised Committees are in the areas of Citizens’ Rights, Other Separation Issues, the NIP, Cyprus, Gibraltar and Financial Provisions. The Committees have no decision-making power but may send draft decisions or recommendations to the JC for its consideration. The parties to the agreement commit to sending officials with appropriate expertise to the meetings. In line with the JC, the Specialised Committees are co-chaired and should meet at least once a year, with the possibility of additional meetings at the request of either party. By December 2022, the SCs have met 34 times with very different tempos. The two busiest committees are the Citizens’ Rights Committee (eleven meetings) and the one on the NIP (ten meetings). The Committee on Financial Provisions had met six times. The remaining committees have met four times or fewer. Hence, in terms of the intensity of coordination, the three core issues in the WA negotiations—citizens’ rights, the financial settlement and the Irish border—continue to receive the greatest attention. As with the JC meetings, the intensity of engagement in the SCs declined from eighteen meetings in 2020, to eleven in 2021 and seven by December 2022 (see Fig. 9.1).

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Dispute Resolution Mechanisms International treaties usually contain mechanisms to address disagreements between the parties on the interpretation or implementation of the legal text because compliance and enforcement are central to implementation. The WA has special features in that it obliges the UK to observe European law, particularly under the NIP. There are two ways to address conflicts: Dispute Resolution in the WA is characterised by consultation and arbitration (EU and UK 2019a, Part 6). The Commission also has the right to use its standard compliance procedure, infringement proceedings , in relation to those areas of the WA that involve compliance with European law in certain circumstances and within certain timeframes. The dispute resolution procedure begins when one of the parties raises an issue in the JC (see Fig. 9.2). The WA commits both parties to entering “into consultations in good faith, with the aim of reaching a mutually agreed solution” (EU and UK 2019a, Article 169 WA). This indicates a desire to resolve disagreements at the earliest possible moment. If the parties fail to agree at the political level, they enter a binding arbitration process that is buttressed by remedies for non-compliance with the outcome of an arbitration panel (Articles 170–181 WA). Either party can request the establishment of an arbitration panel if the matter has not been resolved by the JC within three months. The WA makes provision for membership of the arbitration panel with a strong emphasis on the independence of members (Article 181 WA). Each side nominates ten members and they jointly nominate a further five who may act as chair of such a panel. A panel should be established within 15 days and it consists of two members from each of the lists submitted by each party and a chair selected from the jointly agreed list. If the establishment of a panel or the choice of chair proves difficult, the International Bureau of the Permanent Court of Arbitration (PCA), an international organisation, may step in. Therefore, the pathway to arbitration cannot be blocked if political consultation fails to resolve an issue. On 22 December 2020, the Joint Committee established “a list of 25 persons who are willing and able to serve as members of an arbitration panel under the Agreement” (Decision No. 7/2020, WA Joint Committee 2020a). WA provisions govern the working of an arbitration panel. The panel must give a ruling within a year of being established and if it fails the Chair must inform both sides in writing and explain why it was not possible to achieve an outcome (Article 173 WA). Either party may argue that the

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Dispute arises YES

Does the consultation in JC finds mutually agreed solution? NO

Either party can request an arbitration panel

Is the dispute question of EU law?

YES

EUCJ rules

NO

NO

Does arbitration panel rule that a breach of WA has occured? NO

Dispute Resolved

Parties agree timeline for compliance, if unable arbitration panel decides

YES

Does complaintant believe the respondent has complied with timeline? NO

Complaintant asks arbitration panel for ruling on timely compliance YES

Does arbitration panel find that respondent complied with timeline? NO

Complaintant asks arbitration panel to impose financial penalty

NO

Does respondent fail to pay penalty in timely fashion? YES

Complaintant can suspend own obligations under WA

Respondent can ask arbiration panel to assess proportionality

Does the arbiration panel find that respondent has complied?

NO

Complaintant's measures remain

YES

Complaintant obliged to end suspending obligations and financial penalites

Fig. 9.2 Dispute settlement under the Withdrawal Agreement (Based on Institute for Government [2021])

issue is urgent and in that case the panel will strive to reach an outcome within six months. A panel must make every effort to reach a ruling by consensus but if this is not possible a majority vote will suffice. A panel ruling will set out the reasoning behind the decision and the outcome is binding on both sides (Article 175 WA). Unlike the TCA, implementation of the WA takes place within the shadow of the Court of Justice of

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the European Union (CJEU). The arbitration panel must refer matters of European law to the CJEU and the Court’s ruling is binding on the panel. Either the UK or the EU may submit a request to the panel if it thinks that interpretation of European law is at issue. The WA establishes the conditions under which remedies may be acted on and terminated. It provides a range of remedies if a panel finds that a party to the agreement has not complied with the ruling within a reasonable timeframe. The remedies begin with a financial penalty and if this is not complied with the other party may temporarily suspend parts of the WA, except Citizens’ Rights, or parts of any other agreement between the EU and the UK within the terms of the WA. The latter is very powerful as it ties compliance with the WA into the TCA. Suffice to say that the dispute resolution mechanism of the WA is robust. Arbitration is not, however, the only avenue open in the event of conflict. The second route to resolving disputes under the WA relates to infringement proceedings by the Commission and/or a member state under Article 258 of the Treaty on the Functioning of the EU (see Fig. 9.3). A distinction must be made between infringement proceedings during the transition period that ended on 31 December 2020 and the role of the CJEU in the WA after the transition period. The Commission initiated infringement proceedings against the UK on 1 October 2020 during the transition period for alleged breaches of the WA in relation to the UK’s stated intention to introduce an “Internal Market Bill” which would unilaterally have suspended aspects of the NIP (European Commission 2020e). This infringement proceeding was later withdrawn when the EU and the UK reached agreement on temporary measures to implement the NIP. In March 2021, the Commission launched a second infringement proceeding when the UK unilaterally declared that it would delay the application of the NIP regarding the movement of goods and pet travel (European Commission 2021g). In October 2021, the Commission proposed a package of solutions and halted that infringement proceeding to allow the UK to engage with the proposed measures. However, on 15 June 2022, the EU relaunched the infringement proceedings against the UK due to an alleged lack of engagement by the UK (European Commission 2022a). In parallel, the Commission launched two further infringement proceedings relating to the UK’s alleged failure to comply with its obligations concerning EU sanitary and phytosanitary rules, and for failing to provide the EU with trade statistics regarding Northern Ireland. A month later on 22 July

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Commission identifies potential infringement of EU law

UK decides whether to reply

YES

Does the Commission judge the infringement to be resolved? NO

Commission formally requests information from UK

Infringement resolved

UK has 2 month to respond

NO

Does Commission still judge UK to infringe on EU law? YES

Commission issues a formal request to comply

YES

Does UK comply? NO

Commission can refer dispute to EUCJ

EUCJ has 18 months to respond. Commission can ask to fast-track. Commission can as UK to take interim measures. NO

Does EUCJ rule against UK? YES

Ruling is binding on UK under international law YES

Does UK comply? NO

Commission can ask EUCJ to put financial penalties on UK

Fig. 9.3 Infringement proceedings under the Withdrawal Agreement (Based on Institute for Government [2021])

2022, the Commission launched four more infringement proceedings, all relating to failures of the UK to comply with the NIP (European Commission 2022d). Specifically, the EU accused the UK of having failed to comply with the applicable customs requirements, supervision requirements and risk controls on the movement of goods from Northern

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Ireland to Great Britain; having failed to notify the transposition of EU legislation laying down general EU rules on excise duties; having failed to notify the transposition of EU rules on excise duties on alcohol and alcoholic beverages; and having failed to implement EU rules on Value Added Tax (VAT) for e-commerce, namely the Import One-Stop Shop (IOSS). The UK responded to the legal action taken by the EU on 15 September 2022, the last date by which a response was required under EU infringement procedures. But the contents of the UK’s response were not public as the Commission decided on next steps (Connelly 2022a). Given the relaunching of technical talks around the protocol, the Commission is likely to take its time before launching the next phase of the process. The WA also made provision for a continuing role of the CJEU after the transition period ended. Regarding citizens’ rights, UK courts may make references to the CJEU regarding the interpretation of the WA for a period of up to 8 years following the end of the transition phase (Article 158 WA). UK courts are required to comply with the Court’s interpretation. On financial provisions, the CJEU will continue to make rulings on this aspect of the WA in relation to the Union’s own resources and the 2014–2020 Multiannual Financial Framework (MFF). The reach of Union law and the CJEU is particularly significant in relation to the NIP because it effectively keeps Northern Ireland within the single market for goods. Multiple articles in the NIP relating to exchange of information, customs and movement of goods, electricity markets, VAT and excise law and state aid law make provision for the continuing application of Union law (EU and UK 2019b, Articles 7–10). All matters relating to these areas covered by the NIP are subject to the interpretation of the CJEU and its case law. UK courts may seek preliminary rulings concerning the fields covered by the NIP in the same way that the courts of a member state can. The wide scope of the NIP and its embeddedness in European law and jurisprudence separate it from the other parts of the WA and is a major source of controversy concerning the protocol. Transforming the WA into a Living Framework The Joint Committee: Rising Political Tensions The Joint Committee (JC) held its first meeting on 30 March 2020, when Vice President Maroš Šefˇcoviˇc and UK Chancellor of the Duchy of Lancaster, the Rt. Hon. Michael Gove, launched the work of the JC

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and its Specialised Committees. Apart from the tasks and responsibilities of the committees, the other substantive agenda item was an update on the implementation of the WA in two areas: Citizens’ Rights and the NIP. These two issues continued to dominate JC agendas thereafter. The agendas followed a similar format with each JC meeting beginning with a stocktake of the work of the SCs followed by substantive discussion of the implementation of the WA, especially relating to problematic issues (EU and UK 2022a). The JC has not developed a routine practice of issuing joint statements following meetings. Instead, the Commission issues its own statement after each meeting highlighting EU concerns. This is a continuation of the transparency impulse that evolved during the negotiations. From the outset, the Commission placed considerable emphasis on implementation. After the first JC meeting, it emphasised that a “new partnership can only be built on the faithful and effective implementation of the Withdrawal Agreement” and that the “detailed legal obligations of both parties are clearly set out in the Withdrawal Agreement, which entered into force on 1 February 2020” (European Commission 2020c). The second meeting on 12 June 2020 was attended by Michel Barnier, the chief negotiator and representatives of 15 member states. Michel Barnier was keen to draw attention to the link between the WA and the future relationship that was in the process of negotiation. The main focus of this meeting was on implementation of the NIP. The Commission statement welcomed the publication in May 2020 of the UK Command Paper on the UK’s approach to fulfilling its obligations under the protocol. However, the Commission was quick to point out that the Command Paper lacked operational detail and was inadequate as a pathway to implementation (European Commission 2020d). Relations between the UK and the EU deteriorated dramatically when the UK published a draft UK Internal Market Bill on 9 September 2020 (see Chapter 8). The growing tension between London, Brussels and Dublin was palpable. The EU responded immediately requesting an extraordinary meeting of the JC, which was held on 10 September, a day after the publication of the bill. Commission VP Šefˇcoviˇc underlined that if the bill were to pass it would represent an “an extremely serious violation of the Withdrawal Agreement and of international law” and that by proposing the bill the UK had seriously damaged trust between the EU and the UK (European Commission 2020b). By raising the stakes for all parties, the publication of the bill marked a decisive shift in the

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dynamics of implementation. And while the bill did not derail the TCA negotiations, it did reinforce a conviction in the EU that robust dispute resolution mechanisms were absolutely essential (see the section on TCA dispute resolution below). With the end of the transition period looming in December, the JC reverted to its usual status for a third meeting on 28 September 2020. The meeting took stock of the work of the SCs and discussed all facets of the WA. The next two meetings on 19 October and 17 December focused on bridging the implementation gaps that had to be resolved before the transition period ended. The Commission statement following the October meeting spoke of a need to move beyond “business as usual” and to increase the intensity of engagement (European Commission 2020c). A high-level meeting held on 8 December 2020 between the two chairs of the JC, Vice President Maroš Šefˇcoviˇc and the Michael Gove, appeared to repair relations and temporarily take the heat out of the NIP. The meeting led to the first joint statement by the two sides. Agreement in principle was reached in relation to implementation of the NIP in the following areas: Border Control Posts/Entry Points specifically for checks on animals, plants and derived products, export declarations, the supply of medicines, the supply of chilled meats, and other food products to supermarkets, and a clarification on the application of State aid under the terms of the Protocol. (EU and UK 2020a)

As a result, the UK pledged to remove the controversial Articles 44, 45 and 47 of the Internal Markets Bill (EU and UK 2020a). The agreement in principle between the two sides was translated into decisions at a JC meeting on 18 December 2020, which was the first (and so far only) meeting of which the minutes were published. The Committee took six decisions at the December meeting (WA Joint Committee 2020b). This encounter was hailed as an important milestone by VP Šefˇcoviˇc and marked a high point in using the JC to work through the complicated and contentious issues relating to the NIP. The two sides agreed that the JC would meet “at least quarterly” in 2021 to oversee the implementation of the WA (European Commission 2020a; WA Joint Committee 2020b). But only two meetings were held in 2021, which suggests that tensions reappeared in the relationship.

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The achievements of December 2020 were almost undone on 29 January 2021. The EU Commission came close to suspending parts of the NIP by invoking Article 16 NIP on safeguard measures because of fears that the limited EU vaccine stocks would leak over the border. The use of Article 16 NIP was considered as the Commission, and especially President von der Leyen’s cabinet, struggled to manage the fallout from the COVID-19 pandemic. The reaction by the Irish Government, the Northern Ireland First Minister, Arlene Foster, and the London Government—in an unusual show of unity—was swift and the Commission rowed back within hours. The Irish Taoiseach, Micheál Martin, intervened directly with President von der Leyen to ensure that she understood the implications of what was being considered. Neither Maroš Šefˇcoviˇc, responsible for the implementation of the agreement, nor Michel Barnier, who was still in the Commission, were consulted. And the Dublin Government was completely blindsided. The situation was quickly rectified but it left a legacy that was difficult to overcome. It afforded those who opposed the NIP with political ammunition and Lord Frost referred to the Commission’s actions whenever the question of the UK invoking safeguards under Article 16 arose. In an effort to calm the situation, on 3 February 2021 the EU and the UK jointly met with the First Minister and Deputy First Minister of Northern Ireland concerning the NIP. This was followed on 11 February by a high-level bilateral meeting between Maroš Šefˇcoviˇc and Michael Gove with a specific focus on the NIP. Both parties were seeking a solution. They reached sufficient agreement to issue a joint statement and pledged to spare no effort in implementing the December agreements, in intensifying the work of the Specialised Committee on the NIP and in increasing joint engagement with civil society and business groups in Northern Ireland. A commitment to the “shared objective to find workable solutions on the ground” and to work in a “spirit of collaboration, responsibility and pragmatism” was signalled in the Joint Statement (WA Joint Committee 2021). Lord Frost, the UK’s Chief Negotiator, took over responsibility for the JC and the TCA’s Partnership Council on 18 February 2021, when he was appointed to the Cabinet to oversee UK-EU relations. Having negotiated Boris Johnson’s WA and the TCA, Lord Frost had deep knowledge of the agreements but his strong sovereigntist posture during the future relationship negotiations was not forgotten in Brussels. In practice, Lord Frost co-chaired only one meeting of the JC, on 9 June 2021, because

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the tempo of meetings faltered. It is evident from the Commission’s statement following that meeting that conflict surrounding the implementation of the NIP had not abated. The Commission used strong language to assert that there was “no alternative to the Protocol” and that its “full implementation” was “a priority for the EU” which would “not accept anything less from our UK partners” (European Commission 2021c). The statement went on to say: The European Commission remains open to exploring technical solutions provided that the UK government commits to the full implementation of the Protocol and demonstrates this through concrete action. The UK has now to make a choice between fulfilling its legal obligations and genuinely engaging with the EU or continuing along its less than constructive path regarding the implementation of the Protocol.

Lord Frost remained in the Johnson Government until December 2021 when he resigned unexpectedly and his responsibilities in the JC were taken over by Foreign Secretary Liz Truss. The ninth JC meeting on 21 February 2022 produced a joint statement, which is a good indicator of the level of shared understanding that had been achieved. The conclusion on citizens’ rights was that the agreement was being implemented satisfactorily notwithstanding a number of outstanding issues (WA Joint Committee 2022). Later in 2022, however, the Independent Monitoring Authority (IMA) set-up in the UK as part of the WA to protect the rights of EU citizens in the UK issued proceedings against the UK Home office on the ground that 2.6 million EU citizens were at risk of losing their rights and might face deportation because of the alleged unlawful interpretation of the WA by the Home Office. The UK High Court had granted the IMA the right to judicial review of Home Office rules (O’Carroll 2022a). In late December 2022, the high court ruled that the Home Office rules were indeed unlawful (O’Carroll 2022b). On the NIP, the two parties shared a commitment to finding durable solutions to the outstanding issues. This was to prove extremely difficult, and no further meetings of the JC were held in 2022. The Specialised Committees The Specialised Committees (SCs) were designed to engage in detailed technical work on implementation under the guidance of the JC. The intensity of engagement within the SCs since the WA came into operation

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is a useful indicator of the level of technical and or political difficulty of implementation. As Fig. 9.1 shows, the intensity of coordination varied across the SCs but generally declined over time. The SCs on citizens’ rights, the financial settlement and the Irish border met more regularly than those on Gibraltar, Cyprus and other Separation Issues. The Committee on Other Separation Issues, a catch-all committee to deal with a range of miscellaneous topics, met twice in 2020 and not at all since then. The Committee was responsible for Part Three of the WA relating to issues that were to be addressed after the transition period ended to ensure an “orderly winding down” of ongoing issues at that time (SC Other Separation Issues 2020a). The discussions were constructive and further meetings would be held if necessary (SC Other Separation Issues 2020b). No such meeting was convened, which indicates that the miscellaneous basket of issues has been dealt with. The Specialised Committee on the UK’s Sovereign Bases in Cyprus met three times in the immediate aftermath of the ratification of the WA in 2020. The SC did not meet subsequently, largely because there was a smooth transition following the end of the transition phase. The Specialised Committee on the Implementation of the protocol on Gibraltar met twice in 2020 and once in 2021. There have been no meetings in 2022. The Committee is responsible for ensuring that the provisions of the protocol on Gibraltar are implemented. It is co-chaired by the UK and the Commission, and especially Spain participated in the meetings as a member of the EU delegation, which underlines the sensitivity of the Gibraltar question for Spain. The protocol is embedded in four Memoranda of Understanding between Spain and the UK. These memoranda made provision for coordinating committees in discrete fields, such as citizens’ rights, environment, police and customs cooperation and fiscal matters. The committees act as forums for regular dialogue and to address matters that arise on the ground. For example, the EU was concerned about the traceability of tobacco products in Gibraltar at the third meeting of the committee and stated that from the EU perspective, the UK had failed to meet its obligations in this regard (SC on Gibraltar 2021). The EU was, as always, attentive to protecting the single market and the EU budget. The SC on Gibraltar worked as an EU scaffolding for the coordinating committees established as part of the memoranda between the UK and Spain. The remaining three Specialised Committees—Financial Provisions, Citizens’ Rights and the NIP—addressed far weightier issues. A further distinction may be drawn between the committee on the NIP and the

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other two. The committees on Citizens’ Rights and Financial Provisions addressed complicated technical issues but were not the subject of major political controversy as was the case of the NIP. The Committee on Financial Provisions met six times until late 2022 to oversee the implementation of Part V of the WA on the UK’s net liability to the EU. In statements issued after the joint meetings, both sides reiterated their commitment to meeting their legal obligations and there were repeated references to “positive engagement” and “positive progress” (SC on Financial Provisions 2022). By September 2022, two cycles of assessing the UK’s obligations and subsequent payments were completed. Thus, budgetary obligations, which were once foreseen to be a major contentious issue between the EU and UK, proved to be much more manageable than other more contentious matters. It appears that once an agreed methodology was arrived at in the negotiations in late 2017 (see Chapter 6), the sting was taken out of the budgetary question. The Specialised Committee on Citizens’ Rights met eleven times between the entry into force of the WA and late 2022. Citizens’ rights are a delicate and sensitive area as it influences the lives of millions of EU nationals in the UK and UK nationals in the EU. From the outset, both parties maintained a shared objective of ensuring that the WA provisions were carried out in a timely and correct manner to give certainty to all those individuals and families who found themselves operating in a new legal environment. Representatives of some member states and the UK’s Independent Monitoring Authority (IMA) for Citizens’ Rights participated in the meetings. In addition, representatives from civil society organisations, such as “British in Europe” and “the3million,” attended a number of meetings and raised issues concerning the application of certain provisions in the WA. In the first three years of implementation, this committee dealt with technical issues such as residency systems, dual nationality and citizens that find themselves in triangular situations involving the UK, EU and EFTA, social security coordination, frontier work and health care. Both the EU and the UK identified difficulties experienced by their citizens in responding to the new legal landscape. A recurrent issue for the EU was the compatibility of the UK settlement scheme with the WA. Two aspects of the UK’s implementation were problematic for the EU. First was the issue of legal clarity for EU citizens who hold the new UK residency status. It was not clear if their rights were guaranteed by the WA or by UK immigration policy. The second aspect was the loss of residence status if EU citizens did not apply for

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pre-settled status before settled status. For its part, the UK raised issues concerning difficulties experienced by its nationals seeking access to benefits and services. Across the EU member states, there were two different systems in operation, known as declaratory and constitutive. In constitutive systems, UK nationals had to proactively apply for residence. The UK wanted the Commission to adopt a more active stance in monitoring how individual member states were applying the WA (SC on Citizens 2022). Although this committee addressed complex issues, both sides were committed to implementing the agreement and to addressing differences regarding the application of the WA. Yet, the IMA case against the UK Home Office (see above) demonstrates that significant implementation challenges remain. This is even more the case regarding the NIP. The Specialised Committee on the NIP met five times in 2020, four times in 2021 and only once in 2022. Unlike the committees on financial provisions and citizens, discussions in the Specialised Committee on the NIP were politically far more contentious. The electorate in Northern Ireland did not vote in favour of Brexit and the UK’s exit from the EU had more profound consequences for that part of the UK than for any other. Therefore, the NIP polarised opinion within Northern Ireland. Implementing the protocol was challenging both politically and technically (Hayward and Komarova 2022). In the political arena, the influential Democratic Unionist Party (DUP) staunchly opposed the NIP. In September 2021, the DUP was joined by the three other unionist parties (UUP, TUV and PUP) in signing a declaration which underlined their “opposition to the Northern Ireland Protocol, its mechanisms and structures” and reaffirmed their “unalterable position that the protocol must be rejected and replaced by arrangements which fully respect Northern Ireland’s position as a constituent and integral part of the UK” (O’Carroll 2021). On 3 February 2022, the DUP First Minister resigned in protest against the NIP, thus bringing down the government of Northern Ireland. In the aftermath of the May 2022 Northern Ireland Assembly elections, the DUP refused to nominate a Deputy First Minister until London took decisive action on the protocol. The degree of polarisation associated with the NIP made a resolution very difficult and this in turn poisoned relations within Northern Ireland and between the EU and the UK. That said, there was intense engagement within the Specialised Committee.

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For the EU, the SC meetings were intended to facilitate full implementation of the NIP by 1 January 2021. The EU began by asking the UK to come up with implementation plans and “tangible measures” while emphasising the time pressure and the need for intense technical engagement (SC on NIP 2020c, d). By October 2020, the EU was signalling that “significant gaps” remained and that it was seriously concerned that border controls would not be operational from 1 January 2021, the end of the transition period (SC on NIP 2020b). Concern was also expressed about the right of EU representatives to be present on the ground when the UK carried out checks. In the fourth meeting in November 2020, the EU began to specify a wide range of implementation issues, including VAT, customs and sanitary and phytosanitary standards (SPS) (SC on NIP 2020a). The Commission did not issue statements following the meetings of 17 December 2020 and 23 February 2021 because this was a period of active engagement between the two sides as they sought and achieved temporary fixes to address the challenges of implementation. The seventh meeting on 28 March 2021 followed the EU’s decision to recall the infringement proceedings it had launched against the UK because of the Internal Market Bill (see above). There was a discussion of outstanding issues with a call from the EU for “a credible roadmap, with clear deliverables and milestones for the implementation of the relevant rules and requirements of the protocol for which implementation is deficient or delayed” (European Commission 2021f). The Commission also pointed out that the number of checks could be greatly reduced if the UK opted for a comprehensive veterinary agreement that followed EU SPS rules. However, this would breach the UK’s red line on not being subject to EU regulations. The next three meetings of the SC—on 19 July 2021, 24 September 2021 and 8 March 2022—did not manage to surmount the implementation difficulties of the NIP. The EU began to express exasperation with the UK, saying that the UK proposals remained insufficient even though there had been 70 meetings in recent months to address the outstanding implementation issues (European Commission 2021c). At the September 2021 meeting, the Commission pledged to come forward with a package of measures to address the issues that were having the most impact on the people and businesses of Northern Ireland (European Commission 2021e). By late 2021, there was stalemate between the parties. The chasm between their positions is illustrated by contrasting the UK government’s Command Paper of July 2021 (HM Government 2021) with

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the Commission’s response in October 2021 (European Commission 2021b). The UK Command Paper was effectively a demand for a renegotiation of the NIP before it was fully implemented. The Paper covered three areas: first, reducing burdens on the trade of goods within the UK; second, ensuring the circulation of goods within Northern Ireland; and third, improving the governance of the NIP. Essentially, the UK wanted to reduce the paperwork and checks and allow a dual regulatory system within Northern Ireland involving EU and UK rules. The paper acknowledged that there were risks for the EU in terms of the integrity of the single market and London was prepared to legislate strong enforcement mechanisms. On governance, the UK wanted to remove the CJEU from the dispute resolution process and replace it with arbitration as in the TCA. The Command Paper was “a request for a renegotiation of the protocol on Ireland/Northern Ireland rather than merely tweaking its operation” just 18 months after it was agreed by the UK government (Garner 2021). VP Maroš Šefˇcoviˇc provided a speedy EU response to the Command Paper, saying that the EU would “continue to engage with the UK, also on the suggestions made today” and that the EU was “ready to continue to seek creative solutions” but that it would “not agree to a renegotiation of the Protocol” (Šefˇcoviˇc 2021c). Over the next months, the European Commission actively engaged with politicians and civil society in Northern Ireland in preparation for a set of bespoke proposals on the NIP issued in October 2021(European Commission 2021b). VP Šefˇcoviˇc paid a two-day visit to Northern Ireland (9–10 September 2021), during which he gave a speech at Queens University Belfast, met with several interested groups and held a press conference. It was a factfinding mission and an opportunity to communicate the EU position on the protocol on the ground. The Commission delegation’s narrative was that it wanted to focus on limiting disruption to the supply of goods to Northern Ireland, especially medicines. On consultation and engagement, there was a pledge to enhance the participation of Northern Ireland stakeholders in the implementation of the protocol. Šefˇcoviˇc also pointed out that removing the CJEU would take Northern Ireland out of the EU single market for goods, something that benefited it (Šefˇcoviˇc 2021a). At Queens University, VP Šefˇcoviˇc said that the EU had “been going through our rules with a fine tooth comb to respond to outstanding problems with creative and solid new solutions” (Šefˇcoviˇc 2021b). This was

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an attempt to counteract the UK view that the EU was inflexible and unnecessarily legalistic in its approach to the protocol. On 13 October, the Commission produced four “non-papers” on customs, SPS, medicines and stakeholder engagement, which were described as bespoke proposals to address problems in the implementation of the proposals. Therefore, in autumn 2021 there were two sets of proposals on the table on how to make the NIP work: the UK Command Paper of July 2021 and the Commission’s bespoke proposals of October 2021. The talks on the protocol continued between the two sides for the next four months on an intensive basis. By mid-November, there was some progress on medicines but “significant gaps” remained “across most issues” according to Lord Frost in a statement following a bilateral meeting with VP Maroš Šefˇcoviˇc (Wiener 2021). This was followed by weekly meetings on the protocol up to Christmas 2021. On 17 December, the talks led to an agreement on medicines that involved the EU proposing to amend its own legislation (European Commission 2021a). When Lord Frost unexpectedly resigned the day after, his successor Foreign Secretary Liz Truss had an opportunity to press the reset button on the EU-UK relationship. This did not appear to be her strategy. Following her first phone call with Maroš Šefˇcoviˇc on 21 December, she stated the “UK position has not changed” (Truss 2021). Almost two years after the coming into force of the WA, there was a continual struggle to implement the NIP and fundamental disagreement about how it should be done. The first in-person meeting between Maroš Šefˇcoviˇc and Liz Truss took place in the UK on 13–14 January 2022. The meeting produced a rare 71-word joint statement that spoke of a cordial atmosphere in the talks and the desire for a “positive relationship” between the UK and the EU (EU and UK 2022b). The talks from midJanuary to the ninth meeting of the Joint Committee on 21 February were intense and focused on technical issues. They were interspersed with video calls and meetings between the two co-chairs, Truss and Šefˇcoviˇc. In a statement from early February, Šefˇcoviˇc underlined that the talks “must stay laser-focused on practical challenges raised by Northern Irish stakeholders – particularly on the area of customs and the movement of sanitary and phytosanitary goods” (Šefˇcoviˇc 2022e). The JC meeting on 21 February produced an agreed joint statement that stressed the “ongoing determination of both parties to ensure that the outstanding

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issues in the context of the Protocol are addressed, and durable solutions found for the benefit of citizens, businesses and stability in Northern Ireland” (WA Joint Committee 2022). The NIP talks ground to a halt as no stable solutions were found before the Northern Ireland Assembly election of May 2022. In the lead-up to this election, the London Government signalled that it was preparing unilateral action and proposed legislation enabling UK ministers to hollow out parts of the protocol (Financial Times 2022). The UK’s intentions were confirmed immediately after the election, when Foreign Secretary Liz Truss instructed her officials to draft legislation that would unilaterally allow UK Ministers to disapply elements of the NIP. Responding to these developments, VP Šefˇcoviˇc cautioned— in multiple public fora—that “[u]nilateral action effectively disapplying an international agreement such as the protocol is simply not acceptable” (Šefˇcoviˇc 2022c). VP Šefˇcoviˇc stressed that with “political will and genuine commitment, joint solutions to legitimate practical issues raised by people and businesses in Northern Ireland can be found within the framework of the Protocol” but “[u]nilateral action by the UK would only make our work on possible solutions more difficult” (Šefˇcoviˇc 2022b). Yet, the London government continued along its unilateral path by publishing The Northern Ireland Protocol Bill on 13 June 2022. In parallel, the Foreign, Commonwealth and Development Office (FCDO) released Explanatory Note which stated that the bill would disapply elements of the Northern Ireland Protocol, and provide delegated powers to Ministers to make new law in connection with the Northern Ireland Protocol (including where provision ceases to have effect in the UK). Additionally, the Bill will provide delegated powers for Ministers to provide that other provisions of the Northern Ireland Protocol should cease to have effect in the UK, as well as to implement any agreement with the European Union (“EU”) regarding the Northern Ireland Protocol. (Foreign Commonwealth and Development Office 2022)

Effectively, the UK government intended to legislate unilaterally to hollow out an international treaty. This represented a major shift in UK thinking as the draft bill enabled UK ministers to render a large part of the protocol void. The EU responded by stating that it is “with significant concern that we take note of today’s decision by the UK government to table legislation disapplying core elements of the protocol.

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Unilateral action is damaging to mutual trust” (Šefˇcoviˇc 2022a). The Commission followed up with infringement proceedings against the UK for non-compliance with “significant parts of the protocol” (European Commission 2022a). In this fragile context, Boris Johnson resigned as Prime Minister on 7 July 2022. Johnson’s resignation ushered in a period of political uncertainty as the Conservative Party engaged in choosing a new leader and PM for the UK. Meanwhile, the Northern Ireland Protocol Bill continued its passage through Parliament although it appears that there was some political momentum behind a further effort to address the tortured implementation of the NIP. When Liz Truss took over as Prime Minister on 6 September 2022, she announced that her preference remained a negotiated settlement on the protocol, even though she had previously been a key proponent of the NIP Bill when she was UK Foreign Secretary. Subsequently, VP Maroš Šefˇcoviˇc telephoned the new UK Foreign Secretary, James Cleverly. Following the call, Maroš Šefˇcoviˇc tweeted “Both sides agree to look for solutions around the Protocol, to bring predictability & certainty to the people in Northern Ireland. The EU is committed to joint efforts” (Šefˇcoviˇc 2022d). With this shift in the mood music, technical talks between the sides restarted on 7 October 2022 with the aim of achieving a way forward that would reduce the administrative burden of checks on traders. The major concern for EU institutions and the member states was the flow of goods from GB into Northern Ireland and the danger of leakage into the single market. The EU accepted that there were inherent risks but wanted an agreement that would enable the EU to assess and respond to risks as they arose. Access to real time data that provide the EU with a detailed overview of the flow of goods between GB and NI, as is required by Article 12 NIP, was the essential instrument from an EU perspective. These data would allow the EU to verify the movement of goods in specific cases of concern. The UK had committed to achieving this at the fifth meeting of the Joint Committee in December 2020 (European Commission 2020a; WA Joint Committee 2020b). By autumn 2022, the two parties were close to achieving a bespoke data sharing system that would enable the EU to raise red flags and respond quickly to unusual patterns of any product or range of products (Connelly 2022b). At the time of writing, the issue remains unsettled. If the EU were to assess that it got the tools to manage risk, it could then agree to a major

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reduction in checks. The UK for its part wants to establish green and red lanes for transport on arrival in Northern Ireland: the green lane would handle goods destined for NI and not involve checks whereas the red lane would. In addition to access to data, there are numerous other difficult issues to be addressed, such as sanitary and phytosanitary standards, taxation and governance. Regarding the latter, the UK wants to replace the role of the European Court of Justice with an arbitration system like that in the TCA. Given Russia’s war in Ukraine, the EU and the UK have a strong incentive to co-create a workable system that would prevent a further deterioration in mutual relations. And with the resignation of Liz Truss as Prime Minister after 44 days in office and her succession by Rishi Sunak on 25 October 2022, the space for agreement with the EU appears to have increased. The 25th anniversary of the Good Friday Agreement (GFA) in April 2023 has momentum as a deadline for a breakthrough. UK Prime Minister Rishi Sunak assured US President Biden at their first meeting of his commitment to a negotiated agreement by then (The Guardian 2022). Speaking to the Irish Parliament on 1 December 2022, Commission President Ursula von der Leyen, suggested that “a workable solution is within reach” and she went on to say that “Ireland can always count on the European Union to stand by the Good Friday Agreement. There can be no hard border on the island of Ireland” (Von der Leyen 2022). It may be that the parties can agree on a number of outstanding issues that would then act as a basis for further agreements overtime. Otherwise, it will be left to the next UK government to address the highly contested dossier.

Implementing the Trade and Cooperation Agreement Institutional Framework The institutional framework of the Trade and Cooperation Agreement (TCA) follows the template found in other EU Agreements, with a Partnership Council (PC) at the political level, sitting at the apex of the system (see Fig. 9.4). The PC is the main point of formal engagement between the EU and UK and it carries the weight of making the agreement work. It is co-chaired by an EU Commissioner and a senior UK minister. A practice has evolved of both sides of having the same senior political figure responsible for both the TCA’s Partnership Council and

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Civil Society Forum

Parliamentary Partnership Assembly

Partnership Council Trade Partnership Council

SC on Engery

SC on Aviation Safety

TSC on Goods

TSC on Intellectual Property

SC on Participation in Union Programmse

SC on Law Enforcement and Judicial Cooperati

TSC on Cusoms Cooperation and Rules of Origin

TSC on Public Procurement

SC on Air Transport

SC on Road Transport

TSC on Sanitary and Phytosanitary Measures

TSC on Regulatory Cooperation

SC on Fisheries

SC on Social Security Coordination

TSC on Level Playing Field for Open and Fair Competition and Sustainable Development

TSC on Administrative Cooperation in VAT and Recovery of Taxes and Duties

TSC on Technical Barriers to Trade

TSC on Services, Investment and Digital Trade

Working Group on Motor Vehicles and Parts

Working Group on Organic Products

Working Group on Social Security Coordination

Working Group on Medicinal Products

Fig. 9.4 The institutional set-up of the Trade and Cooperation Agreement (Based on EU and UK [2020a])

the WA’s Joint Committee. This arrangement allows political oversight of the totality of the relationship. To date, VP Maroš Šefˇcoviˇc has been the sole EU representative. He co-chaired the PC with Lord Frost until December 2021 and Foreign Secretary Liz Truss until September 2022, when James Cleverly took over the responsibility for UK-EU relations as Foreign Secretary. The PC may meet in different configurations depending on the agenda. It should meet at least once a year but either party may request a

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meeting at any time. The purpose of the PC is to “oversee the attainment of the objectives of this Agreement and any supplementing agreement” (EU and UK 2020b, Article 1.3 INST). Either party may submit issues to do with the implementation of the agreement to the PC and in turn the PC may make decisions or adopt recommendations by mutual consent. The PC has an extensive infrastructure of Trade Specialised Committees (TSCs), Specialised Committees (SCs) and working parties. This is a more extensive arrangement than is typical in FTAs, which underlines the broad policy reach of the agreement. A Trade Partnership Committee (TPC) coordinates the work of ten TSCs and three working groups on all aspects of trade. The provision for the TPC stemmed from a desire by DG Trade to have broader oversight of trade than it would in a traditional FTA. Besides the trade-related committees, there are eight Specialised Committees covering areas such as energy, transport, law enforcement and judicial cooperation. These committees are staffed by experts from both sides who have in-depth technical knowledge. There is no provision for summits between leaders, a feature of some FTAs. The TCA provides for two consultative bodies, the Parliamentary Partnership Assembly (PPA) and a Civil Society Forum. The PPA consists of delegations from the European Parliament and the UK Parliament, which meet twice a year to provide parliamentary oversight of the TCA and to foster dialogue following the UK’s departure from the Union. The PPA met for the first time in May 2022 and again in November 2022. The Civil Society Forum met once on 4 October 2022. It is too early to see if these fora will help to move UK-EU relations in a more constructive direction. Dispute Resolution Mechanisms Due to the implementation difficulties with the WA that began while the TCA negotiations were still in progress, proper implementation and compliance with the TCA were major EU concerns. The UK’s Internal Market Bill of September 2020 had severely undermined EU trust in the UK’s intention to honour the Brexit agreements (see Chapter 8). Given this background, it is unsurprising that the dispute resolution mechanisms in the TCA are multiple and robust. There is no role for the CJEU except for UK participation in EU programmes. The main dispute resolution mechanism is modelled on the WTO except there is no provision for an appeals process (see Fig. 9.5). The mechanism consists of three phases, or steps; step one involves

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consultation within specified time limits at the political level in the PC or a Specialised Committee. If this fails, the process may move to step two, arbitration. This step involves the establishment of a three-person Arbitration Panel (AP) that makes legally binding rulings in a maximum of 160 days. If the AP finds against a party, it has 30 days to outline compliance measures. This aspect of the dispute resolution mechanism has been described by a Commission official as quite unique in that “if you look at the hundreds of agreements that the EU has concluded with third parties, certainly the bilateral ones, I have a hard time to find a single case where we had dispute resolution with an arbitration tribunal” (Commission 10, Interview, September 2022). The robustness of the mechanism reflects the EU’s lack of trust in the UK’s willingness to honour its commitments. The third step involves remedies for noncompliance including retaliatory measures. There is a ladder of retaliatory measures involving measures within one area, cross retaliation if the issue is sufficiently serious and finally suspension of the Agreement. There is also a link to the WA as persistent non-compliance with provisions in the WA may lead to suspension of some or all the provisions of the TCA. Law enforcement and judicial cooperation (TCA, Part 3) are subject to a distinct dispute resolution mechanism which involves consultation between the parties for up to three months, although this may be extended by agreement. There is no provision for arbitration. The parties may suspend all or part of the title following nine months’ notice, or sooner if either party leaves the European Convention on Human Rights (ECHR). The dispute resolution mechanisms set out in the level playing field (LPF) provisions involve variants of the main mechanisms. In the case of labour and social standards, environment and climate, expert panels with longer time frames substitute the arbitration panels. More broadly, the LPF provisions provide for rebalancing measures if either party concludes that divergence by the other party has had a deleterious impact on trade and investment. The key feature of this mechanism is accelerated time frames. Consultations between the parties are limited to 14 days and if this fails then an arbitration panel has 30 days to make a ruling. Fisheries are subject to robust mechanisms including the suspension of parts of the agreement if access is reduced below the agreed levels. The dispute resolution mechanisms in the TCA reflect its broad policy remit and the acute sensitivity of some of the fields. They also reflect the weakening of trust between the parties during the negotiations, which has left a lasting legacy beyond the talks. Mechanisms to manage divergence,

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Complaintant requests informal consultation

Respondent has 10 days to reply YES

Is the consultation succesful? NO

Complaintant can request arbritration

Arbitration tribunal prepares interim report

Do the parties request a review of the report?

YES

Review

NO

Dispute resolved

Arbitration report becomes final NO

Does arbitration tribunal find a breach of the TCA? YES

Respondant must inform complaintant about how it will comply with the ruling of the arbitration panel NO

Does the respondent refuse to comply or arbitration panel finds failure to comply? YES

Complaintant can ask for compensation. YES

Do parties agree to compensation? NO

Complaintant may suspend its own TCA obligations Respondent can ask arbitration tribunal to asses if complaintant's measures are excessive. If parties disagree about compliance, they can ask the arbitration tribunal to rule Does arbitration tribunal find that breaching party has complied?

NO

Complaintant's measures remain

YES

Complaintant must stop retaliation

Fig. 9.5 Dispute resolution under the Trade and Cooperation Agreement (Based on Institute for Government [2021a])

not convergence, lie at the heart of the TCA and its approach to dispute resolution. It is noteworthy that the EU passed a law to give effect to the sanctions mechanisms of both the WA and TCA on 30 November 2022 when the law was finalised by the Council and the EP (Euractive 2022). The aim of the law is to allow the EU to take action faster in the event

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of a TCA or WA breach by the UK. Under the provisions of the law, the Commission is empowered to impose restrictions on trade, investment and other activities. Transforming the TCA into a Living Treaty The Partnership Council The Partnership Council met for the first and only time to date on 9 June 2021. It agreed on a tentative schedule of committee meetings and on the establishment of the Parliamentary Partnership Assembly and the Civil Society Forum. The five substantive agenda items covered trade and SPS, fisheries, law, long-term visa fees and participation in Union programmes (TCA Partnership Council 2021b). As is its practice, the Commission issued a statement following the meeting. The statement highlighted the “importance of this Agreement in building a mutually beneficial and stable relationship” and committed to its “full and timely implementation” (European Commission 2021d). The rather anodyne minutes of the meeting provide insights into the key issues for the two parties. Customs cooperation and sanitary and phytosanitary standards (SPS) were flagged by the UK as an area where deeper cooperation would be welcome, and it called for the immediate establishment of a Specialised Committee on SPS. In a repeat of the TCA negotiations, the UK called for an SPS equivalence agreement “to address barriers to trade whilst maintaining the regulatory autonomy of both Parties” (TCA Partnership Council 2021a). The EU flatly ruled out an equivalence regime and pointed out that in the most advanced equivalence regimes it had, only 14 EU legislative acts were covered, whereas the NIP covered more than 100 legislative acts involving SPS. Fisheries was a sensitive subject and there was considerable conflict concerning fishing licences for EU fishermen in the channel Islands in early 2021. The heat was taken out of the conflict by June 2021 and the minutes refer to “strong technical cooperation” between the Commission and the UK on fisheries (TCA Partnership Council 2021a). This is an example of an implementation conflict that benefited from a technical rather than a political logic. The Commission deployed its market power in a stark manner, saying that under the “TCA, access to the EU market for goods from Jersey was linked to EU access to the waters of Jersey” (TCA Partnership Council 2021a). The minutes also indicate that arrangements on law enforcement were working fairly well although there

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were some issues concerning extradition. The question of fees for longterm visas raised problems as the citizens of five EU countries—Bulgaria, Estonia, Lithuania, Romania and Slovenia—were denied a discount. The Commission raised serious concerns about discrimination between the member states. The UK responded by saying that there was no general non-discrimination clause in the TCA. Nevertheless, the Commission said it would always pursue the objective of non-discrimination and if a political solution was not possible it would not hesitate to use legal action (TCA Partnership Council 2021a). The UK used the first PC meeting to highlight its disquiet at the time it was taking to finalise arrangements for the affiliation of the UK with EU programmes, particularly Copernicus, Euratom and Horizon Europe. The UK called on the SC on Participation in Union Programmes to take up the issue as a matter of urgency. For its part, the UK raised the topic of short-term visas for musicians, actors and other artists, who could not tour under the same conditions as they had before the end of the transition period. The Commission drew attention to the efforts of member states to address this but reminded the UK delegation that the issue was treated during the TCA negotiations without being resolved. At the end of the meeting, the Commission stressed the importance of implementing the TCA and the WA in full. Overall, the first meeting of the PC had worked well. The PC launched the specialised committees that provide the technical infrastructure for the agreement and began the process of building a post-membership relationship with the UK. Asked whether it was surprising that the Partnership Council had met only once by September 2022, a high-ranking member of the Commission Service responsible for EU-UK relations suggested that “it’s totally normal that these governance bodies in agreements of the sort meet once per year” and that “We mustn’t forget […] that we are not managing any more something together. We are not managing a joint market, or a customs territory, or what have you. So, the need to meet is really much more limited than what we remotely know amongst Member States” (Commission 10, Interview, September 2022). The same representative also explained that implementation of the TCA has been “working generally well, even very well” and that this was the case because “basically the TCA is just a compendium of typical third-country agreements we have” meaning that “pretty much everything in the TCA has a predecessor” (Commission 10, Interview, September 2022). The contrast between the relatively smooth implementation of the TCA and the volatility surrounding the implementation of the WA is stark.

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The Trade Partnership Council and the Trade Specialised Committees The first meeting of the Trade Partnership Committee (TPC), the coordinating committee for the trade dimension, was on 15 November 2021 (TCA Trade Partnership Committee 2021b). It took stock of the meetings in 2021 of the Trade Specialised Committees (TSCs). By this stage, all but one of the TSCs had met. These committees and the related working groups formed the governance core of the TCA trade agreement. At the first TPC meeting, the UK requested to lower the debt recovery threshold in the protocol to assist UK businesses (TCA Trade Partnership Committee 2021a). The Commission responded by saying it was not prepared to amend the TCA to do this. This underlines the EU’s determination to implement the TCA and not to amend it. The UK raised the issue of the Brexit Adjustment Fund because of concerns that it would be disadvantageous to British companies. The Commission argued in return that the fund would be subject to state aid control by the Commission and would be fully compliant with the TCA. The Commission raised legal concerns about the UK’s renewable energy scheme and made several requests to the UK regarding the scheme. The work of the ten TSCs is similar to that found in traditional FTAs. The Trade Partnership Committee met for the second time on 1 December 2022 with a lengthy agenda including both EU and UK developments that affect trade (TCA Trade Partnership Committee 2022). The second regular meeting suggests that the TPC is largely working as expected, addressing issues of importance to both parties. From the UK perspective, one of the primary reasons for Brexit was to take the country out of the EU’s regulatory orbit. For the EU, this was one of its primary fears during the TCA negotiations. To date, divergence has not been a prominent feature of UK public policy in practice although the rhetoric of divergence continues unabated. But this may change in the future. To provide legal certainty at the moment of exit, the UK government introduced a new concept in UK domestic law, namely retained EU law. Put simply, the provisions of some 2,400 pieces of law across 300 policy areas involving 21 sectors of the economy were incorporated into domestic law in the UK (HM Government 2022a). The UK government introduced a bill, the Retained EU Law (Revocation and Reform) Bill, to Parliament on 22 September 2022 with the aim of delivering the benefits of Brexit. The purpose of the bill was to invoke a sunset clause that will

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end retained EU law by 31 December 2023 although there is the possibility of extending the sunset clause to the end of 2026. This may be the beginning of a new and more problematic relationship between the UK and the EU on standards. Despite the departure of Jacob Rees-Mogg MP, who championed the bill, from Government, Rishi Sunak PM appears committed to the law which requires reviewing and possibly revoking some 4,000 pieces of EU origin laws by the end of 2023 (Foster and Parker 2023). This is a very demanding legislative exercise and is likely to be very controversial because of its implications for policy across a wide range of areas and its potential impact on EU-UK relations if it leads to further divergence. The bill is already receiving considerable pushback in Parliament. The Specialised Committees The eight Specialised Committees (SCs) covering the non-trade aspects of the TCA all met at least once in 2021 and most had met at least one more time by the end of 2022 (European Commission 2022c). Not unexpectedly, fisheries led the way in terms of frequency of meetings. The Fisheries SC met four times between July 2021 and July 2022, with additional meetings of a number of working parties. The SC on energy had met three times by late 2022. Meetings of the SCs are taking place in a hybrid format of both in-person and online participation, which facilitates the participation of the UK’s devolved authorities and EU member states. The EU delegations are much larger than the UK delegations because of the participation of the member states although the relevant Commission DG takes the lead and acts as co-chair. The first meeting of the SC on Law Enforcement was attended by 42 EU participants, with 16 from the UK. The committees are expert-led and facilitate working out a cooperative relationship in these fields. They deploy a variety of modalities, particularly the establishment of working groups for detailed work, the issuance of joint guidance notes, exchanges of letters, joint analysis and the drafting of recommendations and decisions for the PC. A feature of the UK’s approach to implementation, notwithstanding its macro sovereigntist stance, is a desire to be associated with EU electronic systems. The EU appears to be willing to facilitate this in relation to social security information exchange provided that the UK contributes financially to the development of the EU system. In the area of road transport, the EU is less willing to facilitate the UK’s inclusion in the European Register of Road Transport Undertakings (ERRU) system. This could

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change if the SC Road Transport reaches agreement to include the UK. The UK continues to provide information to that system but the EU has closed the connection. A key challenge for the SCs is to work out how to implement the provisions of the TCA as in some areas, notably electricity trading, where there are several different implementation options. At the end of the transition period, GB left the single market for energy and agreement has not been reached on an energy trading framework. London has accused the EU of adding hundreds of millions to its energy bills. It has also accused the Union of stalling on energy cooperation because of the NIP (Gallardo 2022). There is a stark contrast between implementation of the fisheries component of the TCA and the provisions on UK participation in Union programmes. The former was one of the most contested issues during the negotiations and in the early phase of implementation. But the SC Fisheries has managed to take the heat out of the issue by being expert led and has adopted a joint approach to implementing the TCA. The committee meets frequently and has established working groups to prepare the work of the SC from a technical perspective. The 2021 and 2022 annual consultations on fishing opportunities have become institutionalised and the parties are working towards a stable system for the management of shared stocks. In contrast, UK involvement in Union Programmes, which is provided for in the TCA, has failed to made progress. The SC on Participation in Union Programmes met for the first time in December 2021 and once more in September 2022. The protocols which are necessary for the participation of the UK have not been finalised. Essentially, the EU linked this dossier to the non-implementation of the NIP in the following manner. At the first meeting of the SC, the EU stressed that “the completion of EU procedures in the current political setting does not seem opportune as there are serious difficulties in the implementation of the Withdrawal Agreement (WA) and the TCA” (TCA SC on Union Programmes 2021). In August 2022, in the midst of her bid to lead the Conservative Party, Foreign Secretary Liz Truss wrote to the Commission launching a formal consultation process on this issue. This led to the second meeting of the SC to begin the dispute resolution system on 22 September 2022. At the meeting, the UK requested that “the EU fulfil its obligation to finalise the UK’s association to EU Programmes after 16 months of delays. It is regrettable that the EU continues to decline

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this request” (HM Government 2022b). The UK is considering its next steps and may request the establishment of an arbitration panel or it may set up an alternative set of supports for R&D in the UK. In any event, the UK has been the first to use the dispute resolution mechanisms in the TCA.

Conclusions The WA and the TCA are the two pillars of post-Brexit EU-UK relations. The thinness of the agreements cannot be overstated. The two parties are no longer working on joint projects or policymaking. Instead, the focus is on tracking and monitoring divergence and seeking compliance on the NIP. From the EU perspective, the aim is to make the agreements work as a package that cannot be renegotiated or unpicked. The EU wants to make the best use of the agreements already negotiated and build on them in an evolutionary manner. The continual challenge to the implementation of the WA, particularly the NIP, casts a shadow over the entire relationship. The negotiation of the treaties took place against the backdrop of a potential no-deal exit and their implementation takes place against the backdrop of unilateral action by the UK. This has undermined trust in the UK and bled into the entire relationship. The reopening of talks on the NIP in late 2022 may lead to solutions that both sides can live with and which would create the space for improved UK-EU relations. Indeed, much of the WA and the TCA appears to be working as anticipated, with some conflict in relation to the UK’s participation in Union programmes and electricity trading. Paradoxically fisheries, which was almost a deal breaker in the negotiations, has settled into an expertled cooperative arrangement. Because divergence has been muted in the early years of the implementation of the TCA this may not hold as the UK begins to address retained EU law in its domestic legal system. The non-implementation of the NIP may be joined by increased divergence as a major systemic issue. This depends on the appetite of UK governments for divergence.

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CHAPTER 10

Conclusions: Process and Capacity

The UK exited the EU on 31 January 2020 and is no longer a member state. On Christmas Eve 2020, the UK and the EU agreed on the terms of their future relationship. With the entering into force of the Withdrawal Agreement and the Trade and Cooperation Agreement, the withdrawal procedure outlined in Article 50 TEU came to a conclusion. In a formal sense, Brexit was now over. The impact of Brexit, however, continues to be experienced in the EU and the UK. For the UK, exit delivered greater political sovereignty in a formal sense as the UK is no longer bound by the obligations of EU membership. However, the political upheaval it caused is dramatic: the process has consumed five Prime Ministers and six Chancellors of the Exchequer, it triggered two early elections in two years and involved the largest parliamentary defeats in the history of the House of Commons. For the EU, the exit of a member state, the first since the foundation of the EU, was a dramatic event. The EU treated Brexit as an existential challenge and organised to protect the Union. The departure of a wealthy and consolidated liberal democracy was a great loss for the EU. Yet, the EU’s handling of the crisis ensured that Brexit turned into a rare case of peaceful and managed secession from a polity. It has shown that when the Union’s institutional core works together to coordinate interests, generate capacity and develop solutions, the EU can act decisively and with one voice. © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 B. Laffan and S. Telle, The EU’s Response to Brexit, Palgrave Studies in European Union Politics, https://doi.org/10.1007/978-3-031-26263-0_10

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Between the EU and the UK, a new relationship is being forged under the overarching umbrella of the WA and TCA. Crucially, Brexit was and remains a living experiment in loosening ties of deep interdependence. For the EU, the relationship with the UK remains important, especially following the war in Ukraine, but there is no appetite to reset the relationship given far more pressing agenda issues and a lack of trust in the UK’s Conservative-led government. Threats of unilateral action and serious compliance issues have sapped the political will to do more with its north-western neighbour. Put simply, relations with the UK are not a top priority for the EU in 2022. Brexit was not mentioned in Commission President Ursula von der Leyen’s State of the Union address in either 2021 or 2022. Whether relations will intensify beyond the provisions of the WA and the TCA remains uncertain. The New European Political Community (EPC) may facilitate a future rapprochement as part of a wider EU reassessment of its relations with neighbours. As the future of the UK outside the EU remains uncertain, the UK may well be in a state of “Brexiternity” in which the relationship with its large neighbour continues to cause domestic political and constitutional upheaval (MacShane 2019). In this concluding chapter, we draw out the key features of the EU’s response to Brexit, stressing the importance of skilful process shaping. Then we address a counter argument, namely that the EU made “a strategically myopic blunder” in its management of Brexit by not thinking through what kind of long-term relationship it wanted with the UK. The case against the EU is that it was obsessed with process and its immediate negotiating objectives. We argue that the EU’s process-driven response achieved its core objective. It highlighted the value of EU membership and effectively addressed an existential threat to the political community. Relations with the UK, important as they are, were of secondary relevance to these objectives. We submit that the Brexit process has taught the EU to bring its collective problem-solving capacity to bear more effectively on internal and external challenges. The EU’s united and effective response to Brexit was echoed in its handling of the COVID-19 crisis and Russia’s war against Ukraine. In late 2022, the EU’s preoccupation is not with further exits, but with future enlargements. The final section of the chapter analyses the prospects for improved EU-UK relations and the possible role of the European Political Community (EPC).

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Responding to Brexit: A United and Effective Process The focus in this volume has been on the EU27’s response to Brexit. The outcome of the British referendum on EU membership came as a shock to many observers in the summer of 2016. There was widespread concern that Brexit might be one crisis too many for a Union which had struggled to find united and effective responses to the currency and migration crises. However, the EU dealt with the Brexit shock with surprising vigour and firmness. The remaining 27 member states and the collective EU institutions spoke with one voice in the ensuing negotiations with the UK, and ultimately the EU27 got what it wanted: an orderly withdrawal by the UK which minimised negative economic consequences, affirmed the value of EU membership, protected citizens’ rights and preserved the autonomy of the EU’s rules-based system. The EU emerges from Brexit as a polity willing and able to exercise power in a determined and robust manner. The UK state elite did not understand that it entered a political and legal process designed and controlled by the EU, a process in which it had limited agency. Although the UK initiated Brexit, once it began the process of exiting the EU it lost control of its destiny, the supreme irony given the driver to “take a back control.” The core argument of this book has been that the EU’s Brexit response was united and effective because the Union forged a process that not only accommodated the various interests of different actors in a coherent set of objectives but also generated broad political ownership and mobilised dispersed institutional resources. That interests Interests mattered but they are not sufficient for understanding EU unity and effectiveness. Thus, our focus was on the processes which translated interests into decisive action. A fundamental precondition for effective action was a shared understanding of the nature of the problem. Hence, the critical role played by collective framing and the leadership of EU institutions. Led by the collective institutions in Brussels, the EU27 laid the foundations for a united and effective policy response by quickly framing what Brexit meant and how the EU should and would respond (Chapter 2). Brexit was communicated as a common challenge which required a joint response by the EU27. This message was spread by the leaders of the collective institutions on the day after the referendum and it was confirmed within a week by the 27 remaining member states at an informal European Summit the day after the June European Council meeting. This was

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the moment the EU27 first came into being. The treatment of the UK as a “third country in the making” discursively transformed an endogenous shock to the EU into an exogenous one and the EU27 quickly initiated the Bratislava process to demonstrate that there would be life in the EU following the UK’s departure. The commitment to unity began as a rhetorical ambition but became a practice norm in the management of Brexit. Collective framing was underpinned by the establishment of a dedicated institutional ecology within the EU macro-institutions to manage Brexit (Chapter 3). In this way, the EU27 amassed formidable teams of “professional Europeans,” some of the brightest and best, to meticulously prepare for and negotiate Brexit. Having laid the discursive and institutional foundations of the Brexit process, the EU then developed organisational methods to foster internal unity and external effectiveness towards the UK. Institutional coordination and a robust transparency regime ensured that intra-EU infighting was at a historical minimum in the Brexit negotiations. The appointment of Michel Barnier as the EU’s chief negotiator put a public face on the EU. As a former minister, MEP and Commissioner, Michel Barnier was at ease with the EU institutions and the member states alike, enabling him to effectively engage with all the key players. There was a strong esprit de corps among those preparing for and negotiating the UK’s exit and a pride in being technically on top of all the issues (Chapter 4). Meticulous internal preparation strengthened the EU’s negotiating positions vis-à-vis the UK. Article 50 TEU was central in this regard. Even before the negotiations began, the EU insisted that there could be no negotiations without notification (NNWN) by the UK of its intention to leave the EU. This move put strong pressure on the UK to begin formal negotiations with the EU as quickly as possible and it frustrated the UK’s early attempts to divide the EU by engaging in bilateral talks with the member states. The provisions of Article 50 TEU were used to insist on a “phased approach” to the negotiations, which limited the UK’s opportunities to link withdrawal issues to the future relationship. Finally, the EU tilted the negotiating table to its advantage by producing draft agreements which functioned both as commitment mechanisms on the UK and established a gravitational pull around EU positions (Chapter 5). In the negotiations, the EU and the UK faced strong domestic constraints on the compromises they could make. In other words, both sides were locked in behind certain red lines. At the same time, it was the UK that was seeking to change its relationship with the EU. As a

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consequence, the UK had an incentive to adopt a distributive bargaining strategy aimed at breaking EU unity. This strategy was characterised by efforts to divide-and-rule the EU and by efforts to steer the negotiations to the brink of collapse. Subsequent UK governments followed two variants of this basic strategy. Theresa May’s government followed a “weakness as strength” approach, which implied that the negotiations could unintentionally fail due to British parliamentary intransigence if the EU did not make further concessions. Boris Johnson followed a “madman” or “chicken” approach when he threatened that the UK would walk away from the talks if the EU did not drop the Irish backstop. The core challenge for the EU was to remain united in its responses to an increasingly confrontational UK. The EU insisted that talks on the future relationship could only begin once sufficient progress had been made on citizens’ rights, a financial settlement and the Irish border issue (Chapter 6). The Joint Report of December 2017 largely secured the EU’s objectives on these issues, but at the last moment the UK succeeded in introducing ambiguity on the Irish border question. In consequence, the Irish issue remained the central bone of contention for the remainder of the withdrawal negotiations. When Theresa May failed to find a parliamentary majority for her deal with the EU in early 2019, the EU first attempted to provide further reassurances. When this strategy failed the EU adjusted its approach and granted conditional extensions to the UK to prevent a breakdown of the negotiations. To get Brexit done, Boris Johnson ultimately agreed to a regulatory border between Northern Ireland and Great Britain (Chapter 7). Regarding the future relationship, the Johnson government valued national sovereignty more than close trade relations with the EU. Therefore, the UK would not accept any agreement involving the EU’s legal framework and institutions. A small team in the Task Force and the wider Commission then turned to designing functional equivalents by addressing level playing field provisions in a new way (Chapter 8). The EU succeeded in its core objective of negotiating an “orderly Brexit,” which avoided a more costly no-deal scenario. In doing so, it held firmly to its key preferences in both the WA and TCA negotiations. However, while Brexit may have been orderly it was also full of friction and the EU and UK have ended up with a thin agreement to manage their relationship. Forging a closer relationship was hampered by a fundamental clash of world views. For the UK, Brexit was about regaining its sovereignty, its ability to shake off the shackles of the EU collective and

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to diverge from EU norms and standards. This was fundamentally at odds with the pooling and sharing of sovereignty that is at the core of the EU. The autonomy that the UK sought came at the price of access to the EU single market and its influence in EU policymaking more generally. Therefore, although the joint Political Declaration set out the prospect of an “ambitious, broad, deep and flexible partnership across trade and economic cooperation” (EU and UK 2019), implementation of the Brexit deal was fraught with conflict in the first years after Brexit (Chapter 9). For some, this was due to a strategic error on the part of the EU.

Strategic Myopia or Collective Power? Sir Ivan Rogers, the UK’s Permanent Representative to the EU at the time of the referendum, was a vocal critic of the EU’s approach to managing Brexit. His contention is that the EU was short-sighted in handling Brexit. The essence of his critique is that the EU managed the UK’s exit brilliantly from a tactical perspective but failed to think big, to think strategically about the kind of relationship it wanted with its large and important neighbour and how it could relate to this large offshore power. While this book has stressed the importance of process in achieving a united and effective response, Ivan Rogers argues that the EU relied too much on process: The European side is very good at process and processology. The EU does processology better than any organisation on earth. That’s both a good thing and a bad thing. It sets up a legalistic and technocratic process. (Rogers 2019a)

For Sir Ivan, because of self-absorption and navel gazing in Westminster, “no one was paying much attention to how the EU was patiently constructing the process designed to maximise its leverage” (Rogers 2019b: 38). Moreover, according to Rogers no one in London “was paying much attention to how the EU was patiently constructing the process designed to maximise its leverage.” On the EU’s side, the argument goes, the European Council and the Foreign Affairs Council essentially delegated responsibility for Brexit to the dedicated institutional ecology of “professional Europeans.” While this delegation ensured that the EU was an effective negotiating machine in the Brexit talks, it also meant that the important question of the long-term relationship did

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not receive sufficient political attention. In Ivan Rogers’s view, this was strategically myopic. His argument is that the EU’s relentless focus on using process to build leverage over the UK prevented it from realising reasonable compromises and ultimately was responsible for the souring of EU-UK relations. Similarly, Jonathan Faull, the senior EU Commission official in charge of the new settlement negotiations with David Cameron, argued that “the Brussels machine was wrong” in insisting on the Article 50 process (Faull 2020). Instead, the EU should have understood that the unprecedented nature of Brexit meant that We need something new, so we have to build something from scratch, we’ve never had an ex-member state before and we know the UK is different because of its different history and different attitudes to European integration. We’ve got to start from scratch and we need time for that. (Faull 2020)

For Faull, the EU’s unwillingness to countenance a radical response stemmed from the fact that “Nobody in continental Europe has thought very much about what relationship they want with the UK” (Faull 2020). In a nutshell, Rodgers and Faull’s argument is that it would have been in the EU’s interest to be more accommodating towards the UK. We believe that there are two problems with the argument. First, it ignores that the UK was the initiator of Brexit, the party which was demanding a change in the relationship. As such, it was on the UK, not on the EU, to define what Brexit meant. Insufficient time was not the UK’s problem. Three years had passed between Cameron’s Bloomberg speech and the referendum of June 2016; and another eight months passed until Theresa May triggered Article 50 TEU in March 2017. In this view, it was highly myopic of David Cameron not to prepare for a leave vote. Moreover, we believe that blaming the deterioration of the relationship on EU myopia downplays the UK’s deliberately confrontational and non-cooperative negotiation tactics. The second problem is that the argument fails to consider what Brexit meant for the EU. At the outset, Brexit was an existential crisis for the EU. The spectre of European disintegration loomed large in the summer of 2016. To prevent contagion, it was essential for the EU to re-affirm the value of EU membership and defend the polity. Drawing a clear distinction between the inside and the outside was crucial at this juncture. That distinction had become increasingly blurred in recent decades as many

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member states were allowed exemptions from EU policies they did not want, while other member states were excluded from common policies because of concerns about their capacity to implement them. Moreover, the EU had multiple and varying relations with its neighbours. This process of internal and external differentiated integration (Leuffen et al. 2013; Schimmelfennig and Winzen 2020) addressed short-term decisionmaking gridlock but it arguably did not help the EU to respond with unity and effectiveness to large crises, such as the currency and migration crises, or to develop coherent relations with third countries on its borders. Re-establishing a clearer distinction between members and nonmembers was essential to protect the integrity of the single market and the EU’s rules-based system. Protecting the EU polity was more important than relations with the UK. By treating the UK as a third country in the making, the EU affirmed that the benefits of membership cannot be had without adhering to the corresponding obligations. Hence, the EU’s collective response to Brexit shows that the Union was more than a single market. The practice norms which evolved in response to Brexit blurred the distinction between intergovernmental and supranational institutional arrangements and allowed the institutional core of the EU to act as one. As such, the EU’s united and decisive action indicated a further step on the path of polity formation and the willingness to deploy collective power. In responding to Brexit, the EU clearly prioritised safeguarding its internal functioning over maintaining relations with the neighbourhood. This perspective explains why relations with the UK were of secondary importance in the EU’s response to Brexit. It did not help, in this regard, that the UK had turned itself into a kind of EU bystander in the postMaastricht period, successively disengaging from more EU policies than any other member state and blocking innovative policy responses in major moments of crisis. At the December 2011 European Council, David Cameron blocked a new EU wide treaty that had the backing of the other member states and forced them to agree the Fiscal Compact outside the treaty framework which greatly irritated the other leaders. Tellingly, David Cameron’s (2013) Bloomberg speech that launched the Brexit process was infused with the language of British exceptionalism. Cameron claimed that the UK had “the character of an island nation – independent, forthright, passionate in defence of our sovereignty” and “we come to the European Union with a frame of mind that is more practical than emotional” (Cameron 2013). Cameron underlined the instrumental nature of the UK’s membership in the following way: membership was “a

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means to an end … not an end in itself,” and “our participation in the single market, and our ability to help set its rules, is the principal reason for our membership of the EU” (Cameron 2013). While the UK was not alone in this view, most other member states pursued a higher level of ambition regarding the ultimate trajectory of the European Union. Given the UK’s own trajectory of increasing disengagement from the EU prior to exiting, it is hard to see how the EU could have done more to accommodate the UK’s demands without turning from an ever closer Union into an “ever looser Union” (Schimmelfennig and Winzen 2020). In our view, Cameron had overestimated his power and his defeat in the referendum transformed the UK from an opt-out champion into a third state. It is true that the EU’s relations with third countries vary in intensity and breadth, as Michel Barnier’s famous “Staircase Slide” illustrates. But while all these agreements are responsive to the preferences and capacity of the EU and the neighbour concerned, they do not fundamentally question the unity of the four freedoms or the EU’s decision-making autonomy. In the end, the UK achieved a bespoke agreement. However, consistent with the EU’s emphasis on a balance between rights and obligations and the UK’s emphasis on national sovereignty, it did not match the lowest step on Barnier’s staircase. Consequently, the UK opted for a relationship with the EU that is looser than that of Turkey and Ukraine. In our view, the EU’s response to Brexit may represent a turning point, or step change, in the evolution of the European polity. Whereas the EU struggled to find joint solutions to major internal and external crises prior to Brexit, its track record since 2016 looks more promising. From the Brexit process, the European polity appears to have learned to better project its collective power when facing internal and external challenges. Internally, the departure of the UK enabled the EU to respond to the massive economic upheaval of the COVID-19 pandemic by creating an 800 billion EUR recovery plan, financed to a significant degree by the creation of joint debt. In addition, the EU is increasingly tying the distribution of European finance to requirements regarding the rule of law and the state of democracy in the member states. Externally, the EU has the ambition to increase its strategic autonomy from historical allies and systemic rivals. The EU’s response to Russia’s war of aggression in Ukraine, like its response to Brexit, has been swift, united and ambitious. Overall, the EU27’s response to Brexit appears to have contributed to a shift in the EU’s capacity to absorb and respond to crises. The EU strengthened its collective capacity, its power to get things done, from

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2016 onwards. It is no exaggeration to argue that the EU has emerged as Collective Power Europe (CPE) in response to Brexit, the COVID-19 pandemic and Russia’s war in Ukraine. The EU’s collective power is a form of outcome power, the power to act and exercise agency (Dowding 1991: 48). In the three crises, the EU’s collective power has emerged from an integration of three elements, namely leadership and framing, inter-institutional collaboration and development of a policy toolbox. First, in each case the EU managed collective framing and reached a consensus on the nature of the problem and on joint solutions. Second, the EU’s institutions facilitated joint problem-solving through intensive formal and informal engagement. Third, the EU used its available policy instruments and developed new ones in response to the crises. It appears that the exit of the UK increased the EU’s ability to do “whatever it takes” to bring a major crisis under control, especially when effective solutions require more integration. There are constraints on the EU’s collective power and there are major challenges ahead, given the hardening of geopolitics in Europe and globally, and the rule of law crisis within the EU. But the EU27 today appears more robust than might have been predicted on 24 June 2016, when the Brexit tremors where first felt in Brussels and the EU capitals. The growth in the EU’s collective power took place without fundamental institutional change. The multiplicity of actors in the EU arena have learnt to engage in intensive interaction to arrive at collective responses. As this book has argued, institutions “lock in” and stabilise norms of practice. If the EU is, therefore, advancing further towards a genuine political community, greater power will call for reinforced mechanisms of democratic control at all levels. In the final section, we speculate how all this may affect the evolution of the relationship between the EU and the UK.

Prospects for the Future Relationship There is considerable unpredictability surrounding the future relationship between the EU and UK because of political and constitutional uncertainty in the UK and the lack of a political and societal consensus on the European issue. However, the costs of Brexit to the UK are becoming clearer, no longer obfuscated by the pandemic. In November 2022, the Office of Budgetary Responsibility concluded that the “latest evidence suggests that Brexit has had a significant adverse impact on UK trade, via

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reducing both overall trade volumes and the number of trading relationships between UK and EU firms” (Office of Budgetary Responsibility 2022b: 26). This followed its conclusion in May 2022 that UK longrun productivity would be reduced by 4% relative to staying in the EU (Office of Budgetary Responsibility 2022a). This has already had a real impact on individual citizens; an LSE study concluded that Brexit has cost individual households in the UK an average £210 in higher food bills amounting to £5.8 billion in the two years leading up to the end of 2021 (Davies 2022). A consensus has emerged among economists that Brexit has significantly worsened the UK’s economic performance. According to the Financial Times, the vote to leave the EU “has made households poorer, that negotiating uncertainties have taken their toll on business investment and that new barriers to trade have damaged economic links between the UK and EU” (Giles 2022). The worsening economic news appears to have had an impact on public opinion. A poll in September 2022 shows that 54% would back membership with only 46% backing staying out. Earlier in 2022, 55% had backed staying out (Curtice 2022). There is also a shift in the numbers thinking that the UK was right to leave the EU. By December 2022, 51% of respondents in the YouGov Poll thought it was the wrong choice as opposed to 34% thinking it was the right decision and 15% undecided (YouGov 2022). The shift in economic performance and in attitudes towards the referendum outcome does not automatically imply a closer relationship between the EU and UK. However, the return of war to Europe and wider geopolitical developments are compelling and suggest that these like-minded states should be closer. The future is not locked in and there are possibilities of improvements and a deepening of the relationship. Such improvement will not occur if the UK persists in unilateral action in relation to the Northern Ireland Protocol (NIP), such as introducing the NIP bill. In fact, if the NIP bill becomes law the EU will retaliate, although the nature of this retaliation has not been decided. The search for a solution to the impact of Brexit on the island of Ireland continues. The goal is to arrive at an outcome that will stick, manage risk to the single market and be legally operable. Fundamentally, it will take the unlocking of the NIP conflict to steady the relationship and begin the process of building confidence and regaining trust. Without this, the relationship will remain full of friction and mistrust. In addition, UK governments need to move beyond the prevailing “anything but the

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EU” ideology and accept that the EU is a central player in the governance of Europe, especially in the economic domain. The dominance of ideology in UK policy since 2016, and especially under Boris Johnson, is waning and political space is opening up for a more rational UK debate on its relations with its near neighbours (Spisak 2022). Moreover, the Brexit silence is breaking according to one of the most astute UK analysts of Brexit, Chris Grey (2022). There is a scenario in which the two overarching agreements, the WA and the TCA, begin to work as intended. The review clauses they contain, especially in the TCA for 2025, may come to form the basis of a further opening up of possibilities for cooperation between these two near neighbours. The immediate priority is to ensure that the relationship does not deteriorate further and to prepare to make good use of any opportunity for improvement that politics allows. The British Labour Party has signalled that it is willing to sign up to security cooperation and SPS arrangements, both of which are anathema to the current government (Menon and Stower 2022). Wider changes in Europe may also have an impact. The return of war in Europe has heralded a transformative moment and opened up the question of EU enlargement. Enlargement remains the most successful external/internal policy that the EU has in its toolbox, and the magnetic attraction of the EU for third country neighbours, especially poorer ones, remains powerful. The war in Ukraine has upended the Union’s enlargement and neighbourhood policy following the applications for membership from three post-Soviet republics, Ukraine, Moldova and Georgia. This has brought the Western Balkans back onto the enlargement agenda too. The prospect of a Union of 35 or more states is on the cards with all that entails for the nature and governance of the EU. The EU has to squarely face the dilemmas and trade-offs generated by developments in Ukraine. On the one hand, the EU cannot abandon the acquis and the need for candidate countries to converge with EU laws and policies. Importantly, while UK “cherry picking” was a question of preferences, enlargement raises questions of a structural nature concerning state capacity and democratic process. On the other hand, an excessively bureaucratic and technocratic process may lead to convergence on paper but not meaningful convergence, as previous enlargement processes revealed. For these reasons, the relationship between neighbourhood policy and enlargement will have to be re-examined. The EU’s relations with neighbouring countries are complex and characterised by a multiplicity of

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political, institutional and economic instruments. Moreover, there is a fundamental difference between the neighbours that want to join and those for whom membership is not an attractive option. The latter tend to be small and rich. The UK, as a former member state, belongs to the category of states for which membership is not a viable political option at this stage, although this may not remain the case over a longer timeframe. The opening up of the enlargement question and the Conference on the Future of Europe (CfE) have initiated a debate on what kind of EU will emerge and how its relations with near neighbours will be structured. On 9 May 2022, Europe Day, in a speech at the European Parliament, French President Macron launched the idea of a European Political Community (EPC) (Macron 2022). It contained echoes of an earlier idea, the idea of a European Confederation proposed by French President Mitterrand in his New Year address on 31 December 1989. In Strasburg, President Macron argued that “the European Union, considering its level of integration and ambition, cannot, in the short term, be the only way to structure the European continent” and that there was a need to organise Europe politically on a broader basis than just the EU (Macron 2022). According to Macron, a European Political Community (EPC) would allow those countries that shared the values of the EU to find a new space for political and security cooperation, cooperation in the energy sector, in transport, investments, infrastructure, the free movement of persons and in particular of our youth. Joining it would not prejudge future accession to the European Union necessarily, and it would not be closed to those who have left the EU. (Macron 2022)

The direct reference to those who have left the EU was an invitation to the UK to engage with this project. Following the Macron speech, the June 2022 European Council endorsed the idea and concluded that the aim of the EPC was to “offer a platform for political coordination for European countries across the continent. It could concern all European countries with whom we have close relations” (European Council 2022). It stressed that the EPC would not be a substitute for membership and would not damage the EU’s decision-making autonomy. More importantly still, the endorsement gave traction and momentum to the idea. In her September 2022 State of the Union address President von der Leyen supported the idea of a political community, arguing that the EU needed to reach out to countries beyond the accession process (von

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der Leyen 2022). Initial reactions to the EPC were mixed. Countries wanting to join the EU were wary that this was a strategy to delay enlargement. The Ukrainian Foreign Minister was quick to say that nothing short of full membership was acceptable to Ukraine (see European Movement Ireland 2022). Notwithstanding some reservations, the EPC held its first meeting in Prague on 6 October 2022 and it involved 44 heads of state and government. The UK Prime Minister Liz Truss opted to attend although the London government was initially lukewarm in its support for the concept. Although not an EU initiative in the strict sense, the October meeting was held in Prague Castle, as the Czech Republic held the rotating presidency of the EU Council of Ministers. The EPC does not have a chair, a secretariat or a budget and is therefore more akin to a forum that facilitates dialogue than a policymaking organisation. The meeting, intended as a biannual event, involved both plenary and round table discussions among the political leaders in attendance. The focus was on the war in Ukraine, security, climate change and energy policy. Ukrainian President Zelensky urged the leaders to use the EPC as a “European Community of peace” (Zelenskyy 2022). The very fact that a meeting of the EPC was held at all and that a second meeting is scheduled to be held in Chi¸sin˘au, Moldova was in itself a sign of success. What the EPC becomes and how durable it will prove to be is impossible to predict. At its most useful, the EPC may assist countries unwilling or unable to join the EU to enhance their dialogue and cooperation with the EU. It offers the UK a non-institutionalised forum for dialogue with its EU partners but in an environment involving all European states bar Russia and Belarus. The UK has an opportunity to shape what the EPC becomes and could well host an EPC meeting at some future date. Given the friction and tension in EU-UK relations and the war in Ukraine, any forum that brings Europe’s states around one table is to be welcomed. It is not a substitute for EU membership and will never have the institutional and legal underpinnings that constitute EU power and capacity, but it may serve as a useful arena for dialogue and cooperation among all European countries, within and outside the EU.

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MacShane, D. 2019. Brexiternity: The uncertain fate of Britain. London and New York: Bloomsbury Publishing PLC. Menon, A., and S. Stower. 2022. The state of the UK-EU relationship, UK in a changing Europe. Available at https://ukandeu.ac.uk/the-state-of-the-uk-eurelationship/. Accessed 20 October 2022. Office of Budgetary Responsibility. 2022a. Brexit analysis. https://obr.uk/foreca sts-in-depth/the-economy-forecast/brexit-analysis/#assumptions. Accessed 9 December 2022. Office of Budgetary Responsibility. 2022b. Economic and Fiscal Outlook: November 2022. https://obr.uk/docs/dlm_uploads/CCS0822661240002_CCS001_SECURE_OBR_EFO_November_2022_BOOKMARK.pdf. Accessed 9 December 2022. Rogers, I. 2019a. IIEA lecture. Nine lessons in Brexit. Available at https://www. youtube.com/watch?v=rcjsZ0ybN4E. Accessed 20 October 2022. Rogers, I. 2019b. 9 Lessons in Brexit. London: Short Books. Schimmelfennig, F., and T. Winzen. 2020. Ever looser union? Differentiated European integration. Oxford: Oxford University Press. Spisak, A. 2022. A new agenda for a new partnership with the European Union. Available at https://institute.global/sites/default/files/articles/Fixing-Bre xit-A-New-Agenda-for-a-New-Partnership-With-the-European-Union.pdf. Accessed 9 December 2022. YouGov. 2022, December 7. https://whatukthinks.org/eu/questions/in-hig hsight-do-you-think-britain-was-right-or-wrong-to-vote-to-leave-the-eu/. Accessed 9 December 2022. Zelenskyy, V. 2022. Russian evil will lose when our peace formula prevails— Speech by the President of Ukraine at the meeting of the leaders of the European Political Community. Available at https://www.president.gov. ua/en/news/rosijske-zlo-prograye-koli-nasha-formula-miru-peremozhe-vist78329. Accessed 20 October 2022.

Epilogue

On Monday 27 February 2023, UK prime minister Rashi Sunak and commission president Ursula von der Leyen unveiled what has become known as the Winsor Framework, an agreed EU-UK political framework to address the thorny issue of the Northern Ireland Protocol (NIP) in ways that addressed the major challenges to its implementation. The framework is best described as a new approach to the operation of the Protocol and will be translated into policy via decisions of the Withdrawal Agreement Joint Committee and unilateral decisions by both parties. It is a wide-ranging and substantial agreement that makes significant changes to the workings of the Protocol but does not void it. The search for a new approach was a response to the everyday complications caused by the Protocol for business and consumers in Northern Ireland and to the trenchant opposition to the sea border from the Unionist community. The key changes to the practical operation of the Protocol relate to the passage of goods from GB to Northern Ireland. Goods arriving in Northern Ireland will either go through a Green Lane, for goods that remain in Northern Ireland or a Red Lane if the goods are going onwards from Northern Ireland into the single market. The operation of the Green Lane depends on an expanded trusted trader scheme and on the UK sharing with the EU live data on movement of goods from GB to Northern Ireland. This will enable the EU to monitor the flow of goods and the risk of leakage from Northern Ireland into the single market. The bureaucratic burden © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 B. Laffan and S. Telle, The EU’s Response to Brexit, Palgrave Studies in European Union Politics, https://doi.org/10.1007/978-3-031-26263-0

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concerning agri-food will be greatly reduced and by 2025 all food products for consumption in Northern Ireland will have to be labelled, ‘not for EU’. In addition to goods, the framework establishes new conditions for the state aid dimension of the protocol, VAT and excise. The framework will make it easier not just for businesses but for individuals as well. Difficulties concerning the movement of the so-called three Ps, pets, plants and parcels were a major irritant to people living in Northern Ireland and these irritants have been addressed (HMG, 2023, EU Commission, 2023). When the framework becomes operable, it is envisaged that the number and nature of checks on the sea border will be greatly reduced although the sea border remains. The governance of the Protocol was altered in one important respect. The Northern Ireland Assembly has been given a say concerning the application of EU law in Northern Ireland. Under the terms of the framework, 30 members of the Assembly from at least two parties may petition the UK Government to prevent changes to EU law applying to Northern Ireland. There is a high bar for the use of what has become known as the Stormont Break. The content of a new EU Act must differ significantly from the existing acquis and the application must have a significant impact on everyday life within Northern Ireland. The petition mechanism can only be used as a last resort and will be proceeded by extensive consultation and dialogue. In essence, it is not envisaged that the Stormont Brake would be used frequently, if at all. The break poses a dilemma for the Democratic Unionist Party (DUP) because in order to use the Stormont Break they would have to go back into the NI Assembly, having boycotted it because of the Protocol in 2022. On the vexed question of the role of the CJEU in overseeing the Agreement, the EU did not move from its red line on this. The CJEU remains the ultimate arbitrator of Union law. Agreement on the Winsor Framework resulted from the change in political leadership in the UK, on the one hand, and the war in Ukraine, on the other. The EU did not feel it could do business with Boris Johnson or Liz Truss because the introduction of the NIP Bill in June 2022 eroded confidence and trust in the UK and if it had become law, the EU would have had to retaliate. Following the Winsor framework, the UK government announced its intention to halt the passage of the bill through Westminster and let it lapse. Given the hardening of geopolitics and the war in Ukraine, the EU would neither have sought or wanted a trade war with the UK. The same might be said of the Sunak Government. Unlike the May agreements, the Winsor Framework will receive

EPILOGUE

275

parliamentary approval but attention will focus on the European Research Group (ERG) and the DUP. It appears as if PM Sunak has split the ERG vote and it remains to be seen how the DUP will respond. The DUP has not achieved the abolition of the Protocol but the changes to its operation are substantial and both business and the wider society in NI are broadly in favour. Moreover, NI has the unique advantage of having access to the UK and EU markets, something that should being an economic and investment dividend. The framework offers the prospect of improved EUUK relations during 2023 in preparation for the envisaged review of the TCA in 2025. The strongly ideological and sovereigntist phase of Brexit may be nearing its end.

References EU Commission. 2023. Questions and answers: Political agreement in principle on the Winsor framework. Available at https://ec.europa.eu/commission/pre sscorner/detail/en/qanda_23_1271. Accessed 4 March 2023. HMG. 2023. The Winsor framework: A new way forward, vFINAL - 2023 02 27 - Command Paper 1245 (publishing.service.gov.uk). Accessed 4 March 2023.

Index

A Article 217. See Treaty on the Functioning of the European Union (TFEU) Article 218. See Treaty on the Functioning of the European Union (TFEU) Article 49. See Joint Report Article 50. See Joint Report; Treaty on European Union (TEU) Attorney General. See Cox, Geoffrey

B Balance of rights and obligations, 20, 48, 121, 188, 206. See also Red line Barclay, Steve, 120 Bargaining bargaining resources, 3, 4, 104, 112 distributive bargaining, 19, 104–106, 261 integrative bargaining, 105

Barnier, Michel, 6, 14, 18, 66–75, 77, 78, 82, 86, 89, 92–94, 96–100, 111, 113, 114, 119–121, 123, 129, 135, 138, 139, 153, 157–159, 161, 162, 168, 171, 173, 174, 185, 187, 191, 192, 194–201, 203, 209, 225, 227, 260, 265 Barnier press conferences, 94 Barnier staircase, 123, 265 Belarus, 270 Border, 2, 3, 8, 33, 47, 105, 110, 111, 116, 129–134, 138–144, 146–148, 152, 153, 156–158, 160, 162–164, 167, 168, 174, 177, 178, 189, 219, 227, 229, 232, 237, 261, 264 Brexit, 1–13, 15–22, 27–33, 36, 37, 39–45, 47, 48, 50, 51, 57–78, 81–100, 103–107, 109–115, 118, 120–122, 124, 130, 132, 133, 135–137, 140–144, 146–148, 151, 152, 158, 159,

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 B. Laffan and S. Telle, The EU’s Response to Brexit, Palgrave Studies in European Union Politics, https://doi.org/10.1007/978-3-031-26263-0

277

278

INDEX

163, 165–173, 175–177, 183, 184, 186–189, 195, 198, 200, 201, 209, 215, 216, 231, 244, 257–268 Brexit Steering Group. See European Parliament (EP) Brussels, 3, 29, 44, 58, 61, 63, 64, 90, 103, 120, 129, 139, 145, 164, 171, 186, 187, 189, 191, 200, 206, 225, 227, 259, 263, 266 C Cabinet, 5, 64, 67, 68, 73, 85, 99, 162, 168, 206, 218, 227 Cameron, David. See New settlement Capacity, 10, 15, 19, 22, 39, 43, 51, 57, 58, 78, 82, 94, 95, 98, 100, 108, 115, 139, 143, 205, 257, 258, 264, 265, 268, 270 collective capacity, 3, 17, 18, 20, 22, 59, 60, 81, 82, 265 human resources, 43, 69, 192 Cherry-picking, 20, 105, 107, 124, 153 Chicken, 261 Chicken, game of, 203 Citizen rights, 48, 116 Communication, 29, 30, 69, 72, 91, 105, 119–122, 124, 135, 200 Complexity, 29, 71, 143 Compound polity, 5, 58 Conflict, 4, 63, 87, 90, 215, 220, 222, 228, 242, 247, 262, 267 Conservative Party, 5, 32, 39, 105, 114, 152, 159, 164, 167, 168, 175, 176, 236, 246 Constraining dissensus, 5, 12 Coordination, 5, 13, 15, 19, 28, 29, 36, 70, 82, 90, 95–99, 135, 147, 152, 160, 161, 166, 172, 178, 199, 219, 229, 230

institutional coordination, 16, 18, 19, 90, 95, 98, 260 Coreper, 88, 89, 91, 142, 161 Council of the European Union, 6, 7, 44, 48, 92, 130, 137, 188 Court of Justice of the European Union (CJEU), 8, 57, 62, 113, 121, 140, 188, 194, 200, 207, 222, 224, 233, 239 Covid, 184, 191, 192, 227, 258, 265, 266. See also Pandemic Cox, Geoffrey, 163–166 Crisis constitutional crisis, 1 euro crisis, 5, 34 refugee crisis, 1 Cyprus, 130, 219, 229 Czech Republic, 270 D Davis, David, 40, 111, 119, 120, 129, 142, 146, 157, 158 Deal. See No deal package deal, 112 single package, 109, 147 nothing is agreed until everything is agreed, 36, 48 trade deal, 8, 10, 43, 91, 110, 111, 113, 114, 194, 208 Decision-making, 5, 6, 8, 16, 17, 19, 22, 58, 81, 82, 88, 183, 200, 216, 219, 264, 265, 269 Dejmek Hack, Paulina, 73 Democratic Unionist Party (DUP), 105, 139–141, 145, 157, 163, 169, 175, 176, 231 Department for Exiting the European Union, 43 Department for International Trade, 43 de Rynck, Stefaan, 69

INDEX

Directorate General (DG), 67, 68, 71–73, 95, 96, 156, 206, 217, 239, 245 Discourse, 19, 31, 32, 35, 108, 169, 189. See also Framing discursive hegemony, 34, 37, 51 discursive unity, 18 Disintegration, 4, 5, 14, 15, 263. See also Domino effect Dispute dispute resolution, 8, 112, 188, 200, 201, 216, 218, 220, 222, 226, 233, 239–241, 246, 247 dispute settlement, 140, 202 infringement proceedings, 220, 222, 232, 236 Domino effect, 2, 5. See also Disintegration Dublin, 120, 140, 141, 171, 225, 227 DUP. See Democratic Unionist Party (DUP)

E Effectiveness. See Negotiations; Red line Enlargement, 5, 258, 268–270 EU. See European Union (EU) European Central Bank (ECB), 57 European Commission, 6, 14, 21, 35, 36, 44, 47, 48, 66, 70–72, 74, 89, 92, 114, 116, 117, 122, 123, 164, 173, 187, 192, 200, 202, 218, 222, 223, 225, 226, 228, 232–234, 236, 242, 245 European Council, 3, 6, 8, 18, 33, 35–37, 42, 44, 47, 48, 57, 61–66, 75, 76, 78, 84–86, 88, 89, 100, 106, 109, 111, 116, 117, 121, 129, 130, 134, 140, 146, 147, 151, 152, 156, 160,

279

164, 166, 169, 175, 187, 203, 262, 264, 269 European Council Art 50, 61, 121 European Council meeting, 6, 21, 36, 64, 76, 83, 87, 100, 116, 144, 160, 162, 165, 171, 174, 259 European Council summit, 45, 123, 129, 161, 165, 175 European Economic Area (EEA), 122 European integration, 1, 2, 11–13, 15, 21, 28, 131, 189, 263 differentiated integration, 37, 264 European Parliament (EP), 6, 14, 15, 19, 35, 44, 47, 48, 57, 61, 66, 70, 71, 74–76, 78, 85, 89, 92–94, 96, 97, 131, 139, 148, 156, 166, 167, 176, 197, 239, 269 European Political Community (EPC), 258, 269, 270 European Union (EU), 2–22, 27–29, 31–37, 39–48, 50, 51, 57–59, 61, 62, 64–68, 70, 71, 74, 77, 78, 81–90, 92–95, 98–100, 103–107, 109–124, 130–134, 136–141, 143, 144, 146–148, 151–153, 156–161, 163–173, 175–178, 183–198, 200–209, 216–218, 222, 224–238, 240, 242–247, 258–270 Euroscepticism, 32, 189. See also Populism Eurosceptic, 2, 32, 169 Eurozone, 4, 12, 32

F Facilitated Customs Arrangement (FCA), 123, 157 Faull, Jonathan, 35, 216, 217, 263

280

INDEX

Financial settlement, 8, 48, 111, 116, 130–138, 144, 147, 148, 153, 177, 219, 229, 261 Four freedoms, 45, 121, 158, 265. See also Free movement Framing, 3, 15, 16, 18–20, 22, 27–31, 35, 37, 42, 43, 45, 50, 107, 120, 142, 169, 170, 172, 259, 260, 266. See also Discourse France, 1, 4, 68, 131, 159 Free movement, 121, 131, 138, 139, 269. See also Four freedoms Free Trade Agreement (FTA), 40, 43, 48, 123, 153, 156, 184, 188–190, 201, 207, 216, 239. See also Trade Frost, David, 120, 168, 170, 171, 186, 189, 191, 192, 194–197, 199–201, 203, 218, 227, 228, 234, 238

G General Affairs Council (GAC), 48, 76, 88, 89, 96, 142, 187 General election, 5, 32, 105, 114, 185 Germany, 4, 93, 94, 131, 141, 143, 177 Gibraltar, 219, 229 Good Friday Agreement (GFA), 131, 140, 174, 237 Governance, 16, 17, 18, 33, 58, 59, 61, 77, 81–83, 97, 99, 112, 130, 134, 140, 187, 188, 190, 191, 193, 194, 199, 200, 202, 203, 205, 206, 216, 233, 237, 243, 244, 268. See also Dispute Resolution; Joint Committee (JC); Partnership Council (PC) Greece, 4

H High Court, 228 History, 1, 4, 6, 32, 171, 257, 263 Hooghe, Liesbet, 5, 12, 59 House of Commons, 7, 19, 72, 119, 120, 152, 163–166, 172, 175, 176, 185, 190, 193, 201, 216, 217, 257

I Idea, 1, 2, 21, 43, 58, 71, 72, 86, 90, 91, 118, 120, 133, 136–138, 141, 156, 161, 163, 165, 170, 171, 173, 189, 269 Implementation, 4, 9, 41, 77, 137, 160, 164, 216–218, 220, 221, 225–234, 236, 239, 242, 243, 245–247, 262 Independent Monitoring Agency (IMA), 228, 230, 231 Institutional coordination, 16, 18, 19, 95, 98, 260 Institutions. See Attorney General; Coreper; Council of the European Union; Court of Justice of the European Union (CJEU); Department for Exiting the European Union; Department for International Trade; European Central Bank (ECB); European Commission; European Council; European Parliament (EP); General Affairs Council (GAC); High Court; House of Commons; Task Force 50; Task Force UK decision-making institutions, 6, 16, 19, 81, 88 institutional coordination, 18, 19, 90, 95, 98, 260

INDEX

institutional ecology, 3, 6, 19, 21, 57–62, 78, 88, 90, 94, 95, 100, 107, 115, 260, 262 Interdependence, 3, 71, 103, 124, 196, 258 Interests, 2, 5, 6, 10–13, 15, 16, 18, 19, 22, 27–30, 35, 36, 47, 63, 70, 71, 98, 103, 106–111, 114, 117, 133, 136, 138, 139, 141, 143, 147, 148, 153, 158, 161, 163, 166, 167, 172, 175, 177, 187, 188, 197, 201, 216, 257, 259, 263 economic interests, 2, 3, 11, 12, 16, 28 Intergovernmentalism, 11–13 Internal Market Bill (IMB), 10, 201, 202, 205, 222, 225, 232, 239 Ireland. See Good Friday Agreement (GFA); Facilitated Customs Arrangement (FCA); Protocol on Ireland/Northern Ireland Irish Border, 8, 116, 129–134, 138–144, 146–148, 153, 160, 162, 167, 168, 174, 177, 178, 219, 229, 261 Taoiseach, 227 Irish border, 8, 116, 129–134, 138–144, 146–148, 153, 160, 162, 167, 168, 174, 177, 178, 219, 229, 261 Italy, 4, 131 J Johnson, Boris, 8, 9, 14, 106, 107, 119, 120, 123, 124, 130, 151, 152, 157, 167–177, 184–186, 188–191, 193, 197–199, 203–206, 208, 209, 227, 236, 261, 268 Joint Committee (JC), 202, 217, 220, 224, 226–228, 234–236, 238.

281

See also Governance; Withdrawal Agreement (WA) Joint Report, 115–117, 130, 134, 137, 139, 143, 145–148, 152, 153, 261 Juncker, Jean-Claude, 5, 44, 66–68, 72, 73, 86, 99, 113, 114, 129, 136, 145, 162, 173, 175 L Leave campaign, 29, 31, 132, 133 Leave vote, 5, 263 Legal, 14, 35, 36, 43–45, 48, 71, 83, 84, 86, 103, 106, 109, 114, 115, 117, 124, 131, 137, 144, 156, 163, 166, 184, 190, 192, 195, 196, 201, 215, 217, 220, 224, 228, 230, 243, 244, 247, 259, 261, 270 Level playing field (LPF), 48, 69, 112, 118, 156, 158, 188–191, 193–196, 199–201, 203, 205, 206, 209, 216, 240, 261. See also Red line London, 84, 86, 119, 138, 145, 146, 162, 183, 186, 190, 193, 196, 200, 201, 203, 204, 206, 225, 227, 231, 233, 235, 246, 262, 270 M Macron, Emmanuel, 165, 269 Madman, 151, 261 Marks, Garry, 5, 12, 59 Martinez Alberola, Clara, 74, 96 Martin, Micheál, 227 May, Theresa, 6–9, 14, 19, 34, 39, 40, 42–44, 47, 48, 67, 87, 95, 96, 106, 107, 114, 116, 122–124, 130, 132, 139–141, 144, 145, 151–153, 157–160,

282

INDEX

162–170, 174, 177, 178, 186, 231, 235, 261, 263 Member state, 1–3, 5, 7, 8, 10–22, 28–31, 34–37, 45, 47, 50, 57, 58, 63–67, 69–72, 78, 81, 82, 84–88, 90, 93–95, 97, 99, 100, 106, 107, 109, 113, 116, 123, 131, 132, 135, 138, 141–143, 147, 152, 153, 156, 158, 160, 161, 165, 166, 171–173, 177, 178, 183, 185, 187, 189, 193, 196, 197, 202, 216, 218, 222, 224, 225, 230, 231, 236, 243, 245, 257, 259, 260, 263–265, 269 Merkel, Angela, 171 Metaphor. See Cherry-picking Michel, Charles, 197, 198, 206 Migration. See Free movement; Refugee crisis Moldova, 268, 270

Norms. See Transparency; Unity practice norm, 3, 19, 92, 260, 264 Northern Ireland. See also Good Friday Agreement (GFA); Northern Ireland Protocol (NIP) Northern Ireland Protocol Bill, 10, 235, 236, 267 Northern Ireland Protocol (NIP), 9, 173, 201, 217, 219, 220, 222, 224–236, 242, 246, 247, 267 Protocol on Ireland/Northern Ireland, 151, 233

N Negotiating objectives, 3, 22, 40, 258 Negotiations negotiating guidelines, 6, 100, 140 negotiating objectives. See Citizen rights; Financial settlement; Irish border; Red line negotiating rounds, 92, 120, 185, 186 Netherlands, 1, 4, 90, 93, 118, 139, 142, 158, 159, 165, 177 New settlement, 28, 31–37, 50, 51, 263 No deal, 2, 7, 14, 20, 72, 103, 117, 122, 124, 144, 160, 162, 166, 168, 170–172, 177, 185, 203–207 No negotiation without notification (NNWN), 45, 64, 83, 86, 87, 100, 260

P Pandemic, 191, 192, 193, 227, 265, 266. See also Covid Partnership Council (PC), 227, 237–240, 242, 243, 245 Periphery, 4 Poland, 131 Policy, 1, 11, 13, 18, 27, 30, 31, 34, 39, 57–59, 66–69, 71, 76, 81, 91, 94, 95, 98, 103, 120, 121, 131, 144, 173, 184, 186, 188–190, 192, 193, 196, 208, 230, 239, 240, 244, 259, 264, 266, 268, 270 Political ownership, 20, 104, 107, 113, 114, 119, 178, 259 Polity, 3, 13, 15, 19, 22, 29, 78, 82, 257, 259, 263–265. See also Compound polity Populism, 2. See also Euroscepticism

O Orderly withdrawal, 3, 8, 20, 28, 45, 47, 48, 50, 104, 130, 133, 136, 151, 176, 177, 185, 259 Ownership, 19, 21, 45, 94, 97 political ownership, 20, 21, 104, 107, 113, 114, 119, 178, 259

INDEX

populist parties, 2, 4 Portugal, 131 Post-functionalism, 12 Power, 2, 5, 12, 13, 15, 20, 21, 29, 58, 77, 78, 99, 104, 105, 108, 134, 161, 170, 177, 192, 208, 209, 219, 242, 259, 262, 264–266, 270 concert of power, 4 core state power, 13 President President of the European Commission. See Juncker, Jean-Claude; von der Leyen, Ursula President of the European Council. See Michel, Charles; Tusk, Donald Press conference, 6, 94, 111, 119–121, 129, 159, 162, 175, 197, 209, 233 press statement, 5, 174 Prime Minister. See Johnson, Boris; May, Theresa; Sunak, Rishi; Truss, Liz Procedural arrangements. See Process Process. See Institutional coordination; Negotiating objectives; Political ownership preparedness, 3, 5, 21, 43, 72, 104, 107, 113–115, 119 procedural arrangements, 6, 18, 22, 83, 88–90 Protocol on Ireland/Northern Ireland, 151, 233

Q Quota, 193, 208, 209 quota- and tariff-free, 8

283

R Raab, Dominic, 120 Red line, 12, 20, 21, 106, 121, 122, 153, 185, 186, 198–200, 203, 206, 208, 209, 260. See also Balance of rights and obligations; Court of Justice of the European Union (CJEU); Free movement; Irish border; Level playing field (LPF) autonomy of decision-making, 8, 200, 265, 269 independent trade policy, 121, 173 integrity of single market, 8, 11, 104, 156, 199, 205, 233, 264 regulatory autonomy, 242 Referendum, 3–5, 10, 15, 19, 27–29, 31–37, 39, 41–45, 50, 51, 58, 59, 62, 63, 82, 83, 85–87, 90, 110, 114, 167, 168, 186, 259, 262, 263, 265, 267. See also Leave campaign; Leave vote; Take back control Refugee crisis, 1 Refugees, 1, 4 Riekeles, Georg, 67–69, 95, 98, 114, 121, 134–136, 138, 141, 158, 165, 168, 172, 173 Riso, Stephanie, 67–69, 73, 135, 204 Robbins, Olly, 67, 134, 135, 145, 162, 168 Rogers, Ivan, 84–86, 262, 263 Romania, 131, 243 Russia, 5, 237, 258, 265, 266, 270 Rutte, Mark, 6, 44 S Salzburg, 123, 152, 159, 160 Schimmelfennig, Frank, 2, 11–15, 21, 37, 264, 265 Schmidt, Vivien, 16, 29 Scottish, 10, 33

284

INDEX

Šefˇcoviˇc, Maroš, 77, 202, 218, 224–227, 233–236, 238 Selmayr, Martin, 67, 68, 83, 87, 96, 113, 114, 162 Sequencing. See Sufficient progress phased approach, 47, 48, 109, 111, 114, 124, 129, 133, 135, 147, 260 Single market, 2, 3, 8, 11, 12, 20, 21, 32, 43, 45, 48, 71, 104, 110, 112, 117, 120, 121, 123, 131, 132, 140, 142, 143, 148, 153, 156, 159, 164, 175, 177, 183, 195, 199, 200, 205, 224, 229, 233, 236, 246, 262, 264, 265, 267 Sovereignty, 5, 8, 13, 14, 19, 20, 33, 40, 43, 103, 104, 107, 109, 124, 133, 169, 170, 187, 189, 191, 200, 205, 257, 261, 262, 264, 265 sovereign, 8, 39, 40, 50, 110, 188, 190, 193, 201 Spain, 229 Strategy. See Bargaining; Chicken; Madman; Sufficient progress Sufficient progress, 8, 111, 116, 129–134, 144, 146, 147, 151, 152, 261 Sunak, Rishi, 218, 237 Support, 7, 30, 97, 100, 107, 113, 131, 136, 141, 142, 153, 159, 163–165, 175, 176, 186, 247, 270 political support, 3, 21, 113, 169 Sweden, 158 T Take back control, 33, 34. See also Referendum Task Force 50, 39, 86, 91, 95, 113, 115–117, 133–139, 141, 143,

145, 147, 148, 153, 157, 158, 160–166, 169–172, 174, 176, 178, 185, 204 Task Force for the Preparation and Conduct of the Negotiations with the United Kingdom under Article 50 TEU, 6, 66 Task Force UK, 76 Task Force for Relations with the United Kingdom, 61, 62, 185 Third country, 3, 28, 45, 58, 72, 75, 84, 99, 109, 122, 123, 143, 196, 216, 260, 264, 268 Trade. See also Free Trade Agreement (FTA) Trade and Cooperation Agreement, 20, 73, 92, 96, 98, 115, 124, 184, 188, 194, 206–208, 215–218, 221, 222, 226, 227, 233, 237, 239–247, 257, 258, 261, 268 Trade Partnership Committee, 239, 244 Trade Specialised Committee, 239, 244 Transparency, 82, 88–95, 97–100, 107, 115, 139, 145, 152, 161, 192, 225, 260 Treaty on European Union (TEU), 6, 13, 15, 17, 44, 60, 69, 74, 81, 83–85, 87, 89, 92, 100, 109, 114, 257, 260, 263 Treaty on the Functioning of the European Union (TFEU), 14, 74, 84, 85 Trump, Donald, 4 Truss, Liz, 218, 228, 234–238, 246, 270 Tusk, Donald, 5–7, 33, 35, 36, 42, 44, 61, 64, 78, 83, 86, 96, 100, 123, 159, 160, 162, 169–171, 175

INDEX

U UK. See United Kingdom (UK) Ukraine, 5, 122, 217, 237, 258, 265, 266, 268, 270 Uncertainty, 4, 7, 17, 27, 29, 35, 42, 44, 47, 70, 82, 83, 111, 168, 171, 201, 236, 266, 267 United Kingdom (UK), 1–15, 17, 19–22, 27–29, 31–37, 39–45, 47, 48, 50, 51, 58–62, 64, 66, 69, 71–74, 76–78, 83–87, 89–92, 94–96, 98, 100, 103–106, 109, 130, 146, 152, 163, 175, 231, 266 Unity, 3, 6, 7, 10, 11, 13, 15, 16, 18–20, 27, 28, 36, 37, 44–46, 50, 70, 82, 92, 97, 99, 100, 104, 106, 120, 132, 142, 161, 165, 167, 168, 171, 172, 177, 178, 197, 202, 227, 259–261, 264 united, 2, 3, 5–7, 10–12, 16, 17, 20, 22, 27, 28, 34–36, 44, 45, 47, 50, 51, 78, 83, 91, 95, 104, 106, 138, 151, 158, 160, 166, 177, 258, 259, 261, 262, 264, 265

285

united approach, 2, 4, 50

V Values, 6, 42, 47, 184, 194, 269 Varadkar, Leo, 173, 174 Verhofstadt, Guy, 75–78, 139 von der Leyen, Ursula, 73, 99, 186, 187, 193, 197, 203–206, 227, 237, 258, 269

W Weyand, Sabine, 68, 69, 73, 100, 134, 161, 162, 168 Window of opportunity, 42, 48 Withdrawal Agreement (WA), 8, 9, 20, 62, 64, 72–74, 77, 84, 85, 96, 98, 100, 106, 115, 117–120, 124, 130, 134, 139, 151, 152, 160, 162–166, 169, 173, 175–177, 183–186, 189, 190, 192, 201, 202, 204, 215–220, 222, 224–231, 234, 238–243, 246, 247, 257, 258, 261, 268