While the power of national parliaments in the European Union has generally been increased over the last two decades, as means of democratising the EU, their involvement in the Brexit process will further complicate the negotiations and prove difficult for the the next British government to handle, writes Julian M Hörner.
Hungary’s parliament building, Budapest. Credits: Godot 13 (CC BY-SA 4.0)
Amidst the triggering of Article 50 on 29 March, the announcement of a UK General Elections for June and the special Brexit summit which took place last Saturday, one could easily get the impression that the upcoming Brexit negotiation will purely be a matter between London and Brussels. However, as a recent article in Politico Europe highlighted, even an initial deal setting the terms of Britain leaving the EU could be subject to the approval of national parliaments from 27 member states as well as some regional chambers. While it is likely that any potential final trade deal between the UK and the EU should be subject to national parliamentary approval, the fact that even an initial ‘divorce agreement’ might involve dozens of additional actors further highlights the complexity of the negotiations the next British government will have to face.
The role of national parliaments in the European Union has generally been strengthened over the last two decades, with the aim of making the EU more democratic and to compensate for the perceived deficiencies of the European Parliament in representing the citizens in the EU, for example because of low electoral turnout and public visibility. The formal powers of national parliaments in EU affairs vary considerably, from binding mandates to the mere right to be informed – and so does their actual engagement. All national parliaments have been following developments in Britain very closely over the past year and many such as French Assemblée and Sénat have drawn up extensive reports on Brexit. Parliamentary scrutiny of EU legal acts has to be seen in the context of domestic politics, and is often used by populist parties to appeal to their voters, as I have shown in my own research. Any approval of a deal on Britain leaving the EU could thus become nested in domestic power struggles.
According to the abovementioned document by the German Parliamentary Research Services which was obtained by Politico, the German government might diverge from its earlier position that parliamentary involvement was not necessary for an initial transitional deal, depending on its content and scope. Irrespective of their domestic formal powers in EU affairs, whether or not national parliaments will have to be involved in the initial agreement governing the UK leaving the EU is likely to depend on whether it will be classified as a ‘mixed’ agreement affecting the shared competences of the EU and the member states. Given Germany’s position in the EU, the Bundestag’s involvement has been historically an important factor mandated by the German constitutional court to be necessary for the country to participate in any treaty changes and for major policy initiatives to succeed, most recently in the case of the European Stability Mechanism (ESM). The Brexit negotiations themselves, however, will not require the direct involvement of the member states or their parliaments, at least not of the Bundestag.
While it is not clear whether any transitional or ‘divorce’ agreement requires the assent of national parliaments, any future trade deal most likely will. In December, Advocate General (AG) Sharpston of the European Court of Justice (ECJ) argued that a Free Trade Agreement between the EU and Singapore should be approved by all member states, and not by the European Commission alone. The final decision of the Court is expected on 16 May. The implications of the involvement of dozens of national parliaments became obvious in the final ratification phase of the CETA agreement between the EU and Canada in late 2016. The European Commission classified it as a ‘mixed agreement’ while the decision of the ECJ on the exact delineation of competences under the common commercial policy was pending, even though the Commission’s own legal assessment is that trade is an exclusive EU competence.
The near failure of CETA made clear that not only the parliaments of ‘big’ member states have to be reckoned with when parliamentary involvement is required. In the case of CETA, it was the parliament of the Belgian region of Wallonia with a population of around 3.5 million which almost blocked the final agreement. Interestingly, Belgium and its regions might again play an interesting role in a Brexit deal, with the Flanders region having much stronger trade links to the UK as an export market compared to Wallonia which is generally much more sceptical of free trade, leading to two completely different assessment of what a desirable outcome and negotiation strategy should be. This demonstrates how the involvement of national and (depending on the national constitutional order) regional parliaments will not only bring in a large number of additional veto players who could block or delay any deal, but will also further complicate the negotiations by interlinking them with domestic political dynamics.
Overall, national parliament can be expected to follow the Brexit process very closely. Legislative elections will take place in the three largest member states this summer: France, Germany and Britain itself. The changes in the composition of these chambers are likely to shape the negotiations, but as the case of CETA shows also the parliaments of small (sub-) national entities can have a significant impact on any deal on Britain leaving the EU, and even more likely on any new trade agreement between the UK and the other member states, depending on the much-anticipated judgement of the ECJ. In any case, the debate on the involvement of national parliaments further highlights what a complex and formidable task the Theresa May is facing for the next two years and beyond.
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Note: This article was originally published at LSE Brexit and it gives the views of the author, and not the position of EUROPP – European Politics and Policy, nor of the London School of Economics.
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Julian Hörner – LSE
Dr Julian M Hoerner is LSE Fellow in EU Politics at the European Institute. He works on the activity of national parliaments in EU affairs with a focus on the role of Eurosceptic parties as well as on the impact of constrained democratic choice as part of the EUDEMOS project at LSE.
Involving each member country in the approval of any agreement between the UK and the EU is an issue for the commission, as has been said on numerous occasions, no deal is better than a bad deal.
LOL
only brainwashed zealots would keep repeating the mantra that utter destruction of british trade with the world would be better than trade under more difficult terms of exchange
Did anyone of any consequence notice that I had forgotten that the EU had taken over the world.
Ironic, isn’t it, that we are leaving the EU in order to “take back control”, yet we are now finding that our own Parliament, along with all the others in the EU, has appreciably more influence on EU matters than generally supposed. Mrs May has of course consistently sought to minimise the UK Parliament’s influence on the Executive, and indeed appears to regard the workings of democratic institutions, and even the rule of law, with contempt. I shed no tears for her in her predicament.
Article 50 is quite clear. The only parliament that gets a vote is Europarl, where a simple majority is required. After that, only a QMV approval in the EU Council is needed. An Article 50 agreement is by “the Union” (the Union shall negotiate and conclude an agreement with that State….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. – 50.2). Article 216 says that agreements concluded by the Union are binding on all member states and all EU institutions. No further ratification is required (Agreements concluded by the Union are binding on the institutions of the Union and on its Member States. – 216.2)
Now of course, if there are other agreements outwith the Article 50 framework, they may operate under different rules. It seems quite likely that we will see one or more Article 217 agreements: The Union may conclude an association agreement with one or more third countries or international organisations in order to establish an association involving reciprocal rights and obligations, common actions and special procedures. Again, a Union agreement – perhaps suited to dealing with such issues as migrants.
Note that until the UK has left the EU, Article 218 does not apply, since it is neither a third country nor an international organisation (except of course for 218.3, specifically referred to in Article 50).
Member state parliaments may mandate their heads of government to adopt particular stances in the EU Council, but individual protests may not be given much of a hearing given QMV when the going gets tough.
You see people post this kind of argument in comment sections/on social media quite regularly. It seems to operate from the idea that Article 50 is some kind of detailed legal procedure and that EU member states have limited capacity to do anything outside of what Article 50 permits them to do.
That simply isn’t the reality of how this process works. Article 50 itself isn’t going to prevent EU member states from attaching whatever conditions they like to the process – if the Council decides they’re going to hold parliamentary votes (even referendums) on the Brexit deal then there is nothing to stop them doing that. You’ve cited the fact that “only a QMV approval in the EU Council is needed” without seemingly acknowledging that the Council is simply composed of national governments and these governments can more or less decide whatever they like.
This isn’t a court case, it’s a political negotiation. The mere fact that the Council has to agree to the deal means EU member states have a huge amount of scope, if they so choose, to change how that process is going to work. The real point in Article 50 is that it limits the options for the state leaving the EU (the UK) by putting a deadline on a deal being reached (otherwise the UK leaves with nothing) and stating that a deal can only be valid if both the European Parliament and the governments of the other EU member states agree to it. Within that framework there’s nothing to stop the other EU member states from doing whatever they like, so long as they have a relatively united position on it.
You seem to think that a treaty can be ripped up and ignored whenever it suits. Treaty changes require unanimous approval (an inconvenient fact for those who think they can impose an exit bill on the UK). You fail to acknowledge that I pointed out that Member state parliaments may mandate their heads of government to adopt particular stances in the EU Council – however, that is NOT a competence of the EU institutions (who have NO VOTE in Council), nor is it something that can suddenly impose a requirement for unanimous approval or grant veto powers to Wallonia where the terms are explicit in only requiring QMV in Council, which suffices to provide all necessary ratification.
You make the classic error of assuming that Article 50 imposed a negotiating deadline: it does not. Nowhere does it say that negotiations will be terminated unless an agreement is concluded. It imposes an obligation on the Union to negotiate and conclude an agreement sine die – including after the withdrawing state leaves under the guillotine procedure if need be. You may wish to argue that the EU wishes to become known as an organisation that ignores and repudiates the treaties it enters into: if so, you should argue that it will find life quite difficult if its word cannot be trusted.
Article 50 is quite unique: it is the only provision where the EU is required to negotiate with a member state: in other cases they can simply impose (e.g. Article 7). All member states have agree to it, just as they have to provisions such as Article 3(5) and 8, which require that they should offer free and fair trade and be a good neighbour.
What we see at present in the negotiating guidelines is an inconsistent, incoherent pitch (how can you give certainty to migrants if nothing is agreed until everything is agreed, for example) that reflects how little effort the EU and its governments have put into it so far. They have been avoiding the main issues, such as facing up to the fact that they will need to cut their budget or increase contributions, by assuming that they will never arise if the negotiating stance causes the UK to agree to stay on (with unanimous agreement in Council) under 50.3. They have yet to understand that Brexit means Brexit, and these issues will have to be addressed for real. That means in reality that they are months behind, with so much time wasted by Barnier and his crew on the Juncker/Selmayr plan that simply doesn’t fly, because it is not backed up by the Treaties.
“You seem to think that a treaty can be ripped up and ignored whenever it suits. Treaty changes require unanimous approval (an inconvenient fact for those who think they can impose an exit bill on the UK).”
The other member states don’t have to change the treaties to alter how the process will work, they simply need to decide among themselves how they’re going to agree to the deal. If they get together and decide they’d like national parliaments to have a say then there’s nothing to stop that from happening. You seem to want to argue that Article 50 would prevent this when it does nothing of the sort.
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“You fail to acknowledge that I pointed out that Member state parliaments may mandate their heads of government to adopt particular stances in the EU Council – however, that is NOT a competence of the EU institutions (who have NO VOTE in Council), nor is it something that can suddenly impose a requirement for unanimous approval or grant veto powers to Wallonia where the terms are explicit in only requiring QMV in Council, which suffices to provide all necessary ratification.”
I’ve no idea what sentences like “the EU institutions have NO VOTE in Council” are supposed to mean. That’s more or less flat out gibberish. Whatever it is you were trying to say, I’d suggest rephrasing it and making sure you’re firm in your knowledge of the subject before you get into a debate about it. The Council is an EU institution, saying “EU institutions have no vote in the Council” doesn’t make the slightest bit of sense.
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“You make the classic error of assuming that Article 50 imposed a negotiating deadline: it does not. Nowhere does it say that negotiations will be terminated unless an agreement is concluded.”
It says quite clearly that the treaties cease to apply to the withdrawing state two years after notification (or earlier in the case of an agreement) unless the Council unanimously decides to extend this period. I’ve no idea what kind of armchair lawyer fantasy you’re engaging in here, but I’d suggest stepping into the real world.
Oh dear. A really random internet forum opinion. You seem to think that the process is 1) agree provisions in a treaty; 2) ignore them when it is time to invoke them. The UK has every right to insist that the process as agreed in the treaty is followed – that’s what we all signed up to. If any party wants to change that, it requires unanimous consent: the 27 can’t just change the rules to suit themselves later. In just the same way, while we have been a member we have found ourselves bound to implement policies we disagreed with, because the Treaties required us to do so and the QMV majority was against us.
Obviously you have not read the provisions on voting in the EU Council. Can we take your post seriously if you are unaware that votes are cast only by member states, and not by the EU Commission or the High Representative or the President of the Council?
You fail to understand that the Treaties continue to apply to states that remain, and the obligation to negotiate and conclude an agreement with the withdrawing state is on the Union is in no way expunged by the act of leaving – only by concluding it (i.e. voting to ratify and make it effective) .
Time for you to do some serious study I think – if you are capable of it. I suggest you start with the Vienna convention on the law of treaties, and the basic concept of pacta sunt servanda.
Hello, I very much agree with you that the only parliament that gets a vote on the divorce is Europarl as that is what Art 50 clearly states. I am interested, however, on your view regarding art. 218 not applying, because this would exclude an opinion from the court pursuant to 218.11. Do you have anything more written on the subject or have any sources? I am researching this subject and would appreciate any info, thanks.