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Each other state likely to have veto on our EU exit terms

by Jack Schickler | 06.06.2016

Michael Gove has admitted that Brexit will be a long-drawn out process that would go on until at least 2020. But listeners of the BBC’s Today programme this morning may have been comforted with the thought that no single EU member could hold hostage negotiations over our divorce terms.

Raoul Ruparel of think tank Open Europe told the programme that “once a [post-Brexit] deal is reached, it has to be approved by a qualified majority” of the remaining EU nations. If that were the voting system, an agreement could still go ahead even if countries representing up to 35% of the EU’s population voted against. As no EU country would have a veto, Spain – for example – couldn’t hold negotiations to ransom over a pet issue like Gibraltar.

But Ruparel’s statement should not be taken at face value. The issue is more complex, and so would negotiations be. Open Europe’s co-director admitted as much in a subsequent email exchange with InFacts.

The divorce talks would almost certainly have two elements: our actual withdrawal from the EU; and the agreement of new terms for trade and other matters such as security and aviation.

The legal basis for withdrawal is set out in Article 50 of the EU’s Treaty. If this is all that was being done, the decision would be taken by qualified majority voting with no individual country having a veto – although any country could block an extension of the two-year negotiating timetable.

However, since Britain would also presumably be negotiating some new arrangement with the EU, other legal considerations would come into play. Any deal other than a simple trade deal would almost certainly give each of the other 27 countries a veto. And given that Britain would want more than a simple trade deal, there would therefore be a risk that individual countries might hold us to ransom.

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There are basically two ways such a new deal could be negotiated: either as part of our withdrawal deal; or in a separate deal.

In the first case, the decision at the European Council could be taken by qualified majority voting. But if the new arrangement was what is called a “mixed agreement” – the kind of trade deal that does not just cover issues where the EU has a competence, but strays into areas under national control, like transport – it would have to be ratified in each national parliament. So any country could block it.

On the other hand, if there’s an entirely separate deal setting out our new arrangements and this covered any topic such as tax where the Council has to give its unanimous approval, again every country would have a veto.

Meanwhile, if Britain wanted the sort of deep association agreement that the EU has negotiated with Ukraine, unanimity would be required at the Council as well as national ratifications – giving each country two chances to exercise a veto. Indeed, that’s just what happened when the Dutch people voted against ratifying the EU deal with Ukraine.

The UK could admittedly avoid giving each country a chance to block its divorce deal by keeping it very simple. But then our access to the EU market and ability to cooperate in other non-economic areas would be very limited.

Edited by Hugo Dixon

One Response to “Each other state likely to have veto on our EU exit terms”

  • The withdrawal agreement also requires consent obtained by the European Council from the European Parliament. The European Council contains all the heads of Government. As we are negotiating to leave, we are not part of the negotiations from the point of view of the EU but the European Council is the one that David Carmeron, Angela Merkel and François Hollande would attend – not the Council of the European Union that other cabinet ministers would attend.

    Since the treaties do not cease to apply to a withdrawing member until the date of the withdrawal agreement or after two years or such longer period as may be agreed, presumably our MEPs are not strictly out of a job until we actually leave. I thought I was clear, but I am now hesitant, about whether the consent of the EU Parliament would include the votes of MEPs representing constituencies in the withdrawing state.