The E.U. and the U.K. are both making hazardous bets!
The flow of declarations and commentaries concerning the state of the negotiations between the E.U. and the U.K. aiming at avoiding a “Brexit” are fostering expectations that may not only bring about disappointment but, by reaction, lead to the very consequences that the parties are supposedly attempting to avoid. This is all the more likely that, in developing their strategies, the negotiators seem to impute to their counterparts, motivations that are largely based on “wishful thinking”!
Thus, the British are convinced that the 27 other member states are ready to make significant concessions in order to keep the U.K. within the Union. They are deliberately ignoring the recent major political developments that are shaking the world and Europe and that make the Union particularly vulnerable to the challenges posed by immigration, terrorism, economic growth and financial stability. However, facing these problems which are interlinked requires more than ever common decisions and policies that are incompatible with the British demands aiming essentially at “less Europe”. The British (fully backed by the Commission) are seeking to accelerate the calendar to avoid that these burning questions interfere with the negotiations.
On the other side, the EU, fully aware that maintaining the UK in the fold is by far preferable, is tempted to offer excessive concessions. These could prove, in due course, a serious impediment to the further integration of the Eurozone, a necessary condition of its survival, or interfere with the implementation of a common immigration policy, accompanied by the joint policing of EU external borders, which is needed to ensure the smooth functioning of the “internal market” and guarantee the free movement of people, goods and capital within it. Winning the referendum under such constraining conditions would turn out to be a pyrrhic victory, containing the seeds of the inevitable dismantling of the Union.
The atmosphere currently surrounding the negotiations is particularly unhealthy because it is based on a series of misunderstandings - deliberately encouraged – aiming at convincing the various public opinions of the merits of the British demands and their compatibility with the interests of the Union. The role of the Commission staffed “task force”, heavily involved in the negotiating process, remains fuzzy as it lacks any mandate from the Council due to the clear “intergovernmental” nature of the discussions. Thus, its head Jonathan Faull has declared, concerning David Cameron’s demand that any agreement “be legally binding and irreversible”, that the Danish precedent constituted an acceptable template; he insists –without further precision – that “A decision of the heads of state or government of the European Council can constitute an agreement between them in international law, and can therefore quite legitimately be described as legally binding.”
This opinion calls for two remarks: first it is by no means certain that the reference to the “Danish model is appropriate: indeed, some of the British demands – far from being limited to “opt-outs” (i.e. non-participation in an ever closer Union or in selected community policies) aim, quite to the contrary, to confer on the UK rights of oversight on policies in which they do not take part (EMU)! Additionally, there is an unacceptable “democratic asymmetry” in the process: the agreement is to be submitted to the vote of 50 million British citizens while, in parallel it is supposed to be considered as “binding and irreversible” by the 500million other European citizens, who find themselves deprived of their right of assent whenever its provisions are incorporated in a future treaty.
Maintaining confusion in the public opinion as to the true reach of a potential agreement will only foster further mistrust and widen the gap between the European construction and its citizens. Clearly the question is sufficiently complex so as not to rely on unilateral declarations where each party – as is so often the case following European Council meetings -
interprets decisions taken unanimously in ways that are often incoherent if not totally contradictory. At a minimum, the European Court of Justice should be called upon to issue a legal opinion covering the implementing procedure and the contents of any agreement and their conformity with existing European law and treaties. This requirement appears all the more pertinent in the light of the sword of Damocles weighing over the EU, according to the Libre Belgique, pending the Dutch referendum on the approval of the EU/Ukraine free trade agreement which demonstrates that an “international agreement” – supposedly binding and irreversible – can indeed be legally challenged! It is therefore imperative to avoid any future controversy which, should doubts subsist, would either influence negatively the outcome of the British referendum if concessions are judged insufficient or their implementation unsure, or, alternatively, paralyze the Union if the “yes” won on false or contestable premises.
Under these circumstances, it would be better to leave the British to face up on their own to their responsibilities concerning the referendum because it is clear that if they deem the disadvantages of EU membership to outweigh its advantages, then it is fully appropriate for them to activate the withdrawal procedure embedded in the Lisbon treaty. Entering into preliminary negotiations creates also a dangerous precedent that could encourage any member state having fundamental differences with Union policies to engage in similar bilateral discussions, paralysing its capacity to operate.
Instead of letting itself fall into a trap that can only weaken the Union, The European Council should agree to convene an Intergovernmental Conference among the 27 or 28 members, once the result of the referendum is known. The ratification procedures of a new treaty would then allow all citizens to express their views according to their respective constitutional procedures.
If Brexit is clearly undesirable, let us nevertheless not allow pussy-footing politicians to come up in the name of expediency with half-baked compromises that are bound to impinge further on our capacity to forge a strong Europe capable to hold its own in a world that is becoming ever more dangerous and unstable.
Brussels, January 16th 2016
Paul N. Goldschmidt
Director, European Commission (ret.); Member of the Steering Committee of the Thomas More Institute.
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