The Barnier Appointment
In a Press Release on 27 July 2016, the European Commission announced that Commission President Juncker had appointed Michel Barnier as ‘Chief Negotiator in charge of the Preparation and Conduct of the Negotiations with the United Kingdom under Article 50 of the TEU [Treaty of the European Union]’:
Understandably, much of the Press reported this at face value, with headings like this in the Daily Telegraph of 27 July:
and this in the Guardian on the same day:
I agree with these and other papers that the ‘Chief Negotiator in charge of the … Conduct of the Negotiations with the United Kingdom under Article 50’ can only reasonably be understood as the EU’s Chief Negotiator in the forthcoming Article 50 withdrawal negotiations. They were however remiss in not pointing out that the authority to appoint this person lies not with the Commission but with the Council, as is clear from the Treaties.
Article 50(2) of the TEU reads:
… 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…
The UK’s Article 50 notification is to be submitted to the European Council, who then set guidelines both for the negotiations themselves and for the form of the final agreement reached (‘negotiate and conclude’). The agreement itself concerns the arrangements for withdrawal and it is to be negotiated in accordance with Article 218(3) TFEU. This article reads as follows:
The Commission … shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union negotiator or the head of the Union’s negotiating team.
Since the withdrawal agreement will not relate principally to the CFSP, it is for the Commission to submit recommendations to the Council, and it is for the Council to authorise the opening of negotiations, and to nominate either the Union negotiator or the head of the Union’s negotiating team. Which of these it is depends on the subject of the agreement, but whether it is the single ‘Union negotiator’ or the head of a team, this person can hardly, it seems to me, be different from the ‘Chief Negotiator’.
To summarise, therefore, the Commission President Juncker has claimed to have appointed Michel Barnier to an office which it is the prerogative of the Council to fulfil. The discrepancy was pointed out the next day in a blog post by ‘ObiterJ’. Curiously though, having quoted from the text of Article 218(3) he wrote:
I read this as saying that it is for the European Council, and not the Commission, to authorise negotiations and to nominate the EU’s lead negotiator.
I have to say, with all due respect, that I believe he is mistaken in saying that it is the European Council, rather than the Council, which nominates the negotiator. That these are two different institutions is clear from Article 13 TEU, which names seven institutions of the EU, of which the first four are shown below:
The UK goverment’s response
A UK government spokesman responded to the Barnier appointment on the same day as the Commission’s Press Release with the following words, widely reported, for example in Reuters:
We’ve said it’s important that both sides prepare for the negotiations. We look forward to working with representatives from the Member States, the Council and the Commission to ensure an orderly departure of the UK from the EU.
The Financial Times too was struck by the absence of Barnier’s name from the government statement, and commented also that the Commission was listed last among those with whose representatives the government was looking forward to working:
For myself, I am unsure whether to interpret the nature of the government’s response as indicative of displeasure about the individual appointed, or as caution in the face of the apparent disparity between the appointment and the process laid out in Article 218(3), which assigns the role of appointing the lead negotiator to the Council and not to the Commission.
A possible inference of the government’s statement is that they are regarding Barnier as the Commission’s ‘representative’ for the purposes of the Article 50 process, and not necessarily the Chief Negotiator. In line with this is a tweet from Sir Paul Jenkins, the former Head of the Government Legal Department, in which he suggests that Barnier ‘is just the Commission rep’:
Question in the European Parliament
On 1 August, Pavel Telička MEP, the former Chief Negotiator for the Czech Republic for its accession negotiations with the EU, tabled in the European Parliament the following question, addressed to the Commission, about what he described as the nomination of Michel Barnier as the Commission’s chief Brexit negotiator (rather than, say, the EU’s Chief Negotiator):
He comments that ‘many questions remain unanswered with regard to the role of the Commission in the negotiations’, observes that ‘some Member states’ prefer ‘national governments to take the lead’ in the negotiations, and refers to an ‘interinstitutional debate’ in Brussels. The question is to be answered within either three or six weeks, depending on the priority attached to it.
Email from the Commission’s UK office
This extract from an email received 4 August from the Political Section of the Representation of the European Commission in the UK seems to me to suggest that the Commission may have drawn back somewhat from their assertion that Monsieur Barnier will be the Chief Negotiator:
The appointment of Mr Barnier is in anticipation of a role (we do not yet know the extent of that role) that the European Commission will be called upon to fulfil following the decision of the Council of Ministers under Article 218(3).
In the email, in justification of their anticipation of ‘a role’, they pointed to the statement of 29 July following the EU-27 informal meeting of Heads of State and Government (point 3) which states that:
It seems to me, however, that the EU-27 might have been referring to the role assigned in Article 218(3) to the Commission of submitting recommendations to the Council. I do not see therefore that this statement can be used to give a basis for a role in the negotiation itself.
Incidentally, the email makes it clear that it is the Council of Ministers, not the European Council, which can decide who plays what role in the negotiations.
The real question
It may be that the real question or the major issue at stake is not the propriety of the Barnier appointment itself, but the role of the Commission in the withdrawal negotiation. It appears that there are two main viewpoints:
- The Council may appoint whomever they choose.
- The Council will appoint the Commission to represent the EU in the withdrawal negotiations.
I will attempt to summarise the case for each in turn, from what I have been able to glean so far:
1. The Council chooses the negotiator
In their article ‘External Representation of the European Union in the Conclusion of International Agreements’ in the Common Market Law Review (2012), Gatti and Manzini point out that prior to the Lisbon Treaty, when the EC and the EU were represented by different entities, Article 300 EC stipulated clearly that the Community’s international agreements were negotiated by the Commission, whereas (Article 24 TEU) the Union’s international agreements were negotiated by the Presidency of the Council:
…the Commission shall make recommendations to the Council, which shall authorise the Commission to open the necessary negotiations. The Commission shall conduct these negotiations…
The absence of any such specification in Article 218(3) TFEU might suggest an intention to give liberty to the Council to nominate the negotiator of their choice. Gatti and Manzini (p. 1708) consider this possibility:
Article 218 TFEU, unlike its predecessors, appears to be silent as to the precise identity of the EU negotiator. Is it reasonable to conclude that the Council can now freely identify the Union negotiator?
and concede that:
Such a conclusion can be inferred from a literal interpretation of Article 218 TFEU.
For me, this is the natural way to read Article 218(3). The Council can select anyone to be the Union negotiator, including for example an elder statesman or woman without any current affiliation to any of the Union’s institutions. This ultimately is the position taken by Eva-Maria Poptcheva in February 2016 in a Briefing on Article 50 by the European Parliament Research Service, in which she writes:
The role of the European Commission in the withdrawal procedure is not entirely clear in the Treaties…. As a general rule, the Commission negotiates agreements with third countries on behalf of the EU, but Article 218(3) leaves it open for the Council to nominate a different Union negotiator.
Similarly, in a House of Commons Library Briefing Paper entitled ‘Brexit: how does the Article 50 process work?’, and dated 30 June 2016, Miller and Lang took the view (3.1) that:
The Commission is likely to be the negotiator, but Article 218(3) TFEU does not prescribe that it is.
I will now consider the case for the Commission to be the negotiator, in three parts:
2.1 Assumption that the Commission is the negotiatior
It has been quite widely assumed, or stated without justification, that the Commission will be the Union’s negotiator, or head the negotiating team. For example, the UK government stated in ‘The process for withdrawing from the European Union’ (Cm 9216, February 2016) that:
In his evidence to the House of Lords Select Committee on the European Union on 8 March 2016, Professor Derrick Wyatt stated simply (Q4) that:
The Commission will negotiate the agreement on the EU side.
while Sir David Edward concurred, although in the form of expectation rather than fact:
I would envisage that, formally speaking, the Commission will do the negotiations…
The Committee’s Report followed Professor Wyatt, making (Section 20) his explanation of the negotiation process their own.
Again, Adam Lazowski, currently Professor of EU Law at the School of Law at the University of Westminster, stated without explanation in his article ‘Withdrawal from the European Union and Alternatives to Membership’ (European Law Review, 37, 2012) at page 528 that:
the negotiations will be conducted by the European Commission…
And to give one final example, Kevin Barrett, Professor of European Consitutional and Economic Law at University College Dublin, notes without comment that the Union will be represented by the Commission:
2.2 Article 17(1) TEU
Gatti and Manzini, in their discussion of EU-only international agreements, reject the possible ‘literal interpretation’ referred to above, and arrive at the conclusion, baldly stated, that ‘non-CFSP agreements must be negotiated by the Commission’. Their primary argument is that Article 17(1) TEU stipulates that the Commission:
shall ensure the Union’s external representation.
More or less similarly, for matters relating to the CFSP, Article 27(2) states that:
The High Representative shall represent the Union…
I say ‘more or less similarly’ because there would appear to be a distinction being made between ‘ensure … the representation’ (Article 17(1))on the one hand, and ‘represent’ (Article 27(2)). Gatti and Manzini seem to take them as synonymous, at least in effect, and this I am content to concede for my present purposes.
They account for the absence of any identification of the negotiator in 218(3) TFEU by what they see as the provision of such identification in these articles in the TEU:
They go on to rule out explicitly the possibility of the Council choosing a different negotiator:
I do not know how whether Gatti and Manzini are right about this. It is not obvious to me why the identity of the negotiator should be withheld in Article 218(3) TFEU if it has already been determined by Articles in the TEU. But even if they are right about who the negotiator must be in international EU-only agreements, it does not follow necessarily follow that the identity of the negotiator is determined in the same way for the Article 50 withdrawal negotiation, for two reasons. First, the agreement may be mixed, with some elements of it falling under Member State competence. Second, very simply, the withdrawal negotiation is not external but internal, at least so far as I can see.
According to at least three authorities, it is entirely possible that the withdrawal agreement will be mixed, or at least cover areas that would normally cause it to be a mixed agreement. Barrett points out (p. 2) that:
if the agreement turns out to be a mixed one (engaging both member state and EU competences) it will have to be both signed and ratified by all member states.
Lazowski (‘withdrawal’, p. 528) also sees a long ratification process, but does hold out the possibility that the European Council could prevent such an eventuality:
Christophe Hillion, Professor of Institutional Law in the European Union at the University of Leiden, writing in the Oxford Handbook of European Law (2015, p. 140-1) appears to take a different view, arguing as I understand it that even where the content of the agreement suggests that it would be mixed, and therefore concluded by the Member States and the EU together, the terms of Article 50 may in principle exclude mixity, however ‘surprising’ that conclusion may seem:
He goes on to balance this thought by suggesting that the withdrawal agreement would be kept, so far as possible, to more technical matters, and ones in which the EU has competence. But then, with reference to the question of the rights of nationals of r-EU in the withdrawing state and vice versa, he seems to question whether it would be entirely possible to avoid areas of Member State competence. Judging by his earlier remarks, he is apparently suggesting that the Member States might nevertheless be excluded from the agreement:
Despite Hillion’s viewpoint, it seems reasonable to conclude that there is at least a possibility that the withdrawal agreement will be mixed. To bring to life what this means in practice, here is the beginning of one mixed agreement, the FTA between the EU and South Korea, or more precisely between the EU and its Member States on the one part, and South Korea on the other:
… (the other 23 Member States)…
If the mixed character of the agreement is recognised before negotiations begin, as is generally the case, 1 then as Gatti and Manzini point out (p. 1713) ‘each Member State is, in principle, able to independently identify its own negotiator(s)’. However, to avoid having a great number of representatives engaged in the negotiation, the Member States normally, for non-CFSP related agreements, ‘entrust their representation in their areas of competence either to the Commission or to the rotating Presidency [of the Council].’ 2. The Union’s representative would be nominated by the Council by QMV according to 218 (3) and (8) TFEU, while the Member States would entrust their representation by an intergovernmental act, normally taken by unanimity. 3
Clearly, if the Member States choose the Presidency of the Council to represent them, while the Union is represented by the Commission, then there will be a ‘duality of representation’. 4 Gatti and Manzini discuss the attendant difficulties and the approaches adopted to overcome them. 5 One such approach, known as the PROBA 20 arrangement, which allowed the creation of a single delegation to represent both Commission and Member States in UNCTAD commodity negotiations, has been described as a procedural compromise for cases where the Member States did not accept the exclusivity of the Community powers. 6 At the Council meeting approving PROBA 20, four delegations including the British attached a statement reserving the right to make national declarations where no common position had been reached: 7
These remarks may suffice to show that, even if the Commission represents the Union in a mixed agreement, it still may not be the sole representative of the EU and the Member States. If both the Union and the Member States choose the Commission as their representative then, of course, the Commission will be the negotiator. Gatti and Manzini point out, incidentally, that even if the Member States choose the Commission as their representative, ‘the duality of external representation that is intrinsic to mixed agreements’ is not entirely eliminated, because the Commission is much freer to act in its representation of the Union than in its representation of the Member States. 8
Is the withdrawal process external to the EU and international?
Article 50(3) states, in effect, that the withdrawing state remains a member of the EU until the withdrawal agreement enters into force:
It follows that the Article 50 negotiation will be conducted, and the agreement if reached signed and concluded, with the UK while it is still a Member State. Therefore, the negotiation will be an internal Union matter and not an external one, with the result that Article 17(1) TEU, which concerns the Union’s external representation, is not directly relevant. Or so it seems to me.
It would appear, however, that highly qualified authorities on the Article 50 process have taken a different view. Lazowski, in his previously mentioned article, maintains (p. 528) that the withdrawal agreement is:
an international agreement between the European Union and a departing country…
It seems to me, on the contrary, that the agreement will not be international until it has come into force and the ‘departing country’ has departed. Those who see the whole process as an international one seem also to take it that other parts of Article 218 TFEU, which lays down the procedure for negotiating and concluding international agreements, are applicable to the withdrawal negotiations, despite the fact that Article 50(2) refers only to 218(3) TFEU. Thus, for example, Lazowski argues in another article (p. 118) that the agreement would fall within the jurisdiction of the CJEU according to Article 218(11) TFEU:
the article itself reading:
Clearly, this is a point of no small significance, since as Lazowski observes in the same passage, such an action could ‘translate into lengthy litigation’.
In his evidence to the Select Committee, Derrick Wyatt stated (Q4) that the Council would set a negotiating mandate for the Commission (which he was seeing as the negotiator), and could also nominate a special committee that will work in conjunction with the Commission:
Neither of these roles are provided for in Article 218(3) TFEU, but they can be found in 218(2):
The Council shall … adopt negotiating directives…
The Council may address directives to the negotiator and designate a special committee in consultation with which the negotiations must be conducted.
As Wyatt points out, what is at issue is the negotiation of ‘a treaty between the EU and a member state of the EU’:
He seems to be making clear that this is not an ordinary international agreement, since it is negotiated with a member state. Consequently, there is a special procedure, one aspect of which is the role of the European Council, provided for in Article 50(2), to provide guidelines, a role which is absent from the ordinary procedure for international agreements laid down in Article 218 TFEU.
It seems to me that this role of the European Council in providing guidelines for the negotiation could potentially replace, in whole or part, the role of the Council in adopting negotiating directives and addressing directives to the negotiator, as provided for in 218(2) and 218(4). It seems possible that a reason why 218(2) and (4) are not referred to in Article 50(2) is that it was intended that the European Council could, if they so chose, take over from the Council, in whole or in part, the role of providing oversight to the negotiator.
Some indication that the applicability of Article 218 TFEU as a whole to the withdrawal process may be open to debate is to be found in Poptcheva’s observation that while some, including Lazowski as noted above, argue that the CJEU could be requested to deliver an opinion on a draft withdrawal’s agreement compatibility with EU law, others dispute this on the grounds that Article 50 refers to 218(3) only:
Her reference is to the Lazowski ‘Withdrawal’ article cited in this context above, which lacks any discussion or citation of the contrary opinion.
2.3 Arguments from the Commission
As I recounted above, the Commission’s UK office directed my attention to the statement of the Informal Meeting of the EU-27 on 29 July, and to the role that the Commission was to play ‘according to the Treaties’. I asked in reply where this role is to be found in the Treaties, and the office responded by stating that:
The Commission is here taking the view that the Article 50 withdrawal process is covered by the Article 218 procedure for international agreements. Then, rather than pointing to Article 17(1) TEU, as Gatti and Manzini do, they refer to actual practice.
The first link is to an article entitled ‘The role of the Council in international agreements’ on the web-site of the European Council and Council of the European Union. In a section on the negotiation procedure, it states that:
The Commission represents the EU during negotiations, except where the agreement relates to foreign and security policy…
but it also makes clear that the EU is negotiating with either a non-EU party or an international organisation. My argument is that this procedure is not directly relevant to the Article 50 negotiation, which is with a member state.
The second link is to a House of Commons Library Briefing Paper on EU External Agreements, which as its title suggests concerns (p. 3) ‘agreements with third states or organisations’. It states (p. 3) that the negotiation will be conducted either by the Commission or by an ‘other EU negotiator’. The third is to an account of a procedure used in international agreements. It says that the Commission is ‘usually’ the negotiator. Again, in my present opinion, because they concern negotiations with third parties, neither is of direct relevance to the Article 50 negotiation.
Finally, with regard to the Commission’s reference to Article 207, which concerns the common commercial policy, and Article 218(1), which makes reference to it, I do not yet see how this can be an argument for the Commission being the negotiator for international agreements other than those covered by Article 207. It is specified in Article 207(3) that the Commission shall be the negotiator for such trade negotiations:
Article 218(1), as I understand it, provides that nothing in the remainder of Article 218 should override the provisions of Article 207:
It seems to me, admittedly as a non-lawyer, that it would only be provisions or stipulations in Article 218 that differed from those in Article 207 that could prejudice the latter. For example, if Article 218 stated that the Commission should not act as negotiator in international agreements, then that would prejudice the provision in Article 207 that it should be the negotiator in CCP agreements. And then there would be a need for a ‘without prejudice’ clause of the type found in Article 218(1). So, if anything, the existence of this clause would be an argument against the Commission being the negotiator in Article 218 agreements, though a very weak one since there is no indication that the purpose of Article 218(1) is to protect the Commission’s CCP negotiating role specifically. But I stand to be corrected on this point.
Neither Article 50 TEU, nor Article 218(3) TFEU to which it refers, specifies who should negotiate for the EU in the withdrawal negotiations. Gatti and Manzini have contended that Article 17(1) TEU, which provides that the Commission should represent the Union externally, thereby identifies it as the negotiator of international agreements. My response has been that, whether or not they are correct in this, the Article 50 withdrawal negotiation is internal and not external. Similarly, the Commission’s case that it normally represents the Union in international negotiations, seems to fail for the same reason. The Article 50 withdrawal process is sui generis, in my view, and there is no certainty that the whole of the normal procedure for international agreements laid down in Article 218 TFEU will apply. The withdrawal agreement is to be ‘negotiated in accordance with Article 218(3)’ TFEU, and the Council is free to nominate the negotiator of their choice, so far as I can see.
- Gatti and Manzini, ‘External Representation of the European Union in the Conclusion of International Agreements’, Common Market Law Review 49 (2012) p. 1713, n. 24 ↩
- Gatti and Manzini, ‘External Representation’, p. 1713 ↩
- Gatti and Manzini, ‘External Representation’, p. 1713 ↩
- Gatti and Manzini, ‘External Representation’, p. 1714 ↩
- Gatti and Manzini, ‘External Representation’, p. 1714-6 ↩
- R. Frid, ‘The Relations between the Ec and International Organizations’ (Kluwer Law International, 1995) p. 197, n. 104. Link. ↩
- P. Katroukas, ‘EU International Relations Law’, 2nd ed. (Bloomsbury, 2015) p. 172 ↩
- Gatti and Manzini, ‘External Representation’, p. 1719 ↩