Reaching a Brexit agreement won't be the end of the Brexit drama. Ratification of a UK-EU deal is far from straightforward, says Georgina Wright
Timing is, and has always been, the true enemy of Brexit. Even if British and EU negotiators secure a deal in the coming days it would still need to be approved by the UK and the EU to take effect.
EU ratification is particularly complex and can take anything between several weeks and a couple of years to complete. The content of the deal usually determines who in the EU votes on it – whether the Council of the EU (the grouping of the 27 governments) and the European Parliament; or the Council, the European Parliament, and national parliaments and regional assemblies in the EU. All want time to scrutinise the content. With 35 days to go, the Brexit timetable is tight.
There are two ways the EU could avoid a “ratification cliff-edge” at the end of the year. The first option is to speed up ratification by limiting voting to the Council and the EU Parliament even if the deal covers areas of member-state law. If both institutions give their consent before the end of the year, the deal would come into force on 1 January 2021.
But there is no guarantee that this option will give MEPs enough time to scrutinise, debate and vote on the deal. In this case, the second option available to the EU is to provisionally apply the agreement – which it can do in accordance with article 218 (5) of the EU Treaty. This means bringing the deal, or parts of it, into effect before it has been fully ratified – an arrangement that the EU tends to use to give national and regional parliaments the time to complete their ratification processes. The Council has done this before for new trade agreements, but in this scenario there would be one big difference: it would be the first time the Council agrees to provisional application before the EU Parliament has voted on the deal. At a time when the Council needs the EU Parliament’s support to pass crucial EU legislation, this may not be a risk it is willing to take.
Trade has become an increasingly politicised issue over the years, with national parliaments often taking aim at EU trade agreements. In July 2020, the French Assemblee Nationale introduced a resolution rejecting the newly negotiated EU-Mercosur trade agreement. Discussions are still ongoing.
So while limiting ratification to the Council and the EU Parliament would speed up the process, it remains a tricky sell – especially if the UK-EU deal covers areas of member-state law like aviation or social security coordination. In the case of the EU-Canada deal for example, member states pushed back after the Commission recommended that the EU limit voting to the EU level.
If the Council agrees to limit ratification to the EU level, it will do so on two conditions. First, EU governments will want to give time to their legislatures to review the text (in some cases, this is a legal necessity: the Finnish government, for example, cannot agree to a trade deal without the backing of its parliament). Second, they will want to make sure this does not form a precedent for future trade deals.
The EU Parliament’s ratification process usually involves scrutiny and debate in committees and in plenaries. MEPs have said that they stand ready to vote as late as 28 December, but only if they have had time to scrutinise the deal.
So the EU could decide to defer the vote to the new year and agree to provisionally apply the deal in the meantime – but it will be very uneasy about doing so. In 2016, MEPs published a resolution asking the Council to wait until MEPs had voted on a trade agreement before agreeing to provisional application. There are examples of the Council agreeing to provisional application before the EU Parliament has had its say, but only for very specific (and more limited) agreements like the EU’s civil aviation safety agreement with Japan or the decision to amend the International Convention for the Conservation of Atlantic Tunas. It has never done so for new trade agreements – let alone one of the magnitude of the UK-EU deal.
Breaking an established pattern would be a bold move with significant political implications for the EU. First, it could strain relations inside the EU at a time when the Council is relying on the EU Parliament to approve other big EU decisions like the budget and the coronavirus recovery fund. Second, there is no guarantee that MEPs would support the UK-EU deal when it came to voting on it. Provisional application nearly fell when the regional Walloon parliament of Belgium voted to reject the EU-Canada deal in 2016. (Wallonia only supported it after the EU and Canada made changes to the agreement). While the risk of MEPs rejecting a UK-EU deal is small, it is a risk nonetheless.
Even if these political hurdles can be overcome, UK and EU negotiators would still need to agree the terms of provisional application: whether they should provisionally apply the whole agreement, or only bits of it. This is particularly important as either party can withdraw provisional application unilaterally. On the EU side, the Council will want to wait until EU lawyers have gone through the deal to make sure it is legally sound. EU governments will also want the deal to be translated into all official EU languages.
Brexit has exposed the complexities of EU policy making. If a deal is reached in the next two weeks, the hope is that the EU can complete ratification before the end of the year. If MEPs run out of time to vote, the EU may need to consider provisional application. But while this option seems viable in theory, in practice it poses huge risks to the UK-EU deal itself and to internal EU relations. This is not a decision the Council will take lightly – even if it is the only option to avoid a no-deal fallout at the end of the year.
- Assemblée nationale, Rejet de l’Accord commercial entre l’Union européenne et le Mercosur, www.assemblee-nationale.fr/dyn/15/dossiers/rejet_accord_ue_mercosu
- European Parliament, European Parliament resolution of 12 April 2016 on the situation in the Mediterranean and the need for a holistic EU approach to migration, 12 April 2016, www.europarl.europa.eu/doceo/document/TA-8-2016-0102_EN.html
- Merijn Chamon, Twitter, 20 November 2020, https://twitter.com/ChamonMerijn/status/1329833070963396608?s=20