What is Article 218?
Article 218 of the Treaty on the Functioning of the European Union sets out the EU’s rules for conducting negotiations with third parties. It applies to negotiations between the EU and one or more non-member states or international organisations. For example, it defined the way negotiations happened between the EU and Canada over the Comprehensive Economic and Trade Agreement, and between the EU and Singapore on the EU-Singapore Free Trade Agreement.
The majority of the negotiations covered by Article 218 are focused on trade and investment, but it can also apply to other areas such as negotiations over economic cooperation and development, and participation in EU programmes such as research funding.
What does Article 218 tell us about EU negotiations?
The Article sets out the roles of the Council of the EU, the European Commission and the European Parliament during negotiations, and details how negotiations are opened and concluded:
- Article 218 (3) sets out how negotiations will begin, with the Commission submitting a recommendation to the Council and the Council adopting that decision and appointing a negotiator.
- Article 218 (4) provides that the Council may address directives to its negotiator to guide the negotiations, and may also appoint a special committee to oversee the negotiations.
- Article 218 (6) sets out how negotiations are concluded – by a vote of the Council, following a recommendation from the negotiator.
- Article 218 (10) states that the European Parliament must be ‘immediately and fully informed at all stages of the procedure’.
Why is Article 218 important?
Article 50 of the Lisbon Treaty states that withdrawal negotiations will take place in accordance with Article 218(3) – so this part of the treaty provides useful detail on how the Brexit negotiations will run, including the role of the Commission and the Council in the negotiations, who the key players will be during Brexit talks, and who will have influence over how the EU responds to the UK’s negotiating position.
The whole of Article 218 is relevant to negotiations on the future UK-EU deal, as the part of the treaties which sets out the process for negotiations with third parties.
What does Article 218 say about how the final deal is agreed?
Article 218 (8) sets out that in most cases, the Council must agree the final deal by a qualified majority vote. That means that 72% of the 27 member states (representing at least 65% of the total population of the 27 member states) need to vote in favour of the agreement. However, if the agreement covers certain areas – including EU accession, EU finances, or common foreign and security policy – then the Council must agree to the deal by a unanimous vote. Whether or not the final Brexit deal will require a unanimous vote therefore depends on the scope of the agreement.
How will the European Parliament be kept ‘immediately and fully informed’?
While Article 218 doesn’t prescribe how the Parliament must be kept informed, a separate ‘Framework Agreement’ between the Commission and the Parliament gives further detail on how the two institutions should work together, including sharing negotiating Directives and allowing Members of the European Parliament (MEP) to participate as observers during negotiations. Recently, the European Parliament has secured greater access to international negotiations: during the Trans-Atlantic Trade and Investment Partnership negotiations, pressure from MEPs resulted in the European Parliament being granted access to all categories of confidential documents relating to the negotiations.
However, Article 218 (6) sets out that for certain types of negotiation – such as those relating to accession to the EU, or agreements that have implications for the EU’s budget – the Parliament needs to give its consent before the agreement can be concluded. Similar rules will apply to Brexit negotiations – Article 50 states that the European Parliament must give its consent to the final UK-EU deal.
This Brexit Explained was updated on 22 June 2017.