The Challenges Ahead of Sunday’s EU Extraordinary Summit
As scheduled, the European Council is now entitled, under the Commission recommendations (Article 50.2 TEU), to adopt a decision by qualified majority (Article 6 TFEU) on the agreement accepted by the negotiating teams (the Withdrawal Agreement). This is a question the EU 27 Heads of State and Government, and, the Commission and Council Presidents do indeed have to respond to in a scenario which has been unprecedented since the year the EU’s conception.
Nevertheless, the brief and concise up-to-date insight written below intends to explain the most relevant events the summit would have to deal with on Sunday.
Can the EU truly rely on the British Government position to undertake its mandate and strive for its official withdrawal on March 20th, 2019?
Whenever a binding treaty is closer to its conclusion phase (the moment the parties that have intervened in the elaboration and negotiation of the text, vote on whether they accept the final text to become a binding and valid legal instrument), all parties must transmit full assurances of their commitment to ensure the entry into force and implementation of the treaty-to-be’s terms. Otherwise, there would be no sense to move forward to any of the next steps if no clear willingness to continue upholding the Brexit mandate, notified to the Council in 2017, exists.
The DUP leader’s announcement on her continued support for the Prime Minister –until this week has apparently encouraged the EU 27 to be confident of the UK government’s ability to endorse its position to Parliament. However, three further unpredictable political threats remain. First, the reluctance of approximately twenty-five Tory backbenchers to support the PM’s decision on the agreement (led by Conservative MP Jacob Rees-Mogg) and, second, the fierce opposition from other parties (led foremost by Leader of the Opposition, Jeremy Corbyn) to the 585-page long Agreement, being discussed amongst other things on Sunday. A third is the People’s Vote movement which is shifting political discourse towards talk of a second referendum to resolve Brexit in the event of a parliamentary deadlock. As of today, the very issue regarding the real cost of implementing a customs system and the status of Northern Ireland (Protocol on Ireland/Northern Ireland) raised concerns amongst both Leave and Remain MPs.
The former concern deals directly with the necessary economic costs for an implementation of a national customs system if there is no deal with the EU. Bearing in mind both the conditions presented as they are on the agreement (Agreement, Article 47) and the no-deal scenario, there risks major difficulties in the efficiency of controlling the movement of goods to and from the UK, according to the HM Revenue and Customs chief. This poses a threat to the Kingdom’s ability to apply, supervise and benefit from tariffs imposed on goods entering its market as specified in the Agreement’s regulations.
On the other hand, it determines the question of competences held by the United Kingdom and /or the European Union on decisions affecting customs and trade that in principle refer exclusively to the area of Ulster. More specifically, these focus on the limited jurisdiction that the European Court of Justice will enjoy in the form of preliminary rulings. (Protocol, Article 14.4) Nevertheless, these shall refer to applicable EU customs and trade legislation regarding the movement of goods in the single customs territory (Protocol, Articles 6.1, 6.2 & 8), emphasizing Northern Ireland therein (Protocol, Article 15.1). Likewise, the establishment of a Joint Committee (Agreement, Article 164) also produces a limitation on unilateral powers enjoyed by the United Kingdom to enforce or implement any action with regard to the scope and competences laid down in the text of the Agreement.
Will there be concern on whether ECJ preliminary ruling on article 50 would be relevant and meaningful for the outcome of Brexit negotiations?
In the Secretary of State for Exiting the European Union v Wightman and others case currently under hearing on the Court of Session (the Upper Civil Court of Scotland), a highly likely possibility remains on whether the legitimate subject in the UK is entitled to revoke the application of Article 50. This unique case consists of the request submitted to the Court by Scottish, British and European Members of Parliament to declare “whether, when and how the notification ... can unilaterally be revoked”. This procedure is highly likely to influence the outcome of the entire Brexit process. It may leave a possibility to remain, or alternatively reiterate that the U.K.’s exit from the EU is inevitable, as well as it may or may not legitimising the Government’s stance so far on the Article 50 procedure. However, this hypothetical situation would only be acceptable to the extent the Supreme Court of the United Kingdom, as any of the parties may still appeal the Court of Session’s decision, rules in favour of the petitioners.
At this point, it is of utmost importance to note the effect of the preliminary ruling, since the United Kingdom as of today remains still a Member State, and therefore under the scope and jurisdiction of the European Court of Justice. In that sense, if “the questions submitted concern the interpretation of European Union law, the Court is bound, in principle, to give a ruling”, as such the ECJ “shall ensure that in the interpretation and application of the Treaties the law is observed.” (Article 19 TUE). Taking this into consideration, the Court of Session is bound to “determine, in the light of the particular circumstances of each case … the need for a preliminary ruling in order to enable it to deliver judgment…”, as national courts can neither dismiss nor undermine their main duty: to administrate and resolve any case submitted to them. For these reasons, the decision the ECJ may opt to endorse in its preliminary ruling could heavily influence the Scottish Court’s opinion and set a binding precedent for cases dealing with this matter. Therefore, if the Court rules favourably, a unilateral action from the Government would be acceptable to withhold the letter of notification from the British Government to the President of the Council, a move that might reverse the activation of Article 50 TEU. A case wherein the government may be found in a complex situation as no attempts have been made to challenge the legal status of the notification on the activation of Article 50. If not, the Government may now, under judiciary confirmation, drive all its attention to the conclusion and approval by the Parliament of the Agreement and the instrument regulating the future relationship with the Union in a post-Brexit scenario.
Is Berlin’s decision to demand an already settled document for Sunday a strategic move for accelerating withdrawal?
Although the Spanish government and several Spanish parliament members demanded some revisions to the content of the Withdrawal Agreement in the days following its release, the statement of the German government reflects the reluctance and firm opposition from Brussels to retrace their steps in negotiating “consensus”. Though not necessary to rely upon a consensus in the Council’s voting, according to the TFEU, the German chancellor’s decision comes with great motivation to prevent any long-standing impasse that could negatively affect the Union’s interests, including Germany’s, and increase the probability of the Brexit no-deal scenario. Bearing in mind the steps any international agreement must respect to achieve recognition, as regulated under international law, the negotiating teams would have to be the first to agree on any change before other players get involved in the modification or conclusion of the agreement. At this point, it would be acceptable to assume that, apart from saving time and costs from last-hour amendments, Germany might be testing UK’s resilience before the EU 27 decide on whether a future relationship agreement is still in order and achievable. In any case, a no deal scenario, considering Spain’s mindful decision to oppose the deal - due to the question of the future of Gibraltar - remains uncertain. Why? Because any decision to block it requires the vote of the minimum number of EU members that together total 35% or more of the EU population, in addition to the vote of 1 more EU Member (Article 238.3 TFEU). If Germany (18.47%) joined with Spain (10.42%) to oppose the deal, they would only represent approximately 28.89%, which does not still constitute the qualified majority to dismiss the agreement terms and force negotiations to resume. However, if we opt to consider the European Council’s Brexit guidelines issued in 2017, the question of the de facto veto Spain holds on the agreement might raise alarm on the power wields on the position.
Are guidelines binding for the purposes of the agreement?
If interpreting Article 50 TEU - in accordance to Articles 15.1 & 15.4 TEU - literally, we may presume it does, as the Union based all its negotiations on the aspects covered and agreed on that document.
Nevertheless, does the Union risk losing the agreement?
No, because the EC guidelines do restrict the veto to its applicability on the territory of Gibraltar (clause 24), a reason why the withdrawal agreement will not be able to produce valid legal effects in that territory until the UK and Spain reach an agreement.
To sum up, it is realistic to consider the outcome of Sunday’s summit will not be as completely favourable as it may have been initially expected, especially for the UK. As a result, facing the unpredictable uncertainties, we might argue whether the UK’s decision was calculated enough to the extent it halted and prevented negative effects to unleash. However, these days have reminded us of the following phrase from Goethe: “I prefer committing an injustice to putting up with disorder”; in other words, how far can we manage to create a complex, excessively bureaucratic and almost unpractical framework under the excuse to avoid a no-deal scenario? As it is commonly said, sometimes the cure is worse than the disease; indeed, for the UK and the EU, this might be the beginning of a greater uncertainty that future generations will have to, almost forcibly, overcome.
 Opinion of Lord Carloway, the Lord President;  CSIH 62, para 32
Transportes Urbanos y Servicios Generales SAL v Administración del Estado, ECJ, 2008, para 25