The European Commission and member countries are locked in a power struggle over who should negotiate the terms of Britain’s departure from the EU.
National leaders and ambassadors are seeking to block efforts by the Commission to lead the exit talks, with the two sides fighting over who has the right to set the terms for the divorce negotiations, and which institution has the technical expertise and resources to get the job done.
The much-talked-about Article 50 — used to trigger a country’s exit from the EU — would be followed by the implementation of Article 218.3, which covers the actual divorce proceedings. The wording of those articles has created a split between the two institutions, whose headquarters in Brussels face each other.
“Article 50 does not say who the [EU’s] negotiator should be” but “the article clearly gives the European Council the lead,” an EU ambassador told POLITICO, adding that many governments “don’t want a federalist in charge” — a reference to Commission President Jean-Claude Juncker.
While the Council’s position is that the divorce is a special case that needs special rules, the Commission’s legal service disagrees.
In an opinion prepared in time for the summit and obtained by POLITICO, the legal service wrote that “by far the stronger legal arguments plead in favor of an interpretation of Article 50 TEU in liaison with Article 218 (3) TFEU, under which only the Commission can be appointed as negotiator. The arguments informally advanced by the Council Legal Service for the opposite position, while also presentable, are ultimately unconvincing in law.” (TEU and TFEU refer to the EU treaties that govern the union.)
The Council’s legal position, according to the Commission’s own legal service, is that the U.K. would be a member of the EU at the time of the divorce talks, not a “third state” that would usually be dealt with by the Commission, as for example in talks on joining the union. By that logic, as the Council groups together member states, the Council is the the appropriate setting for these negotiations.
“To the contrary,” the Commission legal service memo said, Article 50 “treats the withdrawing Member State as if it were already a third State: that State should shall not participate in the Council’s discussions and decisions on the negotiations.”
The European Parliament on Tuesday voted to have the Commission lead the talks.
According to one European commissioner, speaking on condition of anonymity, on Monday “the college [of commissioners] asked President Juncker to declare that the Commission is ready to take the lead in the negotiations.”
Commissioners handed Juncker that mandate in reaction to quick decision by national governments to appoint Didier Seeuws, a Belgian diplomat, to lead the negotiations at the head of a special taskforce at the Council. Seeuws was chief of staff to former European Council President Herman Van Rompuy.
That worries European commissioners, with one noting that the Council taskforce “could be a first step to … taking over the leading role in the negotiations.”
However, a senior Commission official told POLITICO that national governments have good reason to be concerned about the Commission’s role.
“Sometimes we are very borderline with [our interpretation of] the mandate we are given,” said the official. “The Commission does play on member state division to move the negotiating to where it wants the position to be,” the official said, citing tension between Eurocrats and national governments during previous trade and partnership agreements.
Colleagues of Juncker’s chief of staff Martin Selmayr said he was furious at the appointment of Seeuws. Addressing an internal Commission meeting Monday, Selmayr was “super pissed off,” according to one colleague in the room. It’s “definitely a power grab” by the Council, said another Commission chief of staff, who was at Monday’s meeting. “Martin dismissed it as a ridiculous move,” this official added.
Selmayr’s frustration is both political and personal.
The Commission does not want the U.K. to be given gentler treatment by the European Council, in case it sets a precedent for other countries thinking about exiting the EU.
A senior Commission official told POLITICO that Selmayr would like to take on the role of chief Brexit negotiator himself, and that Seeuws’ appointment was “a tactical move” to block him from doing so.
The Council is, however, extending an olive branch to the Commission. One ambassador told POLITICO “it is clear that the Commission sits on the expertise and data needed. Council secretariat is not at all able to handle the matter without the Commission.”
Another ambassador said it was becoming clear that the Council will be “in the driving seat,” with both the European Commission and European Central Bank closely involved.
Council and Commission sources agree that the Commission’s vast manpower and technical knowledge is an essential component of the EU’s negotiating effort, which will need to include staff from all Commission departments.
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“The Council has zero expertise. It is the Commission that knows every piece of legislation and line-by-line of the treaty,” said one senior Commission official.
Margaritis Schinas, the European Commission’s head spokesperson, told POLITICO that the Commission would set up its negotiating team only when Article 50 is triggered by the British government.
Another concern for Council President Donald Tusk and Juncker is the possibility of rogue negotiators. Juncker told the European Parliament Tuesday he had issued a strict order to commissioners and directors-general of the Commission “that no secret negotiations [between EU and U.K.] will take place now. This cannot be.”
A possible compromise between the Commission and EU member states would be the creation of a hybrid team working on the negotiations. In such a scenario the Commission would supply most of the technical team keeping the negotiations running, while the Council would direct the political strategy and protect against over-reach by the negotiators.
Leaders on Wednesday claimed oversight over the talks. “Once the notification has been received, the European Council will adopt guidelines for the negotiations of an agreement with the U.K. In the further process the European Commission and the European Parliament will play their full role in accordance with the Treaties,” their statement read, indicating leaders will give instructions to the negotiators but leave the nuts and bolts to the Commission.
However, this doesn’t end the debate about who will be the main point of contact for a future British government in the negotiations. “We all agreed that the Commission with its expertise and means will play a central role,” German Chancellor Angela Merkel told reporters.
Maïa de la Baume and Jacopo Barigazzi contributed to this article.