The ECJ has inadvertently paved the way for a mutually beneficial Brexit deal, says Alex Fiuza.
A landmark decision from the European Court of Justice recently ruled a trade deal with Singapore would have to be approved by every one of the EU’s 38 national and local parliaments. This will leave it vulnerable to being derailed by fits of protectionist whimsy or far-left Walloons in Belgium.
This ruling matters for us because it sets a precedent for the Brexit deal. Were it to meet the requirements set by the Court to need unanimous approval, then – if Germany wants a punitive Brexit Bill, if Bulgaria wants freer movement to Britain, if Spain wants more power over Gibraltar – they could veto the deal in a fit of pique. On the face of it, this would seem a devastating blow for the prospects of any mutually beneficial arrangement.
If we dig deeper, however, the precedent set by this verdict could be a tremendous blessing for Britain. Many had assumed, after all, any deal would be vulnerable to the veto, but the ECJ ruling has actually changed this. The ruling itself makes it clear trade deals are subject to national veto in only two obscure areas. Namely, non-direct foreign investment and investor-state dispute resolution mechanisms. Neither of these needs to be a part of a comprehensive post-Brexit trade deal with the EU.
The upshot of this is that a deal relating to all services, including transport and financial services, as well as goods, could be passed by a ‘Qualified Majority Vote’ of the Member States. Qualified majority is reached if 55% of Member States vote in favour, and those in favour represent 65% or more of the EU population.
Any deal thrashed out with the EU bureaucracy would assuredly receive a Qualified Majority, as Paris and Berlin will go with the bureaucracy, and most smaller Member States will vote with them. This means the most economically vital parts of any Brexit deal for Britain would not be vulnerable to the veto.
The magnitude of this victory can be scarcely overstated. The possibility of a national veto was the greatest threat to passage of a British deal with the EU. Now, when negotiations begin in earnest, Britain will not need to bend over backwards for every single member of the EU.
The Conservative Government and its Democratic Unionist Party backers are both committed to a maintaining a deep trading relationship with the EU, but they Britain will not risk being shunted into a bad deal – and therefore a possible no deal – by the unreasonable demands of bitter nations. There will, for instance, be no reason at all to give an inch on Gibraltar now, or to allow mass migration from poorer EU members, or to accept whatever odd amendments the tiny province of Wallonia may wish to make.
Once an agreeable deal for us is reached, its prospects of being approved by the EU are now dramatically greater than they were before this ruling was passed. The path forward is by no means clear, but it is far less perilous than before this ruling. The ECJ has, almost certainly without meaning to, paved the way for us to Get Britain Out with a mutually beneficial Brexit deal.