Ed: Tom Cole is a former European Commission Enlargement Negotiator
Recently, thousands of people marched in London, calling for the UK to rejoin the European Union. Rejoiners need to be realistic about the EU accession process, however. It will take time and the EU will dictate the terms.
Rejoining the EU will not be as simple as flicking on a switch, which was turned off on 31 January 2020. The process will be technical and lengthy. It will require the UK to come to terms with the fact that it is applying afresh. The previous membership terms will not be on offer.
The EU’s accession process in based on the principle of unanimity. No aspiring member can join unless all existing members agree. Existing members can hold up the process for whatever reason they choose, and frequently do.
EU accession negotiations are not negotiations in the classic sense. It is not a question of “I say 50, you say 100, let’s meet halfway at 75”. There are fixed criteria for EU membership and it is down to the applicant country to ensure it meets these criteria. The European Commission leads the EU’s negotiations. When it is convinced that the accession criteria have been met, the Commission recommends to the EU’s member states, that the applicant join the club. The final decision on accession, rests with the EU member states, with the European Parliament also getting a vote.
In the case of the United Kingdom, when it was still an EU member it had multiple ‘opt-outs’ from EU legislation. Some other member states did, too (Denmark, Ireland and Poland). However, the UK’s opt-outs were more wide-ranging and largely seen as British exceptionalism by other EU members. They did little to enhance the UK’s reputation as a team player.
For example, the UK was the only member to have opt-outs from both the passport-free Schengen area and the Euro-zone. It also had opt-outs in the areas of freedom, security and justice, as well as in the application of the EU’s Charter of Fundamental Rights. Whilst not a treaty-bound opt-out, the UK had also managed to continuously negotiate a hefty rebate on its contribution to the EU budget.
However, all countries applying for EU membership have to implement all EU laws as they exist up to the day of EU accession. Exceptions can be granted, where an applicant commits to implementing EU rules over a phased-in timeframe, as opposed to immediately upon accession. Blanket eternal exceptions from certain aspects of EU law on accession are rare. (During my time at the Commission, I never came across any requests which were successful, although applicant countries did try).
Of the UK’s previous membership terms, there is no obvious reason, why on re-accession, existing EU members would grant the UK a budget rebate. It is true that once in, given that the EU’s seven year budgets require unanimity amongst its members to get signed off, that the UK could of course, just like any other member, attempt to re-negotiate. Other EU members have had rebates, too, in particular during the latter years of the UK’s membership but none as long-lasting as the UK’s. However, the UK would not be able to haggle on this point from outside the club.
On the UK’s former opt-outs, as regards the Euro-zone, the UK would, as a new member, be legally obliged to commit to joining. In the same way that all countries which have joined the EU since the entering into force of the Maastricht treaty in 1992, have been. The only existing EU member which has an op-out from joining the Euro is Denmark, which it negotiated in the run-up to the Maastricht treaty.
There are existing members which are obliged to join the Euro but have not done so yet: Bulgaria, Czechia, Hungary, Poland, Romania and Sweden. Sweden held a referendum in 2003 and following a no’ vote has deliberately held back from fulfilling certain pre-accession criteria to the Euro-zone. However, this is not an opt-out. The Euro-zone has continuously enlarged since its creation with Croatia the next member to join, on 1 January 2023.
Of the existing members which have not yet joined the Euro (Denmark aside) none has been forced to join, despite being legally committing to do so. Member states in fact, can only join, once they meet the stringent €-zone accession criteria.
The UK could of course try to ‘fudge’ the issue by ‘doing a Sweden’ and committing to joining the Euro and then deliberately not meeting the required €-zone accession criteria. That might be seen as negotiating EU membership in bad faith.
It cannot be ruled out that existing EU members insist that the UK adopt the Euro from day one of re-accession. However, since the introduction of the Euro no new member state has joined the common currency at the same time as EU accession. That could change in the case of Montenegro, which is applying for EU membership. Montenegro has unilaterally adopted the Euro, even though it is not a member of the EU and does not yet meet the technical requirements for Euro-zone membership.
The opt-out which the UK could feasibly be expected to be re-granted, is the opt-out from the passport-free Schengen area. This is due to the fact that the UK is in an existing mini-Schengen area of its own – the Common Travel Area (CTA) – with the Republic of Ireland, which has remained an EU member. If both the UK and Ireland chose to remain in the CTA, it is unlikely that other EU member states would make an issue of this.
However, were the Republic of Ireland to decide that the UK rejoining the EU presented an opportunity for Ireland to enter the Schengen area itself, allowing for passport-free travel between the Republic of Ireland and the rest of the EU, then the UK would have no choice, it would have to join the Schengen area. Not doing so would result in passport controls on the UK/Irish border, undermining the Belfast/Good Friday Agreement.
On the other opt-outs, it is unlikely that those on the Charter of Fundamental Rights or in the areas of freedom, justice and security would be re-granted to the UK, with the exception of any opt-outs related specifically to the Schengen area (in the event that the UK and the Republic of Ireland were to maintain the CTA).
Separately, the UK will, under all circumstances be expected to ensure it has democratic institutions. This raises questions about the role of the House of Lords, part of the UK’s system of governance but not in itself a democratically elected body.
All these issues to one side, the key point to remember is that it is the existing EU member states – and not any future UK government – which will dictate the terms and timing of any UK re-entry.
On the question of the UK’s likely terms and conditions, any future rejoin campaign, will need to think long and hard about these issues and how to present the case for re-joining to the British public.
There are good arguments to be made in favour of rejecting all the previous opt-outs from the UK point of view. Why shouldn’t travel between the UK and continental Europe be as easy as between the UK and Ireland? Why shouldn’t the UK be part of the world’s second largest currency?
But if rejoiners want to win the argument and make the case for EU membership, they will have to grapple with and address the fact that it cannot be on the basis of the previous status quo.
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