Will we have our first Covid-19 vaccines before we have a decision on the future trade relationship with the United Kingdom? The answer is yes, although the opposite was considered the greater likelihood until very recently.
Indeed, following the green light of the European Medicines Agency, then that of the European Commission, the first vaccinations may begin to roll out across the EU from 27 December. As for the painful negotiations desperately seeking to avoid a ‘hard’ Brexit on 1 January 2021, the European Parliament must approve any agreement reached for it to be able to enter into force provisionally, pending national ratifications; to this end, it may meet for an extraordinary plenary session on 28 and 29 December as long, it has said, that the agreement is concluded by no later than midnight on Sunday 20 December, in view of the time that will be needed to distribute, read and analyse this enormous dossier.
However, this extremely tough round of talks has gone on beyond this deadline. If a deal is concluded in the very near future, the MEPs could either show flexibility or they could reject it on principle, on the grounds of the public humiliation of the foremost institution of the EU. This means that if an agreement is reached, it cannot be approved until 29 December. If the negotiations are still underway at that point, we will enter a DIY phase with the countdown paused and a provisional agreement. This will be greatly to the liking of economic operators. On top of this highly complex and unpredictable political situation, there is a state of emergency in London and much of the United Kingdom and many member states have taken the decision to suspend air and rail connections with the country (see other articles).
The annus horribilis of 2020 is ending on a two-pronged observation. The vaccines will create a win-win situation; with Brexit, there are only losers; and, in both cases, on a very large scale. British MPs are starting to get upset by the lack of administrative preparation for this major upheaval; on the continent, measures have been voted through in time, but they called for reciprocity from London and it has to be said that European communication has focused more on the trials and tribulations of the negotiations than on specific measures, despite their being of far more interest to businesses and citizens alike.
The pandemic is not under control: a mutant variation of the virus has been detected, which is certainly more contagious and not limited to the United Kingdom. No member state can serve as a model to the others any longer and every government has done its best – as has the European Union, coordinating everything that lies within its remit. But it has headed up the collective response with two major initiatives: the European Recovery Plan (see EUROPE 12626/1) and the Commission’s mass acquisition of vaccines. Both are based on a pooling of resources on an enormous scale: indebtedness and procurement. It can be interpreted as a qualitative leap to a higher level of integration.
Despite the pandemic, the machinery has continued to turn out decisions and legislation, particularly in the second half of the year. The European Council of July finally agreed on the above-mentioned plan and the multiannual financial framework (MFF) 2021-2027 (see EUROPE 12532/2). The Parliament has acted in an exemplary fashion. It took on what would have been the Commission’s normal work: to identify and integrate new resources. It corrected the European Council’s errors by increasing the credits allocated to key fields as much as it could: health, research, space, Erasmus, culture, the environment. It has made every effort to bring certain pieces of legislation more into line with the European Green Deal. By awarding the Sakharov Prize to the democratic opposition in Belarus, it has probably done more for its cause than the sanctions voted through by the Council. The only matter of regret is its vote on the directive on the financial instruments markets.
The Commission has demonstrated its capacity for dynamism with an abundance of important proposals: increasing the target reduction in greenhouse gas emissions for 2030 by at least 55%, which was approved by the European Council of December (see EUROPE 12621/1); tightening up cyber-security tools; regulations governing the GAFAM companies; European action plan for democracy; a directive on minimum wage; a strategy for biodiversity, etc.
The German Presidency of the Council has scored many successes with numerous adoptions, some of them under co-decision: Recovery and Resilience Facility, MFF, sectoral multiannual programmes, 2021 budget, regulation on technical support for structural reforms, regulation on the transition period for the CAP, React-EU regulation, “Justice”, “Rights and Values” and “Customs” programmes, Globalisation Adjustment Fund, regulation on measures to respond to serious violations of human rights, regulation on withdrawing terrorist content online, Collective Redress Directive, revision of the directive on administrative cooperation in the field of taxation, European Year of Rail, transparency register, etc. On 17 December, the Council struck a political agreement on the “climate law”.
There are, however, also areas in which the EU’s best efforts have failed or made insufficient progress: preparations for the accession of North Macedonia and Albania, asylum and migration pact, ‘article 7’ procedure, the Connecting Europe Facility, gender equality, country-by-country tax reporting, regulation on online confidentiality, Conference on the Future of Europe…
The German Presidency dug deep to lift the Hungarian and Polish vetoes on the MFF and the European Recovery Plan. The solution reached takes up three of the 13 pages of the European Council Conclusions of December (see EUROPE 12621/2), 3 pages through which this institution acts as legislator, contrary to the treaty (article 15§1 TEU), as regards the regulation on a general conditionality regime for the protection of the EU budget (already adopted in trilogue). The European Council has announced that the Commission will draw up guidelines as to how it will apply the regulation, working closely with the member states and which will not be established definitively until after the verdict of the Court of Justice falls, in the event that legal action is taken against the regulation. “Until such guidelines are finalised, the Commission will not propose measures under the Regulation”. Reading between the lines, the European Council is telling the Commission to hold its horses and the Court of Justice to give its horses their heads! It moreover “welcomes the Commission’s intention to adopt a Declaration, to be entered in the minutes of the Council when deciding on the Regulation, expressing its commitment to apply the elements referred to in paragraph 2 above which fall within the remit of its responsibilities in the application of the Regulation”. The Commission, then, has done as it was told (minutes of the Council of 14 December, p. 11).
The Regulation was definitively adopted unchanged on 16 December. The end of the text (article 8) makes things quite clear: the Regulation “shall apply from 1 January 2021” and shall be “binding in its entirety and directly applicable in all member states” (which is exactly what article 288 TFEU says). The Parliament resolution of 17 December (496 votes in favour) states blisteringly that “any political declaration of the European Council cannot be deemed to represent an interpretation of legislation” and that the applicability of the Regulation “cannot be subject to the adoption of guidelines”; the EP expects the Commission, as the guardian of the Treaties, to ensure that the Regulation applies in its entirety from the date on which it was agreed by the co-legislators.
Some will no doubt argue that in view of the billions of euros at stake, Realpolitik justifies a bit of sleight of hand. However, the matter sets a precedent which the European Council may be able to rely upon in the future. One of the bad guys plays their veto? A fledgling dictator has misgivings about a regulation? Et voilà! The Commission is asked nicely to postpone the production of legal effects. What credibility will it have then, whenever it has to remind a member state of its obligations to implement legislation?
Throughout the course of the year that is soon to end, the institutions representing the member states appear to have respected the Parliament (although this remains to be seen, over Brexit) than they have the Commission. This is a short-sighted strategy: only observation of the treaties and the balance of the institutional system will make the EU reliable and efficient.
Renaud Denuit