If Sun Tsu’s precepts may help to understand the United Kingdom’s mistakes in strategy concerning Brexit, the same applies to the European Union[1].

The EU’s position was in some ways more complex. The EU is composed (in the negotiation) of 27 Member States with sometimes divergent interests. It has a lot to protect (in institutions and policies). The withdrawal of a Member State has no precedent and is an existential challenge, especially in troubled times. So the first Sun Tsu’s advice would inevitably be : “Ponder and deliberate before you make a move.” This, the EU basically did not do. There was very little long term strategic reflection, consultation, and impact assessment, and this led to various mistakes. They were not as enormous as the UK’s authorities’, but detrimental nonetheless.

The first need is to define one’s priorities in a new and dangerous context. For the EU, those priorities are multiple. (1) The integrity of its institutions and policies must be protected whatever the costs. Otherwise Brexit will become the source of a general destabilization. (2) The EU must not establish any dangerous precedent in the implementation of Article 50 TEU, because this could endanger its application to future similar processes. (3) As much as possible, within these constraints, a deep relationship with the UK must be privileged. The EU needs the cooperation of the British for economic reasons of course, but also for defence, for police and justice, and for research. These are a lot of good objectives. However, it would be a huge mistake to believe that they must be reached at any price. There may be, of course, some potential contradictions between these objectives.

Here, already, one can perceive a weakness in the EU’s approach. Technically, its positions have been very well presented. Politically, its unity has been impressive (though this has been helped by many nonsensical moves of the British authorities). The short term however has been privileged over the long term. Too much attention has been given to the exit conditions, and not enough to the future relationship. Of course, Article 50 pushes in that direction, but other factors (beginning with the appetite for short term political gains) play a role.

One could also say that appointing a Brexit high representative constituted an initial mistake. When the Commission has already too many commissioners, there is absolutely no need to appoint (and pay) someone else to negotiate with the UK. This increased the Commission president (and secretary general)’s control, but limited the college’s control and appropriation. This was also a try to exploit the Brexit negotiation’s media exposure in the choice of an EPP Spitzenkandidat, whereas the two processes should have been clearly distinguished. Finally, the quartet Barnier/ Weyland/Selmayr / Juncker gives a very strong Charlemagne’s Europe flavour to the whole exercise[2].

The absence of priority for EEA option

The combination of all objectives leads first to the conclusion that the optimal outcome of Brexit for the EU is the EEA solution. The EEA offers the perspective of a deep economic relationship. It also offers a solid institutional setting, opened to various partners. The danger for the EU of multiplying deep trade partnership agreements with various rules and various institutional mechanisms has been heavily underestimated. There is a mounting advantage to discuss collectively with most partners associated in one way or another to the customs union and/or the single market. Finally, this reduces drastically the negotiation workload and delays[3].

If the UK missed this boat, so did the EU. It should have offered enticements to go into that direction. There was generally a lack of reflection about the long term evolution of the neighbourhood policy in the context of a multiplication of deep trade agreements. The EU could be confronted to multiple very complex agreements, creating deep links with the single market, with their particular rules and institutional settings. Generally, the EU lacks a clear vision about the future outline of its whole neighbourhood policy in the context of Brexit.

2. Dangerous precedents for Article 50 TEU

From the beginning, the EU has perceived clearly the need to protect its institutions and policies. It is all the more indispensable that any concession to the UK will be invoked as a precedent, in the EU relationship with all other external partners. The same perception alas did not materialize about the need to maintain a balanced approach in the implementation of Article 50.

Article 50 drafting was a complex one. I never tire myself of repeating it was a proposal of the British government, and not at all a personal idea of Lord Kerr. Each time this is repeated by the press (or himself), one feels the urge to phone Alan Dashwood and suggest to introduce a legal action for copyright infringement. Alan led at the time a Cambridge team that produced a whole project for an EU Constitution. The project was brought to the European Convention on the future of Europe by Peter Hain, who was then UK Minister for EU affairs. In a magnificent illustration of British total diplomatic hypocrisy, the document was thus officially brought to the Convention (official document, date, reference) but was presented as a “non official document”[4].

Article 50 has become an essential provision of the EU Treaty. It has as a matter of fact changed the EU’s nature. According to the principles of international law, this provision must be applied in good faith by all partners. The UK cannot create conditions that will destabilize the EU while it leaves (which it does now, to be honest). The EU cannot impose conditions that will make the UK exit factually impossible, or extremely difficult. This is very important for the EU and UK’s future, and also their future relationship.

According to these parameters, quite a few mistakes have been made during the negotiations.

Firstly, at the beginning of the negotiation, the EU demand to maintain in a permanent way some EU regulations and the full European Court of Justice’s competence was excessive. Whatever one thinks about Article 50, it must be applied fairly. If a Member State may exit, it is not to maintain eternally on its territory the instruments of the system it exits from. Very different is the context where the UK desires to establish a cooperation with the EU. Then, of course, the EU is perfectly entitled to request the respect of the necessary legal instruments[5]. The radical EU statement was thus, in fact, not necessary. It was just necessary to be patient and wait, as Sun Tsu suggested : “Those skilled at making the enemy move do so by creating a situation to which he must conform; with lures of ostensible profit they await him in strength.” Logically, the EU has now compromised on those topics.

Secondly, the EU demand to discuss a backstop to eliminate customs checks at the Northern Ireland border while refusing to discuss any other trade topic was evidently biased. The EU has rightly indicated that exit modalities had to be dealt with first in the Withdrawal Agreement. This agreement sets out the withdrawal arrangements, “taking account of the framework for its future relationship with the Union”. Customs checks, however, are a trade matter. The EU has always repeated that trade matters could not be negotiated immediately. This applies to all of them. There is no magic rule that distinguishes the Irish customs checks in the north and in the south. This is so evident that changes on one border will immediately have multiple impacts on the others. In any case, the regime of checks at the Northern Ireland border constitutes undeniably a part of the “future relationship with the Union” and should thus be legally dealt with, according to Article 50, after the Withdrawal Agreement.

By violating twice its own rule, the EU has enormously complicated the withdrawal negotiations, as one could anticipate. Negotiating customs checks at the Northern Ireland border inevitably creates a strong incentive to negotiate them generally. The EU presents this as an UK trick, but it is the logical consequence of its own position. And, by the way, if Article 50 does not allow to negotiate trade items, and the future relationship, there could be reasons to contest those texts legality (this could lead to a complex legal debate). Politically, demanding some concessions while explaining that others cannot be discussed for legal reasons also accentuates the feeling of a biased negotiation on the UK side.

In any case, the EU has again made a drastic demand, in a very tense political context. The backstop has additionally been presented as maintaining the status quo, whereas it does not. It introduces two big changes. The Good Friday Agreement was a bilateral agreement between the UK and Ireland, the backstop will be a bilateral agreement between the UK and the EU. Still more importantly, the Good Friday Agreement could be revised, the original backstop has no revision clause. Here again, the EU has acknowledged the mistake, and speaks about the need to “de-dramatize”.

The worst point of the whole exercise remains that it is in fact not necessary. It suffices to imagine what would happen after a Withdrawal Agreement with no Northern Ireland backstop. There will be a transition period. This will allow the negotiation of a trade agreement. The threat of No Deal at that level will still exist fully for the UK. In that context, it is extremely difficult to imagine any UK government deciding to provoke a huge general trade disruption, all this to reintroduce customs checks at the Northern Ireland border it is anyway committed to prevent.

Thirdly, the EU has compounded this bias by demanding additionally the integration in the Withdrawal Agreement of provisions concerning geographical indications. As confirmed by many other negotiations, this constitutes an essential part of any important trade agreement (see the importance of the topic in the TTIP, CETA or Japan agreements, for example). So, again, the UK authorities and public are entitled to ask why trade topics are legally impossible to cover, except when this suits the EU. Furthermore, enterprises are entitled to wonder about the legal value of such a construction. As a matter of fact, if trade negotiations, and more generally the future relationship are excluded from the Withdrawal Agreement by Article 50, such provisions may easily be contested in justice. Again, many EU politicians worry here much more here about soundbites than concrete (and solid) results.

Needless to say, these elements constitute very bad precedents for any future use of Article 50. They create not only legal problems, but a general absence of trust in the exit process, which will engender difficulties in its next implementation. Apart from legal considerations, there are very good reasons to separate the exit arrangements from the future relationship. Most politicians, however, cannot resist abusing a favourable balance of power. They should heed nonetheless Sun Tsu’s lesson : “first lay plans which will ensure victory, and then lead your army to battle; if you will not begin with stratagem but rely on brute strength alone, victory will no longer be assured”.

Fourthly, to counter UK counter-proposals on customs union provoked by the backstop, the EU has developed a new doctrine of the impossibility to dissociate the four freedoms. This principle is of course the basis of the EEA system, but it does not appear in other agreements. In fact, the EU has even been most eager to develop trade in goods or services without any concession regarding the free movement of people (see the examples of Turkey or Ukraine). This new doctrine has again been suddenly adopted without any serious impact evaluation (although it could become quite important later for all EU’s external relations).

3. The EU has lost strategic vision

These multiple manifestations of strategic myopia have had an important impact on the Brexit negotiation. They have undeniably made it much more complex. They also nourished the feeling of an EU negative bias towards the UK in various British circles. Not only do they offer real support to the Brexiteers in the national political debate, but they increase the probability of a No Deal scenario, as Sun Tsu would have warned : always “build your opponent a golden bridge to retreat across.”

It reflects a persistent inability to adapt to a new context, also in spite of Sun Tsu’s warnings. “Just as water retains no constant shape, so in warfare there are no constant conditions.” Flexibility is the essence of strategy. The focus on the Withdrawal Agreement has made the EU lose from sight the potential benefits of a new relationship. It has artificially given an adversarial, “punishing”, nature to the whole negotiation. The right question should have been : “if the UK had never been in the EU, which concessions could we accept to establish a deep cooperation in many fields ?” Most EU politicians have alas limited themselves to easy sound bites for their national constituency and lost any kind of long term vision. From time to time they make tearful speeches in the style “come back, Britannia”, while simultaneously adopting positions that will poison any kind of future relationship.

To be fair, the UK authorities’ incredible procrastination, occasional dishonesty, and economic harmfulness tend to reinforce this EU tendency. One tends to protect oneself more in front of a partner who has lost the ability to master reality and who regularly contests what has been previously said. Emotions, however, must have no part in strategy. “No general should fight a battle simply out of pique.” It is essential that the EU remains fair, and is seen to be fair.

If a No Deal Brexit happens, both sides will bear the responsibility for it. The UK committed the heaviest mistakes, but the EU had its own. Both now need to acknowledge them, and accept the required concessions. Otherwise, they will provoke a huge economic damage, because last minute No Deal Brexit will be the worst scenario of all. Additionally, they will make any subsequent negotiation much more complex and bitter. As the master of war himself concluded a long time ago, “There is no instance of a nation benefitting from prolonged warfare.”

Franklin DEHOUSSE

Professor at the University of Liège

Former Special Representative of Belgium

Former judge at the Court of Justice of the European Union





[1] For the first part of this modest strategic meditation, see https://www.linkedin.com/pulse/sun-tsu-brexit-how-brexiteers-turned-total-strategic-mess-dehousse/

[2] See https://www.linkedin.com/pulse/house-rigged-cards-berlaymont-most-exclusive-frank-selmayr-dehousse/

[3] On all this, see F. Dehousse, The Institutional Consequences of a ‘Bespoke’ Agreement with the UK based on a ‘Distant’ Cooperation Model, European Parliament Think Tank, 2018.

http://www.europarl.europa.eu/thinktank/en/document.html?reference=IPOL_STU(2018)604972

More particularly on the judicial aspects : F. Dehousse and X. Miny, What are the Judicial options for the future EU/UK agreement?, CERIS Journal of European Studies N°1.

http://www.ceris.be/fileadmin/library/Research-Papers-Online/Journal-of-European-Studies-1.pdf

[4] http://www.egmontinstitute.be/can-the-british-brexit-notification-be-withdrawn/

[5] http://www.egmontinstitute.be/why-the-future-role-of-the-european-court-of-justice-is-a-tricky-topic-for-brexit/







