The famous FAZ article made a really good point, namely that Theresa May seems to think the Brexit negotiations will be similar to the justice and home affairs opt-out:
[May] defended her vision by making references to a previous experience with European negotiations – she argued that protocol 36 had been dealt with in the same way. While the protocol had meant a lot on paper, it changed little in reality. Now Juncker’s people’s alarm bells were ringing. They had feared something like this, and now it had happened.
Protocol 36 is an addition to the Lisbon Treaty, the last of the great reforms of the European treaties. It summarises various special provisions, one of which concerns the Brits. They had reserved the right to opt out of all policies in the ares of justice and home affairs. Back then, this agreement was sold as a defence of British sovereignty. However, London had immediately opted back in to two thirds of the fifty affected acts of law — out of pure self-interest. This had been kept fairly quiet. May imagined future relationships with the EU in a similar way. While she wanted Britain to make an official hard cut she wanted the country to still be included in matters of its own interest.
However, I believe she learnt two lessons from the Protocol 36 negotiations, not just one. The first lesson was the idea that you can just leave and then opt in to whatever suits you – basically Europe à la carte. The other lesson was that you can talk very loudly and publicly about leaving, and then quietly rejoin a lot of it in a smoke-filled room afterwards, without the British public ever noticing.
In fact, this seems to have been the UK’s favourite way of doing things in the EU over the years. In public British politicians will blame the EU for everything the voters dislike, and they will completely forget to say that they agreed to it themselves during late-night negotiations in Brussels.
It seems most of the UK’s politicians and journalists therefore believe Brexit will be done exactly like this. For instance, London-based newspapers have been repeating ad nauseam that Brexit negotiations won’t start in earnest until after the German elections, because in the end Brexit will come down to a deal between May and Merkel (or Schulz, if he becomes chancellor instead). No matter how often the EU negotiators say that they’re ready to start, and that they will be conducting the negotiations, not the leaders of the 27 other EU countries, it seems nobody believes them. In fact, I guess May thought it would be quite harmless to hold a general election at the moment because nothing important would be happening anyway.
This is an error, however. While it’s true that really big internal discussions normally get thrashed out by the heads of state in smoke-filled rooms late at night in Brussels, this is basically the equivalent of a family gathering. It’s not how the EU operates externally. For instance, trade negotiations are conducted by the European Commission, not by a huge group of prime ministers.
Because Brexit is turning the UK into a third country from the EU’s point of view, the UK will not be in the room when the other 27 countries (and the representatives from the European Parliament) get together to approve the deal that the European Commission has negotiated with the UK.
Of course Germany might have some specific concerns, but they have to a large extent already fed that into the EU’s negotiating guidelines. Furthermore, many of the other countries will have equally strong priorities, and they’re likely to veto any deal if it doesn’t suit them. It’s not simply a case of making a deal that suits London and Berlin.
The sooner Theresa May gets through her thick skull that Brexit isn’t an internal EU negotiation in a smoke-filled room that has to result in a compromise that everybody can live with, the better. The other countries want to get the best possible deal for them, and a deal that demonstrates clearly that leaving the EU is a bad idea. They also realise that the UK is more likely to succeed if they are allowed to play the other countries out against each other, so they have quite deliberately agreed to let the Commission handle all the negotiations.
Accusing the EU of trying to influence the election, as Theresa May did today, isn’t going to help at all. It’s just going to infuriate the very people she’ll be negotiating with, so it simply increases the risk that the UK will leave without a deal. It most definitely won’t make Merkel take over from the Commission’s negotiators. That’s not how the EU deals with third countries.