Phase Two Of The Brexit Talks: Notation Of The Eu27 Negotiation Position
May 19, 2018
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Professor Steve Peers, University of Essex
On Mon 29th January, the European Union Council is due to adopt its negotiating directives relating to the instant stage of Brexit talks, mainly concerning a transition menses after Brexit Day when noun European Union constabulary volition still apply to the UK. The manifestly concluding version of those negotiating directives has been leaked, together with and then I take away hold taken the chance to annotate them inward detail. I volition ameliorate this weblog postal service if it turns out that the leaked draft is farther amended when it becomes final.
The EU27 seat still has to live agreed amongst the UK, of course. The UK set out its stance on a transitional menses inward the Prime Minister’s Florence spoken communication lastly September, which I commented on here together with here. There appear to live just about wide areas of understanding betwixt the 2 sides’ positions, but in that location volition probable live just about of import differences of particular to negotiate. Furthermore, stage 2 of the negotiations volition create on from the partial understanding on Brexit issues inward December, which I discussed here (as regards the acquired rights of EU27 citizens inward the UK, together with European Union citizens inward the EU27) together with here (as regards other issues).
These negotiation directives create upon the broader Phase 2 negotiation guidelines which EU27 leaders (the ‘European Council’) adopted inward December. They are every bit good based on a proposal from the European Union Commission inward December, but the Council has changed just about of the Commission proposal. Where those changes are significant, I banknote what they are.
ANNEX
Supplementary directives for the negotiation of an understanding amongst the Britain of Britain together with Northern Republic of Ireland setting out the arrangements for its withdrawal from the European Union
1. In trouble amongst the European Council here.
6.a Since the arrangements applicable to relations betwixt the Union together with the Sovereign Base Areas inward Republic of Cyprus volition move along to live defined inside the context of the Republic of Cyprus’ membership of the Union, appropriate arrangements should live determined during the negotiations every bit necessary, to give the objectives set out inward Protocol iii to the Act of Accession of the Republic of Republic of Cyprus to the Union.
This entire paragraph was added.
I. ISSUES RELATED TO THE ORDERLY WITHDRAWAL OF THE UNITED KINGDOM FROM THE EUROPEAN UNION
7. In trouble amongst the European Council guidelines of xv Dec 2017 together with amongst the negotiating directives annexed to the Council Decision of 22 May 2017 every bit supplemented past times these negotiating directives, it is necessary to consummate the function on all withdrawal issues, including those non yet addressed inward the commencement phase. These include – without existence confined to – issues such every bit the governance of the Withdrawal Agreement, intellectual belongings rights, ongoing populace procurement procedures, customs-related matters needed for an orderly withdrawal from the Union, protection of personal information together with utilization of information obtained or processed earlier the withdrawal date.
The entire instant judgement was added past times the Council. Commission negotiation papers on these subjects tin live constitute here. Note that in that location was partial understanding on just about of the ‘winding up’ issues inward the Dec articulation report, every bit I discussed here. Technically in that location is no require to include these issues inward the withdrawal understanding if the UK is going to move along applying the status quo of European Union membership for awhile; they could live addressed every bit component of ending the transition period. But the EU27 side seems dandy to wrap them upwardly now. The governance issues include dispute settlement, where the exact purpose of the ECJ volition live hard to agree.
8. Negotiations inward the instant stage should furthermore interpret into clear together with unambiguous legal damage the results of the negotiations, including those obtained during the commencement phase, which should, where appropriate, live adapted inward the lite of the existence of the transitional arrangements referred to below. In particular, the provisions of the Citizens' rights component of the withdrawal understanding should apply every bit from the cease of the transition period. The 'specified date' referred to inward paragraph 8 of the Joint Report should consequently live defined every bit that of the cease of the transitional period.
The words ‘clear together with unambiguous’ together with the entire instant together with tertiary sentences were added past times the Council. The next sentence, proposed past times the Commission, was dropped: ‘As specified inward the commencement set of the negotiating directives, the Withdrawal Agreement should think that Union constabulary ceases to apply on the withdrawal engagement to the overseas countries together with territories having special relations amongst the Britain together with to the European territories for whose external relations the Britain is responsible, to which the Treaties apply past times virtue of Article 355 of the Treaty on the Functioning of the European Union.’
This paragraph emphasises the importance of drawing upwardly a formal legal text of the withdrawal agreement. When together with if agreed together with ratified, that text volition live the decisive legal ground for the UK/EU27 withdrawal physical care for – non negotiation documents similar these. The seat that the cut-off engagement for acquired rights of EU27 citizens inward the UK/UK citizens inward the EU27 volition live the cease of the transition menses reflects the prior stance of the Commission. The UK side may good object to this.
I discussed the citizens’ rights provisions of the articulation written report inward to a greater extent than particular here. As I noted, spell just about issues take away hold been agreed inward detail, just about points – similar the liberty of UK citizens inward ane Member State to motility to other Member U.S.A. – were left for farther discussion.
II. TRANSITIONAL ARRANGEMENTS
9. The European Council guidelines of 29 Apr 2017 set out full general heart together with soul principles applying to whatever understanding amongst the Britain every bit good every bit to whatever transitional arrangements:
– whatever understanding volition take away hold to live based on a relaxation of rights together with obligations, together with ensure a grade playing field;
– preserving the integrity of the Single Market excludes participation based on a sectorby-sector approach;
– a non-member of the Union, that does non alive upwardly to the same obligations every bit a member, cannot take away hold the same rights together with taste the same benefits every bit a member;
– the iv freedoms of the Single Market are indivisible together with in that location tin live no "cherry picking";
– the Union volition save its autonomy every bit regards its decision-making every bit good every bit the purpose of the Court of Justice of the European Union. According to the European Council guidelines of xv Dec 2017, this refers notably to the competence of the Court of Justice of the European Union.
10. In add-on to these heart together with soul principles, the European Council guidelines of 29 Apr 2017 set out specific weather condition applicable to whatever possible transitional arrangements. To the extent necessary together with legally possible, the negotiations may seek to decide transitional arrangements which are inward the involvement of the Union and, every bit appropriate, to render for bridges towards the foreseeable framework for the time to come human relationship inward the lite of the progress made. As reiterated past times the European Council Guidelines of xv Dec 2017, whatever such transitional arrangements must live clearly defined, together with just express inward time. They must every bit good live dependent area to effective enforcement mechanisms.
11. These supplementary negotiating directives are based on together with farther develop the principles together with weather condition set downwards inward the European Council guidelines of xv Dec 2017.
12. In trouble amongst those guidelines, which farther specify together with develop the heart together with soul principles set out inward the European Council guidelines of 29 Apr 2017, whatever transitional arrangements provided for inward the Withdrawal Agreement should comprehend the whole of the Union acquis, including Euratom matters. Notwithstanding paragraph 17 of these negotiating directives, the Union acquis should apply to together with inward the Britain every bit if it were a Member State. Any changes to the Union acquis should automatically apply to together with inward the Britain during the transition period. For acts adopted inward the Area of Freedom, Security together with Justice past times which the Britain is jump earlier its withdrawal, Articles 4a of Protocol (No 21) together with five of Protocol (No 19) annexed to the Treaties, which allow the Britain non to participate inward an human activeness amending a mensurate past times which it is already bound, should move along to apply during the transition menses including the possibility for the Union to decide that this non participation would brand the relevant mensurate inoperable together with hence that the mensurate should cease to apply to the United Kingdom. The Britain should all the same no longer live allowed to opt-in to measures inward this Area other than those amending, replacing or edifice upon the to a higher house mentioned existing acts.
As for the application of novel European Union laws, in that location volition live a slowdown inward European Union legislative activeness betwixt well-nigh May together with Dec 2019 due to the European Parliament elections together with the changeover of the Commission. Many measures adopted afterwards won’t apply to the UK anyway, if the transitional menses ends every bit proposed at the cease of 2020, because Directives commonly take away hold a two-year deadline to implement them together with the top dog focus volition live on adopting novel funding legislation, which won’t apply until after 2020 either. Note that the UK volition lose the correct of veto which has it has at nowadays inward areas such every bit taxation together with unusual policy rules. However, the Dec articulation written report noted that the UK would non live jump past times changes to the basic laws on revenue together with spending – together with then the UK volition maintain its budget rebate until the cease of 2020.
The legalese on the ‘Area of Freedom, Security together with Justice’ agency that the UK volition still live able to opt inward to novel European Union legislation on European Union asylum, criminal constabulary or policing, but only on the status that such legislation amends existing European Union legislation. (In most cases, it does). Where such legislation is alone new, ie non amending existing law, the UK loses the correct to opt in, together with volition non live bound. The electrical current dominion that the UK tin live ‘thrown out’ of existing laws inward this surface area if it does non opt inward to measures amending those existing laws volition still apply. (That ability has non been used to date).
13. During the transition period, Union constabulary covered past times these transitional arrangements should deploy inward the Britain the same legal effects every bit those which it deploys inside the Member U.S.A. of the Union. This means, inward particular, that the similar a shot lawsuit together with primacy of Union constabulary should live preserved.
The concluding judgement was added past times the Council. This agency that the electrical current rules on the legal lawsuit of European Union constabulary inward the UK domestic legal systems would non live changed during the transitional period. The UK has previously agreed to this every bit regards acquired rights of EU27 citizens, every bit I discussed here.
14. During the transition period, together with inward trouble amongst the European Council guidelines of 29 Apr 2017, the Britain volition stay jump past times the obligations stemming from the agreements concluded past times the Union, or past times Member U.S.A. acting on its behalf, or past times the Union together with its Member U.S.A. acting jointly, spell the Britain should all the same no longer participate inward whatever bodies set upwardly past times those agreements.
The Council replaced the words ‘will no longer produce goodness from’ amongst ‘will stay jump past times the obligations stemming from’. It every bit good deleted the words ‘Where it is inward the involvement of the Union, the Union may consider whether together with how arrangements tin live agreed that would maintain the effects of the agreements every bit regards the Britain during the transition period’.
The intention seems to live that the UK volition still take away hold obligations to the European Union to apply agreements concluded amongst non-EU countries past times the European Union (or the European Union jointly amongst its Member States). However, since the withdrawal understanding cannot bind non-EU countries, those non-EU countries volition no longer take away hold obligations to the UK, unless they concur amongst the UK to move along their existing obligations inward force. The negotiation of treaties betwixt the UK together with non-EU countries is the dependent area of the adjacent paragraph.
15. In trouble amongst the European Council guidelines of xv Dec 2017, whatever transitional arrangements require the United Kingdom's continued participation inward the Customs Union together with the Single Market (with all iv freedoms) during the transition. The Britain should accept all necessary measures to save the integrity of the Single Market together with of the Customs Union. The Britain should move along to comply amongst the Union merchandise policy. It should every bit good inward particular ensure that its customs government move along to human activeness inward accordance amongst the mission of European Union customs government including past times collecting Common Customs Tariff duties together with past times performing all checks required nether Union constabulary at the edge vis-à-vis other tertiary countries. During the transition period, the Britain may non move jump past times international agreements entered into inward its ain capacity inward the fields of competence of Union law, unless authorised to produce together with then past times the Union.
The concluding judgement was added past times the Council. This paragraph ensures no alter inward the application of the unmarried marketplace or the customs matrimony to the UK during the transitional period. The bound on the UK’s ability to move into into treaties raises questions. This only applies if such treaties are inside the EU’s fields of competence; but for European Union members in that location is complex external relations illustration constabulary of the ECJ which states when they tin sign treaties fifty-fifty inside areas of constabulary that the European Union could every bit good sign treaties in. It is non clear if the intention is to replicate that illustration law, or rather to dependent area to the UK to to a greater extent than constraints than it would take away hold every bit a Member State.
For the UK side, the fundamental signal may live whether it is gratis to negotiate together with sign treaties inside the transitional period, fifty-fifty if those treaties only come upwardly into strength afterward. The negotiation directives are soundless on this issue. The UK mightiness every bit good reasonably fence that merely replicating its existing rights together with obligations inward a novel treaty amongst a non-EU province should live approved past times the EU, or should non require European Union blessing at all.
16. In trouble amongst the European Council guidelines of 29 Apr 2017 together with the commencement set of negotiating directives of 22 May 2017, whatever time-limited prolongation of the Union acquis requires existing Union regulatory, budgetary, supervisory, judiciary together with enforcement instruments together with structures to apply, including the competence of the Court of Justice of the European Union.
17. In relation to the application of the Union acquis to the United Kingdom, the Withdrawal Agreement should therefore, during the transitional period, save the total competences of the Union institutions (in particular the total jurisdiction of the Court of Justice of the European Union), bodies, offices together with agencies inward relation to the Britain together with to Britain natural or legal persons. In particular, Union institutions, bodies together with agencies should comport all supervision together with command proceedings foreseen past times Union law. In trouble amongst the European Council guidelines of xv Dec 2017, the Britain volition all the same no longer participate inward or nominate or elect members of the Union institutions, nor participate inward the decision-making or the governance of the Union bodies, offices together with agencies.
The instant judgement was added past times the Council. The text agency that the UK volition non live component of the EU’s institutions (such every bit the Council, Commission, European Parliament or European Union court) but volition still live dependent area to their decisions, every bit noted above.
While the text refers to applying all of the electrical current powers of the ECJ, inward practise the EU27 side previously agreed to to a greater extent than express powers for the ECJ every bit regards citizens’ rights, every bit I discussed here.
18. During the transition period, every bit a full general rule, the UK volition non attend meetings of committees referred to inward Article iii (2) of Regulation (EU) No 182/2011 or Commission experts groups together with other similar entities of the agencies, offices or bodies where Member U.S.A. are represented. Exceptionally on a case-by-case basis, the Britain could live invited to attend without voting rights such meetings:
– where the give-and-take concerns private acts to live addressed to the Britain or to Britain natural or legal persons; or
– where the presence of the Britain is necessary from a Union perspective for the effective implementation of the acquis during the transition period.
The Regulation referred to sets out full general rules on command of the Commission when it adopts measures implementing European Union legislation.
19. The Withdrawal Agreement should define the precise weather condition together with the clear framework nether which such particular attendance should live allowed.
20. Specific consultations should every bit good live foreseen amongst regard to for the fixing of line-fishing opportunities during the transition period, inward total honor of the Union acquis.
21. The transition menses should apply every bit from the engagement of entry into strength of the Withdrawal Agreement together with should non lastly beyond 31 Dec 2020.
This engagement is convenient for the EU27 side every bit it coincides amongst the cease of the electrical current multi-year budget cycle. There is no reference to whatever possible extension of the transitional period, together with paragraph 10 states that the menses should live ‘precisely limited’ inward time. Any thought that the menses should live extended indefinitely could potentially spark legal challenges. It would live possible to sign a novel understanding post-Brexit that would extend the transitional period, but this would certainly require unanimous understanding together with maybe every bit good national ratification inward part.
Barnard & Peers: chapter 27
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