Brexit legal text signals greater EU urgency 


Brussels is not waiting around anymore for the U.K. to get its act together on Brexit.

The European Commission’s publication of a 120-page draft withdrawal treaty will signal a new approach in the Brexit process that might best be compared to an airliner evacuation: White lights lead to red lights, which indicate the way out.

The readymade answers to some of the most complex Brexit problems that the document provides though are leading British negotiators to what they regard as the wrong exit.

The EU’s maximalist positions, just days before Theresa May is due to give her latest big Brexit speech, will put intense pressure on the prime minister to come forward with the sort of concrete proposals for a post-Brexit relationship that Brussels has been demanding for nearly a year. Failing to do so will almost certainly embolden the EU27 to take an even harder line in the draft negotiating guidelines for the future trade deal, and undoubtedly raise fresh questions in London about May’s leadership.

Even before publication, it is clear that EU positions the U.K. strongly objects to will be in the text. According to EU officials with knowledge of the bloc’s position and chief Brexit negotiator Michel Barnier himself, the document will contain clauses mandating that:

  • Northern Ireland will remain part of the EU customs union and maintain full regulatory alignment — effectively imposing a new trade boundary in the Irish Sea.
  • The European Court of Justice will retain legal authority to adjudicate any disputes that arise in relation to the withdrawal treaty, including any disagreements on citizens’ rights or the U.K.’s continuing financial obligations to the EU.
  • The Brexit transition period will end on December 31, 2020, on the final day of the EU’s current long-term budget plan.
  • During the transition, the U.K. will lose all voting rights and decision-making power but must comply with all existing EU laws and regulations — and any new rules adopted by the EU27 — with no recourse if it opposes some new policy.

Unlike in Phase 1 of the talks, in which the EU27 were willing to use the calendar for negotiating leverage, EU officials now view the clock as an adversary, at least as problematic as the inconsistent messages from May’s divided Cabinet in London.

And so even as officials in Brussels have grown pessimistic about the chances of clinching an agreement on the transition period, European Council President Donald Tusk plans to table proposed negotiating guidelines for working out the future relationship between the EU and the U.K.

In other words, senior EU leaders no longer believe they can wait for clarity about London’s goals that may or may not come in a speech by May on Friday, and they are prepared to push ahead on their own.

“The clock is ticking; time is short,” Barnier said at a news conference on Tuesday. “I am concerned.”

As an example, Barnier pointed to the tentative agreement reached during Phase 1 of the negotiations on Ireland, in which the U.K. said it would put forward concrete proposals on how to avoid the reinstatement of a hard border. The tentative deal, laid out in the December 8. “Joint Report” provided a fallback option, in which absent of any other agreement, Northern Ireland would maintain full regulatory alignment with the EU.

Barnier said the EU’s draft withdrawal treaty would make that backstop “operational” but that he was prepared to consider proposals by the U.K. if and when it makes any. He said the draft treaty would also contain the EU positions “on other withdrawal related issues, subjects on which since December there has not been any progress and, in many cases, on which there have been no negotiations.”

The treaty text, he said, would be discussed with the EU27 in the Council, and with the European Parliament, and only then would it be tabled in negotiations for consideration by the U.K. — an approach that seems to highlight both the limited appetite for negotiating and the rising possibility that the U.K. on some issues may find itself faced with a “take it or leave it” scenario.

Barnier said he agreed with Tusk’s assessment after an informal summit of the EU27 leaders last Friday that the U.K.’s position was “based on pure illusion.”

Tusk will meet with May in London on Thursday, but he has made clear he has little hope of any breakthrough.

“It looks like the cake philosophy is still alive,” Tusk said Friday, referring to the EU’s longstanding complaint that Britain is trying to have its cake and eat it too. On the urgent need for pressing ahead with or without U.K. proposals, Tusk said: “Our intention is to adopt these guidelines, whether the U.K. is ready with its vision of our future relations, or not. Naturally, it would be much better if it were. But we cannot stand by and wait.”

It is already clear that EU negotiators have not been standing by.

There has been little in the way of formal negotiating since December. But documents posted on the European Commission website by Barnier’s team, including several sets of slides related to preparatory discussions on the future relationship with the U.K., show that officials are already deeply immersed in the enormously complicated issues that lie ahead in seeking to transform the U.K.’s EU membership into something else, most likely a free-trade agreement.

Some EU officials have complained that May and other senior members of her government have refused to even say the words “free-trade agreement” aloud, in what Brussels views as a sign that Britain wants to create some new favored status for itself unlike anything that currently exists in international relations. At the same time, senior ministers have ruled out staying in the EU’s customs union, which Brussels still views as the most straightforward solution to the Ireland problem and other complexities in Brexit.

Barnier was at pains at his press conference to reassure the U.K. there would be no “surprises” in the draft text — it is after all simply December’s political language transposed into legal language.

It remains to be seen if the U.K. will see it the same way.

Source: POLITICO – Brexit legal text signals greater EU urgency


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