This post is the fifth and final of our series in which we extract evidence from ten EU documents. This post focuses on the Brexit negotiations and why we believe that while the UK is negotiating the EU is not; it has a different agenda.
The EU documents cited in this post are:
[B] EU Negotiating directives for Article 50 negotiations (22 May 2017)
[C] Draft guidelines following the United Kingdom’s notification under Article 50 TEU [Treaty on European Union] European Council (Art. 50) (29 April 2017)
For the full ‘evidence’ paper, you can view it here.
[B] “The [Withdrawal] Agreement will be negotiated in the light of the European Council guidelines and in line with the negotiating directives. The negotiating directives build on the European Council guidelines by developing the Union’s positions for the withdrawal negotiations in full respect of the objectives, principles and positions that the guidelines set out.”
The guidelines are in the next document, [C] below. These were initially drafts, drawn up by the European Council; they were later approved by the Commission and Parliament and so became ‘directives’ and now ‘mandate’ (from Latin mandatum ‘something commanded’) in the current document, thus confirming our view that negotiations are not what is taking place.
“In line with the Statement of the Heads of State or Government of 27 Member States, as well as of the Presidents of the European Council and the European Commission, these negotiating directives establish the detailed arrangements governing the relationship between the Council and its preparatory bodies, on the one hand, and the Union negotiator on the other.”
That wraps it up – it’s a mandate.
“Article 50 of the Treaty on European Union confers on the Union an exceptional horizontal competence to cover in this agreement all matters necessary to arrange the withdrawal.”
‘Competence’ is EU-jargon for ‘power’. The EU is exercising its powers to force any withdrawal agreement to fit its mandate. It will, of course, do this in its own interests.
“This single financial settlement should be based on the principle that the United Kingdom must honour its share of the financing of all the obligations undertaken while it was a member of the Union.”
The “should be based…” sounds flexible but we need to remember that these are directives, so ‘should’ is being used here in a legal sense, as an instruction to be obeyed.
“Agreement should ensure that any good lawfully placed on the single market on the basis of Union law before the withdrawal date can continue to be made available on the market or put into service after that date both in the United Kingdom and in the EU27 under the conditions set out in the relevant Union law applicable before the withdrawal date. Other matters, such as services, where there may be a need to reduce uncertainty or avoid a legal vacuum, will be covered by subsequent sets of negotiating directives.”
This appears to state that all goods currently available should continue to be available, which makes no sense in a context where goods come and go as commerce, safety and fashion dictate. But this depends on an interpretation of “can”; is it the legal meaning of ‘should’ or a softer one of possibility. The ambiguity is surely deliberate and will as surely give rise to disputes, and ECJ judgements.
Services are a much bigger issue for the UK economy even than goods so failing to cover this area in a withdrawal agreement suggests that the EU wishes to continue to protect itself and its member states from competition in services.
“The Agreement should also provide that the United Kingdom ensures, within its jurisdiction, the continued respect by members of Union institutions, bodies, offices and agencies, members of committees, officials and other servants of the Union of the obligations incurred by them under Article 339 of the Treaty on the Functioning of the European Union before the withdrawal date.”
This is odd: how could the UK ensure that “members of Union institutions…and other servants of the Union” respect “the obligations incurred by them”? Does it perhaps mean those people who are British citizens working for the Union? But surely British citizens will no longer work for the Union after Brexit. Or perhaps it should read, “…respect of members…”, to include pension rights. It makes no sense otherwise but perhaps that is not what is meant by this clunky text. If not, what does it mean?
[C] “It [the European Council] further reiterates that any agreement with the United Kingdom will have to be based on a balance of rights and obligations, and ensure a level-playing field.”
There is no reason to claim that a non-member should have general “rights and responsibilities” other than those specified in any agreement with the EU. And “a level-playing field” hints at the expectation that the UK will remain under the jurisdiction of the ECJ, which will then be able to control and limit the UK’s opportunities as an independent nation, for example with regard to the expected harmonization of tax regimes.
“The European Council expects the United Kingdom to honour its share of international commitments contracted in the context of its EU membership.”
This sounds reasonable, until we realise that the UK’s share of international commitments are matters open to discussion – but this is a mandate so the EU will tell us what our commitments are; or more likely wait until the UK says what it is willing to pay and then say no, until we find the ‘right’ figure, which they are not revealing. For example, their figure might include the EU’s foreign aid budget, which is known to be about the most wasteful of any in the world, far worse than Britain’s own, independent projects.