Transition: Negotiating Directives (1)

Directive-1The European Council has issued “supplementary directives for the negotiation of an agreement” with the UK. The withdrawal agreement was referred to in earlier EU documents (and reviewed by us in Divorce Guidelines and Mercury Rising). Those earlier documents used the incompatible terms ‘guidelines’ and ‘directives’. We assume that guidelines are precursors to directives, the latter being the definitive and stricter constraints on their negotiators. In fact the term ‘directive’ makes an EU mockery of the term ‘negotiation’, as Into lineM. Barnier is not authorised to vary the directives; his job is to bring the UK into line, which he did effectively in phase 1.

Phase 2 builds on the earlier Directives, now supplemented by further Directives, which we review here and in the following post. The EU’s Press release (29/01/18) usefully summarises the directives. This post reviews the press release; the following post will review the Directives themselves.

The Council, meeting in EU27 format, adopted supplementing negotiating directives for the Brexit negotiations, which detail the EU27 position regarding a transition period. These negotiating directives provide the Commission, as the EU negotiator, with a mandate to start discussions with the United Kingdom on this matter.”

OxymoronThe term “negotiating directives” is, of course, an oxymoron. A negotiation is not what takes place when the outcome is directed by a higher authority, as it is by the European Commission under the ‘guidance’ of the European Council. We will highlight these familiar deceits as we find them.

The proposed end date for the transition period in the negotiating directives is 31 December 2020.”

EU flexibilityThe word “proposed” suggests some unusual flexibility, probably because the EU doesn’t mind if the transition takes longer, given the UK’s parlous position during the transition under the remaining directives.

Application of EU acquis

According to the EU position, during the transition period the whole of the EU acquis will continue to apply to the UK as if it were a member state. Changes to the acquis adopted by EU institutions, bodies, offices and agencies during that period would also apply in the UK.” (emphasis in each original)

Rules & rights-2The UK will be obliged to follow the rules but will retain few, if any, rights (see below). This can be characterised by no other term than ‘punishment’; it is also ‘taxation without representation’ since we still have to pay during the transition. A true negotiation could start here but would be moderated through discussion. We should not expect moderation.

All existing EU regulatory, budgetary, supervisory, judiciary and enforcement instruments and structures will also apply, including the competence of the Court of Justice of the European Union.”

The UK will not be an independent nation until after the transition, and then only if the withdrawal agreement permits a degree of independence.

Trade policy and international deals

Clear & preciseDuring the transition period, the UK will remain bound by the obligations stemming from the agreements concluded by the EU, while it will no longer participate in any bodies set up by those agreements.”

Could this be more clear or precise?

As the UK will continue to participate in the customs union and the single market (with all four freedoms) during the transition, it will have to continue to comply with EU trade policy, to apply EU customs tariff and collect EU customs duties and to ensure all EU checks are being performed on the border. This also implies that during that period the UK will not become bound by international agreements in its own capacity in fields of competence of EU law, unless authorised to do so by the EU.”

You will obey-1The first sentence assumes what is supposed to be the subject of the negotiations. It is stated as though it has already been agreed, as of course it has, within the EU institutions. The UK “will” and “will not”. A tough negotiating guideline might have, “we expect the UK to…” but this is the EU so we must do as we are told. Elsewhere they demand that the UK state its position more clearly, by which we take them to mean until its position is clearly the same as the EU’s; anything less is unclear. The oft-repeated demand for clarity is another example of EU deceit.

EU institutions and bodies

The UK, as already a third country, will no longer participate in the institutions and the decision-making of the EU.” 

You will obey-2Obey the rules but don’t expect us to listen to you. Rules but no rights. And there’s more:

The UK will no longer attend meetings of Commission experts groups, committees or other similar entities where member states are represented. Exceptionally on a case-by-case basis, the UK could however be invited to attend one of these meetings without voting rights.”

Opening gambitShould we take the second sentence as a generous offer? As an opening gambit in a genuine negotiation this would be understandable; as a Directive it is surely unacceptable, and should not be accepted.

Specific consultations will be foreseen with regard to the fixing of fishing opportunities (total allowable catches) during the transition period, in full respect of the EU acquis.”

Consultation-2We can flag another piece of deceit here, calling something “consultations” when the outcome has to conform fully to the current position. But perhaps these consultations will be among the remaining 27, to decide to increase their “fishing opportunities” in British waters.

This press release cuts out some of the legalistic flummery of the full document but appears to represent it faithfully. The Phase 2 Negotiation Directives can be downloaded from here(See the next post for a review of the details.)



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