This EU Won't Work

This draft agreement was prepared by the European Commission and published on 15 March 2018:

The 123-page document can be downloaded from here: https://ec.europa.eu/commission/sites/beta-political/files/negotiation-agreements-atom-energy-15mar_en.pdf

This very long and tedious document translates into legal terms the intention of the EU to prevent the emergence of a dynamic and critical competitor just off its coast. In summary, the whole purpose of the draft agreement is not to pursue the so-called negotiations but to set out the EU’s intransigent position, which has not budged since the original mandate, in what they may hope will be so much detail that the true purpose will be missed. We can – and will – quibble with particular points but we will do that just to hammer home the underlying message: “accept this and be damned”. Even if it were possible, there would be no point in trying to modify any details because the whole thing, line by line, serves the overall purpose – to punish and constrain the UK in perpetuity.

What follows is a selection of quotations, which we’ve sampled to reinforce our point; that the EU’s intentions towards Brexit and the UK are malign. Much of the stuff we don’t quote here could be regarded as innocuous legal tosh, which is why we need to emphasise the parts which clearly highlights the true malign intent. There will be those who argue that because so much of it is harmless, the whole must be harmless too. Only the most blinkered of Remainers who read the document carefully could sustain their naïve belief that the EU is a Good Thing for Europe and the World, let alone for the UK.

Because there is so much, we keep our comments to the minimum, just to point out what should be obvious to all, though it appears not to be. The footnotes to the document (some 166 of them) mostly list the existing EU laws, rules and regulations that will form a cat’s cradle from which the UK will find no escape route; no UK government should even discuss the details of this draft, which would entrap the UK straight away. They should simply point out that what the EU proposes is hostile to the UK electorate’s clearly expressed desire to get out of the trap.

(Our comments are in italics this time, to make the distinction clear. Italics in line with an Article are from the original.)

Article 4 (p. 5)

1. Where this Agreement provides for the application of Union law in the United Kingdom, it shall produce in respect of and in the United Kingdom the same legal effects as those which it produces within the Union and its Member States.
2. The United Kingdom shall ensure compliance with paragraph 1, including as regards the required powers of its judicial and administrative authorities, through domestic primary legislation.

How is this different from remaining in the EU under the jurisdiction of the European Court of Justice (ECJ)? Hardly at all. We can see the main difference here:

Article 6 (p. 6)

1. For the purposes of this Agreement, all references to Member States and competent authorities of Member States in provisions of Union law made applicable by this Agreement shall be read as including the United Kingdom and its competent authorities, except as regards:

(a)           the nomination, appointment or election of members of the institutions, bodies, offices and agencies of the Union, as well as the participation in the decision-making and the attendance in the meetings of the institutions;

(b)           the participation in the decision-making and governance of the bodies, offices and agencies of the Union; 


(c)           the attendance in the meetings of the committees referred to in Article 3(2) of Regulation (EU) No 182/2011 of the European Parliament and of the Council4, of Commission expert groups or of other similar entities, or in the meetings of expert groups or similar entities of bodies, offices and agencies of the Union, unless otherwise provided in this Agreement. 


So, they propose a new form of membership for the UK; obedient un-member, without rights, only obligations. Why would anyone in Britain support such a ‘deal’?

Article 7 (p. 6)

Unless otherwise provided in this Agreement, at the end of the transition period, the United Kingdom shall cease to be entitled to access any network, any information system, and any database established on the basis of Union law.

In case we thought otherwise. (Some possible examples: criminal records, clinical records, security data, medicine trials) Not just hard-nosed but petty, vindictive, self-harming, silly – all part of the punishment regime that this d(r)aft withdrawal agreement represents.

Article 32 (p.24)

In respect of United Kingdom nationals and their family members, the rights provided for by this Part shall not include further free movement to the territory of another Member State, the right of establishment in the territory of another Member State, or the right to provide services on the territory of another Member State or to persons established in other Member States.

Free Movement of People is one-way only. Not only is this knowingly against what the British electorate voted to end but it is worse than what they have while the UK is a member of the Project. More unnecessary punishment.

Article 45 (p. 29)

2. Regulation (EU) No 952/2013, Council Decision 2014/335/EU, Euratom21, Council Regulation (EU, Euratom) No 608/201422 and Council Regulation No (EU, Euratom) 609/201423 shall apply in respect of any customs debt arising after the end of the transition period…

This seemingly simple item is selected to reinforce the point that the draft agreement requires the UK to abide by the whole edifice of current rules, regulations and laws, the ‘acquis’ (more on this below).

Article 58 (p. 37)         Ongoing judicial cooperation proceedings in criminal matters

1. In the United Kingdom, as well as in the Member States in situations involving the United Kingdom, the following acts shall apply …

Article 61 (p. 41)         Other applicable Union acts

Directive 2010/64/EU of the European Parliament and of the Council and Directive 2012/13/EU of the European Parliament and of the Council shall apply in respect of proceedings referred to in point (b) of Article 58(1) of this Agreement.

There is a lot like this, in fact it’s mostly like this. They spell out clearly what “you will obey” means.

Article 82 (p. 55)         Pending cases before the Court of Justice of the European Union

1. The Court of Justice of the European Union shall continue to have jurisdiction for any proceedings brought before it by the United Kingdom or against the United Kingdom before the end of the transition period. 


Other Articles make it clear that such jurisdiction will continue indefinitely. For example:

Article 85 (p. 56)         Binding force and enforceability of judgments and orders

1. Judgments and orders of the Court of Justice of the European Union handed down before the end of the transition period as well as those handed down after the end of the transition period in proceedings referred to in Articles 82 and 83, shall have binding force in their entirety on and in the United Kingdom. 


Article 88 (p. 57)         Ongoing administrative procedures

1. The institutions, bodies, offices and agencies of the Union shall continue to be competent for administrative procedures concerning compliance with Union law by the United Kingdom and natural and legal persons residing or established in the United Kingdom, which were initiated before the end of the transition period. 


So there you have it; the EU is and will remain ‘competent’ (in its own definition of this term). (see [1], from which the footnote* below includes the key point that we are making here.)

Article 91 (p. 57)         Binding force and enforceability of decisions

1. Decisions adopted by institutions, bodies, offices and agencies of the Union before the end of the transition period, or in the procedures referred to in Articles 88 and 89, and addressed to the United Kingdom or to natural and legal persons residing or established in the United Kingdom, shall be binding on and in the United Kingdom. 


The UK will remain bound by this. We move on – or do we?

Article 96 (p. 60)

1. For the purposes of this Title, “members of the institutions” means, irrespective of their nationality, the President of the European Council, the members of the European Commission, the Judges, the Advocates-General, the Registrars and the Assistant Rapporteurs of the Court of Justice of the European Union, the members of the Court of Auditors, the members of the organs of the European Central Bank, the members of the organs of the European Investment Bank, as well as all other persons assimilated to any of those categories of persons under Union law for the purposes of Protocol (No 7) on the Privileges and Immunities of the European Union (“Protocol on the Privileges and Immunities”). The term “members of the institutions” does not include members of the European Parliament. 
(our emphasis)

We can vote for members of the European Parliament but to what purpose, since they are explicitly excluded from the privileges of institution membership? Put more simply, we cannot vote to remove a government we don’t like. Remainers are very keen on democracy, as they keep reminding us every time they ask for another referendum vote. So how do they feel about this or are their reading spectacles ‘polarised’ to filter inconvenient details?

Article 123 (p. 72)       Institutional arrangements

3. During the transition period, provisions of the Treaties which grant institutional rights to Member States enabling them to submit proposals, initiatives or requests to the institutions shall be understood as not including the United Kingdom. 

4. During the transition period, where draft Union acts identify or refer directly to specific Member State authorities, procedures, or documents, the United Kingdom shall be consulted by the Union on such drafts with a view to ensuring the proper implementation and application of that act by and in the United Kingdom. 


These two points make clear that the UK, although remaining a ‘member’ for judicial purposes will cease to have any rights with regard to the institutions of the EU. And the purpose of ‘consultation’ will be to ensure that we continue to behave ourselves, not to ask whether we approve or can suggest improvements.

Article 124 (p.73)        Specific arrangements relating to the Union’s external action 


3. In accordance with the principle of sincere cooperation, the United Kingdom shall refrain, during the transition period, from any action or initiative which is likely to be prejudicial to the Union’s interests, in particular in the framework of any international organisation, agency, conference or forum of which the United Kingdom is a party in its own right. 

4. Notwithstanding paragraph 3, during the transition period, the United Kingdom may not become bound by international agreements entered into in its own capacity in the areas of exclusive competence of the Union, unless authorised to do so by the Union. 


How would the ECJ (or any court) interpret those? Perhaps that anything which offered the UK an advantage the EU does not already have is against the EU’s interests because it tilts the playing field against it. That might include making a trade agreement with anyone before the EU does. It’s up to the ECJ, as always. And in accordance with the well-known legal ‘principle of sincere cooperation’.

Article 125 (p.73)        Specific arrangements relating to fishing opportunities 


1. As regards the fixing of fishing opportunities within the meaning of Article 43(3) TFEU for any period falling within the transition period, the United Kingdom shall be consulted in respect of the fishing opportunities related to the United Kingdom, …

So we will be consulted about (i.e. told) who can fish in our waters and for how much catch. We were screwed on this as a full member so we cannot expect better treatment as a ghost member.

Article 126 (p.74)        Supervision and enforcement 


During the transition period, the institutions, bodies, offices and agencies of the Union shall have the powers conferred upon them by Union law in relation to the United Kingdom and natural and legal persons residing or established in the United Kingdom. In particular, the Court of Justice of the European Union shall have jurisdiction as provided for in the Treaties.

So the Transition isn’t a gentle slope, it just moves the ‘cliff edge’ a bit. Need we say more than they do? Well, here’s what they say about money:

Article 128 (p. 75)       The United Kingdom’s contribution to and participation in the implementation of the Union budgets for the years 2019 and 2020

1. For the years 2019 and 2020, in accordance with Part Four, the United Kingdom shall contribute to and participate in the implementation of the Union budgets. 


Article 129 (p. 75)       Provisions applicable after 31 December 2020 in relation to own resources

1. The applicable Union law concerning the Union’s own resources relating to financial years until 2020 shall continue to apply to the United Kingdom after 31 December 2020, including where the own resources concerned are to be made available, corrected or subject to adjustments after that date. 


Article 133 (p. 79)       Outstanding commitments

1. Unless otherwise provided for in this Agreement, the United Kingdom shall be liable to the Union for its share of the budgetary commitments of the Union budget and of the budgets of the Union decentralised agencies outstanding on 31 December 2020 and the commitments made in 2021 on the carryover of commitment appropriations from the budgets for 2020.

Article 135 (p. 80)       Union liabilities at the end of 2020

2. In particular, the United Kingdom shall contribute to its share of the Union liability for the pension and other employee benefits as right accrued on 31 December 2020. Payments related to this liability shall be made when the amounts fall due.

This is obviously vital to ensure the negotiators’ and their mates’ pensions are secure.

Article 136 (p.82)        Contingent financial liabilities related to loans for financial assistance, EFSI, EFSD and the external lending mandate.

1. The United Kingdom shall be liable to the Union for its share of the financial liabilities of the Union arising from financial operations decided by the European Parliament and the Council, by the European Commission or approved by the bodies, entities or persons directly entrusted with the implementation before the date of entry into force of this Agreement related to: [loans and budgetary guarantees]

The UK will continue to pay for the privileges of its new-style membership.

Is all this enough to convince you that the EU does not mean us well?

[The remainder of the Draft Agreement concerns the Irish border specifically, which we will analyse in a later post.]

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[1] (Article 88)           Propaganda, Deceits and Lies

*From Draft guidelines following the United Kingdom’s notification under Article 50 TEU [Treaty on European Union] European Council (Art. 50) (29 April 2017)

“In accordance with the principle that nothing is agreed until everything is agreed, individual items cannot be settled separately.”

This ‘principle’ is one the EU has invented for the purpose of controlling the Brexit negotiations, it has no basis in law but is just a statement of how the EU intends to proceed. Except that it doesn’t mean it. The terms of the ‘divorce’ (the Withdrawal Agreement) must be agreed before anything else is agreed. Is this an example of where the EU is being flexible with its own ‘principles’? They break “everything” into packages for their own convenience and then apply their principle to the UK within each package.