This EU Won't Work

At the time of writing negotiations are due to begin on the relationship between the UK and the EU after the transition period. Negotiations are expected to be difficult and the UK government has ruled out any extension to the transition period.

Our previous Prime Minister made a Withdrawal Agreement (WA) with the EU and presented it three times to Parliament where it was denied (each time). Our new PM agreed a few quick changes with the EU and got it approved by a radically changed Parliament. It will be interesting to see, in practice, whether the big concession of keeping Northern Ireland in both the EU and UK customs unions actually provides some unique benefits to the province or whether, combined with the strengthened representation of Sinn Féin in the Dublin parliament, it splits our own union. The real hard work is about to begin to define the future relationship in this and many other areas.

Negotiations on the future relationship between the EU and the UK are expected to start in March. Opening postures have been adopted by the principal protagonists. Boris says he will never agree to extend the Transition beyond 2020 whatever has been agreed, if anything, by then. Macron has demanded full fishing rights as a price for agreeing anything at all (he hasn’t actually said that the UK must agree to that before anything else can be negotiated, unlike the ‘staged negotiations’ Theresa May foolishly accepted). Barnier has insisted that full alignment of financial regulations are required for the ‘City’ to properly access the EU market. All of these statements have been explicitly rejected by the UK Government. New Commission President, Ursula Von der Leyen, has avoided threats and the hyperbole her predecessor enjoyed, simply warning how difficult it will be to forge a close relationship without close alignment.

The EU has now published its directives, or mandate, to govern the outcome, which we will examine first – we will also check the revised Political Declaration (PD) that was agreed last October.

From Recommendation for a COUNCIL DECISION [1] authorising the opening of negotiations for a new partnership with the United Kingdom (03/02/2020):

With this recommendation, the European Commission invites the Council of the European Union to authorise the opening of negotiations for a new partnership with the United Kingdom…and to address directives to the negotiator…

The Withdrawal Agreement entered into force on 1 February 2020 and provides for a transition period during which Union law applies to and in the United Kingdom in accordance with that Agreement. This period will end on 31 December 2020, unless the Joint Committee established under the Withdrawal Agreement adopts, before 1 July 2020, a single decision extending the transition period for up to 1 or 2 years.

We started our cover of this in Brexit: Stage 2 and noted that the UK Parliament has made any extension illegal (though it could soon change the law if it wanted to).

The political declaration that accompanied the Withdrawal Agreement sets out the framework for the future relationship between the European Union and the United Kingdom (‘Political Declaration’). It establishes the parameters of ‘an ambitious, broad, deep and flexible partnership across trade and economic cooperation with a comprehensive and balanced Free Trade Agreement at its core, law enforcement and criminal justice, foreign policy, security and defence and wider areas of cooperation.’

The envisaged partnership is a single package that comprises three main components:

– general arrangements (including provisions on basic values and principles and on governance);

– economic arrangements (including provisions on trade and level playing field guarantees); and

– security arrangements (including provisions on law enforcement and judicial cooperation in criminal matters, as well as on foreign policy, security and defence).

The envisaged partnership is premised on the recognition that prosperity and security are enhanced by the rules-based international order, defending…the rule of law…and free and fair trade.

The envisaged partnership…[should] reflect the United Kingdom’s status as a non-Schengen third country that cannot have the same rights and enjoy the same benefits as a member.

No surprises there. See Mind Your Language for some comments on ‘third country’.

An Annex follows, covering directives for the negotiation of a new partnership with the UK (see The Levellers for more from this document, on the theme of a ‘level playing field’.

During the negotiations under Article 50 of the TEU, an overall understanding on the framework for the envisaged partnership was identified with the United Kingdom and recorded in the political declaration setting out the framework for the envisaged partnership between the Union and the United Kingdom…

There follows much on what “the envisaged partnership” should include; we give a brief selection with a few comments. The PD is not legally binding, though the EU wishes to make it so in the future relationship.

This partnership should be comprehensive, encompassing a free trade agreement as well as wider sectoral cooperation where it is in the Union interest.

The envisaged partnership should include appropriate rules of origin based on the standard preferential rules of origin of the Union and taking into account the Union’s interest.

The envisaged partnership should…secure continued responsible fisheries that ensure the long-term conservation and sustainable exploitation of marine biological resources… Besides the cooperation on conservation, management and regulation, the objective of the provisions on fisheries should be to uphold Union fishing activities. In particular, it should aim to avoid economic dislocation for Union fishermen that have traditionally fished in the United Kingdom waters.

The Common Fisheries Policy (CFP) has been an unmitigated disaster for fish stocks and for the British fishing industry. This is widely acknowledged, except by the EU. And so on and on it goes, until this:

The governing body should be empowered to modify the level playing field commitments in order to include additional areas or to lay down higher standards over time.

This is the first reference in the document to the ‘governing body’. A definition comes later:

The envisaged partnership should establish a governing body responsible for managing and supervising the implementation and operation of the envisaged partnership, facilitating the resolution of disputes as set out below. It should take decisions and make recommendations concerning its evolution.

This appears to refer to what in the Withdrawal Agreement (WA) is termed the Joint Committee (Article 164). In that context the Joint Committee has overall governing responsibility during the transition period covered by the WA. It seems that the EU expects to have a similar arrangement to continue beyond the transition period (see our commentary, Madness Method, linked from Draft Withdrawal Agreement: a Fatal Flaw) in which we quote from Article 166 of the WA):

The decisions adopted by the Joint Committee shall be binding on the Union and the United Kingdom, and the Union and the United Kingdom shall implement those decisions. They shall have the same legal effect as this Agreement.

This is implied, though not stated explicitly, in the current document, which also confirms this (as in the WA and also paragraph 126 of the revised Political Declaration):

The Parties should establish a Joint Committee responsible for managing and supervising the implementation and operation of the future relationship, facilitating the resolution of disputes…

From paragraph 131 of the revised Political Declaration and Article 180 of the WA:

Should a dispute raise a question of interpretation of Union law, which may also be indicated by either Party, the arbitration panel should refer the question to the CJEU as the sole arbiter of Union law, for a binding ruling. The arbitration panel should decide the dispute in accordance with the ruling given by the CJEU… Any ruling of the arbitration panel shall be binding on the Union and the United Kingdom.

Since the EU will decide what is “a question of interpretation of Union law”, and will interpret it for the rest of us, this sleight-of-hand will leave EU law and the CJEU overriding Britain’s interests. We hope that the UK’s negotiators spot this and get rid of it.

From the revised Political Declaration [2] setting out the framework for the future relationship between the European Union and the United Kingdom (17/10/2019):

The Union and United Kingdom are determined to work together to safeguard the rules-based international order, the rule of law and promotion of democracy, and high standards of free and fair trade…

This opener begs many questions, some of which we raise below.

The Parties agree that the future relationship should be underpinned by shared values such as the respect for and safeguarding of human rights and fundamental freedoms, democratic principles, the rule of law…

These quotations give the flavour of the document, which the EU sees as reflecting its interests while the UK government may see it as harmless puff with no legal standing. It doesn’t give us more confidence in the forthcoming negotiations than we had in the last lot, which resulted in an unhealthy withdrawal agreement, and this political declaration.

…endeavouring to adopt decisions by the end of 2020, if the applicable conditions are met.

The “applicable conditions” can be found in what are variously termed the guidelines, the directives and the mandate, which reflect “the Union’s interest” (as quoted above) while offering gestures towards an apparent balance with the interests of the UK.

What follows offers the “Basis for Cooperation” between the Parties, as seen from Brussels, with the occasional wave in the direction of British interests. Much of it is propaganda, as we have come to expect.

Then they move on to the objectives and principles of the proposed economic partnership, puffed up with yet more propaganda:

Given the Union and the United Kingdom’s geographic proximity and economic interdependence, the future relationship must ensure open and fair competition, encompassing robust commitments to ensure a level playing field.

This is an attempt to justify not offering the UK what they have already agreed with other nations further afield.

The Parties should…rely on appropriate and relevant Union and international standards, and include appropriate mechanisms to ensure effective implementation domestically, enforcement and dispute settlement.

The Parties agree that the scale and scope of future arrangements should achieve an appropriate balance between rights and obligations – the closer and deeper the partnership the stronger the accompanying obligations. It should reflect the commitments the United Kingdom is willing to make that respect the integrity of the Union’s legal order…

There’s lots more but this should be enough to establish the nature and purpose of the document, with its main aim of promoting and protecting the EU’s view of itself and preserving a dominant relationship with the UK. There are a few touches that suggest that the UK side will have some influence in moderating the imbalance but most of it they have let through, no doubt on the risky assumption that it is harmless. Johnson was left in a difficult position by his predecessor and with a deadlocked Parliament, now his position at home is much stronger perhaps he can suck the poison from the agreements. The idea that the UK should pay £39billion for a worse deal than the others struck by the EU simply because it is ‘too close for comfort’ proves that latter union is a sick joke.

[1] https://ec.europa.eu/info/sites/info/files/communication-annex-negotiating-directives.pdf

[2] https://ec.europa.eu/commission/publications/revised-political-declaration_en