The Negotiations – Part 2

This post has been contributed by Professor Andrea Biondi, EU law Module Convenor.

 

Negotiations handshake

We had two distinct phases in the negotiations: the first dealt with what is now called the EU-UK Withdrawal agreement and it was aimed at concluding an agreement dealing with only specific aspects as to guarantee an orderly withdrawal. These aspects were identified by the European Council and the European Commission and later accepted by the UK [1]as:

  1. The reciprocal protection for Union and UK citizens as to enable the effective exercise of rights derived from Union law and based on past life choices, where those citizens have exercised free movement rights by a specified date.
  2. The status of Northern Ireland and in particular the question of the preservation of the Good Friday or Belfast Agreement reached on 10 April 1998 by the United Kingdom Government, the Irish Government and the other participants in the multi-party negotiation and the question of a possible hard border between Ireland and Northern Ireland
  3. Financial settlement of the UK contributions to the EU.

In December 2017 both parties agreed that enough progress was made as to start the second phase of the negotiations aimed at providing a new framework for the relationship between the EU and the UK.[2] As we write, there are several rumors that the EU is ready to unveil a draft of the Withdrawal Treaty. This will be the object of a future blog.

The main question seems to be now what the future EU –UK Treaty should contain and provide. However, before even embarking into such a daunting task, a different and perhaps even more pressing issue needs to be tackled: the clock is ticking and it is rather unconceivable that in the time remaining it would be possible to conclude a comprehensive EU –UK Treaty, thus the need to agree on some transitional measures as to avoid legal uncertainty. After months of discussion, the European Commission on the 29 of January 2018 published its negotiating directives for the transition. [3]

These are some of most important issues to reflect upon. The UK did not formally request an extension of its EU membership, which is possible under Article 50, thus the EU takes the 29 of March 2019 as exit day. From that moment onwards the UK will be considered as a third country, thus outside the EU. However, the negotiating directives provide for a transitional period, which will expire on the 31 of December 2020. The position of the UK on this point is unfortunately less clear as some sources demand at least two years or  ‘ as much as it takes’. The issue is thus bound to create considerable legal uncertainty. The Commission directives also require that during the transitional period the UK must follow and comply with all existing EU law and further will be obliged also to follow any new changes in EU law during such period.  The UK will have no say in the adoption of new legislation. Another two thorny issues are bound to be free movement of people and the role of the CJEU. The EU position is that free movement of persons and citizens must continue in full during the transition period, which presumably would include new arrivals after exit day. (SEE EU GUIDE CH 11) The UK goverement might have problems in accepting this. The EU also proposes that during the transition period, the UK will be subject to the continued enforcement powers of the European Commission and the full jurisdiction of the European Court of Justice (ECJ). Again there may be some political complications in the UK in accepting the continued role of the European Commission and the CJEU. But the clock keeps on ticking….

[1] https://ec.europa.eu/commission/publications/negotiating-directives-article-50-negotiations_en.

[2]https://ec.europa.eu/commission/sites/beta-political/files/joint_report.pdf.

[3] https://ec.europa.eu/commission/sites/beta-political/files/transition.pdf

One comment

  1. Very informative post which offers insights into the current state of negotiation process. However, I wish the post contained a more detailed discussion of the ‘implications’ of terms of the agreement .

    Like

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