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Transitional Arrangements in the Withdrawal Agreement

Another position paper issued by the EU on Transitional Arrangements in the Withdrawal Agreement to the EU27. This paper translates into legal terms the principles laid down in the European Council Guidelines of 29 April and 15 December 2017 and in the supplementary negotiating directives annexed the Council Decision of 29 January 2018.

This has been created for approval by the EU27 before it’s presented to the UK. It remans unclear whether this document is to be used as the basis for discussion with the UK or whether, as shown on past experience, it will be presented as a fait accompli

On this basis, this paper outlines in legal terms how such arrangements should be given effect in the Withdrawal Agreement.

Position paper “Transitional Arrangements in the Withdrawal Agreement”

The topics mentioned include:

  • There shall be a transition period, which shall start on the date of entry into force of this Agreement and end on 31 December 2020.
  • Unless otherwise provided in this Part, Union law shall be binding upon and applicable in the United Kingdom during the transition period
  • The United Kingdom shall not participate in any enhanced cooperation
  • 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
  • During the transition period, the institutions, bodies, offices and agencies of the Union shall have the powers conferred upon them by Union law also 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.
  • etc.

Full details are available in the full document at

https://ec.europa.eu/commission/sites/beta-political/files/transition.pdf (pdf)

It is not clear whether the UK can accept not being allowed to sign any International Trade Agreements during this period.

Also, it is worth noting a footnote to the paragraph relating to the role of the European Court of Justice which states:

In addition, the Governance and Dispute Settlement Part of the Withdrawal Agreement should provide for a mechanism allowing the Union to suspend certain benefits deriving for the United Kingdom from participation in the internal market where it considers that referring the matter to the Court of Justice of the European Union would not bring in appropriate time the necessary remedies.

which effectively allows the EU to become Judge, Jury and executioner to matters which they themselves decide break terms of the Withdrawal Agreement.

President Tusk on Brexit

Donald Tusk, President of the European Council, made the following comments on Brexit during a speech at the Plenary Session of the European Committee of the Regions held on 10 October – State of Union- the view of the regions:

We hear from London that the UK Government is preparing for a “no-deal” scenario.

I would like to say very clearly that the EU is not working on such a scenario.

We are negotiating in good faith and we still hope that the so-called “sufficient progress” will be possible by December.

However, if it turns out that the talks continue at a slow pace, and that sufficient progress hasn’t been reached, then together with our UK friends, we will have to think about where we are heading.

EU – Brexit Negotiation Documents

The EU will publish all documents, related to negotiations with the UK, which are shared with EU member states.

The EU Commission tweeted on 22 May 2017:

We want full transparency. #Article50 negotiating documents will be released to the public & will be published here.

https://ec.europa.eu/commission/article-50-negotiations-united-kingdom/european-commissions-approach-transparency-article-50-negotiations-united-kingdom_en

https://twitter.com/EU_Commission

The Commission, as European Union negotiator, will ensure a maximum level of transparency during the whole negotiating process.

Commission negotiating documents which are shared with EU Member States, the European Council, the European Parliament, the Council, national parliaments, and the United Kingdom will be released to the public.

Documents wil be provided at

https://ec.europa.eu/commission/publications/article-50-negotiations-united-kingdom_en

Some of the initial documents available are:

Recommendation for a Council Decision authorising the Commission to open negotiations with the UK setting out arrangements for its withdrawal from the EU

https://ec.europa.eu/info/sites/info/files/recommendation-uk-eu-negotiations_3-may-2017_en.pdf

Annex to the Commission recommendation on negotiations with the UK

https://ec.europa.eu/info/sites/info/files/annex-recommendation-uk-eu-negotiations_3-may-2017_en.pdf

European Council (Art. 50) guidelines for Brexit negotiations

http://www.consilium.europa.eu/press-releases-pdf/2017/4/47244658130_en.pdf

Directives for the negotiation of an agreement with the United Kingdom of Great Britain and Northern Ireland setting out the arrangements for its withdrawal from the European Union

http://www.consilium.europa.eu/en/meetings/gac/2017/05/directives-for-the-negotiation-xt21016-ad01re02_en17_pdf/

European Commission receives mandate to begin negotiations with the UK

http://europa.eu/rapid/press-release_IP-17-1405_en.htm

Statement by Michel Barnier at the press conference following the General Affairs Council (Art. 50)

http://europa.eu/rapid/press-release_SPEECH-17-1422_en.htm

EU Article 50 Taskforce

The EU Taskforce on Article 50 negotiations with the UK is in charge of preparing and conducting the negotiations with the UK, taking into account the framework of its future relationship with the European Union.

It is responsible for coordinating the European Commission’s work on all strategic, operational, legal and financial issues related to negotiations with the United Kingdom

Details at

https://ec.europa.eu/info/departments/taskforce-article-50-negotiations-united-kingdom_en

The Chief Negotiator is Michel Barnier and the deputy Chief Negotiator is Sabine Weyand.

Here is an organisation chart of the team dated April 2017

EU Parliament Brexit Negotiation Guidelines

The EU Parliament has agreed their own set of guidelines regarding how negoitiations with the UK should be conducted. (The withdrawal negotiations can only be concluded with the consent of the European Parliament)

The Joint Motion for a Resolution is titled :

The European Parliament resolution on negotiations with the United Kingdom following its notification that it intends to withdraw from the European Union

and was prepared by Guy Verhofstadt and others.

The vote was 516 – 133 (with 50 abstentions) in favour of the motion on 5 April 2017.

http://www.europarl.europa.eu/sides/getDoc.do?type=MOTION&reference=P8-RC-2017-0237&language=EN

Overall, in many respects, the guidelines are similar to those proposed in the guidelines for negotiation produced by Donald Tusk.

One interesting entry (item 27) states:

27. Takes note that many citizens of the United Kingdom have expressed strong opposition to losing the rights they currently enjoy pursuant to Article 20 of the Treaty on the Functioning of the European Union; proposes that the EU-27 examine how to mitigate this within the limits of Union primary law whilst fully respecting the principles of reciprocity, equity, symmetry and non-discrimination;

There has been mention in the past of the creation of some form of European Citizen membership where individual UK citizens could pay for a type of associate membership which would retain some of the benefits currently enjoyed as EU Citizens. Whether this would ever be implemented, or in fact even discussed as part of the Brexit negotiations, remains to be seen, but it is interesting to note that it has been included in these guidelines.

Full details of the debate on this resolution can be found on the European Parliament website at

http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-%2f%2fEP%2f%2fTEXT%2bCRE%2b20170405%2bTOC%2bDOC%2bXML%2bV0%2f%2fEN&language=EN

Verhofstadt tweeted his speech at

https://twitter.com/GuyVerhofstadt/status/849531889446789120

and this is a transcript:

Guy Verhofstadt, on behalf of the ALDE Group. –

Mr President, I have the feeling that it was a very sad moment on Wednesday of last week when the British ambassador gave his letter to President Tusk. That was my feeling anyway: a very sad moment.

It is true, naturally, that the relationship between Britain and Europe was never an easy relationship, let us recognise that. It was never a love affair and certainly not a question of wild passion. I think it was a little bit like a marriage of convenience, if I can use that term.

It was already clear, dear colleagues, from the beginning. In the 1950s Britain decided against membership of the European Coal and Steel Community. Attlee and Labour did not want it, and it was Churchill and the Tories who were in favour, it is good to recall this.

And in 1955 at the start of the Common Market, Britain walked away from the negotiating table.

In the early years of the Union it was the British Prime Minister Macmillan who looked at the continent with nothing less than suspicion. What were they cooking up there in Brussels, were they really discussing coal and steel and customs union, or were they also talking politics in Brussels, plotting on foreign policy? Oh, God forbid, defence matters even!

So British Prime Minister Macmillan wrote to his foreign minister, and, I quote, I have the quote here: For the first time since Napoleon the major continental powers are united in a positive economic grouping, but considerable political aspects, and to his own surprise, Macmillan had to admit this new experiment, and I quote further, was not directed against Britain.

So when Britain finally joined the European Union in 1973 after, as we all know, several blockades by General de Gaulle, the headlines were festive. You have to read all the British press in 1973, it was a great day for Britain to join the European Union. Let us be honest about this, it was only a short honeymoon, as we know, because Margaret Thatcher asked for her money back and her successor John Major called the euro, and I quote again, ‘a currency as strange as a rain dance, with the same impotence’. Well, I have to tell you that the pound slipping against the euro, as we see today was not exactly what Major expected at that moment.

But all the rest, let us be honest with each other, is history.

Perhaps let us recognise that it was maybe impossible to unite Great Britain with the Continent, and naive maybe to reconcile the legal system of Napoleon with the common law of the British Empire, and perhaps it was never meant to be.

(Applause)

But, and this is important – and I hope you are applauding this also – our predecessors should never be blamed for having tried, because it is important in politics, as it is in life, to try new partnerships, new horizons, to reach out to the other, to the other side of the channel. I am also convinced and 100% sure about one thing: that one day or another, dear colleagues, there will be a young man or a young woman who will try again, who will lead Britain into the European family once again.

(Applause)

And a young generation that will see Brexit for what it really is: a catfight in the Conservative party that got out of hand. A loss of time, a waste of energy, and I think, a stupidity. Although I continue to think that Brexit is a sad and regrettable event, I also believe it is important to remember something. Remember what Britain and Europe in these more than 40 years have achieved together. It is true, we may not have had the most passionate relationship, but it was not a failure either, not for Europe, and certainly not for Britain and the British.

Let us not forget, Britain entered the Union as the sick man of Europe, and thanks to the single market, came out the other side. Europe also made Britain punch above its weight in terms of geopolitics, as in the heyday of the British Empire. And we, from all sides, must pay tribute to Britain, to Britain’s immense contributions as a staunch and unmatched defender of free markets and civil liberties. And thank you for that because as a Liberal, I will miss that in the future.

Colleagues, within a few weeks we will start the process of separation. And I think, Mr Juncker and Mr Barnier, the goal must be to have a new and stable relationship and a deep and comprehensive partnership and association between the UK and the EU that certainly will be very different, as we all know, from membership. In this new venture let us always remember one thing. Our common bonds, our common culture, our common and shared values, our joint heritage, our history. And let us never forget that together we in fact belong to the same great European civilisation, from the Atlantic port of Bristol, I go as far as to the banks of the mighty river Volga; but maybe that is a little too far for the moment.

But let us be honest, and this will be my final point. Brexit is not only about Brexit. Brexit has to be also about our capacity for a rebirth of our European project, because let us recognise that Brexit did not happen by accident. Even though since Brexit I see what I call a change for the good in the mood of the public, let us not fool ourselves: Europe is not yet rescued and Europe has not yet recovered from the crisis.

Europe is still in need of change, I think in need of radical change: change towards a real Union, an effective Union based on values and based on the real interests of our citizens. And a Union also – and I want to conclude with this – that stands up against autocrats. Autocrats will close down their universities, to give one example.

(Applause)

Autocrats will throw journalists into jail, as is happening today. Autocrats will make corruption their trademark. And yesterday, as we all have seen, beyond any humanity, autocrats again bombed innocent women and children with chemical weapons in Syria, to give the nastiest example.

So in these negotiations which will have to start in the coming weeks, let us never forget why our founding fathers – British and other Europeans alike – launched this European project. There are three words: freedom, justice and peace – these are three great things that are worth fighting for.

Other Links

Red lines on Brexit negotiations

http://www.europarl.europa.eu/news/en/news-room/20170329IPR69054/red-lines-on-brexit-negotiations

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