EU versus UK: pre-negotiations

Last Saturday, the leaders of the 27 remaining EU member states quickly agreed to a negotiating path towards a quick divorce deal with the UK. It is now up to the UK to agree to the guidelines so that the talks can begin. The main delay appears to be the UK election.

Despite the unpromising lead-up to Saturday’s summit in Brussels, including an awkward dinner between European Commission President Jean-Claude Juncker and UK Prime Minister Theresa May, and mutterings about the UK blocking EU budget talks ahead of their elections, the EU27 held out clear prospects of compromise.

However, EU leaders did not appear wholly confident, with concerns mounting that the British Prime Minister still does not grasp how long, complex and difficult the path to agreement will be. The main fear seems to be that even if the Conservatives record a strong victory in next month’s General Election, Mrs May will not be willing to moderate her negotiating positions. Indeed, the converse might be true: bolstered with a strong showing, Mrs May might be more inclined to refuse to engage in compromise efforts.

The European Council’s guidelines  define the framework for negotiations under Art 50 TEU, and set out the overall positions and principles that the Union will pursue throughout the negotiation. The European Council is settling itself down for a bumpy ride, and it is not pulling its punches. In the Core Principles section of the guidelines, it writes:

It reiterates its wish to have the United Kingdom as a close partner in the future. It further reiterates that any agreement with the United Kingdom will have to be based on a balance of rights and obligations, and ensure a level playing field. Preserving the integrity of the Single Market excludes participation based on a sector-by-sector approach. A non-member of the Union, that does not live up to the same obligations as a member, cannot have the same rights and enjoy the same benefits as a member. In this context, the European Council welcomes the recognition by the British Government that the four freedoms of the Single Market are indivisible and that there can be no “cherry picking”. The Union will preserve its autonomy as regards its decision-making as well as the role of the Court of Justice of the European Union.

Basically: the UK cannot boast about a hard Brexit, seek to withdraw itself financially from the EU, but still expect to benefit. After all, you cannot have the benefits of club membership without paying your membership fees.

Under Agreement on arrangements for an orderly withdrawal, the European Council  strongly reiterates citizen’s rights:

The right for every EU citizen, and of his or her family members, to live, to work or to study in any EU Member State is a fundamental aspect of the European Union. Along with other rights provided under EU law, it has shaped the lives and choices of millions of people. Agreeing reciprocal guarantees to safeguard the status and rights derived from EU law at the date of withdrawal of EU and UK citizens, and their families, affected by the United Kingdom’s withdrawal from the Union will be the first priority for the negotiations. Such guarantees must be effective, enforceable, non-discriminatory and comprehensive, including the right to acquire permanent residence after a continuous period of five years of legal residence. Citizens should be able to exercise their rights through smooth and simple administrative procedures.

The European Council also recognised the Northern Ireland/Republic of Ireland quandary, and seeks to limit any potential damage:

The Union has consistently supported the goal of peace and reconciliation enshrined in the Good Friday Agreement in all its parts, and continuing to support and protect the achievements, benefits and commitments of the Peace Process will remain of paramount importance. In view of the unique circumstances on the island of Ireland, flexible and imaginative solutions will be required, including with the aim of avoiding a hard border, while respecting the integrity of the Union legal order. In this context, the Union should also recognise existing bilateral agreements and arrangements between the United Kingdom and Ireland which are compatible with EU law.

Whilst EU law must be recognised and upheld, the EU is willing to be flexible in any final agreement in order to prevent the imposition of a hard border.

Developing the guidelines was the relatively easy part, highlighting as they do the elements all member state agree on: the need to negotiate withdrawal terms before agreement on future relations, and prioritising citizens’ rights, the financial settlement, and border concerns — particularly for Ireland.

However, there is always going to be differences under the surface of the guidelines. And the risk of disagreement among the EU 27 on detailed aspects of the Brexit negotiations is high, largely because the interests of individual countries in the Brexit talks diverge as much as they do on any other issue. A key priority which is subject to different interpretations and interests is citizens’ rights. On the one hand, countries such as Poland and Lithuania are concerned about their own citizens now living and working in the UK. On the other hand, countries such as Spain and Malta have a primary interest in the fate of British retirees who live in those countries, and the related costs for health care and other services.

The European Council has prepped its hand. It put on a strong, unified showing in its swift agreement on the guidelines. But for how long will it stay unified?

Fast forward to this week, and it is the turn of the European Commission to lay down its cards in advance of the forthcoming Brexit negotiations.

The EU’s Brexit negotiator Michel Barnier, presenting the European Commission’s proposed negotiating directives today, said it was wrong to try to make people believe the separation will be a painless process with no impact on people’s lives. He added that it was not the European Commission’s intention to “punish” the UK for leaving the bloc.

He hinted the talks process will be long and complicated, and warned no one should expect a quick deal:

“Some have created the illusion that Brexit would have no material impact on our lives or that negotiations can be concluded quickly and painlessly. This is not the case.

“We need sound solutions, we need legal precision and this will take time.”

Barnier said in order to ensure the talks succeed and agreement is reached, the UK “must put a great deal of energy and effort” into reaching agreement on key three areas: borders (especially between Northern Ireland and the Republic of Ireland), the rights of EU citizens, and the process for calculating a financial settlement.

It was said that the so-called divorce bill – now estimated at €100bn (£84.5bn) -was not a punishment for the UK leaving, but rather a “settling of accounts”.

Barnier made sure to highlight the remaining 27 member states’ show of unity at last weekend’s summit.

It is evident that the looming negotiations will not be straightforward – perhaps much to the displeasure of the British government, especially if time is spent wrangling over the divorce bill. ‘Take Back Control’ must seem like a distant memory, now.

I for one welcome the stance taken by the EU institutions pertaining to the island of Ireland. It is great to see the EU confirm it will attempt to be as flexible as possible when considering the imposition of a border. It certainly makes a change from the endless refrain of “no return to the borders of the past” from the British government…

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