May 3, 2017    5 minute read

The Key Points of the European Council’s Guidelines on Brexit

Filling The Legal Vacuums    May 3, 2017    5 minute read

The Key Points of the European Council’s Guidelines on Brexit

On 29 April, the leaders of the EU27 unanimously approved the European Council’s guidelines that define the framework that the Union, and its chief negotiator Michel Barnier, will pursue in their negotiations with Britain in the upcoming two years.

Donald Tusk, in a press conference following the Special Council on Article 50, praised the speed and spirit of collaboration among its members, immediately highlighting that the unanimous support given to the guidelines from “all the 27 Member States and the EU institutions” provide the Council with “a strong political mandate for these negotiations”.

The European Union has taken a tough stance with regards to the future Brexit negotiations. It reiterated once again its position that in these negotiations “nothing is agreed until everything is agreed”, and no members will be allowed to negotiate separately from the Union. It is paramount in light of such a high degree of strictness that the Union appear fully united if it wants to maintain its foothold during the negotiations.

A Phased Approach

In an effort to proceed with “an orderly withdrawal,” the Brexit negotiations will be conducted in two phases. In the first phase of the negotiations, the talks will focus on transparency and ensuring legal certainty in three key areas: the status and rights of European citizens and businesses located in the UK, border issues in Ireland and the fulfilment by the UK of any financial and legal obligations deriving from its current position as a member. The second will see the UK and the EU decide on the future of any free-trade agreements between the two parties.

On 22 May, the General Affairs Council will declare the negotiations open, but they are not expected to begin until June. In the framework of these priorities the EU will seek permanent residence for citizens that have lived in the UK for more than five years, and it will also seek “to prevent a legal vacuum” that might jeopardise business and trade between the UK and the EU in this transition period.  The EU will also aim to give British business no unfair advantages arising from the fact that EU law will no longer apply to British companies.

Filling the Vacuums

Preventing legal various vacuums will permeate multiple issues in these negotiations. The European Council will expect “the United Kingdom to honour its share of all international commitments contracted in the context of its EU membership”. Further, there are cases involving the United Kingdom still pending in front of the European Court of Justice — the Council declared that the ECJ should be allowed to rule on such procedures, regardless of timeline.

The Union will also require the UK be flexible in any arrangements between Ireland and Northern Ireland as part of the Good Friday Agreements and for the sake of the stability in the region. Specific attention will be paid to the relationship between the UK and Cyprus as well, considering the presence of several UK Sovereign Base Areas in the island.

The Second Phase

The scope of these guidelines is ambitious and the timeline is tight. Once the Commission, represented by Barnier, decides that those conditions have been met, the two parties can move on to the second phase of the negotiations that will allow for discussions on the nature of the trade relationship between the EU and the UK after March 2019.

This second phase of the negotiations is a natural compromise: from the very beginning of the Brexit process, Britain has lobbied for talks to begin on any free-trade agreements immediately. EU hardliners, and to a certain extent the text of Article 50, argue that no such discussions can take place while Brexit is still in process.

What’s Next?

The European Union has sought to appear united and unwavering in approving these guidelines, but there will be struggles ahead. The Union will want to protect the integrity of the single market (and its four freedoms), but restricting the movement of people has always been on the UK’s agenda for Brexit. The first discussions between Jean-Claude Juncker and Theresa May have left a sour taste between the parties, and despite Juncker’s jokes, it was not the food that was to blame.

Furthermore, the playing field is bound to shift: next week France will have a new President, while the UK heads into its parliamentary elections on 8 June. In the midst of so much uncertainty, there is no guarantee as to who will be on the negotiating table come June.

But perhaps the biggest threat to European unity in front of the Brexit negotiations will be its ability to really act as one. Juncker himself has already pointed out that “[a]s the debate proceeds and budgetary matters arise, there will be tough decisions” and not all 27 members will be on the same page. Squabbles have already begun between leaders on the relocation of the European Medicine Agency and the European Banking Authority – two agencies currently headquartered in the UK.

In the past, European bureaucracy and internal misunderstandings have eroded the public’s opinion in the European Union. Brexit talks will be the Union’s opportunity to showcase its strength and its commitment to its citizens. Perhaps, most importantly, it will be the Union’s moment to show that it can work as one.

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