Professor Steve Peers’ first thoughts after the European Commission published its proposed negotiation mandate for the future EU/UK relationship.


First published in February 2020.


Firstly, note that this is a proposal for a negotiation mandate. The mandate is decided on by the Council of the European Union, i.e. Member States’ ministers. Under the proposal they would have to act unanimously (I will explain why in a moment).

The Commission will then negotiate, in accordance with the Treaties. But note that it will have a mandate from Member States when doing so. Barnier will not be on a frolic of his own – this point was often missed during the Withdrawal Agreement negotiations.

Recommendation for a Council Decision authorising the opening of negotiations for a new partnership with the UK. / European Commission

The ‘special committee’ which the Commission has to report back to was set up last week. It is made up of Member States’ officials who keep an eye on the Commission as a negotiator. This isn’t unique to these talks; it is a requirement in the Treaties.

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Recommendation for a Council Decision authorising the opening of negotiations for a new partnership with the UK. / European Commission

There is no formal role for the European Parliament at this point, although it can pass non-binding resolutions. It will have a veto over the final agreement.

At first sight, the proposal does not take a view on whether ratification by each national parliament will be needed.

The Commission does not discuss the UK objection to extending the transition period. It aims to get as much as possible done during the available time.

The new partnership

The intention is a single overarching partnership (so a single treaty?) with general provisions, economic arrangements, and security arrangements.

Gibraltar

Gibraltar is outside the scope of the planned negotiations. (See also paragraph 162 of the proposal). This is not a new EU position, and it is not a territorial claim. Reporting on this point has been, frankly, poor and sensationalist.

For now, the Commission seeks legal authority to negotiate an association agreement, although it avoids using those actual words. It notes that when it comes to the end of the negotiations, things might be different.

An association agreement (if that is where we end up) requires unanimity in Council and consent of the European Parliament. It might need ratification by national parliaments but that depends on the content. It can be put in force provisionally (at least partially) if needed.

Data protection

The proposed mandate links exchange of security information to an adequacy decision on UK data protection law. Note that an adequacy decision is a unilateral process.

Participation to EU programmes

The proposed mandate would cover UK participation in EU programmes, such as research funding and Erasmus.

The Northern Ireland peace funding (PEACE PLUS) is also mentioned.

A free trade agreement covering both goods and services

It is often inaccurately claimed that there is no intention for a free trade agreement in services between the UK and the EU. But note that an FTA falls short of single market participation.

Details on goods

No tariffs or quotas but rules of origin, to determine where goods come from. This is an extra burden on trade between the UK and EU compared to EU membership, and is a consequence of the UK’s decision not to negotiate a customs union.

Antidumping duties and antisubsidy duties may apply between the UK and the EU, referring to blessed WTO rules.

Again, this is a new possible barrier in the UK/EU trade. Such measures are ruled out under the EEA (for most products). This would apply even without a free trade agreement.

Customs facilitation

Customs facilitation and agreement on non tariff barriers (technical and sanitary rules) would be part of the negotiation mandate.

Services

The FTA is going beyond WTO commitments, but as usual the EU will exclude audio visual services. This will include movement of service providers, but it falls short of free movement of people.

Regulatory aspects

The mandate includes recognition of professional qualifications. Financial services equivalence decisions will be unilateral.

Intellectual property

Going beyond WTO and other international rules. This is usual for the EU (and other) FTAs, but the big EU ask here is the protection for future geographical indications (i.e. feta must originate from Greece).

Note that current geographical indications are protected in the Withdrawal Agreement.

Public procurement

The UK is signing up to the World Trade Organization Government Procurement Agreement in its own name. The FTA would go further. Usual for FTAs.

There is a conflict between vapid slogans here: “Buy British” economic nationalism, and export oriented “Global Britain”.

Choose your fighter!

Mobility

This falls short of free movement of people. The EU has already waived visa requirements for short term travel, but a visa waiver treaty could go further.

Waiving visa requirements for paid activities (now an option for Member States) would be useful for music industry, etc.

Note the interest in negotiations on migration of students and researchers (areas where the EU has already legislated on non-EU migration). Social security coordination would be for future UK/EU migration. The Withdrawal Agreement already covers previous migration and the Common Travel Area.

Air transport

This is not the same market access as an EU Member State, but the EU is willing to negotiate. Also aviation safety standards.

Land transport

Market access for road haulage, but not cabotage (haulage within a single Member State/multiple Member States), linked to a standstill on social rules plus tachograph discussions. International law on coach transport.

There is also something on the Channel Tunnel.

Energy

There is a lot on renewable energy, level playing field on carbon pricing, the Euratom deal, including a standstill on nuclear safety standards and isotope issues.

Fisheries

There is a focus on EU traditional fishing in UK waters, a link to the rest of the economic partnership, and a reference to the agreed July target date.

This is the prime candidate for crashing the whole negotiations.

Level playing field

This is similar to the first version of the Withdrawal Agreement. It retains the existing EU and international rules on State aid, aspects of tax, labour and the environment. Dispute settlement, but it is not clear if that applies to all of this. There is a point on EU retaliation for non-compliance.

There is a “commitment” to adopt new standards in these fields, but subject to the governance process, presumably meaning both sides have to agree in a Joint Committee.

So, a lot of important details to be negotiated.

Security cooperation

This is made dependent not only on the UK adherence to the ECHR, but also the Human Rights Act, and the unilateral adequacy decision on data protection – expressly referring to possible CJEU challenges. It also includes fair trial and double jeopardy standards.

The Commission position here reflects the issues that would be litigated anyway about data protection and human rights standards in the UK. They are already litigated as regards to non-EU countries and other Member States.

Data exchange

This refers to passenger name records, DNA/fingerprint/vehicle info, and exchange in individual cases. There is no mention of the Schengen Information System and the individual exchange approach cannot simply copy it.

It also refers to a CJEU case discussed here.

Criminal justice cooperation

This refers to fast track extradition. Also exchange of evidence and criminal records in a similar way to existing EU laws.

Foreign policy

“Alignment” on sanctions (the only explicit use of the word). Case by case involvement in defence missions or defence industry projects.

Limited access to Galileo.

Dispute settlement

Consultation then binding arbitration. The CJEU gets involved if an issue concerns the interpretation of EU law (as set out in the political declaration). NO reference to CJEU involvement otherwise.

So, the CJEU would be involved ONLY where the agreement
a) refers to EU law, AND
b) provides for dispute settlement.

Key parts of the level playing field in the first Withdrawal Agreement met condition a) but NOT b).

The details of the future treaty will be crucial.🔷



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[This piece was first published as a Twitter thread and turned into the above article on 3 February 2020, with the author’s consent, with the purpose of reaching a larger audience. It has been minorly edited and corrected. | The author of the tweets writes in a personal capacity.]

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(Cover: Flickr/© European Union 2019 – Source: EP. / Licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.)



     

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Professor of EU, Human Rights & World Trade Law, University of Essex. Latest book: European Union Law (edited with @CSBarnard24, 2nd ed, OUP).

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