The chief negotiator of the European Union, Michel Barnier, presented a mandate for negotiating future relations with the United Kingdom without any major surprises on Monday 3 February, with red lines that are well known from London and that have been prepared for weeks with the Twenty-Seven.
While Mr Barnier was speaking to the Brussels press, the British Prime Minister, Boris Johnson, was in London detailing his own British negotiating mandate. And his stance 3 days after the country’s effective withdrawal from the EU was intended to be offensive.
First warning to the EU: the UK will not accept any agreement based on a requirement of “regulatory alignment” or that gives supremacy “of the EU Court of Justice over UK law”, the Tory leader explained at the outset.
However, as Michel Barnier quickly corrected, there is no such requirement for alignment. “We’re not asking for alignment, we know that word is like a red flag in the UK. What we want is consistency”, said the Chief Negotiator. Above all, he called for a level playing field between the two partners and for the EU to be more vigilant about the goods that are imported into the EU and how they are produced.
The Frenchman also recalled that the two blocs had already agreed on the main principles of their future cooperation, which were set out last October in the political declaration attached to the withdrawal agreement (see EUROPE 12351/2).
This political declaration, signed by Boris Johnson, states that the UK, like the EU, undertakes not to compete unfairly with its partner and to ensure, on the contrary, a ‘level playing field’ based on open and fair competition.
An ambitious agreement possible by the end of 2020
Negotiations will begin in early March, after the formal adoption of the mandate at the ‘General Affairs’ Council on Tuesday 25 February.
On Monday, Michel Barnier and Boris Johnson agreed in any case on one point: both believe that it will be possible to negotiate before the end of 2020 an ambitious bilateral partnership including a free trade agreement, a mobility agreement, and other specific instruments related to internal security.
Boris Johnson did not opt for caution, referring to his “certainty” that this future agreement would be finalised before the end of the post-Brexit transition period, while Michel Barnier simply deemed it possible.
One discrepancy in their communication: the two men did not mention the same number of agreements. While the EU assumes that it will only have one overall agreement with at least three pillars on the table, the British Prime Minister spoke of a “series of agreements”, including sectoral ones. Negotiations will determine whether or not this semantic difference matters.
What do the EU and London want?
The Commission, as it has said in the past, wants the most ambitious agreement possible with London. This is also what Boris Johnson wants.
This ambitious agreement will have to contain at least three components, explained Michel Barnier. Firstly, an economic partnership through a free trade agreement without quotas, without customs duties, and with as many goods and services as possible.
On the EU side, sectoral cooperation is also envisaged in other sectors such as transport, digital, citizens’ mobility, intellectual property, public procurement, etc. Here there will need to be some strict criteria and a focus on, for example, British state aid to ensure that British industries are not over-subsidised.
At this point, financial services will be the subject of a possible equivalency decision and are not part of this free trade agreement, Barnier said.
Boris Johnson, on the other hand, wants these financial services to be part of the free trade agreement. This will be a topic of discussion for the Twenty-Seven.
The central issue of fisheries
The other very important part of this economic partnership is of course fisheries.
The EU wants an agreement on reciprocal access to UK and European waters and to UK and European markets by 1 July, so that the Twenty-Seven can take their decisions on EU fishing quotas at the end of the year.
Europeans are very dependent on British waters, but the British need the European market to sell their fish and to process it.
In both France and Denmark, 40% of the catch is caught in British waters, said the French Secretary of State for European Affairs, Amélie de Montchalin.
If an agreement on the subject is not reached in July, it could still be revisited by the end of December, European sources said. But one thing is certain: without an agreement on fisheries by the end of 2020, there will be no possible agreement on the rest of the economic partnership, the Commission has already warned.
In London, the Prime Minister gave no details other than to recall that the United Kingdom will again become a sovereign coastal state on 1 January 2021. The British want annual negotiations on these fishing quotas, while countries like France want an agreement covering several years for greater visibility.
Second topic: the security partnership
Both sides intend to tie up an agreement on security issues. These include an ambitious partnership on internal security to combat terrorism, the exchange of data to that end, and a mechanism to replace the European arrest warrant. Both sides have specific interests such as alerting each other to terrorist threats and to the presence of dangerous individuals.
The United Kingdom has always said that it wishes to retain access to Europol and the Schengen Information System. The Commission agrees, as long as the country accepts the standards of the European Court of Human Rights and the role of the EU Court of Justice, which will be very relevant here in the event of disputes concerning European citizens. Again, London accepted these constraints in the political declaration.
Third pillar: the governance of the agreement
For the Commission, the EU Court of Justice will play a key role in enforcing the terms of the future bilateral agreement.
“A robust framework is needed to ensure a credible agreement over time, a toolbox with effective dispute settlement mechanisms”, explained the EU negotiator. “If one party does not respect the agreement, the other party must be able to act quickly with autonomous mechanisms”.
An arbitration tribunal is usually the chosen structure.
Although Boris Johnson rejected the role of the Court of Justice on Monday, in October he signed a political declaration that recognises the possibility for a panel to have recourse to the Court of Justice in the event of a dispute over the interpretation of European law in this future agreement. However, the Court would not intervene where the interpretation of European law was not required.
According to Michel Barnier, the Court of Justice could especially be called upon to intervene in disputes relating to citizens, for example on the use of their personal data in a case concerning the extradition mechanism that is potentially to succeed the European arrest warrant.
Exclusive jurisdiction agreement or mixed agreement?
As regards form, the Commission is currently considering an association agreement. According to sources, such an agreement would fall within the exclusive competence of the EU and would therefore not require ratification of the agreement by each of the Member States under Article 217 of the EU Treaty.
But, according to Paris and Amélie de Montchalin, we must not act too quickly. Everything will depend on the contents of the future agreement.
Member States will be careful not to set a precedent by giving the Commission too much room for manoeuvre, a national source also stressed.
Association agreements are validated by qualified majority, but the inclusion of certain provisions - particularly on defence - would require a move towards unanimous voting by the Twenty-Seven in the EU Council.
See the Commission’s draft negotiating mandate with the United Kingdom: http://bit.ly/2Un7TDw
See the British negotiating mandate: https://bit.ly/37VkGB4 (Original version in French by Solenn Paulic with Hermine Donceel)