Short guide to the EU Guidelines for the Brexit Negotiations

Earlier today, the President of the European Council Donald Tusk released the draft Guidelines for the Brexit Negotiations. I posted a number of tweets extracting key paragraphs and offering some preliminary thoughts on them. For convenience, I have collected the tweets below together with some additional comments.

1. The Guidelines introduce a 'phased approach', as the main guiding principle of the negotiations. 'Once, and only once we have achieved sufficient progress on the withdrawal, can we discuss the framework for our future relationship' said Donald Tusk. So, first, there must be a withdrawal agreement and then there will be discussion on the FTA. The EU is using here its well-known conditionality tools ('carrot and stick' policy) in order to achieve what it wants.

2. In her letter Theresa May made clear that the UK will negotiate as one United Kingdom. She rejected the prospect of a differentiated Brexit for the Scottish and replied indirectly to their demand for a second referendum.  The EU is also declaring that it will negotiate as one. This is a warning to the UK that it should not try to use a 'divide and rule' strategy. It is also a reminder to the Member States that might have different priorities in the upcoming negotiations. 

3. In this paragraph, the EU rejects the possibility of a sector-by-sector approach. This is particularly important in the context of the negotiations concerning the passporting rights of the City of London. It also poses certain questions about the viability of agreements like the purported one with Nissan.

4. 'Nothing is agreed until everything is'. Any conflict resolution theorist would tell you that this is a risky idea. I remember speaking with one of the main South African peace negotiators some years ago in Malta. He was adamant that such strategy is a recipe for impasse.

5. Given the principle/duty of loyal/sincere cooperation (Art 4(3) TEU), the Member States cannot engage in separate negotiations with the UK on Brexit. After Brexit, the Member States cannot engage on separate trade negotiations with the UK (common commercial policy). So, this paragraph is a helpful reminder of a standard EU practice. 





6. The comprehensive Free Trade Agreement that the UK wants to sign with the EU can only be negotiated and signed after Brexit. This is largely because Art 50 TEU does not provide for a legal basis for such negotiations to take place beforehand. So, once the UK becomes a third country, the negotiations with the EU can take place in accordance with Art 218 TFEU. 



7. After Brexit and before such a Free Trade Agreement is signed, there might be a need for a transitional period. Such transition would help the UK to avoid a 'cliff edge' scenario. During that period, the existing EU supervisory structure will apply ie. the CJEU will have a role to play.

8. The EU recognises that in order to absorb the tensions of Brexit on the Irish border, there is need for imaginative solutions. I have suggested some myself here, here and here








9. In the context of an imaginative solution with regard to the Irish border, the EU is willing to accommodate the Common Travel Area between a Member State and a non-Member State.


10. The guidelines also refer to the UK Sovereign Base Areas in Cyprus. The terms under which EU law applies there are provided by Protocol No 3 of the Act of Accession 2003. They would need to be amended not least because,  those Sovereign Base Areas would share a land border with a Member State, ie. the Republic of Cyprus. Another complication to the never-ending negotiations for the Cyprus problem.



11. After Brexit, the UK will find itself out of the FTAs the EU has signed with third countries. Although, this is not surprising, it is a welcome clarification given that those agreements are mixed agreements. This had led some commentators to argue that the UK could stay as a Contracting Party to those agreements even after Brexit. So, until Dr Liam Fox signs some FTAs, the UK will be facing tariffs with all those countries that the EU has currently an FTA.

12. When the EU refers to the autonomy of its legal order, it refers among else to the fact that the CJEU is the sole interpreter of EU law. So, this paragraph reminds the negotiating parties that the Brexit agreement should respect this fundamental principle of EU law. Given the opinions that Brexiteers hold on CJEU, this might not go down that well.






13.A post-Brexit UK cannot have the same benefits, it currently has. The EU membership is destined to be the most privileged status a State enjoys with regard to the EU. Anything else would defy the purpose of the EU membership. This is perhaps why David Davis has been cautious not to promise 'same benefits' as the ones enjoyed by Member States.


14. This clause appears to allow Spain to exclude Gibraltar from any transitional single market access arrangement or future trade deal with the UK if it is not satisfied with the status of the territory.



15. Autonomy of EU law = role for the CJEU.




Stay tuned and fasten your seatbelts….

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