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What does the EU want from Brexit?

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By Alasdair Sandford
What does the EU want from Brexit?

<p>More than a year on from the European referendum in the United Kingdom which delivered the vote for Brexit, the EU has maintained a largely united front. Soon after the result, leaders made clear the priority was to preserve the unity of the bloc and the integrity of the Single Market.</p> <p>As <a href="http://www.euronews.com/2016/09/15/brexit-what-does-the-rest-of-the-eu-actually-want">Euronews reported last September</a>, despite differences over the EU’s future direction and the speed of the Brexit process, EU institutions and political leaders were largely singing from the same hymn sheet in reminding the UK that key principles such as free movement were inviolable. </p> <p>The <a href="http://www.consilium.europa.eu/en/european-council/">European Council</a> determined three broad phases for the negotiations: a preliminary stage to deal with the UK’s exit bill, the question of citizens’ rights and the Irish border; a “divorce treaty” to tackle the actual withdrawal, and finally the question of the UK’s position regarding future trade. Negotiators were selected and agreed for the Council, Commission and Parliament. </p> <p>Nearly 13 months on, several “position papers” have been published – available and updated <a href="https://ec.europa.eu/commission/brexit-negotiations/negotiating-documents-article-50-negotiations-united-kingdom_en?field_core_tags_tid_i18n=351">here</a>. Negotiating <a href="https://ec.europa.eu/commission/publications/negotiating-directives-article-50-negotiations_en">directives</a> build on earlier <a href="https://ec.europa.eu/commission/publications/european-council-article-50-guidelines-brexit-negotiations_en">guidelines</a> covering the main principles.</p> <p><blockquote class="twitter-tweet" data-lang="en"><p lang="en" dir="ltr">Morten Morland (The Times UK)<a href="https://twitter.com/hashtag/cartoon?src=hash">#cartoon</a> <a href="https://twitter.com/hashtag/Brexit?src=hash">#Brexit</a><a href="https://twitter.com/mortenmorland"><code>mortenmorland</a> <a href="https://t.co/ItBM00xpTi">pic.twitter.com/ItBM00xpTi</a></p>— Hennie Kriel (</code>LittleManKriel) <a href="https://twitter.com/LittleManKriel/status/880117713389092864">June 28, 2017</a></blockquote> <script async src="//platform.twitter.com/widgets.js" charset="utf-8"></script></p> <p>Meanwhile the UK government triggered Article 50 to set the formal exit process rolling on March 29, Prime Minister Theresa May setting out the British approach in a <a href="https://www.gov.uk/government/publications/prime-ministers-letter-to-donald-tusk-triggering-article-50">letter to European Council President Donald Tusk</a>. The government’s <a href="https://www.gov.uk/government/publications/information-about-the-repeal-bill">Repeal Bill</a> to convert EU law into domestic legislation is now before Parliament. Its offer on <a href="https://www.gov.uk/government/publications/safeguarding-the-position-of-eu-citizens-in-the-uk-and-uk-nationals-in-the-eu">citizens’ rights</a> was followed by <a href="https://www.gov.uk/government/news/position-papers-published-ahead-of-july-negotiation">more position papers</a> last week.</p> <p><blockquote class="twitter-tweet" data-lang="en"><p lang="en" dir="ltr">We have published three position papers for our negotiations with the European Union – read more here <a href="https://t.co/vptkX0f6ut">https://t.co/vptkX0f6ut</a> <a href="https://t.co/d02TyJymR3">pic.twitter.com/d02TyJymR3</a></p>— Exiting the EU Dept (@DExEUgov) <a href="https://twitter.com/DExEUgov/status/885431243084619776">July 13, 2017</a></blockquote><br /> <script async src="//platform.twitter.com/widgets.js" charset="utf-8"></script></p> <p><strong>Citizens’ rights</strong></p> <p>Published at the end of May, the Commission’s <a href="https://ec.europa.eu/commission/sites/beta-political/files/citizens-rights-essential-principles-position-paper_en.pdf">Essential Principles on Citizens’ Rights</a> develop its previously-expressed assertion that people should not lose existing EU rights after Brexit. </p> <p>EU nationals in the UK and Britons in Europe should enjoy the same level of protection and equal treatment under “Union law”. Five years of continuous legal residence in another EU country should bring the right to acquire permanent residence. The rights should apply to anyone who has resided in another country, not just those actually doing so on the date of the UK’s exit. The deal should include family members as defined by social security regulations, with rights protected for life. </p> <p>Finally, the document boldly declares that the Commission should have “full powers” to monitor citizen’s rights, with the Court of Justice having “full jurisdiction”. This last point puts the EU on a collision course with the British government, whose own <a href="http://www.euronews.com/2017/06/26/may-sets-out-plans-for-eu-nationals-living-in-the-uk">policy position</a> states that the <span class="caps">ECJ</span> “will not have jurisdiction in the UK” after Brexit, staking its claim for UK courts to enforce commitments which “will have the status of international law”.</p> <blockquote class="twitter-tweet" data-lang="en"><p lang="en" dir="ltr"><a href="https://twitter.com/hashtag/Brexit?src=hash">#Brexit</a> | Read our position paper on essential principles on citizens’ rights: <a href="https://t.co/ORPKxd9z6g">https://t.co/ORPKxd9z6g</a> <a href="https://twitter.com/hashtag/Article50?src=hash">#Article50</a> <a href="https://t.co/0tlWYWCTlj">pic.twitter.com/0tlWYWCTlj</a></p>— European Commission (@EU_Commission) <a href="https://twitter.com/EU_Commission/status/879366203600490498">June 26, 2017</a></blockquote> <script async src="//platform.twitter.com/widgets.js" charset="utf-8"></script> <p>Theresa May’s government has consistently <a href="http://www.euronews.com/2016/12/12/brexit-theresa-may-unmoved-by-appeal-over-eu-nationals">refused to guarantee unilaterally</a> the rights of EU nationals in the UK, insisting that a deal must be reciprocal covering Britons in Europe. The <a href="https://neweuropeans.net/">New Europeans</a> campaign group and <a href="https://www.brineurope.com/">Britain in Europe</a> think tank published a <a href="https://neweuropeans.net/sites/default/files/uploads/RESPONSE%205.pdf">report</a> praising the EU for setting an example with an “ambitious agenda” for protecting citizens’ rights, and criticising the UK’s offer for “shortcomings” over what it argues are restrictive interpretations regarding plans to give EU nationals “settled status”.</p> <p>Some observers believe that despite their differences, both sides can find common ground and have a vested interest in moving on to negotiations in other fields. Former Liberal <span class="caps">MEP</span> Andrew Duff of the European Policy Centre has written in a <a href="http://www.epc.eu/documents/uploads/pub_7833_brexitnoordinarythirdcountry.pdf">discussion paper</a> that the two sides are not as far apart than has been reported. He argues that the EU is on sticky ground in “on the one hand, wanting to treat the UK like a third country and, on the other, insisting on permanent, continued direct jurisdiction of the European Court of Justice”. </p> <p><blockquote class="twitter-tweet" data-lang="en"><p lang="en" dir="ltr">What’s now at stake for UK citizens living in the rest of the EU<a href="https://t.co/8uRSkJ6xlf">https://t.co/8uRSkJ6xlf</a></p>— The Conversation (@ConversationUK) <a href="https://twitter.com/ConversationUK/status/886813474252353537">July 17, 2017</a></blockquote><br /> <script async src="//platform.twitter.com/widgets.js" charset="utf-8"></script></p> <p><strong>Paying the bill</strong></p> <p>In its paper on the <a href="https://ec.europa.eu/commission/sites/beta-political/files/essential-principles-financial_settlement_en_1.pdf">financial settlement</a>, the Commission argues that both sides should accept obligations resulting from the UK’s EU membership. The UK must honour its share of those obligations, it says. </p> <p>A single settlement should cover the union budget, membership of the various bodies and institutions, as well as the UK’s participation in specific funds and policies – all this covering a period through to 2020. After Brexit the UK should continue financing the European Investment Bank even though it would no longer be a member, although its contributions would decrease. </p> <p>The Commission paper says the sums involved should be calculated according to established mechanisms.</p> <blockquote class="twitter-tweet" data-lang="en"><p lang="en" dir="ltr">Tipping etiquette <a href="https://twitter.com/hashtag/MATTcartoon?src=hash">#MATTcartoon</a> <a href="https://t.co/3ybELgEGyX">pic.twitter.com/3ybELgEGyX</a></p>— The Telegraph (@Telegraph) <a href="https://twitter.com/Telegraph/status/859823189471498241">May 3, 2017</a></blockquote> <script async src="//platform.twitter.com/widgets.js" charset="utf-8"></script> <p>Despite the Foreign Secretary Boris Johnson’s claim that the EU could “go whistle” over reported “extortionate” demands, in a written statement to Parliament the UK has explicitly recognised there will be a “financial settlement” and that “the UK has obligations to the EU”.</p> <p>There has been disquiet in EU circles that the British government has done little to prepare public opinion for compromises ahead, especially as one of the central claims of pro-Brexit campaigners was that the UK would get money back from the EU. However, agreement will be needed before the substantive question of the UK’s future relationship with the bloc can be addressed. </p> <blockquote class="twitter-tweet" data-lang="en"><p lang="en" dir="ltr">RT The EU are trying to extort a big brexit bill because when we leave they will be begging for money to prop up the failing Euro <a href="https://t.co/ZC5rEfhKLg">pic.twitter.com/ZC5rEfhKLg</a></p>— David Jones (@DavidJo52951945) <a href="https://twitter.com/DavidJo52951945/status/886274444452384769">July 15, 2017</a></blockquote> <script async src="//platform.twitter.com/widgets.js" charset="utf-8"></script> <p><strong>The Irish border</strong></p> <p>In its general negotiating guidelines for Brexit, the Commission talks of “the unique circumstances on the island of Ireland”. The UK’s divorce from the EU will create a new frontier between Northern Ireland outside the bloc, and the Republic inside the union. The EU highlights its role in the peace process enshrined in the Good Friday agreement, and says “flexible and imaginative solutions” will be needed to avoid “a hard border”. </p> <p>The lack of a more detailed EU position so far may hint at recognition that a political solution will be needed to avoid Brexit reviving a centuries-old problem. Commentators have focused on the implications of <a href="https://thewonk.eu/reports/the-irish-border-as-a-customs-frontier-after-brexit__r2869.html">the UK leaving the Customs Union</a>. Reports have suggested that the fine detail may be left until <a href="https://www.bloomberg.com/news/articles/2017-07-11/eu-u-k-said-to-consider-ways-around-irish-border-question?cmpid=BBBXT071217_BIZ&utm_medium=email&utm_source=newsletter&utm_term=170712&utm_campaign=brexit">later in the negotiations</a>. German officials, concerned for the integrity of the EU’s border, are said to have questioned the need for a totally open border.</p> <blockquote class="twitter-tweet" data-lang="en"><p lang="en" dir="ltr">The risk of a hard border is a concern not just for traders. It could also upset Northern Ireland’s peace process <a href="https://t.co/U8fAc7TvBB">https://t.co/U8fAc7TvBB</a></p>— The Economist (@TheEconomist) <a href="https://twitter.com/TheEconomist/status/886504763352907776">July 16, 2017</a></blockquote> <script async src="//platform.twitter.com/widgets.js" charset="utf-8"></script> <p><strong>Transitional arrangements</strong></p> <p>Although negotiations are not due on a future post-Brexit deal until after the priority matters are sorted, the EU recognises the importance of paving the way for an orderly withdrawal. A <a href="https://ec.europa.eu/commission/sites/beta-political/files/essential_principles_governance_0.pdf">position paper on governance</a> published at the end of June calls for a Joint Committee, including representatives from both sides, to manage the Brexit process. </p> <p>The EU’s earlier guidelines note the UK’s wish to leave the Single Market – and its recognition that there can be no “cherry picking” – and support working towards a free trade deal “based on the Union’s interests”. Such an agreement should be “balanced, ambitious and wide-ranging” but must not undermine the “integrity and proper functioning” of the Single Market – and should ensure a level playing field with safeguards against unfair competition.</p> <p><strong>Jurisdiction</strong></p> <p>The EU’s negotiation directives state that a Brexit agreement should be implemented and enforced fully respecting “the autonomy of the Union and of its legal order, including the role of the court of Justice of the European Union”. The question of the <span class="caps">ECJ</span>’s jurisdiction, including but extending beyond citizen’s rights, could create a major stumbling block in the negotiations. </p> <p>Theresa May and her government have repeatedly said that in future UK laws will be interpreted by judges in the UK and “not in Luxembourg”. However, the European Court plays a central role as arbiter of the EU’s rules and regulations – affecting not just the bloc’s members but those who deal with it. The difficulty for the UK is that in maintaining access to the Single Market, or involvement with EU bodies or programmes, it will find it hard to escape the <span class="caps">ECJ</span>’s tentacles. That is why some so-called hardcore Brexiteers favour cutting all ties with the EU. </p> <p>According to Andrew Duff, Theresa May and her party need to prepare to make “a major concession on the future role of the <span class="caps">ECJ</span>”. He believes this should not be too difficult as far as any transitional period is concerned. In the longer term he envisages an association agreement between the EU and the UK with perhaps “a new type of joint UK-EU juridical tribunal”, replacing the <span class="caps">ECJ</span> but maintaining links with the Court and respecting its decisions. </p> <blockquote class="twitter-tweet" data-lang="en"><p lang="en" dir="ltr">Backseat Brexit drivers by Scott Clissold Sunday Express – political cartoon gallery in Putney <a href="https://t.co/LMeNNmfhgW">pic.twitter.com/LMeNNmfhgW</a></p>— Political Cartoon (@Cartoon4sale) <a href="https://twitter.com/Cartoon4sale/status/886556184366415874">July 16, 2017</a></blockquote> <script async src="//platform.twitter.com/widgets.js" charset="utf-8"></script> <p><strong>Other matters</strong></p> <p>The EU’s framework for future relations with the UK states aims for “strong and constructive ties” extending beyond trade. It says the EU is ready for partnerships in areas covering crime, security and defence, and foreign policy. However, written into clause after clause in the documents are references to the union’s interests and “autonomy”.</p> <p>They also throw up more potential obstacles. Clause 24 of the negotiating guidelines caused a storm when they were published: no EU-UK agreement will apply to Gibraltar, it says, without agreement between the UK and Spain. The question of sovereignty over the Rock has long been disputed. Brexit means the EU will in future represent Spain’s interests, but no longer those of the UK. </p> <p>The British government has already conceded some points it had previously opposed: on the question of the timetable of the talks, for example, and more recently by accepting the principle that there will be an exit bill. Many observers have commented that the EU appears far better prepared and organised than the British side. </p> <p>Politically the EU has also been bolstered by national elections in recent months – not least Emmanuel Macron’s election to the French presidency – that have kept populist forces at bay. Meanwhile the British government – weakened in Parliament following the snap UK election in June – appears to be divided over its own approach to the country’s post-Brexit future.</p> <p><blockquote class="twitter-tweet" data-lang="en"><p lang="en" dir="ltr">Ben Jennings on round two of Brexit talks – political cartoon gallery in Putney <a href="https://t.co/iLfI0pGrTS">pic.twitter.com/iLfI0pGrTS</a></p>— Political Cartoon (@Cartoon4sale) <a href="https://twitter.com/Cartoon4sale/status/887027736006594560">July 17, 2017</a></blockquote><br /> <script async src="//platform.twitter.com/widgets.js" charset="utf-8"></script></p>