Brexit Institute News

Brexit Phase 2: the Negotiating Directives of the European Commission

Giovanni Zaccaroni (DCU Brexit Institute)

The European Commission has recently released a recommendation to the Council to open negotiations on a new partnership with the United Kingdom, and Phase 2 of the Brexit process is now officially open. This demonstrates that, against the odds of what many politicians in the United Kingdom maintained, Brexit is far from being done yet. The entrance into force of the Withdrawal Agreement and the formal deadline on 31 January 2020 have simply written in the stone that Brexit will take place. When it will take place is another question.

Last week celebrated the end of the political Brexit, namely the exhaustion of the internal and external political process that entails the ratification of the Withdrawal Agreement. From 1 February 2020 starts a new phase, the legal Brexit, that will result in the conclusion of a comprehensive agreement between the UK and the EU before the expiry of the transition period, on 31 December 2020. Failing to do so, unless an extension of the transition is agreed, will most likely result in a hard Brexit.

In this context, the European Commission wants to negotiate as soon as possible a comprehensive agreement with the United Kingdom. The extent of the mandate will be expressed in the Negotiating Directives that will be annexed to the Council Decision appointing the European Commission as the Union negotiator.

The European Council, in its Conclusions of 13 December 2019, confirmed its desire to establish a future relationship with the United Kingdom in line with the Political Declaration and respecting the previously agreed European Council’s guidelines. The ambitious and comprehensive new partnership envisaged in the Commission recommendation reflects the conclusions and guidelines of the European Council and builds on the Political Declaration (p. 2 of the recommendation).

The aim of the negotiating directives is “to establish a new partnership between the Union and the United Kingdom that is comprehensive and covers the areas of interest outlined in the Political Declaration: trade and economic cooperation, law enforcement and judicial cooperation in criminal matters, foreign policy, security and defense and thematic areas of cooperation” (para 7 of the proposed Decision, Annex).

Given the extremely high number of fields to be covered by the future agreement, there is simply not enough time to go through everything before the expiry of the transition period. The situation is profoundly different from the statement of a prominent member of the UK government, describing Brexit as “a springboard to a buccaneering global embrace of free trade”. The EU, whose intentions are well interpreted by the proposal of the European Commission, knows that the UK has only two options: either to accept to go through a tedious but necessary process of negotiation, or to go alone and refuse any compromise.

The question is if the UK will decide to pursue the first option, and let it clear that not much will change for the United Kingdom and that the partnership with the European Union has been reduced, but not eliminated, or try to exploit any sort of division between the EU Member States. At this moment it is unlikely that something similar will happen, as the Council should unanimously confer on the Commission the mandate to negotiate.

However, the clock is ticking. The transition period will end on 31 December 2020, unless the Joint Committee established by the Withdrawal Agreement adopts, before 1 July 2020, a single decision extending the transition period for up to 1 or 2 years. Brexit is not over yet, it is just entered into its Phase 2.

Giovanni Zaccaroni is a postdoctoral researcher at the Brexit Institute

Image credit: EU and British flag under a Pixabay licence

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