Giovanni Zaccaroni (DCU Brexit Institute)
On 25 February 2020, the Council formally appointed the European Commission as the post-Brexit negotiator between the EU and the United Kingdom. This is the formal opening of Phase Two of Brexit and responds to the need, according to the Art. 218 TFEU procedure, to have a single EU negotiator to dialogue with the UK counterparts eyeing the approval of a comprehensive trade agreement before the expiry of the transition period. Art. 50 TEU, providing for the mechanism of the withdrawal of the UK from the EU, has fulfilled its task. Now the EU is taking the next step, and namely the negotiation of an international trade agreement with a non-EU Member State with whom, according to the Withdrawal Agreement, there are temporary arrangements for the application of EU law and rules until the end of 2020.
The mandate of the European Commission consists in the Decision of the Council appointing the Commission as a negotiator and of the Negotiating Directives. A draft of the Negotiating Directives was already published in early February by the European Commission. However, the discussion in the Council has, of course, modified the draft and obtained a new document that has already attracted comments by scholars. The UK has also today released a document outlining the government approach to negotiations with the EU.
The objective of the Commission, as declared by President Von der Leyen on 11 February 2020, is clear. When the European Union agreed on the Political Declaration with the United Kingdom, it ambitioned a zero tariffs and zero quotas trade relation for all goods and very likely (as reflected by the Negotiating Directives) for services. This is what is usually defined as “level-playing field”. The Negotiating Directive, accordingly, reflect the need to have an agreement that should aim not to have less than the current situation. Paragraph 17 of the Negotiating Directives summarizes this need thoroughly:
“The envisaged partnership should include an ambitious, wide-ranging and balanced economic partnership, insofar as there are sufficient guarantees for a level playing field so as to uphold corresponding high levels of protection over time”.
The “level-playing field” (LPF) terminology, although being generally used with reference to the overall objective of the negotiations, refers in the context of the EU-UK negotiations in particular to State aid, competition law, and aspects of tax, labour and environmental law. In this respect, as Peers noted, “a point to emphasise is that in addition to LPF clauses being in other EU FTAs, the UK signed up to the concept of LPF in the political declaration”. It is equally important to recall that reference to the LPF in the political declaration was present but expressed in rather vague terms, and that the UK document on the approach to negotiations has no provisions on maintaining the current LPF. If on one side, the EU is stressing on the need for the UK to take into account the standards already in force as the basis for the negotiations, it is likely that the UK will not accept. The UK government has already threatened to leave the table of the negotiations if by June an agreement is not reached, something that, at this point, seems unlikely given the distance between the two parties.
To understand the distance between the two positions suffices to know that the Negotiating Directives while disciplining a broad range of topics to be discussed, includes provisions in two fields that the UK has already declared not being ready to discuss.
On data protection, for instance, the EU Negotiating Directives (p. 5) mention: “the envisaged partnership should affirm the Parties’ commitment to ensuring a high level of personal data protection, and fully respect the Union’s personal data protection rules”. This is something that the UK government has already openly denied, perhaps also in light of the centrality and of the importance of the EU approach to data protection. If UK citizens will have to comply with, for instance, GDPR rules after the expiry of the transition period it will be like Brexit has not been delivered, and the government will pay the political price. This also in light of the fact that the document on UK approach to negotiations quotes that “The UK will have an independent policy on data protection at the end of the transition period and will remain committed to high data protection standards”.
Similar considerations can be done for fisheries, another central point in the Brexit campaign, where the No 10 government has repeatedly declared to be willing to take back control of UK fishing water. In this sense, p. 23 (para 87) of the EU Negotiating Directives quotes that “the envisaged partnership should include, in its economic part, provisions on fisheries setting out a framework for the management of shared fish stocks, as well as the conditions on access to waters and resources and common technical and conservation measures”. However, according to the document on the UK approach to negotiations, the UK government seems, in this field, ready to give up on previous declarations. P. 19 of the UK document on negotiations with the EU states that “UK is ready to consider an agreement on fisheries that reflects the fact that the UK will be an independent coastal state at the end of 2020. […] Any such framework agreement on fisheries should cover access to fish in UK and EU waters, fishing opportunities and future cooperation on fisheries management, as follows”.
The Negotiating Directives suggest that there is a persistent and profound difference between the two parties, right before the start of the negotiations. However, it is also relatively common, in cases alike, to kick off with a relatively pugnacious approach to try to intimidate the other part and then reach ultimately a compromise. This is, however, a unique case. International trade agreements usually take more than one year to be negotiated. The time available in the EU-UK case, unless an extension of the transition is sought, is until 31 December 2020.
The author writes this post in his personal capacity
Image credit: the picture is released under a Pixabay licence. [N. B. The author chose on purpose a picture with the UK flag labelled as “English” since it gives the idea that Brexit is primarily an English initiative, although portrayed as a British one]
Giovanni Zaccaroni is a postdoctoral researcher at the Brexit Institute, Dublin City University