A first Brexit deal: A tiny step away from the cliff edge of hard Brexit?

maandag 18 december 2017, analyse van Dr. Andrea Ott

De EU en het Verenigd Koninkrijk zijn het eens geworden over drie cruciale kwesties: de grens tussen het Verenigd Koninkrijk en Ierland, de rechten van EU-burgers in Groot-Brittannië en Britse burgers in de EU en de rekening die de Britse regering bij vertrek uit de EU moet betalen. Dit maakt een 'soft' Brexit waarschijnlijker, maar biedt nog geen enkele garantie voor het VK.

After the EU set the UK a deadline last week to achieve finally concrete progress on several negotiating points before any negotiations on a trade deal could take off, Theresa May and Jean-Claude Juncker struck a deal early Friday morning in Brussels on three key points of the UK withdrawal from the European Union. The key points of this first Brexit deal are addressing the withdrawal conditions set by the European Council in its negotiating directives to the chief negotiator Michel Barnier, namely a) the rights of citizens, b) the dialogue on Ireland/Northern Ireland and c) the financial settlement.

As no detailed text on this political deal is available, every side claims victory and gives different interpretations on its implications and its legal nature. What becomes obvious now is that the UK accepted its financial commitments and contributes to the EU budget until 2020 as if it is a EU member (and irrespective of future financial commitments to take part in EU policies and depending on concrete negotiations).

European rights

On the first point the UK accepted that “both Union citizens and UK nationals, as well as their respective family members, for the rest of their lives, to continue to exercise their rights derived from Union law in each other’s territories.” The rights have to be acquired before the specified date, so the date of the official UK withdrawal, so anything from 29 March 2019 onwards or later.

To ensure the protection of this status the withdrawal agreement will include directly effective rights and consistent interpretation with the Court of Justice of the European Union as the final arbiter, in addition supremacy over UK national law applies. The UK courts and tribunals have to pay due regard to decisions by the Court of Justice and UK courts can ask the ECJ on the interpretation of these rights within 8 years from the enactment of these rules. This is a piece of the internal market à-la-carte, however, with an expiry date for the pool of 5 million EU nationals living in the UK and UK nationals living in the European Union.

Soft border

The second point, which was the least disputed from the beginning, could become the biggest stumbling stone for the on-going negotiations. It is also the least concise point of the current deal. Both sides only agreed that no hard border between Ireland and Northern Ireland is re-established and the Good Friday Agreement between the UK and Ireland regarding the Irish peace process respected. This means that no border controls and customs checks between these two territories can be re-established and also the Common Travel Area between UK and Ireland remains intact.

Whether this part of the deal saves the other UK territories, and especially Scotland, from the consequences of the worst-case scenario, a hard Brexit, is still to be determined. But it is currently highly likely that the Good Friday Agreement and Irish imbroglio have avoided a no deal scenario and lay the ground for a soft Brexit.

Wrong illusions and bitter irony

At the end, Brexit is about wrong illusions and bitter irony. The irony is that both Ireland and Northern Irish Unionists might have a crucial role in saving the rest of the UK from the consequences of a bad decision. While Ireland (and the EU) could not accept hard borders between the two Irelands, the Northern Ireland Unionists cannot accept a hard border between Northern Ireland and the rest of the UK. And to implement free movement of persons and goods for two islands without any UK “alignment” (in other words approximation) to the EU customs union and EU/EEA internal market, is unthinkable.

Nevertheless, some in the UK still live (or pretend to live) in the wrong illusion of becoming a sovereign country with the power to make its own trade agreements when at the same time the UK will surrender parts its sovereignty again to the biggest trading block in its neighbourhood.

No guarantees for the future

Finally, these key points are no agreement on the future EU-UK relations. They are only some necessary prerequisites for further negotiations on a transitional deal, the details still to be fleshed out in the withdrawal agreement and are followed by a, possibly, separate trade agreements which needs to be ratified by the EU, the UK and all 27 Member States.

Finally, it does not make the observer very hopeful for further progress if the UK agreed on the points of the framework withdrawal agreement on 8 December 2017, points on which they could have agreed at the first round of negotiations in June 2017. Instead, it might set the tone for the future negotiations of two unequal partners. The UK accepted the EU withdrawal negotiating position almost completely – with one exception - the UK does not have to pay for the moving vans of the EU agencies currently hosted in the UK.