Professor Steve Peers, University of Essex*
*Thanks to Georgina Wright, of the Institute for Government, for a 'track changes' version of the negotiation mandate. The usual disclaimer applies.
This week the process of
negotiating the future relationship between the UK and the EU took another
step. On the EU side, the Council adopted
the negotiation mandate for the talks. This text differs somewhat from the proposed
mandate for the future EU/UK relationship, which
I discussed here.
This blog post is an updated version of that one, and explains the main
differences between the Commission proposal and the final text.
The following analysis summarises
the EU negotiating mandate, further comparing it to the mutually agreed political
declaration on the future relationship (which I previously annotated here).
It explains where the EU position has departed from or elaborated upon the
political declaration. Obviously, the EU position differs in some respects –
but not all – from the UK position, which is why negotiations are
expected to be difficult. (Update: the text of the UK position has now been published)
Legal basics
On the EU side, the adoption of
the negotiation mandate is the latest step in the procedure. Under Article
218 TFEU, which sets out how the EU negotiates international treaties,
first of all the Commission proposes a mandate to negotiate with a non-EU
country. Next, the Council, ie Member States' ministers, decides on adoption of
that mandate. When adopting the negotiation mandate the ministers acted
unanimously (more on that below).
The next step is the formal
negotiations with the UK, in which the Commission is the negotiator. These
start next week. Note that the Commission now
has a mandate from Member States when doing so: Michel Barnier will not
be on a frolic of his own. (This point was often missed during the withdrawal
agreement negotiations). As the mandate states, during the negotiations the
Commission will be reporting back to a 'special committee' of Member States’
officials. In fact this committee was set
up recently. It's made up of Member States' officials who keep an eye on
the Commission as negotiator. This isn't unique to these talks; it's a
requirement in Article 218 TFEU as regards all international treaty
negotiations.
There's no formal role for the
European Parliament at this point, although it can pass non-binding resolutions
(such as the one passed earlier).
It will have a veto over the final agreement. The negotiating mandate doesn't
take a view on whether ratification by each national parliament will be needed.
This will depend on the content of the final text, as the Commission’s Q and
As explicitly point out.
Timing of the talks
The transition period in the withdrawal
agreement (discussed here)
expires at the end of the year, meaning that the de facto current treatment of the UK as a Member State of the EU
will then expire. While the withdrawal agreement’s provisions on issues like
citizens’ rights and Northern Ireland will still apply, most of the
relationship between the UK and EU will end at that point unless new treaties
replace it.
Although the transition period
could be extended by one or two years if both sides agree (the deadline to
agree this is 30 June 2020), the UK objects in principle to any extension. The
negotiation mandate decision mentions a possible extension, but aims to get as
much as possible done during the available time. It does refer to the jointly
agreed ‘best endeavours’ to agree a new fisheries treaty by July 2020 (para 74
of the political declaration), saying that a fisheries treaty ‘should’ be
agreed by that point. But it does not explicitly make this a condition for
further negotiations, and the mandate refers to ‘parallel’ negotiations, not to
negotiations on fisheries exclusively at first.
The Commission proposal referred to a ‘single package’ with general provisions,
economic arrangements, and security arrangements. This possibly implies a
single treaty, although the Council mandate does not say so expressly. It would also be possible to have separate
treaties which are linked in some way.
Furthermore, the Council gave the
Commission legal authority to negotiate an association agreement on the basis
of Article
217 TFEU, although it avoids using those actual words. The Q and As note
that when it comes to the end of the negotiations, things might be different.
(For instance, the scope of the agreement might be narrower, or it might take
the form of multiple treaties: either way, this could change the ‘legal base’
of the treaty or treaties concerned).
Legally, an association agreement
(if that's what is eventually negotiated) requires unanimity in Council and
consent of the European Parliament. It might
need ratification by national parliaments but that depends on the content (as
the Q and As point out). It can be put in force provisionally (at least
partially) if needed.
Territorial scope
Gibraltar is outside the scope of
the negotiation mandate (para 167). This is not a new EU position, and is not a
territorial claim: the point has often been misreported. As the Commission
pointed out, the EU position goes back to 2018, when the European Council took
the view that any agreement regarding Gibraltar would be separate, and subject
to the agreement of Spain:
After the
United Kingdom leaves the Union, Gibraltar will not be included in the
territorial scope of the agreements to be concluded between the Union and the
United Kingdom. However, this does not preclude the possibility to have
separate agreements between the Union and the United Kingdom in respect of
Gibraltar. Without prejudice to the competences of the Union and in full
respect of the territorial integrity of its Member States as guaranteed by
Article 4(2) of the Treaty on European Union, those separate agreements will
require a prior agreement of the Kingdom of Spain.
In any event, every Member State will
have a veto over the future relationship treaty with the UK anyway, if it
remains an association agreement.
Data protection
The negotiation mandate (para 13)
refers to an adequacy decision on UK data protection law. Note that an adequacy
decision is a unilateral decision by the EU under the GDPR. The political
declaration (para 9) referred to an objective to adopt such decisions by the
end of 2020. There is another reference to data protection in the security part
of the mandate (see below). Cooperation between regulators, which was mentioned
in the political declaration (para 10), is not mentioned explicitly in the mandate.
EU programmes
The negotiation mandate (para 14)
covers UK participation in EU programmes, such as research funding and Erasmus.
The wording of the mandate reflects the political declaration (para 11). Northern
Ireland peace funding is also mentioned (para 15, mandate; compare para 13,
political declaration). However, there is no explicit mention of association
with European research infrastructure (which was mentioned in para 12,
political declaration). Note that the EU has not yet agreed the conditions for
non-EU countries to access the next phase of EU programmes: for the draft text
on this, see Article 16 of the proposed
new Erasmus programme.
There’s no explicit mention of
negotiation of UK links to the European Investment Bank, although the political
declaration (para 15) only referred to the UK’s intention to seek such links,
without suggesting that the EU side shared this objective.
The
core of the UK/EU economic partnership would be a free trade agreement (FTA) covering
both goods and services (para 17 of the negotiation mandate). It's often
inaccurately claimed that there's no intention for an FTA in services between
the UK and EU, but both sides have always intended to negotiate one (paras 19
and 28 of the political declaration). But note that an FTA falls short of
single market participation. Unlike the political declaration, the mandate
makes an explicit link between the economic partnership and fisheries and a
‘level playing field’.
Free trade in goods
The
negotiation mandate (para 20) provides for no tariffs or quotas. However,
unlike the position as a Member State (and during the transition period), the
mandate refers to rules of origin, to determine where goods come from (para 21).
This is an extra burden on trade between the UK and EU compared to EU
membership, and is a consequence of the UK's decision not to negotiate a
customs union. This reflects the political declaration (para 22); indeed a
reference to a need for rules of origin was added to the revised version of the
political declaration (whereas the first version of the political declaration
ruled them out).
The reference to using the EU’s
standard preferential rules of origin is new compared to the political
declaration, and presumably refers to the pan-European rules (PEM
Convention) in use between the EU and other countries across Europe, the
Middle East and North Africa. Using the standard rules will be simpler and
quicker than negotiating from scratch (rules of origin often take some time to
negotiate in FTA talks).
Next, the negotiating mandate
refers to introducing anti-dumping
duties, anti-subsidy duties and economic safeguards between the UK and EU,
referring to WTO rules. Again, this is a new possible barrier in UK/EU trade. Such
measures are provided for in most FTAs (not just the EU’s: the US applies
anti-subsidy duties to some Canadian products, for instance). For EU FTAs, the
only exception is the European Economic Area (EEA), which rules out
anti-dumping and anti-subsidy duties for most products, because the countries
concerned have signed up to EU single market laws. The possibility of such
measures is therefore not a ‘punishment’, but the inevitable consequence of the
UK’s decision to leave the EU without remaining a participant in the single
market. However, there is an inconsistency between the EU approach to the UK
compared to the EEA countries: if the UK signs up to EU State aids law, as the
EU proposes, it would still be subject to possible anti-subsidy measures.
The possibility of such measures
would be there even without an FTA between the UK and EU. The objective of such
measures is, respectively, to react to goods sold below their normal value (anti-dumping),
subsidised by States (anti-subsidy), or which damage domestic producers
(economic safeguard) – subject to more detailed definitions and procedural
obligations in the WTO Codes dealing with these issues.
The negotiation mandate also extends
to customs facilitation and agreement on non-tariff barriers (technical and
sanitary rules), going beyond WTO provisions. However, it does not mention the
possibility of UK links with EU medical, chemical, and aviation safety
agencies, even though the political declaration referred to this possibility
(para 23).
Finally, the Council added a para referring to cooperation on return of stolen cultural property. Some interpreted this as a demand for the return of the Elgin marbles, but the text refers to cooperation on the basis of current EU law - which only applies to property stolen after 1993.
Free trade in services
The negotiation mandate refers to
an FTA in services going beyond WTO commitments, but as usual the EU will
exclude audio visual services. This exclusion was not mentioned in the
political declaration, but is hardly unexpected. On the other hand the proposed
mandate mentions free trade in certain services sectors that were also
expressly mentioned in the political declaration: professional and business
services, telecommunications services, courier and postal services,
distribution services, environmental services, financial services and transport
services.
This will include movement of
service providers (as required by WTO rules on FTAs in services), but this
falls short of free movement of people. There is a general reference to
agreement on investment (not just in services industries), but as under the
political declaration there is little further detail. The mandate also includes
recognition of professional qualifications, as referred to in the political
declaration (para 34). Financial services equivalence decisions will be
unilateral.
Intellectual property
It’s usual for FTAs to include
provisions on intellectual property, going beyond WTO and other international
rules. Here the big EU ask here is protection for future ‘geographical
indications’ (GIs: these are rules which specify that, for example, ‘feta cheese’
must originate from Greece). Note that current
GIs are protected in the withdrawal agreement, so the negotiation here would be
about future GIs. There’s also a reference to maintaining current protection in
many other areas of IP, where there is extensive EU legislation going beyond
international IP treaties. There’s no reference to what happens to the plan
that the UK hosts part of the planned Unified Patent Court, which is linked to
an attempt to create a unified EU patent. Some specific references to IP issues
in the political declaration (databases, resale rights, exhaustion of rights)
do not appear explicitly in the proposed mandate. The notion of still applying
EU standards might be an issue in the case of the controversial recent EU
copyright law, which the UK supported when it was adopted but now intends not
to apply (see discussion here).
Public procurement
As is common for FTAs, the negotiation
mandate envisages opening up public procurement markets more than under the WTO
procurement agreement. This reflects the political declaration, although note
that the rhetoric on this issue in the UK is inconsistent, with an obvious
conflict between the competing slogans of "Buy British" economic
nationalism on the one hand, and export oriented "Global Britain" on
the other. Since the UK is signing up to the WTO procurement agreement in its
own name and non-EU countries may also wish to include additional procurement
obligations in FTAs, the “Buy British” folks may be disappointed – although
opening up markets reciprocally enables exporting British companies to sell their goods and services too.
Mobility
The negotiation mandate falls
short of free movement of people here. It refers to waiving visa requirements
for short term travel, which the EU has done already unilaterally on the
condition of reciprocity (see discussion here).
A visa waiver treaty between the two sides could go further – most notably waiving
visa requirements for paid activities (which is now an option for Member
States), which would be useful for the music industry, for instance. But it is
not clear if the mandate is referring to a visa waiver treaty. Note that the section on mobility is in
addition to the planned negotiations on services, which would include some
movement of people (discussed above).
The mandate also refers to
“setting out conditions” relating to migration of students and researchers (areas
where the EU has already legislated on non-EU migration, as discussed here).
There could also be agreement on social security coordination, but note that
this would be for future UK/EU
migration. Those who moved before the end of the transition period are covered
by the withdrawal agreement (see discussion here),
which also covers the common travel area referred to in the mandate. Note that
there’s no reference to possible negotiations on retaining free movement rights
for UK citizens who move to the EU before the end of the transition period.
There’s no mention of the
political declaration’s reference to facilitating travel (para 53 of the
declaration), perhaps because of the UK government’s plan to match the EU’s planned
advance travel authorisation system. However, the Council added a reference
to negotiations on family law civil judicial cooperation, as mentioned in the political
declaration (para 56), even though the proposed mandate had omitted this issue.
Transport
On air transport, the negotiation
mandate states that the UK will not have the same market access as an EU Member
State, but is willing to negotiate. It also refers to aviation safety
standards.
On land transport, it refers to market
access for road haulage, but not cabotage (haulage within a single Member
State/multiple Member States). This would be linked to a standstill on social
rules relating to drivers plus tachograph discussions (this concerns the
devices keeping track of how long drivers are driving for). There’s no
reference to private motorists, although the political declaration referred to
them.
The mandate refers to international
law on coach transport, which suggests that the UK and EU would not negotiate
additional provisions. On rail transport, there’s a reference to the Channel
Tunnel, and the Council added a reference to Dublin/Belfast rail links here, in
accordance with a reference in the political declaration.
The Council also added a reference
to possible negotiations on maritime transport, matching a reference in the
political declaration. The reference to cooperation with the EU maritime safety
agency in the political declaration was not retained.
Energy
The negotiation mandate has a
number of references to renewable energy, along with a level playing field on
carbon pricing, and a Euratom deal including a standstill on nuclear safety
standards and isotope issues. (On post-Brexit relations with Euratom, see my earlier
discussion). The Council added a reference to nuclear waste, perhaps
reflecting Irish concerns about Sellafield.
Fisheries
The focus of the negotiation mandate
is EU traditional fishing in UK waters, with a link to the rest of the economic
partnership, and a reference to agreed July target date. As noted above, the
target date does not seem to be an absolute demand. The Council strengthened the EU’s position
here, referring to ‘upholding’ the existing degree of access. The topic is a prime
candidate for crashing the whole negotiations – as is the next topic...
Level playing field
The term ‘level playing field’
might be used differently in other contexts, but for these discussions it
refers to law on State aid, competition law, and aspects of tax, labour and
environmental law. It’s common for the EU (and also the US and Canada) to
require some form of LPF clauses in its FTAs, but the question is whether to go
beyond the EU’s usual provisions in the EU/UK FTA – with the rationale for the
EU side being that the FTA would go further in abolishing all tariffs than
other EU FTAs go.
The first 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. Both sides agreed that the LPF:
…should be
commensurate with the scope and depth of the future relationship and
the economic connectedness of the Parties. These commitments should
prevent distortions of trade and unfair competitive advantages. To that end,
the Parties should uphold the common high standards applicable in the Union and
the United Kingdom at the end of the transition period in the areas of state
aid, competition, social and employment standards, environment, climate change,
and relevant tax matters. The Parties should in particular maintain a robust
and comprehensive framework for competition and state aid control that prevents
undue distortion of trade and competition; commit to the principles of good
governance in the area of taxation and to the curbing of harmful tax practices;
and maintain environmental, social and employment standards at the current high
levels provided by the existing common standards. In so doing, they should
rely on appropriate and relevant Union and international standards, and
include appropriate mechanisms to ensure effective implementation
domestically, enforcement and dispute settlement as part of the future
relationship. The future relationship should also promote adherence to and
effective implementation of relevant internationally agreed principles and
rules in these domains, including the Paris Agreement.
So the commitment was to ‘uphold
common high standards’ applicable in the EU and UK at the end of the transition
period; ‘maintain’ standards ‘at the current high levels provided by the
existing common standards’; ‘rely on appropriate and relevant Union and
international standards’; and include provisions on implementation, enforcement
and dispute settlement. So there were several references to EU rules, most in
the context of a standstill, but partly more open-ended (ie possibly
application of future rules too); and a general reference to dispute
settlement, with no specific reference here to the CJEU (but see the reference
to the CJEU role below).
The negotiating mandate partly
repeats this text, but also adds many points. On LPF enforcement in general, it
states that the EU ‘should also have the possibility to apply autonomous, including interim, measures to react
quickly to disruptions of the equal conditions of competition in relevant areas,
with Union standards as a reference point’
(italics indicate that the Council added words to the Commission proposal). On
future measures, it states that the ‘envisaged partnership should commit the
Parties to continue improving their respective levels of protection with the
goal of ensuring corresponding high
levels of protection over time’ (italics
are the Council’s added words), with the governing body having power to extend
the LPF or add to it over time (note that the governing body would have to act
jointly). The Council also added general references to ‘a sustainable and
long-lasting relationship between the parties, referring not only to ‘common
high standards’ but also ‘corresponding high standards over time with Union
standards as a reference point’.
On specific issues, EU State aid should
apply ‘to and in’ the UK, although they would be enforced by an independent UK
body, not the Commission; and disputes ‘about the application of State aid
rules in the United Kingdom should be subject to dispute settlement’. For
competition law, general provisions similar to EU law (although here there is
no specific cross-reference to EU law) should apply as regards EU/UK trade,
along with a commitment to ‘effective enforcement’. There should be limits on
special rights for state-owned enterprises, with no specific reference to EU
law or enforcement.
On tax, there should be a
commitment to international standards, and also the UK should apply ‘the common
standards applicable within the Union and the United Kingdom at the end of the
transition period in relation to at least the following areas: exchange of
information on income, financial accounts, tax rulings, country-by-country
reports, beneficial ownership and potential cross-border tax planning
arrangements’, along with ‘the fight against tax avoidance practices and public
country-by-country reporting by credit-institutions and investment firms’, and
(without reference to common standards) ‘the Parties’ commitment to curb
harmful tax measures, taking into account the G20-OECD BEPS Action Plan’ and
the UK reaffirming ‘its commitment to the Code of Conduct for Business Taxation’.
On employment law, there should
be no reduction ‘below the level provided by the common standards applicable
within the Union and the United Kingdom at the end of the transition period in
relation to at least the following areas: fundamental rights at work;
occupational health and safety, including the precautionary principle; fair
working conditions and employment standards; and information and consultation
rights at company level and restructuring’. There should also be provision on
enforcement within the UK, ‘through adequately resourced domestic authorities,
an effective system of labour inspections and effective administrative and
judicial proceedings’.
On the environment and health (‘health’
being added by the Council), again the LPF should provide that ‘the common
level of environmental protection provided by laws, regulations and practices
is not reduced below the level provided by the common standards applicable
within the Union and the United Kingdom at the end of the transition period’.
The text refers to ‘at least the following areas: access to environmental
information; public participation and access to justice in environmental
matters; environmental impact assessment and strategic environmental
assessment; industrial emissions; air emissions and air quality targets and
ceilings; nature and biodiversity conservation; waste management; the
protection and preservation of the aquatic environment; the protection and
preservation of the marine environment; health
and product sanitary quality in the agricultural and food sector; the prevention,
reduction and elimination of risks to human and
animal health or the environment arising from the production, use, release
and disposal of chemical substances; and climate change.’ The words in italics
were added by the Council; note that food standards issues, in the EU mandate, therefore
cross over between the pure trade issues (SPS checks, mentioned above) and the
LPF clauses.
Also, the LPF ‘should lay down
minimum commitments reflecting standards, including targets, in place at the
end of the transition period in those areas, where relevant’; ‘should ensure
the Parties respect the precautionary principle and the principles that
preventive action should be taken, that environmental damage should as a
priority be rectified at source and that the polluter should pay’. For
enforcement, again, the LPF ‘should ensure that the United Kingdom implements a
transparent system for the effective domestic monitoring, reporting, oversight
and enforcement of its obligations by an independent and adequately resourced
body or bodies’. (Note that the proposed Environment
Bill would include some provisions to this effect).
There are also some specific
provisions on climate change: the UK should maintain ‘a system of carbon
pricing of at least the same effectiveness and scope as provided by the common
standards, including targets, agreed within the Union before the end of the
transition period and applicable for the period thereafter’, and the two sides
‘should consider linking a United Kingdom national greenhouse gas emissions
trading system with the Union’s Emissions Trading System (ETS)’ which should be
‘based on the conditions agreed within the Union, ensure the integrity of the
Union’s ETS and a level playing field, and provide for the possibility to
increase the level of ambition over time’. Besides carbon pricing systems, the
LPF should ensure that the UK ‘does not reduce the level of protection below
the level provided by the common standards, including targets, agreed within
the Union by the end of the transition period and applicable for the period
thereafter’.
The negotiation mandate also
refers to ‘adherence to and effective implementation of relevant’ international
rules, which ‘should include’ International Labour Organisation conventions,
the Council of Europe European Social Charter and multilateral environmental
agreements including those related to climate change, including the Paris
Agreement. On top of that, where the parties have higher standards above the
minimum commitments, ‘the envisaged partnership should prevent them from
lowering those additional levels in order to encourage trade and investment.’
Has the EU ‘moved the goalposts’
here? The agreed text in the political declaration refers explicitly to both EU
and UK standards, vaguely to dispute settlement, and indirectly to future
measures. It’s not surprising that the EU puts forward a maximalist
interpretation of this, or that the UK puts forward a minimalist interpretation
– although it cannot seriously be argued that the political declaration made no commitment to a standstill as regards
EU standards. Compared to the political declaration, then, the issue of dispute
settlement remains vague, although there is a specific demand for potential EU
reaction in the event of divergent future
standards. The reference in the political declaration to maintaining current
standards is maintained. It’s unclear if the EU position is that the UK must keep up with future EU measures in
these areas, or whether it simply wants to reserve the right to react in the
event that the UK does not.
The dispute settlement point is
significant because in the first
withdrawal agreement, which contained some of the detail which appears in
the negotiation mandate, dispute settlement was limited: only some issues could
be subject to the dispute settlement regime in that text (in particular,
disputes about the substance of
labour and environmental commitments could not be subject to dispute
settlement; only disputes about enforcement
systems for those obligations could be). So even the references to EU law
in the LPF part of that agreement did not mean that the CJEU would have
jurisdiction via dispute settlement arbitrators to interpret those references,
since the dispute settlement arbitrators would never get hold of such disputes
in the first place.
This also meant that EU retaliation
for the breach of such obligations was impossible, since retaliation was only
possible via the dispute settlement system. While the negotiation mandate
refers to possible EU retaliation for breach of LPF rules, it’s not clear if
the limits on such retaliation (both in terms of which issues are subject to
dispute settlement and the constraints on retaliation within the dispute settlement system) would be different from the
limits in the first withdrawal agreement. It should be noted that in the first
withdrawal agreement, UK retaliation
against EU breaches was also possible
within the dispute settlement system; one might expect that the UK would argue
that it should similarly have reciprocal powers to retaliate in the future
relationship treaties.
As compared to EU FTAs with other
countries, the negotiating mandate is different as regards the references to EU
law (although the UK had previously signed up to this), but it is not clear if
the arrangements on dispute settlement will be different. The prospect of the EU
withdrawing preferences due to divergences already appears in the EEA, which avoids
CJEU jurisdiction on this issue by making the process automatic (if attempts to
settle the issue have not worked). Furthermore, the EEA has an approach to
dispute settlement which might possibly work between the EU and the UK: if attempts
to settle a dispute fail, arbitrators can rule on whether a reaction by one
party is disproportionate, but not on the underlying EU law dispute (if there
is one) – thereby avoiding the mandatory involvement of the CJEU.
Security cooperation
In the negotiation mandate, the
security cooperation is not linked to the LPF or fisheries. But instead it
would be made dependent not only on UK adherence to the ECHR, but also the Human Rights Act (HRA), along with the
unilateral adequacy decision on data protection - expressly referring to
possible CJEU challenges (see the challenges to adequacy decisions relating to
the US, discussed here).
The ECHR and data protection points reflect para 81 of the political
declaration, which referred to the ECHR ‘underpinning’ the relationship; the
HRA point goes beyond it. Also, there would be fair trial and double jeopardy
standards.
The mandate here reflects the
issues that would be litigated anyway about data protection and human rights
standards in the UK. They are already litigated as regards non-EU countries and other Member States.
For police cooperation, the mandate
refers to passenger name records, DNA/fingerprint/vehicle info, and exchange of
information in individual cases. There is no mention of the Schengen
Information System (which the UK currently applies as regards criminal law
data) and the exchange of information in individual cases can't simply copy it.
As regards PNR, the mandate refers to a CJEU case discussed here,
which sets out limits on what the EU can exchange with non-EU countries to
comply with data protection standards. On PNR and DNA data et al, the mandate reflects
the political declaration. On individual exchanges of information instead of
the Schengen Information System, the mandate is explicit on the issue whereas
the political declaration fudged it (because the two sides did not agree).
On criminal justice cooperation,
there is a reference to fast track extradition. Note that the EU, Norway and
Iceland have agreed an extradition treaty which is very similar to the European
Arrest Warrant applied between EU countries, but with certain exceptions. On
this, the Council added a reference to Member States possibly refusing to
extradite their own citizens (three Member States already do this during the transition
period), plus unspecified other guarantees. Also the mandate refers to exchanging evidence
and criminal records (the Council removed the reference to doing so in a
similar way to existing EU laws), which would limit the impact of the UK
leaving the EU on these issues. Note that this would probably go further than
the EU has gone with other non-EU countries.
Foreign policy
In this area, the negotiation
mandate proposes "alignment" on sanctions (the only explicit use of
the word in its proposal). There would be case by case involvement in defence
missions or defence industry projects (reflecting the wording of the political
declaration, which makes clear that the UK would not be tied to EU defence
cooperation against its will), and limited access to Galileo (the Council
watered down the latter bit).
The Council added a timely
reference to cooperation on health security at the end of this section.
Governance and dispute settlement
Finally, the future relationship
treaties would have a joint committee to oversee and implement them (which is
standard in international treaties). To settle disputes, there would be consultation
then binding arbitration. The Council
added a reference to dispute settlement between different agreements. The CJEU would
be involved if an issue concerns the interpretation of EU law (as explicitly
agreed in the political declaration). There is NO reference to CJEU involvement otherwise (note that the
political declaration explicitly ruled that out). The mechanics of dispute
settlement are not spelled out in detail; it is possible that they might be
based on the provisions in the withdrawal agreement (see my annotation and
analysis of them here).
As discussed in the LPF section
above, it is possible that some parts of the agreement might not be subject to
dispute settlement at all, in which case there is no issue of CJEU involvement
or any other remedies issue (unless the agreement allows for remedies to be
applied without such remedies being
subject to dispute settlement). So the CJEU would only have jurisdiction over
the UK in the future relationship treaty where the agreement a) refers to EU
law AND b) provides for
dispute settlement. Again: key parts of the level playing field in the first
withdrawal agreement met condition a) but NOT b). The details of the future
treaty therefore will be crucial.
Barnard & Peers: chapter 27
Photo credit: Michael D Beckwith, via Wikimedia commons
This comment has been removed by a blog administrator.
ReplyDelete