Analyzing the legality of the EU Commission’s proposed withdrawal of preferential tariffs for third countries when cooperation on migrant returns ‘fails’--an unholy alliance of trade and migration?

 

 

Marion Panizzon, Senior Research Fellow, World Trade Institute, University of Bern*

 

*Privat-Docent, Dr. iur., LL.M., Senior Research Fellow, World Trade Institute, University of Bern and Legal Consultant, World Trade Advisors, Ltd. Geneva. I thank Dr. Alan Desmond, Leicester University for his thoughtful comments on several earlier drafts. I’m grateful to Dr. Christian Häberli, World Trade Institute, for his critical read of an earlier draft in light of current WTO law and practice.

 

Photo credit: NOAA, via Wikimedia commons

 

 

As a strategy to rebalance uneven negotiating positions, the ‘comprehensive approach’ defined in paragraph 11 of the Global Compact for Safe, Regular and Orderly Migration (GCM) sets the stage for rendering more attractive EU trade and EU external migration policy to third countries. However, the comprehensive approach, considered a component of ‘shared responsibility’ under the GCM is often confounded with conditionality, because both might, according to Hocquét 2023, expand the radius of migration policies, to areas outside its immediate realm. There are marked differences though, since conditionality establishes a  co-dependency between measures the EU wishes to implement, with areas of interest to the third country, being education, energy, natural resources, climate adjustment, public health (Peers 2016). Conversely, the comprehensive approach while based on mutuality, rather than reciprocity, ideally strives to create the win-win-win situations, in most cases, breaks down to integrating safe pathways with border management (Vitiello 2022)

 

In trade, ‘rights-based conditionality’ for obtaining trade preferences, has been criticized by academics (Hafner-Burton et al. 2019) and UNCTAD alike (Irish 2007), and materializes when preferential import duties are leveraged for securing the developing or least-developed country’s cooperation to fulfill an EU public good, including combatting narcotics trading, child labor and worker exploitation,  as well as the smuggling and trafficking. At the outset, the trade and development chapter inserted in the 1960s into the General Agreement on Tariffs and Trade (GATT) had empowered developing and least-developed countries to catch-up. One such avenue came in the shape of GSP developed under the auspices of the UNCTAD in 1968 and anchored by several temporary waivers into GATT, to protect infant industries thru non-reciprocal treatment (Michalopoulos 2020). Today, the expectation on trade preferences is that they fulfill non-trade policy objectives (NTPO), which is an attribution that distorts the original idea behind the GATT Art. XXIV and the subsequent Enabling Clause, permanently waiving the most-favored nation treatment otherwise due if a WTO Member lowers a tariff(ECDPM 2020).

 

Initiated in 2021, the EU Commission’s reform of Regulation EU 978/2012 Generalized System of Preferences (GSP) for developing and least-developed countries, proposes to expand by the area of migrant readmission, the cooperation the EU requires from beneficiary countries for exports from those countries to benefit from a lower or zero import duty on two-thirds of tariff lines under standard GSP, a zero duty on the same tariff lines, conditioned on the ratification of 27 conventions (GSP+) or a zero import duty on all products from LDCs except for arms and ammunition (Everything-but-Arms, EBA)  into the EU. Adding to the EU’s long list of incentives to buy origin countries’ approval for sending back their citizens in irregular stays in the EU, the Commission’s proposal, critically viewed by the EU Parliament, NGOs, and academics alike, would have complemented that listing by adding preferential trade initiatives to it. Inversely, the GSP Regulation, equally boasting an ever increasing to-do list of criteria countries need to fulfill in order to enjoy the preferences, has now been topped by the criteria of readmitting (irregular) migrants.

 

The legality of both the EU external migration system with the new addition of trade and the EU GSP regulation with its expansion to include migration policy, poses challenges of legality and practicability under WTO law, as academics and practitioners have analysed and this post discusses.

 

In its reform proposal of EU GSP Regulation 978/2012, the EU Commission suggest for the very first time, to interlace EU external migration policy, notably EU readmission agreements and cooperation on assisted and voluntary return to the EU’s GSP for the period of 2024-34. In particular the proposal foresees to up the ante of EU Regulation 978/2012 withdrawal of tariff preferences procedure by adding migrant readmissions as one benchmark to measure good governance, the former which is, alongside sustainable development and human rights one of the areas of cooperation which can conditionality rewards either positively or which is sanctioned off negatively, by the withdrawal or suspension of preference, ranging from visa relaxation, development cooperation or lowered import tariffs into the EU. As Grundler and Guild 2023 have observed, the negative conditionality (Sabourin and Jones 2023) which the Commission would like to see, is insofar not surprising, as EU member states have traditionally taken to constructs double binds, pitting legal pathways against migration control (Garcia-Andrade 2020:260) in bilateral migration agreements, with questionable outcome.

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Whereas the EU has inserted Art. 25(a), a readmission clause in its 2019 revision of the  Schengen Visa Code (Bisong 2019; Grundler and Guild 2023), the Commission’s activating the Union’s common commercial policy Art. 207 TFEU, to secure cooperation on readmissions, uses a new tool for the same purpose, yet without specifying the periodicity of review of third countries’ cooperation or lack thereof, as Art. 25a does. Several human rights organizations have remarked in response to the Commission’s proposal and the Council’s endorsement in 2022, that the insertion of migration, is shaky on more than one legal ground (Human Rights Watch, FIDH, ECRE).

 

Firstly, withdrawing the preferential tariff treatment, which LDC and developing countries obtain under one of the three pillars of the GSP, GSP+ and Everything-but-Arms (EBA) treatment might be unlawful under the WTO Appellate Body jurisprudence, as shown by DG External Policies’ Report on the proposed GSP reform (2022). In that WTO decision of 2004, the benefit of lower tariffs must be granted on a non-discriminatory basis to ‘similarly situated beneficiary countries’ and a clear link between the benefit granted and the ‘development objective’ be made. Hence, the idea of threatening a developing or least developed country with the withdrawal of a tariff preference, is not new, as Peers (2016) points out (534-537), but the EU Parliament in its criticism of the EU Commission’s proposed new EU GSP Regulation  had legitimate concern, that the EU would be creating the similar situation that had led the WTO Appellate Body ruling in EC-Tariff Preferences, to condemn it and which had put a stop to any selective imposition of trade preferences (Bartels 2003).

 

Up until this day, the Commission rewards countries of origin for cooperating on forced returns, border screening, information campaign, via visa relaxations for diplomatic staff, journalists, by facilitating remittances transfers and lowering costs, by a promise of better integration of third country nationals (Peers 2016). In so doing, the EU has treated different migrant origin countries, differently, yet, so far, without risking WTO incompatibility, since if visa, remittances or integration remain outside the scope of the WTO. The situation is different, given the recently suggested negative trade conditionality, contingent on withdrawing tariff preferences, when a readmission cannot take place. It implies that the Commission must define ‘objective’ benchmarks around readmission, for when that tariff treatment is to be removed in addition to treating similarily situated countries, identically.

 

Secondly, the EP during the 2022 inter-institutional trilogues between Council, Commission, ascertained that tying preferences to readmission of one’s own nationals, might be too far removed a conditionality. Recently, the EP’s international trade (INTA) committee on 19 September 2023 voted in favour of extending the current EU GSP scheme to 31 December 2027, which the Commission proposed to avoid the current GSP lapsing in light of the lack of agreement on the main proposal, until the Parliament and Council can agree on how to update that Regulation. Meanwhile, INTA has not further entered into discussions about circumscribing the exact legal scope triggering a potential tariff withdrawal, whether a non-implementation of an EU readmission agreement or of a bilateral readmission agreement must be shown, or whether the refusal to negotiate such an agreement in the first place is sufficient to trigger the clause, or, as the DG External Relations suggested, the non-compliance with international obligations under a EURA. Nonetheless, the Commission’s proposal currently stands at the brink of extinction. Yet, it seems timely to analyse its legality with WTO and international obligations, as a final vote, after EP elections, could overturn the INTA’s refusal to follow the Commission’s proposal.

 

In this blogpost, I discuss legality of the EU’s reform proposal under two WTO instruments, the Enabling Clause 1971, setting the legal basis for the Special and Differential Treatment of trade in goods from developing and least-developed WTO Members and the LDC Services Waiver 2011, to understand which out of the two takes origin country concerns seriously. In so doing, I draw on the discussion started by Vidigal (2023) and Tans (2023) about why the  Commission proposal conflicts with WTO rules. In so doing, I touch upon the number of preferential trade agreements (PTAs) which, similarily, have used a trade component as the quid-pro-quo for obtaining a partner’s cooperation on irregular migration. Since PTAs pit trade in services, and thus a form of legal pathways (as opposed to trade in goods) to return migration, within their chapters on the temporary movement of natural persons, the conditionality is more closely or directly contingent on people-on-the-move.

 

Consequently, the EU Commission were better advised to negotiate such openings of its services markets for service supplying natural persons, from countries of origin, within one of its deep and comprehensive free trade agreements (DCFTA) than to go freestyle by attempting to match migrant readmission with trade-in-goods. Not only are countries of origin deeply in need of docking onto the global services markets, but that linkage to readmission, at least in theory, appears to be an immediate one, since services is the only trade flow, hinging, for face-to-face delivery, directly on human factor mobility. Finally, there is in WTO law, a legal basis for enabling such one-way flows of natural persons from developing and least-developing countries (LDCs), without this asymmetric trade posing problem under the WTO GATS most-favored nation clause (MFN), as discussed below.

 

Aggregated conditionality as catalyst of informalizing EU migration cooperation

 

As Frasca (2023) and Desmond (2023) point out, soft law, in the EU external migration context, re-asserts EU sovereignty in instances, where a legally binding obligation on shaky grounds. The key catalyst to jumpstart the process turns out to be conditionality, whitewashed as the comprehensive approach, because it allows to create the traction that soft law lacks. Consequently, conditionality substitutes for a norm failing to deploy a legally binding effect, whether a country refuses to embrace the internationally binding quality of the duty to take back one’s own nationals or considers not being concerned by the duty to take back one’s own nationals. However, the role of conditionality when the EU deploys its armada of informalized migration arrangements, whether partnerships, technical readmission arrangements, standard operation procedures, dialogues still needs more research.

 

Under the New Pact on Migration and Asylum of 23 September 2020, conditionality was up for a supposedly ‘fresh start’ with the  Communication, Attracting Skills and Talents to the EU (27 April 2022), spearheading the Talent partnerships complementing EU mobility partnerships as a multidimensional response to the 18 EU readmission agreements (2023) and 6 arrangements, which regularly fail for non-reciprocally engaging with the sending country ‘s interests and needs (Moraru, Cornelisse and de Bruycker 2022).  Whereas the Commission was not yet breaking with positive conditionality driving much of the EU external migration policy, conditionality’s new focus on vocational and professional upskilling of trainees thru circular Talent Partnerships bears evidence that the Commission is on the lookout for new anchors by which to reinvigorate conditionality, and its EU external migration policy (Tsourdi, Zardo and Sayed 2023).

 

Whereas negative conditionality, which retributes a third country for its lack of cooperation on implementing EU migration policy, has prompted Ethiopia and Afghanistan to sign non-binding readmission declarations (SWP Berlin 2020), the threatened suspension of development aid, has never materialized. Speaking against negative conditionality, as the one the Commission proposes for trade preferences is that raising visa processing charges has not encouraged cooperation (Grundler and Guild 2023), nor is cutting development aid the appropriate penalty for a country such as Nigeria, where remittances are high and thus, installing of vocational training makes more of a difference (Nigeria-Switzerland Migration Partnership of 2011).

 

In 2021, against the background of arrivals by at-sea crossings and over the central route to Europe (ICMPD 2023) tripling, the Commission introduced a new feature to its palette of negative conditionality for non-cooperation over irregular migration. Under its Proposal for a revised GSP Regulation, COM(2021) 579 final for 2024-2034, the EU would now withdraw preferential trade benefits, either under the GSP+ (Generalized System of Preferences) granted to the seven EU beneficiaries (Bolivia, Cape Verde, Kyrgyzstan, Mongolia, Pakistan, Philippines, Sri Lanka), or for least-developed countries (LDCs) under its Everything-but-Arms (EBA), if ‘beneficiary countries on migration and the readmission of rejected asylum seekers’ refuse to cooperate (Guild 2023 in this blogpost).

 

 

Along a well-trodden path—forerunners to identifying trade as leverage for incentivizing migrant returns

 

For the past decade or longer, EU Member States have sought to level the playing field over migration policy among North and West African countries of origin and transit, by proposing one-size-fits-all bilateral migration management, on the basis of Art. 79:5 TFEU in the shape of agreements linking legal pathways to cooperation on returns. France’s agreements on the joint management of migration flows and solidary development for example, stepped up labor admission quotas, or created the same new categories of admission, for all of the seven African countries willing to sign on to a readmission clause. The suggested EU GSP link to cooperation on migration, would run counter to precisely those efforts, that remove treating certain origin countries better than others, thus risking to re-install post-colonial privileges (Robertson 2017).

 

Another forerunner to the prospective trade and (return) migration linkage, is the EU Compact with Jordan which reduces tariffs to duty-free, quota-free exports (DFQF) for products manufactured in Jordan with 10% (first 2 years) and later on, 15% ‘refugee content’. For becoming eligible for this Everything-but-Arms (EBA) privilege, Jordan had to temporarily accept a least-developed country (LDC) status. Whereas Jordan was compensated for employing refugees, in an afterthought, the DFQF occurred with a view to reducing secondary onward movement of refugees to Europe (Lenner 2020). If the EU’s Jordan Compact targeted refugees and not migrants, it was critically received by scholars (Gordon 2021) and advocates of fair and ethical recruitment under ILO standards.

 

Tariff Reduction for Return Migrations? Criticism of the proposed EU GSP 2023-34

 

Trade preferences can be critical for the survival of a developing country on the global market, and their withdrawal carries ethical consequences, as discussed by Tans 2023. Questions about the legality of the EU GSP scheme under WTO law (ODI Report 2023) also arise. Firstly, for Tans, proposing to retract tariffs if migrant returns seem low (to the EU), is not immediate enough a link to human mobility (EP in-depth analysis of the Commission’s proposal of January 2022). In this line of thinking, the Commission would first need to open legal pathways for migrants under the temporary movement of persons, the so-called Mode 4, under an economic partnership agreement (EPA) before it could retract trade preferences in goods.

 

If we recall how Mode 4 GATS stands as the only format of international human mobility that is liberalised internationally, under the multilateral WTO/GATS (Chetail 2014), Mode 4 presents the very connection between trade and temporary migration that is missing from the EU’s proposal. Labelled ‘mode 4’ of Art. 1:2(d) GATS this temporary mobility is a sub-form of international migration. However, it is limited under an excruciatingly narrow definition, to a) temporary stay abroad, b) not entering the labor market (only the services) of the host country c) opened only under commitments by member states d) categories of persons are narrowly defined, often clustering in the highly-skilled segments (Trachtman 2009;). As (Tans in this blogpost) suggests, the EU conditionality working through Everything-but-Arms (EBA) and GSP+ should only apply to those nationals who move under the EU’s GATS mode 4 commitments, if they fail to return voluntarily at the end of their legal temporary stay.

 

Looking for Alternatives 1: Cotonou Convention’s Cooperation on Migrant Returns

 

To this day, the temporary, cross-border movement of natural persons, the so-called Mode 4 has been missing out of EU economic partnership agreements (EPA) with North African countries (Cottier and Shinghal 2021), such that threatening to withdraw tariff preferences under the EU GSP, or even suspending the cross-border mobility so as to penalize countries in North Africa for refusing to take back their own citizens in irregular stays abroad remains illusory. In addition, speaking against penalizing countries of origin for refusing to take back citizens, and thus, against applying the EU’s revised GSP, is Art. 74 on ‘return and readmission’ of the 15 April 2021 negotiated agreement text initialed by the EU and the ACPs chief negotiators -- a follow-up to the Cotonou agreement  -- restates Art. 5 Cotonou agreement with the exception of a return clause which is free from any conditionality—neither is there a negative consequence for failing to take back one’s nationals, nor are typical migrant host countries required to open their labor markets to potential migrant workers.

 

Looking for Alternatives 2: Preferential Trade Agreements and ‘Embedded’ Returns

 

Several economic partnership agreements (EPA) have been consolidating an emerging opinio juris of obliging the origin country to take back their own nationals, once these have terminated their temporary stay to supply a service abroad:  Japan’s EPAs with the Philippines (2008), Indonesia and Vietnam (2009) codify a return clause, which is linked to a services trade commitment. It spells out a requirement for the Filipino, Vietnamese nurses and caregivers to return home, who have failed Japan’s national board examination (NBE). Because this return clause applies solely to the closed-circuit of the categories of persons whose movement the EPA facilitates (Efendi at al. 2013; Naiki 2015), I label it ‘embedded return’. Japan’s EPA of 2019 with the EU, Annex 17 imposes a duty of cooperation on worker’s returns, even if it remains generic when compared to Japan’s EPA with the countries mentioned above. Unlike for what the EU Commission envisages with reforming its GSP regulation, Japan’s EPA carry no negative consequences if either Vietnam, Indonesia or the Philippines fail to cooperate on returns.

 

A Definitive ‘No’? Uncertain Legality of a Trade - Return Migration Linkage under WTO Law

 

As Carzaniga and Sharma 2022 note, WTO Members’ right to regulate emerges from Art. VI GATS. As such, there is a discretionary space under Art. VI, but not an unlimited one, which would permit biometric border surveillance and data collection at the border, under the condition that certain criteria, including transparency are met. However, such broad reading contrasts with the GATS Annex on the Temporary Movement of Natural Persons which stipulates that measures that regulate entry and stay remain under the sovereign right of WTO Members and fall outside the scope of the WTO. Under this narrow interpretation, any PTA linking return duties conditionally to the temporary movement of workers would, in theory, be in breach of the GATS Annex. To summarize, the EU Commission might be infringing WTO/GATS by proposing a GSP reform since the multilateral trade rules of the WTO/GATS Annex preclude a legal connection being made between migrants’ return and trade in services. Beyond the uncertain legality of the Commission’s proposed reform of Regulation EU 1083/2013, there are political economic reasons why arguing in favor of the reform would be bad judgment, discussed further below.

 

People-on-the-move and the ‘new’ EU GSP 2024-34: Moving to the GATS Services Waiver instead?

 

A key consideration speaking against using the revision of the EU GSP to manage the EU’s external migration policy, are the uncertain consequences for countries non-complying with the GSP+ or EBA? In general, countries subject to the GSP+, need to ratify the 27 international law conventions on good governance, labor and human rights, as well as environmental protection, for becoming eligible for the preferential tariff treatment. If the EU deems there is a failure to fully implement provisions of these 27 Conventions, it will normally suspend the preferential tariff and the country’s exports move back to the higher regular tariff (Cambodia in 2019). Now, if the EU considers a ‘failure to cooperate on return migration’ in the same rationale as the 27 Conventions, it conjures a questionable linearity between irregular migration and a non-existent international convention about protecting migrants’ rights. Naturally, the ILO Migrant Workers’ Convention could embody the 28th international convention countries of origin of migrants would be asked to sign to receive the tariff privilege, so as to create a closer lineage.

 

However, since no EU Member State has signed onto to it, this option falls out of question, even if thematically it would address the linkage the EU desires to build. If not the ICMWR, would the 7 GSP+ beneficiaries of the EU, which are Sri Lanka, Cap Verde, Pakistan, the Philippines, Kyrgysztan, in addition to ratifying the 27 UN Conventions be required to sign onto EU readmission agreements, or EU mobility partnerships or the UN anti-smuggling/trafficking protocols as the benchmark for obtaining the lower tariff? Would cooperating with a single EU Member State thru a bilateral readmission agreement be sufficient to hold off higher tariffs on cotton T’shirts or cocoa products or coffee? By the very act of withdrawing trade preferences, if the EU perceives efforts of reducing irregular migration as waning, becomes comparable to suspending tariff preferences from a beneficiary country where corruption starts to spread, narcotics are being produced or trafficked, labor standards are neglected, human trafficking and smuggling take place. In this logic, irregular migration becomes an act that is to be penalized and sanctioned, in the same order as narcotics trading, corrupting business practices or human trafficking and smuggling, which ethically and legally is a questionable nexus to make.

 

There are better ways to incentivize countries of origin to take back their citizens in unlawful stays abroad than to withdraw tariff preferences. One is to use the LDC Waiver of WTO/GATS whereby a host country increases sectoral labor market openings in services for nationals of a country of origin. This scheme has the advantage of closely matching with the EU Talent Partnerships, the former which are sending potential migrants for a training and upskilling to Europe. In concreto, the mechanism is the following: if the LDC cooperates with the EU on irregular migration, it shall obtain additional market access on mode 4 or mode 3 for its natural persons involved in service provision. Under this paradigm, unlike with for the GSP+/EBA, migration is neither treated as a criminal activity that needs to be contained. In fact, the EU is already testing an LDC Waiver type of model in its Skills Partnerships, which ‘buy professionals from an LDC to deliver services in Europe’ (WTO Council for Trade in Services, Webinar on LDC waiver 2-3 June 2021).

 

In preferring the LDC Waiver alternative to vamping up the GSP, the EU would make a strong statement that cross-border mobility, in the first instance, occurs for improving migrants’ wellbeing that it is ‘cooperative rather than punitive’ (FIDH 2023).

 

In addition, the EU GSP+/EBA reform, as proposed by the Commission, discredits its pilot projects on labor migration and skills partnerships, which already have incorporated a return obligation for all the trainees sent to an EU Member State for upskilling. Even if the contentious term of ‘return’, is replaced by the expression of a so-called ‘soft landing’ back home (Garcia Andrade 2020), these EU Talent Partnerships are anything but free from return obligations. Hence, to now enlist the GSP+/EBA scheme for securing even more returns, puts developing countries and LDCs at risk of an additional sanctioning mechanism (Bisong 2022).  

 

Exploring the ‘LDC Waiver’: Securing Cooperation on Returns by Providing Legal Pathways on Mode 4

 

Special and differential treatment (SDT) for the Global South under Art XIX GATS (OECD 2016) calls on  WTO Members to ‘give special priority’ when opening services markets to exports of LDCs.  On the basis of Art XIX, WTO Members took a Ministerial Conference decision on 17 December 2011 to install a LDC services waiver. Since WTO Members were not using it, LDCs were encouraged to make a collective request under the lead of Uganda, to indicate in which sectors of their services industries a waiver of the MFN and a removal of discriminatory barriers  to national treatment (including quotas, licensing requirements, authorization procedures, labor market tests or professional qualifications) could prove development-friendly. By 2015, 50 WTO Members had made offers, and at the Nairobi Ministerial Conference, a decision was adopted to prolong duration of the waiver until 2030.

 

Under the LDC waiver, the EU, US, Canada, Singapore offer ‘best Free Trade Agreement (FTA)-level’ or in 25% of cases above best FTA level, which is the only way for LDC service suppliers to enjoy a competitive advantage on the global services markets. The LDC waiver provides predictability to service traders who otherwise operate under high volatility, so that a sustainable services industry can grow in LDCs and is more in line with day-to-day reality of LDC economies, many of which are no longer export-based in terms of goods. Australia’s opening of warehouse services beyond the categories it has liberalized in the WTO is promising, while Switzerland opened insurance services to LDC providers with lower qualification/notification requirements.

 

Special and Differential Treatment (SDT) under the early years of GATT was limited to developing countries granted preferences amongst each other (1971) and later on, industrialized countries followed suit, when the GATT Enabling Clause L/4903 0f 1979 transformed the 10-year waivers  of the 1970s into permanent ones. In contrast, the LDC Services waiver, while based on the idea of SDT, requires countries, like the EU, to offer non-reciprocal market access in sectors or modes of services delivery of interest to the services exports of developing and least developed Members. Moreover, it is temporary without a clear scope for discretion over how much reciprocity the grant-giving country is prepared to offer. Such facts, including that SDT is generally considered more difficult to implement than trade facilitation (Elsig 2010), render the Commission proposal difficult to digest and even more treacherous to implement. On the upside, the causality of openings in all four modes of services supply or Mode 4 only, would make the case to embed international people-on-the-move and their forced returns within the Services Waiver more plausible, because the fourth mode of service delivery, the so-called Mode 4 of GATS is the only WTO entry point for the temporary movement of natural persons, which can involve migrants, including in irregular stays, depending on national immigration and labor legislation.

 

Conclusions

 

In this blogpost I put forward the case for subsuming a compensation mechanism for countries of origin taking back migrants in irregular stays under the LDC Services Waiver of the GATS, rather than under the 1971 GATT Enabling Clause legitimizing the sequence of EU GSP Regulations.

 

The EU Commission’s heralded ‘positive outcome’ for states cooperating on migrants’ return, appears to be a negative conditionality of withdrawing tariff duties. As such it is less attractive than pledging market access under the LDC Waiver, in more than one way. Firstly, sending countries are often serving as regional services hubs in construction, logistics, and production-related services or becoming global players in tourism and healthcare, such that benefitting from the LDC Waiver, if cooperating on return migration with the EU, resonates with the Global South’s evolution from export-based manufacturing to service economy.

 

Secondly, source countries are more likely to embrace a pledge by the EU to open a services sector, in exchange for ensuring a functioning readmission procedure, than they will actually benefit from already low tariffs. Therefore, to co-opt the LDC Waiver for migration management leads to a fuller integration of countries of origin into global value-chains.

 

Thirdly, the LDC Waiver works without attaching conditionalities. This is key because having too many conditionalities can increase the compliance costs on developing and least-developed countries and backfire, as a disproportionate amount of resources is invested into meeting criteria, rather than on the ground. (US Congress, GSP 2022).

 

In sum, the LDC Waiver not only responds to the WTO’s call for special and differential treatment of developing countries, but it offers more credibility to the revised EU GSP 2024-34 than the GSP, because of its co-ownership by countries of origin. The LDC Waiver opens up valuable export markets in exchange for a duty of taking back one’s own citizens. It would certainly be more in line with the WTO Marrakech Agreement’s Preamble which stresses ‘the need for positive efforts designed to ensure that developing countries …secure a share in the growth in international trade’ over negative retribution as a way to elevate nations out of poverty.

 

 

 

 

Negotiating the future relationship between the UK and EU: the EU negotiating mandate

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.    

Form of the relationship

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.

Economic partnership

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