Setting Brexit negotiations on an immediate collision course, the European Council said Friday it would insist on resolving the terms of the U.K.’s departure before discussing the country’s future relationship with the EU.
The Council’s position, laid out in draft negotiating guidelines obtained by POLITICO, flatly rebuffs a call by U.K. Prime Minister Theresa May in her official notification letter “to agree the terms of our future partnership alongside those of our withdrawal.”
May repeated that phrase four times in her six-page letter formally triggering Article 50 Wednesday, underscoring the importance that she places on implementing what she called a new “deep and special partnership” before the U.K. breaks free from the bloc.
Speaking to journalists in Valletta, Malta, European Council President Donald Tusk, who directed the development of the draft guidelines, made clear that he expected tough, complex negotiations and that his priority would be the citizens of Europe and EU countries – not the interests or demands of London.
“The United Kingdom is now on the other side of the negotiating table,” Tusk said, appearing at a news conference with Maltese Prime Minister Joseph Muscat.
“Once, and only once we have achieved sufficient progress on the withdrawal, can we discuss the framework for our future relationship,” Tusk said, adding that he aimed to conclude the first phase of the negotiations as foreseen by the EU, “probably in the autumn — at last I hope so.”
Council called for a strictly “phased” approach, in which talks on a future relationship would begin only when “sufficient progress” had been made on the divorce terms.
His host, Maltese Prime Minister Joseph Muscat, added that it was “exclusively” for EU leaders to define what constituted “sufficient progress”.
The Council document is the EU’s first effort at a formal response to May’s triggering of Article 50, which set in motion the two-year negotiating process. Distributed Friday morning to ambassadors for circulation in their home capitals, it lays out the EU’s broad principles as it enters negotiation with the U.K.
The guidelines are due to be approved by leaders of the remaining 27 EU countries at an extraordinary summit in Brussels on April 29 and will be followed by more detailed written directives for the EU’s chief negotiator, Michel Barnier and his team. At that point, the actual talks will be set to start. Read the full document here.
While the draft guidelines echoed May’s hope for a collegial negotiating process and agreement on an orderly departure, the Council also called for a strictly “phased” approach, in which talks on a future relationship would begin only when “sufficient progress” had been made on the divorce terms, including on such complicated issues as guarantees for citizens, the U.K.’s financial obligations and Ireland’s borders.
“The first phase of negotiations will aim to settle the disentanglement of the United Kingdom from the Union and from all the rights and obligations the United Kingdom derives from commitments undertaken as member state,” the Council wrote, and “provide as much clarity and legal certainty as possible to citizens, businesses, stakeholders and international partners on the immediate effects of the United Kingdom’s withdrawal from the Union.”
The Council noted that “an overall understanding on the framework for the future relationship could be identified during a second phase of the negotiations under Article 50m” but it also pointedly ruled out concluding any agreement on a future relationship until after the U.K. formally withdraws from the EU.
The guidelines left open the possibility of a transition period that might avoid a rapid and disruptive exit, but did not specifically endorse such a transition, which it said would have to be “clearly defined, limited in time, and subject to effective enforcement mechanisms.”
“We think it is important to insist on a phased approach,” said a senior EU official involved in drafting the guidelines. “We need to be able to establish as far as possible what will be the situation the day after Brexit before we start talking about the medium and long-term future.”
“We cannot smuggle the future relationship as such under Article 50. It is simply legally not possible” — Senior EU official
The draft guidelines are the first in a series of formal documents the Council will issue laying out its principles in the Brexit talks and giving specific directives to its negotiating team, and effectively provide the EU’s first formal response to May’s notification letter.
While the guidelines are subject to revision and must be approved by the EU’s 27 leaders at a summit meeting on April 29, officials stressed the draft was the result of nine months of close consultations between the EU institutions and the capitals. As a result, Council officials said, the overarching principles laid out in the draft guidelines are unlikely to change.
The senior EU official said the bloc’s chief negotiator, Michel Barnier, would be expected to return to the Council for clearance to move from one phase of negotiations to the next.
“Once sufficient progress in Phase One has been achieved and the European Council comes to this assessment that sufficient progress has been achieved, then we can move on,” the official said. “And that next phase, of course, will be about the future, about the framework for the future relationship, but again, we think we need to deal with first things first.”
But the official warned that legally there would be no way to seal a future agreement with the U.K., in part because any such deal would require the ratification by national parliaments of the 27 EU countries, a process that can take up to two years following the conclusion of an agreement.
“Article 50 is about what it says it is about, it’s about the arrangement for withdrawal, taking account of the framework for the future relationship. That’s what it’s about and that’s what we intend to do,” the official said. “But we cannot smuggle the future relationship as such under Article 50. It is simply legally not possible.”
The Council’s guidelines are intended to articulate the core principles of EU leaders as they confront the first-ever departure of a member.
Chief among those principles is a balance of “rights and obligations” — an equation that EU officials said was made substantially simpler by the U.K.’s decision to leave the bloc’s single market and its customs union.
From virtually the moment the result of the U.K. referendum was clear, EU leaders had been resolute that the four freedoms that serve as pillars of the single market were non-negotiable. May’s decision to leave the single market and the customs union avoided a messy fight, particularly over the freedom of movement of citizens, which the U.K. had made clear it would no longer honor as it moves to tighten immigration controls.
The draft guidelines, however, state that if the U.K. wants a transition period that would extend its participation in the single market, the fundamental freedoms must be honored and “existing regulatory, budgetary, supervisory and enforcement instruments and structures” must continue to apply.
The Council expects Britain to live up to its responsibilities on “liabilities and contingent liabilities” without pegging any specific number.
After EU leaders approve the guidelines at a special summit in Brussels on April 29, the Council, based on recommendations from the European Commission, will develop far more detailed negotiating directives for Barnier and his team. Those directives are expected to be approved in late May. Once that occurs, the formal talks with the U.K. can begin.
In the draft guidelines, the Council took a broad but straightforward approach on many issues. On the question of how much Brexit will cost the U.K., the Council simply declared it expects Britain to live up to its responsibilities on “liabilities and contingent liabilities” without pegging any specific number.
“A single financial settlement should ensure that the Union and the United Kingdom both respect the obligations undertaken before the date of withdrawal,” the Council wrote in the draft. “The settlement should cover all legal and budgetary commitments as well as liabilities, including contingent liabilities.”
On citizens’ rights, the guidelines were slightly more expansive in calling for guaranteed protections for nationals of EU countries living in the U.K. and Britons living in EU countries.
“The right for every EU citizen, and of his or her family members, to live, to work or to study in any EU member state is a fundamental aspect of the European Union,” the Council wrote, adding: “Agreeing reciprocal guarantees to settle the status and situations at the date of withdrawal of EU and UK citizens, and their families, affected by the United Kingdom’s withdrawal from the Union will be a matter of priority for the negotiations. Such guarantees must be enforceable and non-discriminatory.”
Officials said the EU would seek new legal mechanisms in the U.K. so citizens can seek redress if they feel mistreated. “On the EU side, we have clear rules for that, we have complaints procedures, we have the Court of Justice,” an official said. “There needs to be also on the U.K. side some sort of practical means of enforcing, in effect exercising your rights.”
In addition, the guidelines urge the protection of the autonomy of EU decision-making, essentially calling for the U.K. to commit to interfacing with Brussels and not trying to circumvent the EU in talks with individual members.
“The Union will act as one,” The council wrote. “It will be constructive throughout and will strive to find an agreement. This is in the best interest of both sides.”
And while the Council said it welcomed the U.K.’s desire for a strong future relationship, it warned that life for the U.K. would not be as good as being a member of the EU. “The European Council welcomes and shares the United Kingdom’s desire to establish a close partnership between the Union and the United Kingdom after its departure,” the Council wrote. “While a relationship between the Union and a non member state cannot offer the same benefits as Union membership, strong and constructive ties will remain in both sides’ interest and should encompass more than just trade.”
Reality sinking in
In discussing the guidelines, EU officials expressed some satisfaction that reality seemed to be taking hold in London.
“There will be a new legal border between the U.K. and the rest of us simply because the legal situation will be different on the two sides of that border,” a senior official said, adding, “That is simply inescapable. It is a mechanical consequence of the decision of the U.K. to leave the single market and the customs union and therefore there will also be a certain level of economic and other types of disruption.”
“We can and should … do what we can to reduce some of those consequences,” the official said. “But we cannot eliminate those consequences. There will be some disruption. And so far in the U.K. debate, it has often looked as if well nothing will change. There, I note, in the Theresa May letter she does start to prepare her home ground for the fact that this will have consequences.”
“In many ways this is an absurd tragedy in which all of us must play our predestined roles” — Senior EU official
But as officials in Brussels braced themselves for the tough negotiations ahead, there was also an overall tone of sorrow and regret. “In many ways this is an absurd tragedy,” the senior EU official said, “in which all of us must play our predestined roles.”
A spokesman for the U.K. government said: “These are draft guidelines and we look forward to beginning negotiations once they have been formally agreed by the 27 member states.”
“It is clear both sides wish to approach these talks constructively, and as the prime minister said this week, wish to ensure a deep and special partnership between the U.K. and the European Union.”