My thoughts following the declaration of sufficient progress in the first phase of Brexit negotiations.
Today, the European Council concluded that there has been ‘sufficient progress’ in the first phase of the negotiations on the priorities of citizens’ rights, the financial settlement and the unique circumstances on the island of Ireland. Brexit negotiations can now move onto phase two, which will focus on working out the detail of principles agreed in the first phase, alongside discussions on transitional arrangements and the framework of the future relationship between the EU and the UK.
In many ways, the real challenge has only just begun.
While we have the principles and parameters in place on the major priorities of the withdrawal of the UK from the EU, the not insignificant task of untangling more than 40 years of shared rules and laws is still ahead.
This second phase of negotiations will cover the transition period and the framework of the future EU-UK relationship, including trade. But it is important to stress that it is only the framework for a future trade deal which will be negotiated at this time, not the trade agreement itself as this can only be finalised once the UK has left the EU and becomes a third country (i.e. after 29 March 2019).
The procedure of negotiations on this future relationship is outlined in Article 218 of the Treaty on the Functioning of the EU. While Article 50 of another EU Treaty, the Treaty on European Union, is the key for withdrawal from the Union, it is under Article 218 that the new relationship between the EU and the UK will be established.
The European Council guidelines agreed today stipulate that any understanding brokered between the EU and the UK in the second phase should be “elaborated in a political declaration and referred to in the Withdrawal Agreement”. So, a political commitment is certainly possibly around the broad parameters of a future trade agreement at the end of phase two, but the signing of any future EU-UK trade agreement is some way off.
The first step in the New Year, however, will be for the EU and UK negotiators to begin discussing the transition. This is expected to begin after the adoption of negotiating directives on transitional arrangements by the Council in January 2018. Discussions are due to cover areas such as: the length of time of the transition; whether the UK will continue membership of the Customs Union and the Single Market; and whether it will continue to accept the jurisdiction of the European Court of Justice.
Importantly, the European Council’s guidelines for the next phase in the negotiations state that this transition must work for the Union. In order for there to be a level playing field in terms of competition across the Single Market, the EU27 leaders asserted that during transition, the UK will have to adopt changes to the ‘acquis’ (i.e. the body of EU legislation). They also agreed that if the UK is to continue to participate in the Customs Union and the Single Market, it will have to uphold the four freedoms (the freedom of movement of people, goods, services and capital) and comply with EU trade policy and EU customs regimes.
This transition will also have to be limited in time.
The discussions on trade itself are not expected to commence until the after European Council Summit in March of next year, when the EU27 leaders will adopt guidelines for negotiations on the future trade framework.
These negotiations will continue in parallel with working out the detail of the broad parameters agreed in phase one on the issues of citizens’ rights, the financial settlement and the unique circumstances on the island of Ireland. Crucially, the EU27 leaders have specified that “negotiations in the second phase can only progress as long as all commitments undertaken during the first phase are respected in full and translated faithfully into legal terms as quickly as possible”.
Of particular interest in Ireland will be detailed discussions on the border and North-South cooperation, as well as extended conversations on the Common Travel Area, which are needed to translate the commitments of phase one into workable solutions. As before, these issues will form a separate stream, recognising the unique impact of Brexit on the island of Ireland and importantly, the strong solidarity with Ireland shown by the other EU Member States and Institutions.
To paraphrase the Taoiseach, it is but the end of the beginning and the beginning of the end…
Noelle O Connell is Executive Director of European Movement Ireland.