Michel Barnier – Photo EU Council
(BRUSSELS) – EU27 ministers adopted a new set of Brexit negotiating directives Monday, detailing their position on a transition period after Brexit, and allowing the EU Commission to start talks with the UK on the issue.
Any transition arrangement – to last for 21 months, until 31 December 2020 – would demand Britain’s full compliance with EU law, or the EU ‘acquis’, and no involvement in EU decision-making and the EU institutions.
“We are all glad to be able to start discussing the transition with the UK,” said Bulgaria’s Deputy Prime Minister Ekaterina Zaharieva, for the EU presidency: “However, we must not lose sight of the so-called “exit matters”. It is essential and urgent to complete this work. And of course all the commitments undertaken in December need to be respected in full and translated into legal text. This is essential for negotiations to progress.”
The EU position makes clear that the whole body of EU law, or the EU ‘acquis’, will continue to apply to the UK during the transition period as if it were remained a Member State. In addition, changes to the acquis adopted by EU institutions, bodies, offices and agencies during that period would also apply in the UK.
The reason, according to the EU’s chief Brexit negotiator Michel Barnier, is clear: “during transition, the UK will continue to take part in the Single Market, the Customs Union and all Union policies. It will continue to have all the economic benefits. Therefore it must also apply all the EU rules. The Single Market cannot be “à la carte,” he warned.
Concerning the area of freedom, security and justice, where the UK has a right to opt-in and opt-out of individual pieces of legislation, the current rules will apply for acts adopted during the transition by which the UK is bound before its withdrawal. However the UK will no longer be allowed to opt into new measures in this area other than those amending, replacing or building upon the ones he is bound before its withdrawal.
During the transition period, the UK will also remain bound by the obligations stemming from the agreements concluded by the EU, while it will no longer participate in any bodies set up by those agreements.
As the UK will continue to participate in the customs union and the single market (with all four freedoms) during the transition, it will have to continue to comply with EU trade policy, to apply EU customs tariff and collect EU customs duties and to ensure all EU checks are being performed on the border. This also implies that during that period the UK will not become bound by international agreements in its own capacity in fields of competence of EU law, unless authorised to do so by the EU.
The UK will also remain bound by the obligations stemming from all existing EU international agreements, on trade and also on aviation. “This,” says M Barnier, “is crucial for the good functioning of the Single Market and the Customs Union. And we can agree on this in the Article 50 Agreement between the EU and the UK.”
However, M Barnier also warned that the EU would not be able to ensure in the Article 50 Agreement that the UK can retain the benefits from these international agreements: “Our partners around the world may have their own views on this, for instance the 70 countries covered by trade deals.”
It is clear that the UK, as already a third country, will no longer participate in the institutions and the decision-making of the EU.
It will no longer attend meetings of Commission experts groups, committees or other similar entities where member states are represented. Exceptionally on a case-by-case basis, the UK could however be invited to attend one of these meetings without voting rights.
Specific consultations will be foreseen with regard to the fixing of fishing opportunities (total allowable catches) during the transition period, in full respect of the EU acquis.
Negotiating directives on the transition period
Council decision of 29 January 2018 concerning the Brexit negotiations
