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2. THE UK IS STILL LOOKING FOR AN IMPOSSIBLE BREXIT
2.1. The lack of British initiative over the Irish border will condemn the UK to the acceptance of the option provided by the European negotiators
[...] In order to avoid a physical border between the north and south of Ireland, the UK has made two suggestions:
• The first would be to introduce customs cooperation, which supposes that the UK would apply the EU’s requirements to its border on imports from the rest of the world destined for the EU. The UK would implement the same tariffs and the same rules as the EU on these goods. By doing this the EU would not need to undertake another control on its borders with the UK. The UK would complete this mechanism, implementing its own tariffs and rules on goods which are designed for its market;
• The second would comprise the introduction of “an extremely rationalised customs system, in which the UK and the EU would jointly accept the implementation of a series of measures that would aim to minimise trade tension, as well as specific measures for Northern Ireland”. In virtue of these measures the UK proposes the introduction of control procedures that are as free as possible (automated administrative controls, recognition of “trusted traders” with the application of better IT solutions so that vehicles do not have to stop on the border).
Both solutions put forward by the British face major difficulties, both from a practical and a conceptual point of view. The first involves the guarantee of effective follow-up mechanisms, regarding the destination of the goods and maintaining a high level of trust.
The second means introducing already existent measures or technologies that have not yet been invented. Moreover, the success of each of these proposals would rely on a great share of trust between those involved and on strong procedures. The EU would therefore take the risk of an experiment, the success of which would be very uncertain and would provide it with but few advantages.
These problems become even clearer when it comes to the specific proposals for Northern Ireland mentioned by Theresa May in her second suggestion. Allowing SMEs from Northern Ireland and the Republic of Ireland (trade between them would represent 80% of trade according to the British), to continue as they do now, without any restrictions, would lead to a distortion in competition, freeze an economic and trade situation in the future that would certainly evolve and take away all means of control from the EU regarding goods entering the EU via Northern Ireland.
The UK does not say whether the ECJ’s competence or the future developments in European regulations would apply, whilst these details are the inevitable counterparts of the Single Market.
2.2. Oscillating between alignment and divergence with the EU, but above all Theresa May is trying to present a Brexit that is acceptable to the British
[...]As presented by Theresa May, the option of divergence looks like a unilateral option of withdrawal; the Europeans cannot accept this. It would allow the UK not only to benefit from major rights without being an EU member, but it would also allow it to develop its legislation differently, when it deems it suitable, without the Union being able to exercise any control other than political pressure.
The option of divergence, just like the other British proposals, combine a proposal for negotiation (to be based on normative alignment between the two entities to bring their economies together) and an argument of internal policy (clearly maintaining British independence). Between a purely symbolic Brexit and one that is economically rational – an acceptable balance for the British is sought by Theresa May.
Hence the option of divergence, whilst it is highly criticisable and criticised by the Europeans, is the focus of unanimity amongst the British political classes, both amongst those advocating a “hard” Brexit, like Jacob Rees-Mogg (who qualified the measures as “significant, pragmatic and generous” and amongst those who want to retain strong links with the EU, such as Sarah Wollaston.
The same goes for many issues – and off-topic questions – addressed by Theresa May since her first speech on Brexit given at Lancaster House, during which she maintained that the UK would take advantage of Brexit to strengthen workers’ rights, engage more in research and innovation as well as for the environment. These issues are not however the point of Brexit. On 2nd March last she again devoted her introduction, her conclusion, as well as several parts of her floor-time to extremely general declarations about domestic policy. Notably she hopes to turn the UK, free of the EU, into “a country that does not work for the smallest number of the privileged, but for each and everyone of us.” She presented the vote in support of Brexit as a “vote for wider change, so that no community in Great Britain is ever neglected.”
Theresa May is trying to show by all possible means that Brexit can be beneficial, and she is doing everything for it to be a success. But from this point of view her Brexit is impossible because it creates a distortion between the acceptability and the reality of Brexit.
3. THE DEFINITION OF THE FUTURE RELATION WITH THE UK WEIGHS HEAVY ON THE EU, WHICH WAS NOT THE CAUSE OF BREXIT.
3.1. The European negotiation mandate integrates the British red lines and turns them into a legally acceptable position
Whilst the UK does not present any clear vision of Brexit, nor any real solutions to an overall coherent way of viewing future relations, it regularly sets out its red lines.
Very often the Union has responded to these red lines with a legal approach. Indeed, when in the first phase of negotiations the UK maintained that it would not pay under the framework of the financial settlement of withdrawal, it was reminded of its legal obligations. When some ministers forcefully maintained that there would be no transition agreement, they were reminded of the legal safety and continuity in the implementation of standards. When the UK mentioned a possible participation in certain aspects of the Single Market, European negotiators reminded it that this is indivisible and that it goes hand in hand with the ECJ’s competence.
Since 15th December 2017 the starting point of the European position has been a British red line: “the Union notes that the UK has said it no longer wants to take part in Customs Union, nor in the Single Market after the transition period.” The negotiation mandate given to the European Commission provides in this sense the achievement of a “balanced, ambitious, and wide free-trade agreement which is not equivalent to participation” “in all or part of the Single Market. To guarantee fair economic relations the agreement will have to include “guarantees against undue competitive advantages”. This point is one of concern expressed by Theresa May (in terms of competition and State Aid) and by the Europeans (regarding tax, social and environmental practices, or those affecting regulation). Regarding financial services, the March 2017 guidelines already provided an agreement to guarantee the financial stability of the continent, respecting its “regulatory system and standards, as well as their implementation”. Outside of the areas linked to trade, Europe’s position is open to the establishment of partnerships. The guidelines of the Council of 23rd March 2018 illustrate a pragmatic European approach to Britain’s red lines: if the latter change, European proposals can be adapted as a consequence. The UK therefore remains free to modify its vision of Brexit; the Union will respond according to what the treaties allow.
The UK’s requests have been accepted by the Europeans when they have been legally acceptable. The guidelines in the framework for future relations with the UK show this in terms of the need to continue the fight to counter terrorism and international crime, as well as in terms of cooperation in defence, foreign policy, justice and the fight to counter climate change. The same applies to participation in European programmes in the areas of research and innovation, education and culture. Regarding aviation, the Council of 23rd March provides the possibility for agreements on air transport, aviation safety and security.
The bid to transpose the British red lines is also to be found in the European Parliament. Guy Verhofstadt, the leader of the ALDE group, presented a resolution on 7th March last which was adopted by the European Parliament on 14th March oriented towards an association agreement between the UK and the EU. In this context the future relation might be based on four pillars: trade and economic relations, foreign policy and security, internal security and thematic cooperation. As he presented this proposal G.Verhofstadt indicated that he had “tried to make the link between the red lines of the British government and the principles governing the functioning of the European Union.”
3.2. In answer to the five British political “tests” there will be two European legal “criteria”
Theresa May announced on 2nd March 2018 that she would gauge the agreement on the future relation between her country and the EU by using five tests which appear to be extremely political and not very operational:
• Any agreement will have to respect the result of the referendum of 23rd June 2016;
• This agreement should create credibility;
• It will have to protect jobs and security;
• It will have to be “coherent with the type of country we want to be – modern, open towards the outside and tolerant”;
• Finally, any agreement will have to find agreement in the UK as a whole.
For his part, Donald Tusk presented two criteria on 7th March 2018 that the negotiations will have to satisfy:
• A criterion of balance between the rights and obligations of each side, taking the counterexample of an agreement that would give the UK rights like Norway with the obligations of Canada;
• A criterion of integrity of the Single Market. This criterion can be divided into two parts: the impossibility of accepting that a State be able to choose – freely and according to its interests – to submit or not to the jurisdiction of the ECJ; the impossibility of accepting an “à la carte” choice of areas of the Single Market in which this State would like to take part.
Hence Theresa May has responded to vital political constraints. Donald Tusk’s position is more legal. He is defending the application of the treaties and the community acquis of the European Union, notably as far as the Single Market is concerned. This European position is powerful, but effective only because European public opinion is mainly uninterested by the Brexit negotiations: there is no real debate from a political point of view amongst the 27. Hence Europe’s negotiators can use stable standards and institutions to the full. For them it means implementing article 50 of the Treaty on European Union in terms of the withdrawal agreement, then existing measures regarding trade or association agreements to define the future relationship.
We can expect no more of the European negotiators other than a transposal of the UK’s red lines into legally acceptable positions in view of the treaties. Inspiration will come from the British, or not.