Open Britain’s Background Briefing: The latest European Commission Brexit negotiating papers

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On 29th June, the European Commission published a further six draft negotiating positions for the Brexit negotiations. This follows earlier publications of documents on citizens’ rights, the financial settlement, and nuclear energy. The most recent draft position papers focused on negotiations in the areas of ongoing police & judicial matters, the governance of the UK’s withdrawal agreement from the EU, the future of UK goods placed on the Single Market, and co-operation in civil and commercial matters. 

In comparison to the European Commission, the UK Government has produced just one solitary paper, on the future rights of EU citizens in the UK (available here), which Open Britain believes does not go far enough in providing the necessary guarantees for EU citizens living in this country. Open Britain’s assessment of this document can be found here.

The Government is clearly ill-prepared, and this raises serious questions as to whether the Government is capable of carrying out these negotiations in a way that gets a good deal for Britain, with the second round of negotiations starting on July 17th. Open Britain is calling on the UK Government to provide clarity on its own position on all of the areas raised in the European Commission’s draft papers in order to provide certainty for UK citizens and businesses, who are currently in the dark over the Government’s desired Brexit trajectory.

As regards next steps, the 27 EU member states will hold discussions on these draft papers before finalising versions which will then be passed to the United Kingdom Government.   

Six Position Papers

All draft European Commission position papers are taken from here

1. Judicial co-operation in civil and commercial matters: 

  • Short Summary: This paper covers ongoing civil and commercial obligations (for example, entering into a mobile phone contract, many business-to-business transactions, and buying a house) at the time of the withdrawal agreement. The paper explains that ongoing contractual obligations should still be subject to EU law. 
  • Open Britain’s View: The Government needs to provide clarity on what the UK position will be on this point, in order to provide certainty for UK businesses and consumers. A failure to provide clarity will impact on UK citizens with commercial and civil interests in the EU27 and risks damaging UK business interests, especially for those which trade with the EU27. 

2. Goods placed on the market under EU law before the withdrawal date:

  • Short Summary: This paper covers goods entering circulation in the Single Market at the time of withdrawal. Any good placed on the Single Market prior to withdrawal will remain on the Single Market. For example, a British car sold to a French dealership before Brexit could be sold normally by the French dealership after Brexit. No information is provided about the status of UK goods placed on the Single Market after withdrawal.
  • Open Britain’s View: Whilst Open Britain welcomes the position of the European Commission on existing goods placed on the Single Market at the time of withdrawal, the UK Government needs to go further in explaining to UK companies that they will not face any trade barriers post-Brexit to their largest market. Open Britain has long been calling for the UK to remain in the Single Market and Customs Union and this position paper by the European Commission further goes to show the uncertainty which already exists about the UK leaving the Single Market.        

3. Governance:

  • Short Summary: This paper focuses on the governance of the withdrawal agreement, and suggests that the withdrawal agreement must comply with rulings by the European Court of Justice as regards EU law; and that the European Commission should have full powers as regards the monitoring of aspects of the agreement related to citizens’ rights and goods placed on the EU market.
  • It also calls on both sides to set-up a withdrawal committee in order to monitor the withdrawal process. If, there is a disagreement in the joint committee, then the paper states that either side could take a disagreement to the European Court of Justice (ECJ). The paper also states that either side may request the ECJ to issue a fine, should it feel that an ECJ ruling had not been complied with as part of the withdrawal agreement.   
  • The paper also explains that any rulings by the ECJ on the withdrawal agreement are binding on both the UK and the EU but that the UK would enjoy the same procedural rights in front of the ECJ as the EU for any issue of the withdrawal agreement touching on the UK’s interests. 
  • Open Britain’s View: The Government must provide clarity on its own position on how it would like the withdrawal agreement to be monitored, as opposed to simply repeating the mantra that it “would like to end the jurisdiction of the ECJ in the UK”. It is important that necessary mechanisms are in place to allow for the correct application and interpretation of the withdrawal agreement to provide legal safeguards for citizens and businesses. The European Commission has provided a clear position on this and now the UK Government needs to do the same.    

4. Functioning of the Union institutions, agencies & bodies:

  • Short Summary: The main point from this paper is that the Commission proposes that the United Kingdom uphold all existing EU regulations which apply to any classified EU documents which the UK has in its possession, and that the UK ensures that there is relevant legal protection for EU work in the UK (for example, the European Medicine Agency before it leaves the UK) as regards the phasing out of any ongoing EU activities after the withdrawal agreement.  
  • Open Britain’s View: With the International Trade and Foreign Secretaries looking to strike new partnerships around the world, Open Britain calls on the Government to ensure that the relationships with our closest partner, the European Union, remain as intact as possible. This is of particular importance when it comes to the issue of safeguarding sensitive, classified information as well as legal protection for the phasing out of EU work on-going at the time of the withdrawal agreement.      

5. Ongoing police & judicial co-operation in criminal matters:

  • Short Summary: This position paper covers ongoing issues prior to the withdrawal agreement which will need to be resolved in the areas of judicial and police co-operation, including in a number of areas where Open Britain has openly demonstrated in the past that Brexit throws into question the UK’s future security standing. For more information on the risks of Brexit to UK security, please see here
  • Open Britain’s View: The UK Government needs to publicly guarantee that it will negotiate to continue UK participation in programmes which have been vital for our national security, including the European Arrest Warrant and the European Criminal Records Information System, both of which play a key role in helping to keep the UK safe.

6. Ongoing judicial & administrative procedures:

  • Short Summary: This paper covers ongoing judicial or administrative processes which are underway at the time of the withdrawal agreement coming into force, and stipulates that the status quo should apply, meaning jurisdiction for the European Court of Justice of any ongoing, unresolved cases.
  • Open Britain’s View: Open Britain would call on the Government to explain what its viewpoint is on this in order to provide necessary legal clarity to current and future UK plaintiffs, where any cliff-edge scenario at the time of withdrawal would lead to the creation of a legal black-hole for citizens and businesses alike.