Costa Bravo - The Barclay-Barnier Letters

1/5 Following the House of Commons unanimous support for my amendment seeking to protect the rights of millions of UK citizens in the EU and EU citizens in the UK, my letter to European Council President @eucopresident. #CostaAmendment pic.twitter.com/IX8K7QAKvN

— Alberto Costa MP (@AlbertoCostaMP) March 1, 2019

Jane Lambert

The Department for Exiting the EU has published a series of letters between the Rt Hon Steve Barclay MP and Michel Barnier on Alberto Costa MP's proposal that requires HM Government to seek a joint UK/EU commitment to preserving the citizens’ rights section of the draft withdrawal agreement whatever the outcome of the brexit negotiations.

By a letter dated 4 March 2019 to Monsieur Barnier, Mr Barclay explained the proposal, acknowledged that the Commission had already made a statement on the matter but requested  Monsieur Barnier's "formal views on our Parliament's proposal.

Monsieur Barnier responded on 25 March 2019. He began by stating that safeguarding the rights of citizens affected by the UK's withdrawal from the EU had been a top priority for the EU from the start and that the draft withdrawal agreement provided those safeguards.  He said that he was familiar with the proposal having received a copy of Mr Costa's letter to Donald Tusk from Mr Costa himself. However, he found it hard to reconcile the proposal with Parliament's vote of 13 March 2019 not to leave the EU without a deal. He stressed that the draft agreement was a fair compromise and the best and only deal possible.  As the provisions on citizens' rights were mixed up with other provisions such as the continued jurisdiction of the Court of Justice on certain matters, it was impossible to see how the rights provisions could be severed from the rest.  If the UK left the EU without a deal, the member states would continue to treat British nationals fairly.

There matters stood until 17 June 2019 when Mr Barclay had another go,  He said that there was growing support for the proposal in the UK and other member states, particularly among those representing the persons affected.  He invited Monsieur Barnier to think again.

Monsieur Barnier responded the very next day. He firmly believed that an orderly exit from the EU in accordance with the withdrawal agreement remains the best outcome for both the UK and the EU. If the UK leaves without a deal, the EU and its member states "would act in a responsible way through unilateral measures." These had already been set out in the Commission's Communication of 12 June 2019. The Commission noted in that document:

"In a ‘no-deal' scenario, the UK will become a third country without any transitional arrangements. All EU primary and secondary law will cease to apply to the UK from that moment onwards. There will be no transition period, as provided for in the Withdrawal Agreement. This will obviously cause significant disruption for citizens and businesses and would have a serious negative economic impact, which would be proportionally much greater in the United Kingdom than in the EU27 Member States."

It is unusual for negotiations of this kind to be conducted in writing or for such correspondence to be published. The British government must intend the general public and, in particular, British nationals and residents to read the letters. Is it cynical to suppose that the ground is being prepared for a blame game after 31 Oct?

Anyone wishing to discuss this post or brexit, in general, should call me on 020 7404 5252 during office hours or send me a message through my contact form.

Future Relationship Agreements with the EFTA States

Jane Lambert

On 20 Dec 2018, the Department for Exiting the European Union announced that the government had reached agreement with the governments of the EFTA member states on the UK's relationship with those states after 29 March 2019.  As Switzerland is a full member of EFTA but not of the European Economic Area (EEA") separate agreements have been made with the EFTA states that are party to the  EEA Agreement - namely Iceland, Liechtenstein and Norway - and also with Switzerland.

EFTA
The European Free Trade Association was established on 3 May 1960 by countries that were unable or unwilling to join the European Economic Community ("EEC"). Its founding members were Austria, Denmark, Norway, Portugal, Sweden, Switzerland and the United Kingdon. Iceland joined them in 1970. Denmark and the United Kingdom left EFTA to join the EEC in 1973. They were followed by Portugal in 1986 and Austria, and Sweden in 1995. Iceland and Liechtenstein joined EFTA after the UK left. The current members are Iceland, Liechtenstein, Norway and Switzerland. They have a combined land area of 204,500 square miles which is slightly smaller than France and a population of just over 14 million which is about the same as the Istanbul metropolitan area.

The EEA
The EEA consists of the states that are party to the Agreement on the European Economic Area. They include all the states of the European Union plus Iceland, Liechtenstein and Norway.  It enables the contracting states to participate in the EU's single market and in some but no all other programs. Switzerland has not yet ratified that Agreement but it has a number of bilateral agreements with the EU that enable it to participate in the single market.

The Brexit Referendum
The EEA Agreement guaranteed free movement of people with the result that there are many British citizens in each of the EFTA states and citizens from each and every one of the EFTA states in the UK. The current British government interprets the results of the Brtish referendum on membership of the EU as a rejection of the right of free movement. It believes that the UK must leave the EEA as well as the EU. Agreement is therefore required as to what should happen to all those expatriates as well as rights that have been acquired under the EU legislation that extends to the EGTA member states after 29 March 2919.

The Agreement with Iceland, Liechtenstein and Norway
Those matters are addressed in the Agreement on arrangements between Iceland, the Principality of Liechtenstein, the Kingdom of Norway and the United Kingdom of Great Britain and Northern Ireland following the withdrawal of the United Kingdom from the European Union, the EEA agreement and other agreements applicable between the UnitedKingdom and the EEA EFTA States by virtue of the UnitedKingdom’s membership of the European Union. The agreement is very much shorter than the draft withdrawal agreement from the EU. It is 69 pages long in contrast to the 585 of the withdrawal agreement and consists of 71 articles divided into 4 parts with 2 annexes.

Part 1 (arts 1 to 7) contains the objective of the agreement, definitions and similar provisions. Part 2 (arts 8 to 37) deals with citizens' rights.  Part 3 (arts 38 to 63) covers the treatment of goods on the single market during the implementation period in the withdrawal agreement which runs between the 29 March 2019 and 31 Dec 2020. Also covered are intellectual property, judicial cooperation in criminal and civil matters, data protection and public [rocurement. The last part (arts 64 to 69) sets up a joint committee which will deal with the interpretation and implementation of the treaty and dispute resolution.  The Department for Exiting the EU has published an explainer for that agreement.

The Agreement with Switzerland
The agreement with Switzerland is even shorter and deals with citizens' rights. There is also an explainer to that agreement.

Further Information
Both agreements will have to be ratified by the national legislatures of the contracting parties.  The European Union (Withdrawal Agreement) Bill proposed in the white paper Legislating for the withdrawal Agreement between the United Kingdom and the European Union (Cm 9674) is intended to be the instrument that ratifies the agreement in the UK.

Anyone wishing to discuss this article or Brexit generally should call me on 020 7404 5252 during office hours or send me a message through my contact form.

Brexit Briefing - November 2017

Author Furfur
Licence: Creative Commons Attribution-Share Alike 4.0 International

Jane Lambert

As most readers of this blog already know, the British and European negotiators reached sufficient consensus on the first phase of the Brexit negotiations for the Commission to recommend to the Council to allow the negotiations to proceed to the second phase (see the Joint report from the negotiators of the European Union and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 TEU on the United Kingdom's orderly withdrawal from the European Union 8 Dec 2017 and the Communication from the Commission to the European Council on the state of progress of the negotiations with the United Kingdom under Article 50 of the Treaty on European Union  8 Dec 2017).

Because those events took place yesterday I will discuss them properly in my December Brexit Briefing. All I will say now is that money was not the sticking point that many (though not I) thought it would be and that in the end the British government had to give ground on a continued role for the Court of Justice of the European Union as I had said it might in previous articles in this blog (see Dispute Resolution: A Potential Deal Breaker? 8 Aug 2017, Has Mrs May done enough to break the Logjam? 24 Sep 2017, Fourth Round of Brexit Talks: Still a Logjam 28 Sep 2017 and Brexit Briefing - September 2017 3 Oct 2017).

Because of yesterday's agreement, other important events that took place in November have been overlooked.   Two of the saddest were the Relocation of the UK-based EU agencies 20 Nov 2017 and the termination of the selection process for the European Capital of Culture in the UK (see Jane Lambert European Capital of Culture 28 Nov 2017 NIPC Bexit).

The European Medicines Agency will move from London to Amsterdam (see the press release European Medicines Agency to be relocated to Amsterdam, the Netherlands 20 Nov 2017) and the European Banking Authority to Paris (see  press release European Banking Authority to be relocated to Paris, France 20 Nov 2017).

A letter from  Martine Reicharts, Director-General for Education, Youth, Sport and Culture to Sue Owen, our Permanent Secretary for Department for Culture, Media and Sport, brought the selection of the British city for the 2023 European Capital of Culture to a grinding halt just days before the final choice was due to be made in London,  The letter generated a lot of resentment upon which some politicians and newspapers sought to capitalize but the legislation setting out the selection procedure is very clear. It is just a shame that cities across the country had been given false hope and allowed to spend so much of their council taxpayers' money on what was clearly an impossible objective. However, it would be even more of a shame if something were not salvaged from that effort by at least an unofficial celebration of those cities' contribution to European culture.

I can see very much the same thing happening to the British government's investment in fitting out premises for the Central Division of the Court of First Instance of the Unified Patent Court in Aldgate House (see press release Intellectual Property Minister hosts reception at Aldgate Tower 18 Sept 2015). Although Jo Johnson MP, the Minister for Intellectual Property, has argued that the UPC Agreement is a free standing international agreement that stands outside the EU Treaties, it is hard to see how the UK could remain a party to that agreement after Brexit. Even if it could, it would be equally hard to reconcile participation in the Court with Mrs May's rejection of the jurisdiction of the Court of Justice of the European Union even if she has made an exception for citizens' rights.  Again rather sad in view of a report by the London School of Economics and the University of Colorado at Boulder which anticipated an increase trade and foreign direct investment in high-tech sectors by up to 2% and 15% in the EU as a result of the unitary patent, leading to annual gains of €14.6 billion in trade and €1.8 billion in foreign direct investment (see Patents, trade and foreign direct investment in the European Union Nov 2017 European Patent Office).

Also on the subject of intellectual property, the European Intellectual Property Office has published a Notice to holders of and applicants for EU trade marks and registered Community designs on the consequences of Brexit if no agreement is reached in respect of EU trade marks and Community designs in the UK.  The Notice does not take account of the government's intention to incorporate EU legislation into national law through the European Union (Withdrawal) Bill which should preserve the rights of EU trade mark and Community design proprietors in the UK after the 29 March 2019. However other rights are bound to go including the rights of representation that British lawyers and attorneys currently enjoy.

One of the arguments for Brexit during the referendum campaign was the possibility that the United Kingdom will be free to make trade agreements on its own terms with foreign governments. An early indication of the terms upon which such agreements might be made available to us came in the speech of Mr Wilbur Ross, the American Commerce  Secretary to the CBI (see #CBI2017 Blog: Wilbur Ross speaks at the CBI Annual Conference 4 Nov 2017 CBI Blog). He warned Britain to avoid signing up to “hindrances” to trade in its Brexit negotiations and that a deal with the US will require lower tariffs and compromises in areas such as food regulation. As I noted in Between Scylla and Charybdis  10 Nov 2017 NIPC Brexit, Mr Ross's speech was picked up by Monsieur Michel Garnier who expressed concern. In that article I concluded that "we can have a preferential trade deal with Trump's America on Mr Ross's terms or a preferential one with our EU partners but not both. A growing fear for British businesses must be that we may well end up with neither."

Should anyone wish to discuss this article or Brexit in general, he or she should call me on +44 (0)20 7404 5252 during normal office hours or send me a message through my contact form.

Brexit Briefing - October 2017

Author Furfur
Licence: Creative Commons Attribution-Share Alike 4.0 International

Jane Lambert

For much of the month, attention in Britain has shifted away from Brexit to domestic concerns for two reasons. First, a spate of complaints of serious misconduct by politicians on both the left and the right which resulted in the resignation of two senior ministers, the withdrawal of the whip from several more and a tragic suicide.  Secondly, a frosty but not quite frozen communiqué of the 27 remaining EU member states at their Council meeting on 20 Oct 2017 which offered the hope of negotiations on the UK's future relationship with the EU (see the Conclusions 20 Oct 2017). Thought has at last been given to the nature of that future relationship.

On the 9 Nov 2017 Charles Grant, Director of the Centre for European Reform. published his predictions on how Brexit will unfold in The Guardian (see Charles Grant How Brexit will unfold – Britain will get a deal, but it’ll come at a price The Guardian 9 Nov 2017).  In his view, there will be:
1. A deal on citizens' rights, Ireland and the divorce settlement in December 2017;

2. A hard border between the Republic of Ireland and Northern Ireland;

3. A transitional arrangement on the EU’s terms;

4. No agreement on the future relationship between the EU and the UK before the UK leaves the EU;

5. No detailed proposals from the UK on a future economic partnership;

6. No bespoke agreement for the UK;

7. Some access to the single market in some sectors;

8. No undercutting by the UK of EU regulatory standards;

9. No preferential access to the EU's financial markets for the British financial services industries; and

10. Some kind of free trade agreement between the EU and UK.

That is probably the best that can be expected from the negotiations. There are many who fear that no deal will be reached at all.  The Confederation of German Industry, the German equivalent of the CBI, has warned its members who trade with or invest in Britain to prepare for a very hard Brexit indeed (see German Industry Federation advises its Members to prepare for a Hard Brexit 5 Oct 2017). As the UK will cease to be represented by the EU in international trade negotiations, the British and EU  representatives to the World Trade Organization have indicated to the other contracting parties how they will collaborate (see UK's Future Relationship with the World Trade Organization 16 Oct 2017).

It is said that progress in the negotiations has stalled over money and that may well be the case in the short term. In the long term, however, it is likely to be the absence of a means of holding the UK to account if it refuses to acknowledge the jurisdiction of the Court of Justice of the European Union. The Institute of Government considered a number of alternatives in Some Proposals for Dispute Resolution from the Institute for Government 8 Oct 2017 none of which is entirely satisfactory. As the issue has arisen first in the protection of citizens' rights, it is worth looking at HMG's Technical Note: Citizens; Rights - Administrative Procedures in the UK. I would not be attracted by those proposals if I were a negotiator for the EU 27. I think it is overly optimistic to expect a deal by December, but we shall see.

In the meantime, if you want to discuss this article or Brexit in general, call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form.