Briefing from Commission legal adviser

We have been briefed by a legal adviser in the Commission on what their senior colleagues think key phrases in the ‘sufficient progress’ deal really mean and that may have been misunderstood by commentators here. Here’s a summary of what we were told, with an explainer from our Commission source following each quote from the document signed by HMG:

Document text: “the CJEU is the ultimate arbiter of the interpretation of Union law. In the context of the application or interpretation of those [citizens’] rights, UK courts shall therefore have due regard to relevant decisions of the CJEU after the specified date. The Agreement should also establish a mechanism enabling UK courts or tribunals to decide, having had due regard to whether relevant case-law exists, to ask the CJEU questions of interpretation of those rights where they consider that a CJEU ruling on the question is necessary for the UK court or tribunal to be able to give judgment in a case before it. This mechanism should be available for UK courts or tribunals for litigation brought within 8 years from the date of application of the citizens' rights Part.”

Commission view: UK courts will be able to ask the CJEU for interpretations during the 8yr period. Separately and distinctly, after Brexit (i.e. “after the specified date”), the CJEU will still have jurisdiction over legal decisions in the UK, but UK courts will not be able to appeal to the CJEU. There is no end date for the CJEU being “the ultimate arbiter”.

Document text: “The United Kingdom remains committed to protecting North-South cooperation [on the island of Ireland] and to its guarantee of avoiding a hard border. Any future arrangements must be compatible with these overarching requirements. The United Kingdom's intention is to achieve these objectives through the overall EU-UK relationship. Should this not be possible, the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland. In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all island economy and the protection of the 1998 Agreement.”

Commission view: the UK must take full responsibility for preventing a hard border being created on either side of the Northern Irish border with Ireland. The EU27 will decide whether the only way to do that is for the UK to continue to abide by the rules of the Single Market and Customs Union, including new rules set in the future.

Document text: “The UK will contribute to, and participate in, the implementation of the Union annual budgets for the years 2019 and 2020 as if it had remained in the Union (including revenue adjustments). This will include the UK’s share of net financial corrections and fines imposed until 31 December 2020, once definitively settled.”

Commission view: fines imposed on the UK will be determined by an assessment of the UK meeting new EU requirements set before 2020. No upper limit on potential fines has been agreed.

Document text: “In the second phase of negotiations, some simplification of the revenue adjustment procedure including time limitation could be agreed between the UK and the Union.”

Commission view: no time limit has been agreed on the UK’s financial obligations to the EU27. A limit could be offered to the UK if it meets conditions to be set by the EU27 in the next phase of talks.

Document text: “Except for the UK payments relating to UK participation to Union annual budgets to 2020 as set out in paragraphs 59 and 60, the UK share in relation with the Union budget will be a percentage calculated as the ratio between the own resources made available by the UK from the year 2014 to 2020 and the own resources made available by all Member States, including the UK, during the same period.”

Commission view: the UK’s total financial contribution to the EU27 will be based on both the UK’s net contributions and the amount of tariff revenue collected on goods entering the UK but not bound for the EU27, as these customs revenues would otherwise have been passed to the EU27. The UK will not be able to keep customs duties on goods brought into the UK until at least 2021.

Document text: “As part of the second phase of negotiations, the Union and the UK could also decide to agree to simplified procedures so as to avoid unnecessary administrative burdens extending well beyond the end of the current multiannual financial framework, provided that they respect the sound financial management of the Union budget and do not result in discrimination in favour of the UK or UK beneficiaries.”

Commission view: without a subsequent transition agreement, the ‘sufficient progress’ agreement commits the UK to meeting EU27 administrative costs after 2020.

Document text: “The Commission welcomes the UK Government's offer to discuss with Union Agencies located in London how they might facilitate their relocation, in particular as regards reducing the withdrawal costs.”

Commission view: the UK will pay for moving EU agencies from the UK to the EU27.

Document text: “This report is put forward with a view to the meeting of the European Council (Article 50) of 14 and 15 December 2017. It is also agreed by the UK on the condition of an overall agreement under Article 50 on the UK's withdrawal, taking into account the framework for the future relationship, including an agreement as early as possible in 2018 on transitional arrangements.”

Commission view: the conditions agreed in this document will be binding, as long as a withdrawal agreement and transitional agreement is ratified before starting a third stage of negotiations on trade. A possible trade agreement will be separate to the conditions agreed here and detailed discussions will only start after the UK leaves.

Comment from GUIDE: In terms of what happens next, the Council must decide whether or not to accept the Commission’s recommendation that ‘sufficient progress’ has been made. It is also important to note that while the deal struck by HMG is not legally binding (yet), it would be impossible for the May administration to unilaterally renege on it and still be trusted by the EU27 to continue negotiations. In other words, this deal is now the only basis of a comprehensive agreement that a Government led by May can pursue. Our Commission source told us the EU27 is keen to help May stay in office so that it can secure the conditions set out above.

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