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Brexit Update: EU Institutions Adopt their Positions Ahead of the Negotiations

08 May 2017

Almost a year on since the EU referendum in the UK, the EU and the UK are gearing up for the negotiations that will define their future relations. With the snap general election in the UK, the start of the negotiations has been postponed until after the vote on 8 June. Meanwhile, Brussels negotiators have fine-tuned their common position for the talks, with the European Council agreeing on the guidelines that define the framework for negotiations under Article 50 TEU on 29 April. While playing a less important role in the negotiations, the European Parliament has also adopted a resolution on its red lines for approving the withdrawal agreement that is reached, making use of its consent prerogative.

Citizens’ Rights First Priority

The key priority of both Brussels negotiators and the incumbent UK government, as spelled out in the letter triggering Article 50 TEU on 29 March, is safeguarding the rights of citizens and reducing legal uncertainty as much as possible. As indicated in the guidelines of the European Council, “agreeing reciprocal guarantees to safeguard the status and rights derived from EU law at the date of withdrawal of EU and UK citizens, and their families, affected by the United Kingdom’s withdrawal from the Union will be the first priority for the negotiations”. The guidelines also state that the first phase of negotiations will aim to “provide as much clarity and legal certainty as possible to citizens, businesses, stakeholders and international partners on the immediate effects of the United Kingdom’s withdrawal from the Union”.

The European Parliament’s resolution states that the withdrawal agreement should address, among other things, the following elements: the legal status and rights of EU-27 citizens who live or have lived in the UK and the corresponding UK citizens elsewhere in Europe, which “must be given full priority in the negotiations”; legal certainty for legal entities, including companies, and the designation of the European Court of Justice as the competent authority for the interpretation and enforcement of the withdrawal agreement.

Putting citizens first in the negotiations is also in the spirit of the UK government, which called in its notification letter for an early agreement on their rights and vowed to work to minimise disruption and give as much certainty as possible.

Transparency and good faith as principles for an orderly withdrawal

Transparency and good faith are common to the positions of the EU and UK. “Engaging with one another constructively and respectfully, in a spirit of sincere cooperation” is the wish of the UK government, and maintaining the UK as a close partner in the future is a core negotiating principle of the European Council. However, the European Council guidelines also stress that any agreement will need to be based on a balance of rights and obligations.

On the transparency side, Michel Barnier’s team, the Taskforce on Article 50, which has a mandate from the EU Council to represent the EU in the negotiations, has already made a website available where all the relevant information regarding the negotiations will be published.

EU Negotiation Directives

Following the mandate provided to it by EU heads of state and government, the Commission sent a recommendation to the Council on 3 May to begin the exit negotiations with the UK. This text complements the European Council political guidelines and provides the necessary details to conduct the first phase of the negotiations by proposing negotiating Directives covering four main areas, including one dedicated to citizens’ rights.

As unveiled by the European Commission’s chief negotiator Michel Barnier, the principles underpinning the negotiations regarding citizens’ rights are threefold:

  • The level of protection afforded under EU law must not be watered down
  • There must be equal treatment of all EU and UK nationals in the UK and the EU-27
  • The EU requires crystal-clear guarantees that rights will be effectively enforced, which would involve the direct jurisdiction by the European Court of Justice over the withdrawal agreement.

Next steps

The Council is set to adopt the Commission’s recommendation to open the negotiations on 22 May by designating the Commission as Union negotiator and adopting a set of negotiating directives by strong qualified majority. Once these directives are adopted, the Commission will be mandated to begin negotiations with the UK.

More information about the steps