The informal summit of EU heads of state/government in Salzburg was clear – the European Council will only hold an extraordinary summit on Brexit in November if sufficient progress is made after the October Council on the unfinished issues. From last week’s meeting, it also clear that there is convergence between the EU27 and the UK on some aspects of the future relationship White Paper (the ‘Chequers plan’) – but that there is serious divergence as well.
Much work remains therefore with very limited time left. The EU27 are resolute that we will not give up on having an operational, legally-viable backstop for Northern Ireland in the withdrawal agreement. EU27 leaders gave no sign of changing our negative opinion of the UK’s current proposals on the future relationship regarding customs and the single market.
Some progress has been made in recent weeks on remaining separation issues, such as access to databases in the areas of custom procedures and police and judicial cooperation in criminal matters. It also appears that outstanding issues related to Euratom are on course for a resolution. However, matters which have concerned the EU for some time, including geographical indications and the governance of withdrawal agreement, continue to remain unresolved. Unlike the UK, the EU sees the geographical indications issue as part of the withdrawal agreement, and something which cannot be left to the negotiations on the future relationship.
Most worrying of course is the lack of progress on the Irish issue. The EU’s current backstop proposal contains the minimum level of controls necessary to protect the integrity of single market and some precise procedures related to customs, fiscal and regulatory control. Some of these procedures have been used for years between Spain and the Canary Islands (which are outside the EU customs territory), and have nothing to do with potential emergence of a new border in the Irish Sea.
Maybe more political talks are needed – perhaps language can be changed. We have heard that the Commission’s most recent conversation with UK Brexit Secretary Dominic Raab was by phone instead of in person. Let us hope this is not a new trend for the remaining phase of the withdrawal negotiations.
Accurate data on trade around Northern Ireland is also important. It seems that the UK government has recently provided some new data on trade flows. If new data on the size of trade flows between the UK and Northern Ireland through the Republic of Ireland confirms that this is the main trade channel – or at least much more important by volume than the UK has claimed so far – it will have impact on the scope of controls.
The EU also has significant issues with the UK’s Chequers proposals for the future framework, in particular on the economic partnership dimension. Our opinion on both the UK’s proposed customs mechanism (the ‘Facilitated Customs Arrangement’ – FCA) and ‘common rulebook’ for goods continues to be negative.
In fact, it is frustrating to us that the UK has left the same unworkable arguments on the table for so long without changing them at all. The risk is growing that the only option to avoid a no-deal scenario will be to have a rather hollow political declaration on the future EU-UK relationship, which will accompany the withdrawal agreement. This outcome would not be good for either side, since that might not be acceptable to the UK parliament when it comes to its ‘meaningful vote’, or indeed to the European Parliament when it must accept or reject the withdrawal agreement.
It has become clear that the remaining issues cannot be resolved by civil servants and officials – political engagement from the UK is needed. In reality, there are only three weeks left to achieve substantive progress before the October European Council on governance – where direct ECJ jurisdiction is the most difficult issue – on geographical indications, the Irish border and the political declaration on future relations.
The UK’s decision to leave the EU’s single market and customs union means without doubt that ‘frictionless trade’ in goods is not possible. Still, the UK government tries to claim that its proposals of the FCA and common rulebook on goods could produce this frictionless outcome. The FCA is an innovation that has no precedent worldwide, has never been tested, and is based on a non-existent technology.
If the EU treaties provided some legal basis for us to move in this direction on customs, I can imagine that the Union might show some openness to it. But the treaties do not – in fact, they legally prohibit such an option. As I see it, the EU cannot work with the UK to elaborate this approach further. Instead, the UK needs a new approach which respects the EU’s rules and can be practically implemented. As for the UK’s current customs proposal, there would be too many risks for the EU side – not to mention the added danger, if we did agree to it, that the UK could change its mind once again.
Prof Danuta Hübner MEP is Chair of the European Parliament’s Committee on Constitutional Affairs and former European Commissioner for Regional Policy. She is Advisory Board member of the Scottish Centre on European Relations.