With the clock about to strike on Brexit, every day counts
Five weeks before the UK is set to leave the Single Market and Customs Union the European Commission still cannot tell whether there will be a post-Brexit future relationship agreement.
Filling in for EU Chief negotiator Michel Barnier who continues to self-isolate after a member of his team tested positive for the coronavirus last week, European Commission President von der Leyen had a clear and sobering message when updating MEPs on the state of play of negotiations with London: “Frankly, I cannot tell you today if, in the end, there will be a deal.”
As we knock at the door of December, having already broken several informal deadlines to facilitate the administrative steps that are necessary to ratify a deal before the end of the year, von der Leyen’s admission is staggering and it highlights how entrenched the EU-UK talks have become.
Addressing the European Parliament at its penultimate Plenary of the year on Wednesday morning, President von der Leyen said that, nine months after the major issues emerged in the first negotiating round, there are still deep divisions on fisheries, rules for a fair and equal level playing field, and governance. Bluntly stating their crucial importance for the EU, she added that each one of these “can make the difference between a deal and a no-deal.” While the Commission would do everything in its powers to facilitate an agreement, it would compromise on the integrity of the Single Market.
On the substance of the negotiations, von der Leyen warned of “serious issues” over state aid, particularly on any future enforcement mechanism. On the level playing field requirements, she added that there are still “significant difficulties” over how to ensure that both parties remain aligned on somewhat-equal high standards over time. Regardless, the UK Government continues to reject any provisions on alignment over fears of losing its newly won “regulatory independence”.
Referencing the Commission’s recent experience with the surprising introduction of the UK Internal Market Bill, which calls on UK Ministers to break the Government’s obligations under international law, von der Leyen mentioned that any governance provisions must be clear, strong and enforceable.
With only days left, and no deal in sight, discussions have now progressed to managing the EU’s internal processes should a deal be ready for ratification at (almost) the last minute. Generally speaking, we are now past the most extreme deadline for reaching an agreement that would have allowed for translation and subsequent ratification by the European Parliament by year end. While the Parliament is set to return from recess for a special (virtual) session to vote on a deal on 28 December, the administrative time needed for the legal scrubbing and translation of the text raises greater challenges with every passing day. While the initial legislative scrutiny could begin based on the English master text, the French Government has already said that it will demand a French version. The same will most likely be the case for the German Government, as well as other countries, such as the Netherlands and Denmark, which require the approval of their national Parliaments before making any decisions.
Of course, this will only matter if the deal being negotiated by Michel Barnier and David Frost can, justifiably, be classified as an “EU-only” agreement. If it is deemed to be a “mixed” agreement, a risky and uncertain provisional application would be the only way forward. In any case, with the clock about to strike on Brexit, every day counts.