Richard North, 16/10/2020  

So, the European Council has pronounced on the talks, noting "with concern" that progress on the key issues of interest to the Union is still not sufficient for an agreement to be reached.

It reaffirms the Union’s determination to have as close as possible a partnership with the United Kingdom and invites Michel Barnier to continue negotiations in the coming weeks, and calling on the UK "to make the necessary moves to make an agreement possible".

As regards the Internal Market Bill tabled by the UK government, the European Council recalls that the Withdrawal Agreement and its Protocols must be fully and timely implemented.

It also calls upon Member States, Union institutions and all stakeholders to step up their work on preparedness and readiness at all levels and for all outcomes, including that of no agreement, and invites the Commission, in particular, to give timely consideration to unilateral and time-limited contingency measures that are in the EU's interest.

What makes this statement especially interesting that that, in draft, it originally read as inviting Barnier "to intensify negotiations" – which is what the UK wanted, with the aim "of ensuring that an agreement can be applied from 1 January 2021".

There was no mention of the UK having to make the "necessary moves" and nor, for that matter, was there any reference to the "unilateral and time-limited contingency measures".

Altogether then, the final version of the statement is far more robust than the original, and one which has David Frost "disappointed" and "surprised" that the EU is no longer committed to working "intensively" to reach a future partnership.

He is also surprised by suggestion that to get an agreement, all future moves must come from UK. "It's an unusual approach to conducting a negotiation", he says.

The response of the Financial Times interesting, as it reports the "atmospherics" as "not good", with Brussels – rather than London - seen as dragging its feet on trade deal.

Thus, we have not had an immediate response from Downing Street. This is being held back until today, when Johnson is expected, according to the FT, to try to force Brexit trade talks to a moment of crisis by making a statement which emphasise talk of a no-deal TransEnd.

Downing Street has declined to say whether Johnson would pull out of the talks altogether, and his allies say he is in "no hurry", suggesting he will take time to assess the EU position. But, the paper adds, Tory MPs have long speculated that the prime minister would engineer some kind of political "crisis" as a prelude to make concessions to secure a deal.

Nevertheless, Number 10's downbeat view is being "greeted with raised eyebrows by senior figures in both London and Brussels", where there appears to be a growing belief that a deal is within sight. Barnier has offered the UK "intensified and accelerated" talks to try to close a trade deal by early November.

During his press conference, Barnier made it clear that the EU was eager to pursue such an intensification of talks. He even set out a tentative schedule he hoped to discuss with Mr Frost on Friday, including sessions in Brussels the week after next, after the putative London round.

As to the Council statement, the Guardian offers a similar perspective, reporting that Downing Street has reacted "in dismay" at the warning that Johnson must swallow the EU's conditions, "in what appeared to be taken as a direct challenge to the British prime minister's threat to walk out on the talks".

The intervention was evidently regarded as incendiary in No 10 as Johnson had said he would make a decision on Friday on whether there were grounds to continue the talks. In September, he had said that without agreement by the time of this Council, the government would "move on" to focus on no-deal preparations.

Oddly, the Telegraph injects a critical note, observing that brinkmanship had become a familiar feature of the Brexit negotiations before the UK left the European Union in January, and is set to be so again as the transition period expires.

With yesterday supposedly marking Johnson's own deadline, so far the talks are set to continue. The EU, says the Telegraph, evidently does not take these deadlines seriously and nor, it seems, does the Government. No 10 says Johnson will decide tomorrow whether to walk away from the table. He is expected to stay.

The paper says that the deadline that matters is 31 December, after which the UK will trade with the EU on WTO terms if there is no deal. Yet Johnson has made clear that he would prefer to avoid this happening, and nor is it in the interests of the EU.

Rather than impose further unilateral time limits, therefore, the two sides should concentrate on making sure an outcome that neither wants does not happen by default.

However, the paper adds, it is not entirely clear what the EU does want. While Angela Merkel is said to be optimistic about a deal, the French government is making ominous noises about vetoing anything that involves fishing arrangements their trawlermen do not support.

President Macron may also be using this issue as a proxy for a wider set of objections, not least over the access of the City of London to EU capital markets. If Paris is intent on blocking any deal that is not struck on French terms then a benign outcome to this process will be impossible to achieve.

Despite that, the paper reports separately that the EU is prepared to hold an emergency European Council meeting in mid-November – held in Berlin - to give a political blessing to a trade deal with Britain.

That would effectively extend Johnson's "deadline" by a month, a more realistic period, given the number of issues yet to settle. But that would be the final, final deadline as any later would put intolerable pressure on the European Parliament, which must examine any treaty text in detail before it then ratifies it.

What should not be missed from this, though, is that – if the treaty can be ratified by the Parliament – it can only be a very basic trade deal. A wider scope, taking in issues where there is shared competence with Member States, will require ratification by all Member States.

These shared competences are set out in Article 4 (TFEU) and, interestingly, includes fisheries, transport and the area of freedom, security and justice. On the basis of fisheries alone, therefore, if an agreement is reached it would appear that it must be ratified by all Member States.

It really is quite surprising that this has not been mentioned, given that fisheries is such a high-profile element of the talks. But, on the face of it, it is already far too late for an agreement to be ratified and in force by 1 January 2021 – or, at all if any Member State chooses not to ratify, effectively vetoing the deal.

For all the hype, therefore, one wonders if there is any serious intent, on both sides of the divide, to conclude an agreement. One could even draw the conclusion that the two sides are just going through the motions, holding their positions in the hope that they other side will pull out.

In any event, since the mixed treaty gives Member States the opportunity to veto the shared elements, France or even Spain could veto a fisheries deal, leaving the prospects of a treaty even more up in the air than they already are. Rather than mid-November, we might not even be able to say that it'll be over by Christmas.

Also published on Turbulent Times.

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