Duff: post-Brexit association agreement one step closer

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Jean-Claude Juncker and Michel Barnier during the European Parliament plenary debate on the framework of future EU-UK relations (March 13). [European Parliament]

The resolution on Brexit voted with a large majority in the European Parliament today (March 14) sketches the outlines of a new EU-UK association agreement and brings us one step closer towards a dynamic post-Brexit relationship, writes Andrew Duff.

Andrew Duff is the President of the Spinelli Group. He was an MEP for the UK’s Liberal Democrats and a prominent member of the Constitutional Affairs Committee in the European Parliament from 1999 to 2014 .

The role of the European Parliament is regularly misunderstood and frequently traduced (especially in Britain). Yet when it comes to Brexit, the Parliament has a very particular function – which is to approve or reject the Article 50 deal. The national parliaments of the 27 member states do not have that right. The European Parliament is therefore on a par with the House of Commons in being able to wield a veto on the arrangements negotiated between the UK government and the Commission.

No single member state has the power to veto the deal. Unlike the arrangements for accession to the EU, under Article 49, the procedure for secession from the EU is not an intergovernmental conference. The Article 50 withdrawal agreement will be concluded by a special decision of the Council, acting by qualified majority vote, after obtaining the consent of the European Parliament.

The Parliament is also a valuable sounding board for testing the political temperature. This is particularly important because the Commission sticks fairly rigidly to the mandate it received from the European Council and does not indulge in much speculation about life after Brexit. The heads of government, for their part, have pledged to keep united – and have discovered that the best way to keep the pledge is to stay silent. On 22-23 March, the European Council will break this silence and make its first official pitch at defining what sort of future relationship the EU-27 wants with post-Brexit Brits. In preparation for that, therefore, the resolution of the European Parliament (14 March) has real significance – not least because it passed by the very large majority of 544 votes to 110, with 51 (mostly British) MEPs abstaining.

For the most part, the resolution supports the orthodox line taken by the Commission and Council: the MEPs regret that the UK apparently wants to leave both the single market and the customs union; and they repeat their earlier demands with respect to the Phase One issues, including, especially, the treatment of citizens and the resolution of the issue of the Irish border. But refreshingly the Parliament is not hung up on supposed ‘red lines’, and goes much further in spelling out its desired framework for the future relationship with the UK, the summary description of which – in effect, the negotiating mandate for the final treaty ‑ will appear in a political declaration alongside the Article 50 treaty itself. Parliament warns that it will treat those words as an integral part of the package; and as trust has broken down between the UK and the EU, and because MEPs suspect that Theresa May will not be the prime minister who has to deliver the final agreement, Parliament wants the declaration to be “as detailed as possible”.

Guided by its Brexit coordinator Guy Verhofstadt, Parliament proposes that the future partnership takes the form of an association agreement, under Article 217 TFEU. This agreement, which cannot be concluded in treaty form until after the UK has left the Union, will be based on four pillars: trade and economic relations; foreign policy, security cooperation and development cooperation; internal security; and thematic cooperation. The latter category comprises agreements across almost the whole spectrum of EU competences, including fish, aviation, science, education, transport, environment, energy, workers’ rights, health and safety, and nuclear. Close and systematic collaboration is foreseen in both internal and external security policy and operational matters, as long as the pooling of data and intelligence can be protected.

At the heart of the association agreement, of course, is the establishment of a deep and comprehensive free trade area. Here, the continued regulatory convergence of the UK on the EU acquis will be rewarded by access to the internal market. Such access as is agreed in terms of goods, services, public procurement, investment and mobility of persons will be reciprocal. Responding to Mrs May’s Mansion House speech, the Parliament admits that there may be some latitude in considering British rules as equivalent on the basis of a proportionate, risk-based approach.

In trade and all other matters embraced by the association agreement, the Parliament will insist on there being put in place a solid dispute settlement and arbitration mechanism. Where a ruling on EU law is concerned, the judgment of the European Court of Justice will be definitive. If it wants such a deal, the UK will be expected to conform to the principle of the level playing field, to respect the European social model and to replicate EU measures on tax transparency and evasion. In short, a new balance of rights and obligations will be established to mutual benefit.

The European Parliament wants a robust, durable system of governance of the association agreement, with novel joint institutions able not only to manage the terms of the agreement but also to inject a degree of dynamism into the relationship. A good experience of the Joint Committee set up to monitor the implementation of the withdrawal agreement would pave the way.

MEPs have had to work hard to extrapolate from Mrs May’s encoded messages what it is she really wants. They have articulated the framework for the future relationship with skill. Michel Barnier gave a positive response to the resolution on behalf of the Commission. Donald Tusk should now do the same on behalf of the European Council.

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