EU papers set Brexit tone

The EU has published its initial draft position papers ahead of the Article 50 negotiations, the first phase of which will primarily concern a reciprocal agreement on citizens’ rights, as well as an agreed mechanism for calculating and meeting a financial settlement.

The Essential Principles on Citizens’ Rights and Essential Principles on Financial Settlement papers were produced by the Commission’s Task Force for the Preparation and Conduct of the Negotiations with the United Kingdom under Article 50 TEU, headed by Michel Barnier. The publication of the papers is in line with the EU’s stated assurance to publish Brexit documents in the interest of transparency.

In a speech in March, Barnier emphasised: “These negotiations cannot take place in secret. We will negotiate in a transparent and open manner, explaining to everyone what we are doing. We need to tell the truth – and we will tell the truth – to our citizens about what Brexit means.”

The two documents outline in the greatest detail yet the position of the EU’s Chief Negotiator. While the contents are of no surprise, the documents represent an elaboration of the EU’s stance on the financial obligations required of both itself and the UK, as well as the rights of EU citizens and UK nationals.

Financial settlement

The 10-page financial settlement document meticulously details the 53 consolidated account agencies, eight joint ventures and a host of funds to which the UK is expected to meet with its financial obligations. These range from European Ombudsman and EUROPOL to the Shift2Rail project and the Trust Fund for Columbia. While the paper does not explicitly outline the Brussels estimate for Britain’s ‘Brexit bill’, the gross figure is anticipated to be as much as €100 billion in order to “respect in full the financial obligations resulting from the while period of the United Kingdom membership in the Union”.

The single financial payment is based upon the principle that the UK should “honour its share of the financing of all the obligations undertaken while it was a member” and is related to:

• the Union budget;
• the termination of UK membership of all bodies/institutions established by the treaties; and
• the participation of the UK in specific funds and facilities relating to Union policies.

These UK obligations, the paper outlines, should be fixed as a percentage of EU obligations “calculated at the date of withdrawal in accordance with a methodology to be agreed in the first phase of negotiations”.

The EU considers the UK liable in full for the obligations of all unclosed European Development Funds and therefore proposes that it should continue to contribute to payments. Similarly, the paper suggests that the UK should respect its undertaking for the funding of EU Trust Funds and the Facility for Refugees in Turkey in their totality.

Contentiously, the EU intend that the remaining financial settlement payments should follow a schedule to be determined in phase two of negotiations and “aim at mitigating the impact of the UK withdrawal on the budget for the Union and on its member states”.

Citizens’ rights

The four-page document on citizens’ rights illustrates the EU’s position on the protections it wishes to secure for the 3.5 million EU citizens in the UK and likewise, the 1.5 million Britons across the EU. The paper notes: “The Withdrawal Agreement should protect the rights of EU27 citizens, UK nationals and their family members, who at the date of entry into force of the Withdrawal Agreement, have enjoyed rights relating to free movement under Union Law, as well as the rights which are in the process of being obtained.”

“These negotiations cannot take place in secret. We will negotiate in a transparent and open manner, explaining to everyone what we are doing. We need to tell the truth – and we will tell the truth – to our citizens about what Brexit means.”

The general principles which should apply include:
• that the same level of protection as set out in Union law at the date EU27 citizens in the UK and UK nationals in the EU27, including the right to acquire permanent residence after a continuous period of five years of legal residence;
• equal treatment in accordance with Union law; and
• that EU27 citizens and UK nationals who resided legally at the date of entry into force of the Withdrawal Agreement should be considered legally resident, even if they do not hold a residence document evidencing this.

In the context of enforcement and dispute settlement, the EU position asserts that the Commission should have full powers for monitoring, while the Court of Justice of the EU should have full jurisdiction corresponding to the protection of citizens’ rights.

 

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