The EU's draft guidelines for phase 2 have been published (HERE). They don't include any great revelations but they do confirm what Barnier has been saying for some time. They do not intend the UK to avoid any of the commitments made earlier this month or any of the obligations of membership during the transition period. One can see in the guidelines the need for a strict legal basis in everything done by the EU.
First of all, in paragraph 4 there is the Davis proofing:
The European Council also made clear that negotiations in the second phase could only progress as long as all commitments undertaken during the first phase were respected in full and translated faithfully in legal terms as quickly as possible. During the second phase of the negotiations, an overall understanding on the framework for the future relationship of the Union with the United Kingdom should also be reached. This will require additional European Council guidelines.
So we can't wriggle out of commitments already made in the agreement reached on 8th December.
And then in paragraph 9 about the transition period:
The European Council guidelines of 29 April 2017 set out general core principles applying to any agreement with the United Kingdom as well as to any transitional arrangements:
- any agreement will have to be based on a balance of rights and obligations, and ensure a level playing field;
- preserving the integrity of the Single Market excludes participation based on a sector-by-sector approach;
- a non-member of the Union, that does not live up to the same obligations as a member, cannot have the same rights and enjoy the same benefits as a member;
- the four freedoms of the Single Market are indivisible and there can be no "cherry picking";
- the Union will preserve its autonomy as regards its decision-making as well as the role of the Court of Justice of the European Union. According to the European Council guidelines of 15 December 2017, this refers notably to the competence of the Court of Justice of the European Union.
So, during the transition, EU law in its entirety will apply. I separately note that Barnier wants the transition to end on December 31st 2020 which gives twenty one month's to get a FTA agreement signed and approved. This is extraordinarily tight since it will need to be ratified unanimously by all 27 member states and regional parliaments. This is going to occupy six months at least, leaving just fifteen months to negotiate the most unique, complex and wide ranging trade deal ever attempted.
It does not look remotely possible.
It does not look remotely possible.
