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How to divorce the EU, in three uneasy steps

05 May 2017

The European Council published its official guidelines for Brexit negotiations on 29 April 2017. Lewis Silkin reported on EU Council President Donald Tusk’s circulation of negotiation guidelines to EU leaders at the end of March 2017, and the newly published guidelines are consistent with the earlier version.

The guidelines state that a phased approach is required, where each phase is agreed before the EU and the UK turn their attention to the next phase. Negotiations will proceed ‘in accordance with the principle that nothing is agreed until everything is agreed’.
Phases of negotiation

  • Guaranteeing the rights of EU nationals living in the UK and UK nationals living in the EU, and the rights of their family members will be addressed first. Negotiators will then focus on how to disentangle the UK from the EU, to include a financial settlement reflecting the UK’s outstanding and ongoing liabilities and commitments. Recent media reports indicate that the EU will seek £100 billion from the UK, up from the previously rumoured £60 billion. David Davis, Secretary of State for Exiting the EU, has suggested that the UK could simply walk away from the EU without making payment, whilst Michel Barnier, the EU’s chief negotiator, has stated that the EU’s determination on the UK’s financial liability will be ‘incontestable’.
  • Once a financial settlement is reached, an agreement regarding the future relationship between the EU and the UK will be considered. The guidelines emphasise that such an agreement can only be finalised and concluded once the UK has become a third party.
  • A possible third stage of negotiations will determine transitional arrangements to bridge the gap between the current UK-EU relationship and their future relationship. The guidelines mention the possibility of a time-limited prolongation of the UK’s EU membership rights and obligations and state that existing EU structures would apply during such a period; this means that the European Court of Justice’s jurisdiction would continue during the transitional period.

UK Prime Minister Theresa May called for a general election next month, when negotiations with the EU are also expected to begin. She seeks to strengthen her hand in negotiations by demonstrating a high level of support in Britain. In a speech outside Downing Street yesterday, May accused the EU of interfering with the general election. The UK and the EU have both expressed commitment to a strong relationship, but circumstances do not bode well for an amicable divorce.

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