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Roderick Crawford works on conflict resolution in countries such as Yemen, South Sudan and Iraq, and on Brexit-related matters. He is a former editor of Parliamentary Brief.

The EU trade negotiations are now focused on the underlying principles of the agreement: it is the right move. It is disagreement about, misunderstanding of and exploitation of these underlying principles that largely explains why reaching an agreement that is beneficial and acceptable to both parties has proved so difficult.

The Commission’s acceptance that the UK is an independent coastal state is a good example of getting underlying principles right. The EU’s insistence on the status quo on fishing rights, while insisting that access to the Single Market cannot be the same after Brexit, was impossible to maintain with any integrity. It was in fact the worst kind of chutzpah. That it has taken some months to accept this is truly astonishing.

Getting underlying principles agreed, not more time, is what will give negotiators the means to conclude an agreement – if one is possible. The fundamental underlying principle is that the UK, no longer a member of the EU, is negotiating as a sovereign state and equal to the EU.

The EU wants a close and ambitious relationship but finds it hard to envisage one outside of the type of frameworks it has established with others in the region. Consequently, the EU is still looking for an association-type agreement in all but name, and this shapes its thinking about the detailed structures of the agreement and thus crosses not just UK red lines, but the new underlying reality of EU-UK relations.

Related to this thinking, the EU is still pressing for a role for the Court of Justice in governing aspects of the agreement on our future relationship, despite an underlying principle first accepted by the EU two years ago. It was set out by Theresa May in her speech at Florence:

“It is, of course, vital that any agreement reached – its specific terms and the principles on which it is based – are interpreted in the same way by the European Union and the United Kingdom and we want to discuss how we do that. This could not mean the European Court of Justice – or indeed UK courts – being the arbiter of disputes about the implementation of the agreement between the UK and the EU however. It wouldn’t be right for one party’s court to have jurisdiction over the other. But I am confident we can find an appropriate mechanism for resolving disputes.”

Six months after this speech, the first European Council guidelines specifically addressing the future relationship were agreed. These guidelines “take into account the repeatedly stated positions of the UK” – which, it must be stated, include the UK’s position on the Court of Justice. In these guidelines, the EU committed to working towards a wide-ranging FTA, “insofar as there are sufficient guarantees for a level playing field”.

When it gets into specifics, it speaks of “a combination of substantive rules aligned with EU and international standards, adequate mechanisms to ensure effective implementation domestically, enforcement and dispute settlement mechanisms in the agreement as well as Union autonomous remedies, that are all commensurate with the depth and breadth of the EU-UK economic connectedness”.

There is no mention of a role for the Court of Justice but rather of “enforcement and dispute settlement mechanisms in the agreement”.

When these same EU Council guidelines address law enforcement and judicial co-operation mechanisms they only state “strong safeguards will need to be established” and propose a “Security of Information Agreement” to govern the exchange of information.

No role for the Court of Justice is mentioned in the initial EU Council guidelines for the future relationship except in one place: “The role of the Court of Justice of the European Union will also be fully respected”; this appears in a paragraph on the EU preserving its full decision-making autonomy.

Continued insistence of a role for the Court of Justice within the agreement on the future relationship goes against basic principles of international law and relations, the UK’s well established position on this, the EU Council’s own recognition of the UK’s position and its original guidelines accepting that position; unsurprisingly, the EU’s position has no support in the political declaration either.

Until there is agreement on the underlying principle that there is no role for the Court of Justice, agreement cannot be made on an alternative. This was a key aim set out by Theresa May in 2017 and an example of how time extension is not the key to successful conclusion of these negotiations. Like the EU position on fishing, it has no credibility and needs to change to allow progress.

The underlying principle on level-playing field guarantees may ruffle some feathers in the UK – at least at first sight. The language around level-playing field guarantees is stronger than that of the Canada-EU FTA where the requirement is for no diminution in existing standards.

The EU-UK framework for these negotiations – the Declaration – sets out a requirement for agreed “common high standards” as the basis of robust guarantees on the level-playing field – something the UK appears at present opposed to.

Agreeing common high standards within the agreement and establishing how these standards can be upheld while allowing for the UK and EU to legislate in these areas – a fundamental right for both legal orders – is the challenge that faces the two parties in these negotiations.

To do this will require a mechanism within the agreement as well as processes within the UK’s and the EU’s own legislative and decision making systems – surely not too hard to achieve.

Both parties are holding onto positions that are blocking an agreement – the EU needs to drop its untenable position on the role of the Court and EU rules, and the UK needs to accept the principle that common high standards are at the heart of the level-playing field guarantee.

Once done, both parties will have the opportunity to establish a non-threatening solution to both the level-playing field and dispute settlement and enforcement, while keeping open their respective freedom to legislate.

40 comments for: Roderick Crawford: There can be no role for the European Court in policing an EU trade agreement

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