by Allan F. Tatham, Professor at Facultad de Derecho, Universidad San Pablo CEU

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Background

In the present context of the COVID-19 pandemic, with its impact on the health, economic and social systems of states around the world, it appears somewhat trivial in comparison for the UK and the EU to be still pursuing agreement in the post-Brexit negotiations. On 18 March, the Union published its draft legal agreement for the future EU-UK partnership, in accordance with its 2020 Negotiating Directives and the 2019 Political Declaration of the parties. And while, by then, the UK had not presented a comparable document, its approach to the negotiations had been published on 27 February. From these sources, it would be fair to draw the conclusion that there remain many outstanding issues that need to be discussed and resolved. Among them the maintenance of a “level-playing field” to ensure fair competition and protection of standards; fisheries; financial services; security and police matters; and the role of the Court of Justice of the European Union or another mechanism for resolving disputes under a Comprehensive Free Trade  Agreement (CFTA). Even the negotiating styles are different, with the UK seeming to display a sort of “pick-and-mix” approach – essentially using as precedents different provisions selected from various agreements (that the EU has already concluded with other third countries), collecting them together and then arguing for their inclusion in the CFTA.

Given these real challenges, the onset of the pandemic appeared initially to have caused only ripples on the surface of the negotiations. In fact, the UK desired to portray a “business-as-usual” approach to the negotiations and so to “carry on regardless” with them through video conferencing. Moreover, shortly before he himself was quarantined and hospitalised for the virus, the British Prime Minister Boris Johnson in his daily coronavirus press briefings was continuing to repeat the mantra of sticking to the 31 December deadline. Only with Michel Barnier’s diagnosis with the virus, the need for more officials on both teams to self-isolate and the recognised limitations to video-conferencing, were the negotiations suspended at the end of March 2020.

Following the Easter break and with Europe still generally in various forms of lockdown, Barnier and the UK’s lead negotiator, David Frost (who has also needed to self-isolate for a couple of weeks), are to video conference today (15 April) in order to agree to a new timetable for the negotiations. Under the previous timetable, negotiators had been scheduled to meet five times by May, with different rounds of talks alternating between Brussels and London. Due to the pandemic, they have so far been unable to meet in person for these talks. It has been proposed to recommence the negotiations using secure video-conferencing software, allowing up to eleven different groups of negotiators to hold talks simultaneously so that they may to resolve the outstanding issues.

Extending the Transition Period?

The EU side is also open to negotiating an extension to transition period: the Commission President, Ursula von der Leyen, has already urged the UK to seek one. Under Article 132 of the 2019 Withdrawal Agreement, the Joint Committee has the power to extend that transition period. The UK can thus ask for an extension but the Johnson government has vehemently opposed that idea from the start and, as mentioned above, has gone so far as to make it binding on the UK through statute. That statute does not, of course, bind the EU.

Even within the grip of the pandemic, the issue of an extension remains highly contentious. Arguments focus on such points as:

• the loss of time in what were already rather time-bounded negotiations of eleven months;
• the lack of parliamentary control since neither the British nor the European Parliament is currently able to sit in its usual way and exercise its oversight, e.g., through committee meetings;
• the resurrected fear of leaving the internal market and customs union without an agreement and having to trade on WTO terms, with its concomitant effect on trade as well as checks and more customs documentation at borders; or
• the shortening of the time period for EU citizens or UK nationals to complete the respective processes for re-registration of status and residence in each other’s territories.

Any extension of the transition period due to lack or loss of time in the negotiations might arguably be granted: (i) to allow for the conclusion and/or ratification of the final CFTA; (ii) to prepare for a situation where no CFTA had been concluded; or (iii) because of unforeseen circumstances, force majeure or a state of emergency, as with the present situation.

Final considerations

It is not yet clear how the British government will proceed. Officially, the Cabinet has given no indication of softening its stance on the 31 December deadline and has given not public hint of any disagreement within its ranks of this position. In convalescence for the next few weeks, Prime Minister Johnson may though have time to reflect on how best to deal with the changed circumstances to Brexit-20 brought about by COVID-19.

One final thought comes from Pope Francis and his Urbi et Orbi message delivered on Easter Sunday last. Dealing with the personal and global impacts of the pandemic, he turned his mind to think “in a special way of Europe.” He recalled that after the horrors of World War II, Europe was “able to rise again, thanks to a concrete spirit of solidarity that enabled it to overcome the rivalries of the past.” In seeking to ensure that these rivalries do not gain force again, the Pope exhorted all Europeans to “recognize themselves as part of a single family and support one another. This is not a time for self-centredness, because the challenge we are facing is shared by all, without distinguishing between persons.”

In that sense, an extension would be justifiable so that the UK could prioritise its human and financial resources and pursue the health and welfare not only of its own nationals but also of EU citizens (one of whom nursed Johnson in intensive care), especially with the severe economic downturn facing everyone. Some would argue that the blinkered pursuit of the narrower political self-interest to secure a hasty, no-deal departure from the internal market and customs union, at this time of crisis, would amount to a selfish act affecting all in the European family.

Pictures credits: I thought we’d… by Mike Monteiro.