June 29, 2018
On the EU's red lines in the Brexit negotiations
In the past we took issue with the rather lofty views on a Brexit reversal by Jean-Claude Piris, formerly head of the Council’s legal service. But this is a solid analysis of the current state of play in the Brexit negotiations. He is saying that the idea of a partial customs union for goods only is not going to happen.
Such a solution might be justified for a small territory like Northern Ireland, but cannot be used as a general exception for an entire country. But what really clinches the argument is the UK’s request for single market access, based on voluntarily compliance with EU standards.
"This hope is based on a misunderstanding of what the SM is. A third state cannot get partial access to the SM under the same conditions as EU or EEA states without being bound by the same constraints. This is not because of bad will on the EU’s part. The EU has no choice but to protect its major success, which binds together all its members: the homogeneity, credibility and legal security of its SM. The European Council will be united in refusing to put the SM’s credibility in jeopardy."
He also makes a point that we have been making: that the EU would not be able to accept freedom of movement for goods and capital but not for people. The four freedoms come as a package, something that seems basically incomprehensible to many commentators in the UK. Piris notes that exactly the same arguments would also apply to a more limited agreement relating to goods only.
This leaves only a Canada-style trade agreement, with no customs union or single market membership, but with a tariff-free customs arrangement and a joint dispute-settlement procedure. The question is where this will leave Northern Ireland.
Piris does not answer the question directly, but his solution would imply that there would have to be a border between Northern Ireland and the UK.
So, something will have to give here. Piris does not solve the problem, he merely clarifies the EU’s red lines. This is useful, and explains why close observers of the process are becoming increasingly pessimistic.