The Salzburg EU summit: an update. Transition period or no deal? By Christopher Muttukumaru (25th September)

Brexit Update

Both sides know that they are negotiating for the best possible outcome for their own nations. The stakes are high for both sides.

  1. In any inter-governmental negotiation, both sides will argue strongly for their own position. They will adopt a self-confident stance , not admitting any flaw in their strategy. But, in the Brexit negotiations, the EU27 and the United Kingdom also know that they are negotiating for the best possible outcome for their own nations . The stakes are high for both sides. The Withdrawal Agreement is essential for both sides. Without the transition period anticipated in it, the UK faces a cliff edge and some EU states will also be disadvantaged. Compromise is essential. Yet the Salzburg EU/UK summit appears to have ended in stalemate.
  2. This is a brief update on my article of 31 July for FIDE Fundacion called Is the Brexit endgame clearer in the light of the UK Brexit White Paper?”   . The article remains my current analysis of some of the legal aspects although three aviation-related points need to be read in the light of the UK’s new technical notices [1].
  3. The UK Prime Minister is reported  to have entered the negotiation in Salzburg  by arguing that the only tabled proposal was the Brexit White Paper (often referred to as the “Chequers” White Paper) and that the EU27 should not seek any more than the UK could offer.  But there are at least two issues about which the EU27 will have been concerned in Salzburg. They should have been no surprise to the UK Government.
  4. First the EU’s concern about undermining the Single Market (or not). It seems to me to have been obvious[2] that the EU27 would agree (a) that  the Chequers common rule book proposals for the cross border movement of some goods were a step in the right direction [3] but would consider  that (b) the attempt to pick and choose between goods and services and the other freedoms would not be acceptable.
  5. In that regard, there are three points to make. First the EU’s policy objection is that , if the UK were given a special deal as proposed in the Chequers White Paper, it would undermine the coherence of the rules of the EU27 to which the EU27 would be bound to continue to adhere. Secondly a fortiori the EU will have noted that the proposal for a common rule book on goods, as proposed by the UK, would not be a commitment to the whole of the EU acquis on free movement of goods[4]. Moreover the Chequers White Paper had ignored the link between goods and services where good are transferred with the benefit of an ancillary service commitment. Thirdly, the EU considers that there is a  legal objection to undermining the Single Market since the market is clearly defined in Article 26 (2)  of the TFEU[5] as an area in which the free movement of goods, persons, services and capital is ensured.
  6.  In policy terms, the UK Government has yet to understand fully that the Single Market is about benefits and burdens . Free movement of workers is a potential burden although that is unproven in terms of the net benefits that each migrant brings to the UK. But, even if it were a net burden, the benefit to the UK economy of being able to have access to the EU market is obvious. For example, put crudely, while the UK  might want to stop unskilled EU27 migrants from coming to the UK , the advantage to UK companies of being able to pitch for, say , working on transport  infrastructure projects and other contracts in the EU27  without discrimination and on the basis of a level playing field is a highly significant counterbalancing factor.  
  7. Secondly, the Northern Ireland backstop. At its heart, the concern of the EU27  about an open border is that there remains a possibility of future divergence in regulation regimes [6] as between the EU and Northern Ireland and hence the need for a fall back that is agreed in advance. The UK’s constitutional argument against the EU27 backstop, which would require continuing adherence to the EU acquis in Northern Ireland as the price of a permanent  open border,  is that it divides the UK at the Irish Sea. The UK has no written constitution. The argument that the UK Prime Minister has put forward in respect of the treatment of Northern Ireland is essentially political not legal. Legally, the UK parliament is sovereign and it is able to decide to treat the future regulatory rule book in Northern Ireland differently if it is in the UK’s national interest to do so.
  8. One positive promise was made by the UK Prime Minister in her speech after Salzburg [7].  Spanish citizens in the UK will wish to note the promise , which is that the UK Government  , whatever the outcome, will protect the rights of EU27 citizens who already live and work in the UK.
  9. In my earlier article , it was noted that the UK political parties are divided over Brexit. There is no guarantee that any EU/UK deal based on the Chequers White Paper would be approved by the UK Parliament. This  is ultimately necessary in order to implement the EU/UK consensus since the UK has a dualist tradition for implementing its international obligations. There has been growing momentum for a second referendum, not only on the deal itself but also on the question whether or not the UK should leave the EU . In the event of the UK Parliament rejecting the deal, the Labour Party  is likely to call for a general election; and, failing that,  all options, including a second referendum, would be available.
  10. There will now have to be compromise in the Brexit negotiations, however bad tempered the Salzburg summit turned out to be.
[1] In the context of Aviation-specific examples, on 24 September the UK Government published several technical notices. They are not covered by this update.
[2] paragraph 21 of the article (Is the Brexit endgame clearer…?)
[3] paragraph 5 of the article (ibid)
[4] Paragraph 8 of the article (ibid)
[5] paragraph 21 of the article (ibid).
[6] Paragraphs 22 and 23 of the article (ibid)
[7] Financial Times: 21 September: transcript of Theresa May’s post-Salzburg speech

Christopher Muttukumaru

CB, DL, barrister and a member of FIDE’s Academic Council. Muttukumaru was a member of Monckton Chambers in Gray's Inn in London from 2014 to 2018. Christopher was previously General Counsel to the UK Department for Transport where he was the Chief Legal Adviser to eight successive Secretaries of State for Transport between 2001 and 2013. As General Counsel he was also a member of the DfT Executive Board. Earlier in his career, he was Legal Director at the Department for Environment, Transport and the Regions, as well as at the Department for Culture, Media and Sport. He was the principal legal adviser on EC Law issues in the Attorney-General’s office. He has been involved in advising Ministers on Public Law issues, as well as European and International Law issues, over many years. For example, in the Attorney’s Office, he was involved in the Factortame litigation; in DfT he handled the UK Government’s application for state aid approval for the funding of Network Rail; and, as Deputy Legal Adviser at the Ministry of Defence he was a senior member of the UK diplomatic delegation which negotiated the establishment of the International Criminal Court at the United Nations. Christopher was educated at Oxford University and is a Bencher at Gray's Inn (the Governing Council of the Inn). He holds a doctorate of laws (honoris causa) from City University (part of London University). He was vice chair of the Advisory Board of the Law Faculty of City University for many years. Christopher has written extensively, and spoken in the UK and EU, about matters such as international legal cooperation and Brexit legal issues. He is a deputy to the Lord Lieutenant for Greater London. Member of Fide´s Academic Council (based in London).