Lisbon, 26 May 2018 : Speech by Michel Barnier at the 28th Congress of the International Federation for European Law (FIDE) – by kind permission of the European Commission
Mr. President, dear José Luís da Cruz Vilaça,
Ladies and gentlemen,
Allow me, first of all, Mr. President, to thank FIDE and the Portuguese Association of European law for this invitation.
I am happy to be here to update you on the negotiations – which I lead for the European Union – and in the presence of Koen Lenaerts, to underline questions related to the governance of the Withdrawal Agreement.
I would like to take this opportunity to highlight the importance of the work of lawyers in this negotiation. I want to thank Luis Romero and Hubert Legal for the daily support of their legal services, which is of utmost importance to our team. And I want to also thank Freddy Drexler and the European Parliament’s legal service, which also supports our work.
Since the beginning of the negotiations 11 months ago, each bit of progress from our side was based on precise draft texts.
And in March, we made substantial progress on the basis of our draft Withdrawal Agreement – 168 articles drafted in close cooperation with the legal services of the Commission and Council:
- On citizens’ rights, first:
o EU citizens in the UK and British citizens in the EU who arrived before 31 December 2020 can continue living as now.
o Thanks to the direct effect and the primacy of the Withdrawal Agreement in UK law, citizens can rely directly on the text to enforce their rights in UK courts.
o UK courts will have the possibility to request the Court of Justice in Luxembourg for a preliminary ruling for a period of 8 years. They should also take into account the relevant case law of the Court, when it comes to the implementation of the Withdrawal Agreement.
o And so the uniformity of rights on both sides of the Channel will be ensured, not only in the beginning, but long-term.
- We have made progress on the financial settlement: all commitments made at 28 will be respected at 28. This assurance was essential for all project managers and beneficiaries of projects financed by the European Union. And I am aware of the personal commitment and attention Commissioner Carlos Moedas has on this point.
- Finally, we reached an agreement on a transition period of 21 months after the UK’s withdrawal. This period, during which the UK will be treated as if it were a Member State, even if it is no longer part of our institutions, had been requested by the British government. It will give more time to administrations and businesses to prepare for the new relationship.
Ladies and gentlemen, as you can see in the draft Withdrawal Agreement – available online – we have reached an agreement on around 75% of the text, which is in green.
But to remove the uncertainty created by the UK’s decision to leave the European Union, we are not yet at the end of the road.
- In particular, we need to reach an agreement on the governance of the Withdrawal Agreement, which I would like to speak to you today about.
- We must also find a specific solution to the unique situation of Ireland and Northern Ireland. The United Kingdom accepted the principle of a backstop to avoid the return of any physical border and to respect the Good Friday Agreement in all its parts. We need to operationalise this backstop in the Withdrawal Agreement.
- Finally, alongside the Treaty itself, we need to agree on the framework of the future relationship – other treaties, on other legal bases, probably mixed treaties.
Two remarks on this last point:
First of all, time is – and will be – short. If we want to lay the foundations of our future relationship before the UK’s withdrawal, we need to accelerate. On our side, we are ready to discuss this at political level. We are also ready, at any time, to intensify our negotiations at technical, legal and political level.
Next, the European Council adopted in March guidelines which took into account the UK’s red lines, for example the UK government’s decision to leave the Single Market and the Customs Union. If the UK wants to change its own red lines, it should tell us. The earlier, the better!
And obviously, we are open-minded! There is no ideology or dogmatism on our side.
The European Council clearly indicated that the UK could change its mind.
All we ask for is clarity.
Because, to negotiate effectively, you need to know what the other side wants.
A negotiation cannot be a game of hide-and-seek.
On our side, we have always worked in full transparency. The UK should accept the consequences of its own decisions. It should explain the consequences and assume them.
Ladies and gentlemen,
This morning, I would like to discuss the governance of the Withdrawal Agreement.
You are well placed to know that any international agreement, however comprehensive, has little value if its implementation is not assured in an effective way.
We therefore need strong institutions to ensure the correct application of the agreement by both parties. And we need a solid dispute settlement mechanism.
So far, we have reached an agreement with the UK negotiators on the existence and functioning of a mixed committee which is, as you know, a classic institution in agreements concluded by the European Union and which represents a forum for political dialogue between the parties.
But in no circumstances is it sufficient to ensure the appropriate governance of the Withdrawal Agreement.
As far as we see it, governance should revolve around three points which go together:
1 – My first point, which for us, is a fundamental principle: governance should include a jurisdictional system of dispute settlement.
According to the British position, any disagreement between the EU and the United Kingdom on the interpretation or the application of the Withdrawal Agreement should be dealt with by the mixed committee.
In my opinion, this would be tantamount to replacing the legal supervision of rules with a simple political settlement – which is unacceptable.
By creating, or joining the European Union, Member States accepted to put together certain parts of their sovereignty to create a body of law which applies to them and their citizens. It is this community of law, based on reciprocal trust, which the United Kingdom is about to leave.
And the agreement which we are negotiating aims to ensure an orderly withdrawal, which means unravelling the relationships established over decades between Member States, and also between private parties.
As opposed to a classic international agreement, the Withdrawal Agreement is not limited to creating rights and obligations between two sovereign parties. It will create rights that are directly enforceable by litigants.
In the event of a political disagreement in the mixed committee – which cannot be excluded – questions would remain unanswered, with very concrete consequences for citizens and businesses on both sides of the Channel.
We do not want, and cannot, move from a community of law based on the supervision of the Court of Justice to a simple political dialogue.
For us, on the EU side, it is essential to settle disputes in a legal or arbitration-based framework. This is a question of legal certainty and efficiency.
Ladies and gentlemen,
2 – The second point, President Lenaerts, President Skouris, is also a fundamental principle, and is linked to the role of the Court of Justice of the European Union in this jurisdictional or arbitration system of dispute settlement.
The United Kingdom made the decision to leave the European Union, having been a member for 44 years.
In our draft Withdrawal Agreement, therefore, most of the provisions logically come from EU law, or are inspired by it.
This is not surprising: this is simply about the orderly withdrawal from a Union, whose rules the United Kingdom helped to define and which it has applied since 1973.
And I constantly repeat that we need legal certainty in this international agreement for all those – citizens, consumers, businesses, local authorities, associations – who are affected by Brexit.
For these provisions or the concepts of the Withdrawal Agreement which come from EU law, we cannot accept that another jurisdiction, other than the Court of Justice of the European Union, says what the law is, or imposes its interpretation on the institutions of the Union.
The case law of the Court of Justice is clear on this point. The autonomy of Union law must be preserved.
Ladies and gentlemen,
3 – The third point is naturally about respecting the role of UK courts.
British judges will be responsible for applying the Withdrawal Agreement in the UK. According to our draft text, they will have to do so taking into account the case law of the Court of Justice.
I would like to recall that, as for the interpretation of the provisions of the Withdrawal Agreement on citizens’ rights, British judges will have, during a transition period – which in reality is rather long – the ability to request preliminary rulings from the Court of Justice of the EU. They will have the ability to do this for any litigant who makes a request at first instance to a UK judge, in the first eight years of the application of these provisions, as of the end of the transition.
This seems to us a realistic amount of time to build up the case law which citizens need, and which does not exist already.
This mechanism will ensure over time the uniform interpretation of the Withdrawal Agreement on both sides of the Channel. This objective, which is now guaranteed for the rights of citizens, still needs to be reached for the rest of the agreement. This will allow us to reduce the risk of litigation between the European Union and the United Kingdom on the interpretation and application of the Withdrawal Agreement.
I would like to state here my respect and faith in British judges, who are the heirs of a long tradition and who have helped to shape European Union law, which they have applied for 45 years.
And in the same spirit, if we want the UK’s withdrawal to proceed in good conditions, the United Kingdom must obviously respect what the European Union is.
Ladies and gentlemen,
It is on these three points – a legal dispute settlement system, the role of the Court of Justice, and the role of UK judges – that we must built a strong system of governance for our Withdrawal Agreement.
This is urgent.
I will repeat myself again: we have undoubtedly advanced a lot on the substance of the Withdrawal Agreement, but without effective governance, these advances have only limited value.
Because without an agreement on governance, and without an agreement on Ireland and Northern Ireland, there will be no Withdrawal Agreement, and therefore no transition period.
The United Kingdom knows well that citizens and businesses on both sides of the Channel need legal certainty.
Ladies and gentlemen,
We also want an ambitious long-term partnership with the United Kingdom. But to get there, we need realistic proposals from the United Kingdom – proposals which respect the institutional architecture of the integrity of the European Union.
I can see the temptation of a blame game to pin the negative consequences of Brexit on the EU. But we will not be swayed by this. I will not be swayed.
It is the United Kingdom that is leaving the European Union. It cannot, on leaving, ask us to change who we are and how we work.
When it comes to the economy, and foreign policy, the best way to influence the decision of the European Union is to be in the European Union.
The United Kingdom wants to leave. That is its decision. Not ours. And that has consequences.
Ladies and gentlemen,
Allow me to give an example.
The General Data Protection Regulation – GDPR – came into force yesterday.
According to the United Kingdom’s position first presented – and published – this week on data protection:
- The United Kingdom would like its supervisor to remain on the European Data Protection Board, created by the GDPR.
- It wants to remain in the one-stop-shop.
- It believes that this is in the interest of EU businesses.
But let’s be clear: Brexit is not, and never will be, in the interest of EU businesses.
And it will especially run counter to the interests of our businesses if we abandon our decision-making autonomy. This autonomy allows us to set standards for the whole of the EU, but also to see these standards being replicated around the world.
This is the normative power of the Union, or what is often called “the Brussels effect.”
And we cannot, and will not, share this decision-making autonomy with a third country, including a former Member State who does not want to be part of the same legal ecosystem as us.
You are EU law experts, and you can see how the UK’s ideas pose real problems:
- Who would launch an infringement against the United Kingdom in the case of misapplication of GDPR?
- Who would ensure that the United Kingdom would update its data legislation every time the EU updates GDPR?
- How can we ensure the uniform interpretation of the rules on data protection on both sides of the Channel?
The United Kingdom needs to face up to the reality of the European Union. It also needs to face up to the reality of Brexit.
The United Kingdom decided to leave our harmonised system of decision-making and enforcement.
It must respect the fact that the European Union will continue to work on the basis of this system, which has allowed us to build a single market, and which allows us to deepen our single market in response to new challenges.
And, as indicated in the European Council guidelines, the UK must understand that the only possibility for the EU to protect personal data is through an adequacy decision.
It is one thing to be inside the Union, and another to be outside.
Ladies and gentlemen,
Allow me to conclude on an important point about our state of mind in these negotiations.
There is no distrust from our side vis-a-vis the United Kingdom. From our side, there is no spirit or revenge or punishment, and there never will be.
But it must be understood that, in the European Union, our strength comes from the trust between Member States.
This trust does not fall from the sky. The trust between us is founded on a normative ecosystem, common rules, shared decisions, joint supervision and implementation and a common Court of Justice.
Nowhere else in the world will you find a common legal order for an entire continent like the one we have built together over the past 60 years.
There is no reason, no justification, for accepting to weaken this community of law and destiny because one of our Member States has decided to leave.
If that is well understood, and it should be, then it will be possible to build a new ambitious partnership with the United Kingdom in the long term.
This is in our common interest, and it is what I have been working on with my team, on behalf of the European Union, since day one.
Thank you for your attention.
By kind permission of the European Commission