Thread by @StevePeers

1/ The Commission has just published the proposed negotiation mandate for the future EU/UK relationship: ec.europa.eu/info/sites/inf…

First thoughts, as I read through it...

2/ Note that this is a *proposal* for a negotiation mandate. The mandate is decided on by the Council, ie Member States' ministers. Under the proposal they would have to act unanimously (I will explain why in a moment).

3/ The Commission will then negotiate, in accordance with the Treaties. But note *it will have a mandate from Member States when doing so*. Barnier will not be on a frolic of his own. (This point was often missed during the withdrawal agreement negotiations)

4/ The 'special committee' which the Commission has to report back to was set up last week - eur-lex.europa.eu/legal-content/…
It's made up of Member States' officials who keep an eye on the Commission as negotiator. This isn't unique to these talks; it's a requirement in the Treaties.

5/ There's no formal role for the European Parliament at this point, although it can pass non-binding resolutions. It will have a veto over the final agreement.

At first sight the proposal doesn't take a view on whether ratification by each national parliament will be needed.

6/ The Commission doesn't discuss the UK objection to extending the transition period. It aims to get as much as possible done during the available time.

7/ The intention is a single overarching partnership (so a single treaty?) with general provisions, economic arrangements, and security arrangements.

8/ Gibraltar is outside the scope of the planned negotiations. (See also para 162 of the proposal). This is not a new EU position, and is not a territorial claim. Reporting on this point has been, frankly, poor and sensationalist.

9/ For now, the Commission seeks legal authority to negotiate an association agreement, although it avoids using those actual words. It notes that when it comes to the end of the negotiations, things might be different.

10/ An association agreement (if that's where we end up) requires unanimity in Council and consent of the European Parliament. It *might* need ratification by national parliaments but that depends on the content. It can be put in force provisionally (at least partially) if needed

11/ Data protection: the proposed mandate links exchange of security information to an adequacy decision on UK data protection law. Note that an adequacy decision is a unilateral process.

12/ The proposed mandate would cover UK participation in EU programmes, such as research funding and Erasmus. The Northern Ireland peace funding is also mentioned.

13/ A free trade agreement covering both goods and services. It's often inaccurately claimed that there's no intention for an FTA in services between the UK and EU. But note that an FTA falls short of single market participation.

14/ Details on goods: no tariffs or quotas. But rules of origin, to determine where goods come from. This is an extra burden on trade between the UK and EU compared to EU membership, and is a consequence of the UK's decision not to negotiate a customs union.

15/ Anti dumping duties and anti subsidy duties may apply between the UK and EU, referring to blessed WTO rules. Again, this is a new possible barrier in UK/EU trade. Such measures are ruled out under the EEA (for most products). This would apply even without an FTA.

16/ Customs facilitation and agreement on non tariff barriers (technical and sanitary rules) would be part of the negotiation mandate.

17/ Services. FTA going beyond WTO commitments, but as usual the EU will exclude audio visual services. This will include movement of service providers, but this falls short of free movement of people.

18/ The mandate includes recognition of professional qualifications. Financial services equivalence decisions will be unilateral.

19/ Intellectual property: going beyond WTO and other international rules. Usual for EU (and other) FTAs, but the big EU ask here is protection for future geographical indications (ie feta must originate from Greece). Note *current* GIs are protected in the withdrawal agreement.

20/ Public procurement: UK is signing up to WTO agreement in its own name. FTA would go further. Usual for FTAs.

There's a conflict between vapid slogans here: "Buy British" economic nationalism, and export oriented "Global Britain". Choose your fighter!

21/ Mobility: falls short of free movement of people. EU has already waived visa requirements for short term travel, but a visa waiver treaty could go further. Waiving visa requirements for paid activities (now an option for Member States) would be useful for music industry etc

22/ Note the interest in negotiations on migration of students and researchers (areas where the EU has already legislated on non-EU migration). Social security coordination would be for *future* UK/EU migration. Withdrawal agreement already covers previous migration and CTA.

23/ Air transport: not the same market access as an EU Member State, but willing to negotiate. Also aviation safety standards.

24/ Land transport: market access for road haulage, but not cabotage (haulage within a single Member State/multiple Member States), linked to a standstill on social rules plus tachograph discussions. International law on coach transport. Something on the Channel Tunnel.

25/ Energy: lots on renewable energy, level playing field on carbon pricing, Euratom deal including a standstill on nuclear safety standards and isotope issues.

26/ Fisheries: focus on EU traditional fishing in UK waters, link to the rest of the economic partnership, reference to agreed July target date. Prime candidate for crashing the whole negotiations.

27/ Level playing field: similar to first version of the withdrawal agreement. Retain existing EU and international rules on State aid, aspects of tax, labour and the environment. Dispute settlement, but not clear if that applies to all of this. EU retaliation for non compliance.

28/ A "commitment" to adopt new standards in these fields, but subject to the governance process, presumably meaning *both sides* have to agree in a Joint Committee. So a lot of important details to be negotiated.

29/ Security cooperation: made dependent not only on UK adherence to the ECHR, but also the *Human Rights Act*, and the unilateral adequacy decision on data protection - expressly referring to possible CJEU challenges. Also fair trial and double jeopardy standards.

30/ The Commission position here reflects the issues that would be litigated anyway about data protection and human rights standards in the UK. They are already litigated as regards non-EU countries *and* other Member States.

31/ Data exchange: refers to passenger name records, DNA/fingerprint/vehicle info, and exchange in individual cases. No mention of Schengen Information System and the individual exchange approach can't simply copy it. Refers to a CJEU case discussed here: eulawanalysis.blogspot.com/2017/08/transf…

32/ Criminal justice cooperation: refers to fast track extradition. Also exchange of evidence and criminal records in a similar way to existing EU laws.

33/ Foreign policy: "alignment" on sanctions (the only explicit use of the word). Case by case involvement in defence missions or defence industry projects. Limited access to Galileo.

34/ Dispute settlement: consultation then binding arbitration. CJEU involved if an issue concerns the interpretation of EU law (as set out in the political declaration). NO reference to CJEU involvement otherwise.

35/ So the CJEU would be involved ONLY where the agreement
a) refers to EU law AND
b) provides for dispute settlement.
Key parts of the level playing field in the first withdrawal agreement met condition a) but NOT b). The details of the future treaty will be crucial.