



The last weeks of the Brexit negotiation have been strong in theatricals moments, and weak in common sense (especially in London). Basically, both Conservatives and Labour have adopted contradictory positions which do not take the least into consideration the EU’s essential interests and have thus absolutely no chance to be accepted. In a nutshell, real markets need rules, and such rules must have legal constraints, to guarantee implementation. If one wants deep integration in the single market, one must accept deep constraints. It has been the constant position EU position since its creation with all third countries, and it will not change.

The UK has made small steps, but not enough. Since 1998, it is committed to the elimination of checks on the Northern Ireland border. In 2017, this commitment was repeated. This means Northern Ireland must be in the EU customs union and in the EU single market for goods (because regulatory alignment is also required to prevent border checks). The UK has only two ways to manage this. Either an internal border is created in the UK to deal with the special Northern Ireland regime, or this regime is extended to the whole UK. The last weeks in London have been totally counterproductive since they mainly obscure that reality and waste (again) time.

On the other side, the EU negotiators have not always contributed positively. Some state that the UK has committed precisely in December 2017 to a backstop as proposed by the European Commission, others that the UK tries to impose a trade relationship by stealth. Michel Barnier has excluded in advance the extension of the Northern Ireland regime to the whole UK. Additionally, even if this were accepted, it is considered that it would require the full four freedoms of movement. All those statements appear incorrect. The December 2017 agreement remains general. It is a little bit rich to consider that the EU would be entitled to discuss border checks for the sake of the Good Friday agreement but that the UK would not. (Similarly one fails to identify the Treaty provision which prevents the UK to discuss trade but allows the EU to demand the protection of geographical indications.) Until now, the extension of the Northern Ireland regime to the whole UK has not been excluded by the European Council. And every agreement does not necessarily require the respect of the four freedoms of movement (which is not foreseen for example in customs union with Turkey and deep association with Ukraine).

Of course, the present UK position remains most unsatisfactory but it is essential to explain why with precision. Furthermore, treaties must be executed in good faith (Article 26 Vienna Convention on Treaties). This applies also to Article 50 TEU. Interpretation must remain balanced, and damaging solutions may not be imposed when there exist less damaging alternatives. Imposing to the UK an exit from the EU with a loss of territorial sovereignty in Northern Ireland does not look conform to that requirement. On the other side, the UK’s neglect of EU fundamental interests is not more justifiable.

The best solution the EU can offer in good faith is the following one. The present backstop proposal remains valid, but it can be conditionally extended to the whole UK territory. The UK may choose between the two options. The conditions are : (a) full participation to customs union + single market in goods, (b) European Court of Justice competence for these areas, following some kind of EEA regime, (c) a limited budget contribution (less than for full access to EU single market), (d) no UK participation in this context to the single market in services and (e) a partial free movement of people limited to active people (less than for full access to EU single market). Modalities can be negotiated : what is essential is to preserve the balance between access and constraints. Time should also be better managed. Brexit is too complex to be a single event : it can only be a process. Transition period would go till 31 December 2020. After that, periods of five years would open. At the end of each one, both parties could agree on possible revisions. The UK participation to EFTA and EEA, or to a wide association agreement, for example, would always remain open if later desired. Going beyond that will inevitably damage the single market.

The EU should accept this more flexible position and present it now as “take it or leave it”. Even two years after the referendum, the UK government and main parties have proven repeatedly their inability to advance serious proposals. Since 2016, enough time has been wasted. Economic damage due to uncertainty is mounting now seriously, and so is the threat of a very serious political crisis in the UK. Each lost month now costs more losses in investments and jobs. This could still become worse in six months. London offers only neverending political games with ever mounting economic costs. Mrs May seems to prepare a “Moi ou le chaos” scenario for the latest minute. It is a very dangerous strategy if one contemplates to apply it simultaneously in Parliament and in Brussels. If a crisis happens, it is important not to have it too late. Waiting till the last minute will only compound the economic damage. A “no deal” scenario requires a minimum preparation – and thus time – for everybody.

Both sides should be aware that a crisis now will be durable and very costly. This is evident for the UK, but also applies to the EU. The climate is changing. Economic growth is diminishing. Trump USA is doing everything it can to manufacture a recession. The EU is very exposed to threats in global trade. Italy has become a source of instability in the Eurozone. The rule of law challenge is growing in the East. The 2019 European elections could be destabilizing. The EU could certainly do without an additional British crisis, and so could the UK.

On all sides, radicals seem tempted to provoke a huge political crisis. Some seem eager to impose a complete Brexit, and others to kill it completely. Both underestimate strongly this strategy’s huge economic risks, because there probably won’t be an easy alternative. The British population remains highly divided and polarized, as well as the main parties, and the whole Parliament. If the May government falls, no one knows who will replace Mrs May, and this could well provoke a schism inside the Conservatives. This could also lead to an election, and possibly to a new hung Parliament (or to a later schism inside Labour). Meanwhile the economy’s deterioration will still accelerate. People in charge on all sides need now to think less about their career’s future and more about the economy’s. We need urgently less matamoresque speeches and more reasonable compromises.

Franklin DEHOUSSE





Professor at the University of Liège

Former Special representative of Belgium in EU negotiations

Former judge at the Court of justice of the European Union



