22 March 2017

The document only contains ten pages and would only have been seen by six people, including European Council President Donald Tusk and European Commission President Jean-Claude Juncker. De Volkskrant is reporting about its content on the basis of information provided by “some who were involved” in its preparation.

The guidelines have been drafted during the last nine months by the head of the Council’s Brexit task force, Belgian diplomat Didier Seeuws. He used to be both the chef de cabinet of Herman Van Rompuy (when he was European Council president) and the spokesman of the European Parliament’s Brexit ‘point man’ Guy Verhofstadt (when he was Belgian Prime Minister).

Chapter 1 – “Access to the internal market requires the acceptation of the EU’s four freedoms”

The first chapter of the guidelines is reportedly quite general, and insists that the EU-27 are united and that access to the internal market requires acceptance of the ‘four freedoms’, including freedom of movement of workers.

Chapter 2 – Principles regarding the exit

The second chapter deals with the principles preferred by the EU-27 for the “exit” negotiations. First of all, the EU-27 reportedly want the 3 million EU citizens who are currently in the UK to be able to stay, keep their jobs and right to health care. In return, they would be prepared to guarantee the same for the approximately one million Britons who reside in the EU.

Secondly, the chapter deals with the UK’s “liabilities” or “exit bill”. According to De Volkskrant, the guidelines won’t mention the €60 billion figure which the EU Commission has floated. The idea would be to negotiate a calculation method. The newspaper mentions that this part is a technical and legal minefield, given the challenge of how to calculate future pension liabilities of EU officials as well as the value of the EU’s assets, to which the UK has contributed.

One particular challenge results from former Prime Minister David Cameron’s efforts to cut the EU’s 2014-2020 budget. This resulted in a compromise by which EU “payments” are being cut for the first few years, while – in return – higher “commitments” were agreed for the future. As a result of this, the situation will arise that the EU Commission will be promising money during the time that the UK is still a member which member states would only need to effectively pay for after Brexit.

Furthermore, as the UK would no longer recognise the European Court of Justice (ECJ) as the arbiter to sort disputes related to the exit negotiations, the International Court of Justice in The Hague may fulfill this role – or at least some are suggesting that it should.

Chapter 3 – Principles regarding Britain’s trade status after its exit

The third chapter deals with the UK’s status after Brexit. Here, the proposed EU-27 guidelines would insist that EU membership should be rewarding, meaning that the UK should lose some of its trade “benefits”.

This of course assumes that a benefit for the UK isn’t a benefit for the EU-27, indicating that the EU – or at least those who drafted the guidelines – consider trade really to be a zero-sum game. Little consideration is made for EU-27 consumers facing higher hurdles when trying to tap into capital from the City of London or UK consumers facing more expensive German cars or less choice in European wine.

Chapter 4 – “Loyal cooperation” as the guiding principle of the negotiations

The fourth and final chapter discusses the principles of the negotiations itself, with “loyal cooperation” being pushed forward as the key principle.

More about the negotiations

The article reveals that EU leaders will need to decide if they’ll start with the talks about the separation act and trade relation simultaneously or whether they’ll prioritise the former, suggesting that there may be some sympathy for the UK government’s stance that things should be discussed in parallel. Let’s hope that this line will indeed prevail. Not only is trade access to the UK also very important for a number of EU member states so it’s better not to lose time, the EU may well manage to convince the UK to pay a bit more if this is linked to trade access. Interestingly, the newspaper mentions that a third option is being considered, which is to start negotiating on everything with the caveat that there can’t be a deal on any issue related to trade before there is a deal on the exit-aspect of that issue.

When the 27 EU leaders approve the mandate at 29 April, it’s reportedly expected they’ll have some discussions on the calculation method for the exit bill and on whether negotiations on exit and on whether Britain’s trade status after the exit should be conducted in parallel. After that, the EU Commission’s Brexit team, led by former French EU Commissioner Michel Barnier, will further develop their “directives” to negotiate in detail and then receive approval for that as well. That apparently shouldn’t take a lot of time, as the guidelines would have been prepared in close coordination with Juncker and Barnier in the first place.

Barnier and his deputy, German EU Commission official Sabine Weyand, have now visited all 27 member states and would be ready with the registration of all sensitivities and possible division points among the 27. Barnier himself is keen to start the negotiations already in May, aiming to conclude them in autumn 2018, so member states and the European Parliament can approve the separation act before the European Parliament elections of May 2019.