20 November 2018

Since the publication of a draft Withdrawal Agreement between the UK and the EU last Wednesday, it has become clear that some EU member states are unhappy with some of its provisions.

As we have seen, the domestic political response to the agreement has been significant and divisive: several ministers have resigned, including former Brexit Secretary Dominic Raab, and there have been fresh concerns that the deal will not be approved by MPs. Before a parliamentary vote, however, the Withdrawal Agreement must first be approved by the EU 27.

Several senior European leaders have stressed that the proposed deal cannot now be altered. German Chancellor Angela Merkel has said that there is “no question” of a renegotiation, while Dutch Prime Minister Mark Rutte has added, “It is highly unlikely that we will make important changes to these proposals. We have talked about this for so long.”

While formal approval is expected at an EU summit on Sunday 25 November, there was preliminary backing from EU 27 ministers at a meeting of the General Affairs Council yesterday. German Economy Minister Peter Altmaier said, “I believe we need to stick with what we have [negotiated] and as such we will be strengthening Theresa May as she puts this result to a vote [in the UK parliament].” Gernot Blümel, the Austria Minister for Europe, has also publicly ruled out renegotiating the Withdrawal Agreement.

However, some EU states feel that the Withdrawal Agreement does not go far enough in securing their economic or political interests. While this is unlikely to result in a rejection of the agreement on Sunday, any dissatisfaction on the part of EU states could have consequences for potential future negotiations on an EU-UK trade relationship, and suggests that member states might have their own proposals for revision of the agreement if it is reopened.


The UK-wide backstop

Key among the concerns is that the UK-wide backstop solution could allow the UK to diverge from future EU rules in areas such as social and environmental policy. The UK-wide backstop is a concession to the British reluctance to any Northern-Ireland specific backstop; however, some EU states have expressed a concern that the UK could have a competitive advantage if it is allowed to stay in a customs union but be free of some of the obligations placed on EU members.

As reported by Politico, one senior European diplomat argued that the agreement “isn’t clear” on common UK-EU environmental and social standards. Another diplomat is “worried” that the Withdrawal Agreement offers the UK too much ability to diverge from EU regulation in services. France and Germany have been especially prominent in highlighting the failure of the Withdrawal Agreement to ensure a continued “level playing-field” for the European single market, to the benefit of the UK: French Finance Minister Bruno Le Maire said last Thursday that a deal “must not weaken our common market.”


Fishing rights

Another set of concerns revolves around fishing. While many EU states can currently fish in UK waters as part of a system of EU-enforced quotas, the UK intends to pursue unilateral jurisdiction over these waters after Brexit. France, the Netherlands, Spain, Portugal, and Denmark have objected to the fact that the Withdrawal Agreement does not commit to safeguarding their access to UK fishing waters after the end of the transition period. Indeed, some member states had wanted their fishermen’s access to be a condition of granting the UK-wide backstop.

The current proposal is that fishing will be part of future negotiations during the transition period. This is controversial in some EU capitals. Aleš Chmelař, Czech Minister for EU affairs, said that several member states pushed for changes to the Withdrawal Agreement “in sensitive areas like fisheries” at yesterday’s General Affairs Council. In addition, Politico quotes one EU diplomat who criticises the fishing arrangements currently in place: “It’s not clear, and it will affect millions of jobs… There’s nothing precise.”


The position of Gibraltar

It has also been reported that Spain is unhappy with the position of Gibraltar within the Withdrawal Agreement. Article 184 commits the EU and the UK to negotiations on a future trading relationship in good faith. However, Spain has asked for a veto over how these arrangements apply to Gibraltar. Spanish Foreign Minister Josep Borrell has argued that Gibraltar is not part of the UK and should not automatically be part of any future trading relationship:  “Until that’s clear in the withdrawal text and the political declaration over the future relationship, we won’t be able to agree to it. We want to make sure the interpretation of this text is clear and shows that what’s being negotiated between the EU and the UK does not apply to Gibraltar.”


Implications for the future

Despite these concerns, there is a general wariness among the EU 27 of appearing too dissatisfied with the draft Withdrawal Agreement as it currently stands. A strong display of enthusiasm for renegotiation beyond only minor changes might encourage further political instability in the UK: the French newspaper Ouest France quotes a further diplomat who reveals that the EU 27 does not want to “add fuel to the British fire.”

Furthermore, the reported comments of EU Deputy Chief Negotiator Sabine Weyand seem to have been designed to forestall their concerns. According a leaked diplomatic note seen by The Times, Weyand sought to assure European leaders that the EU-UK customs union would form “the basis of the future relationship,” but that the EU would “retain all the controls… UK wants a lot more from future relationship, so EU retains its leverage.”

However, these caveats have not prevented EU states from expressing their dissatisfaction with parts of the Withdrawal Agreement. Issues surrounding the customs union and fishing rights may not be settled until well into the transition period. Indeed, if there are no immediate changes to the Withdrawal Agreement, it is possible that we will see increasing friction between the UK and the EU 27 as part of trade negotiations in the coming years – all assuming, of course, that Theresa May gets a deal through the UK parliament.