The drama and excitement of the last-minute EU-UK agreement on Phase 1 of Brexit talks in December last gave way to a period of relative calm in Brussels for the EU’s Brexit negotiators in early 2018
As the UK Government attempted to finalise its own negotiating position for the second phase of talks (which will involve agreeing on the terms of a transition period and the shape of the future EU-UK relationship), the Council and the Commission busily drafted several legal texts to be used as a basis for its negotiations. In early February, the Commission’s TF50 published a draft legal text outlining the EU’s approach to transition in which it insisted on maintaining the status quo regarding the UK’s financial and legal obligations throughout the entire transition period. Both sides intend for a provisional agreement on transition to be reached in advance of the European Council meeting at the end of March.
At the same time, member states worked to agree on a legal text which would reflect the agreement reached between the EU and UK at the end of 2017. Although not yet published at the time of writing, it is likely that this text will outline the EU’s understanding of what is meant by the term “regulatory alignment” in the context of the Irish border. The UK will have to agree on this draft legal text to ensure an orderly withdrawal, although it is likely that this will become a point of contention during talks later in the year.
Michel Barnier has repeatedly stated that “nothing is agreed until everything is agreed”, meaning that an orderly withdrawal and a legally-binding agreement on a transition or implementation period to take effect post-March 2019 is not yet a given.