The European Union’s final mandate was released on 25th February 2020 and calls for an ambitious and comprehensive partnership envisaged with the United Kingdom.
The mandate provides the basis for future negotiations to be carried out and is comprised of four main components:
- general arrangements (including provisions on basic values and principles, and on governance);
- economic arrangements (including provisions on trade and level playing field guarantees);
- security arrangements (including provisions on law enforcement and judicial cooperation in criminal matters, as well as dispute settlement, foreign policy, security and defence); and
- institutional arrangements (including provisions on dispute settlement).
The mandate states that the envisaged partnership should be based upon “shared values and commitments” including continued UK commitment to the ECHR.
The mandate further stipulates that there should be “robust” level playing field commitments that are “commensurate with the scope and depth of the overall envisaged partnership.” This principle is emphasised throughout the mandate, particularly in the context of economic arrangements. The suggested areas that Level Playing Field commitments should apply to are:
- state aid;
- state-owned enterprises;
- social and employment standards;
- environmental standards and climate change; and
- relevant tax matters.
In the event that the UK reneged on level playing field commitments the EU intends to have the option to apply autonomous interim measures to react quickly to any adverse effect or disruption..
The mandate states that the partnership should act as a free trade agreement whereby no tariffs, fees, or charges that have the effect of restricting trade are permitted. As described above, the mandate stipulates that a free trade area is contingent on “sufficient guarantees for a level playing field” to promote open and fair competition between the UK and EU.
Critically for legal services, the mandate calls for a level of trade liberalisation in services that goes beyond WTO commitments under the General Agreement on Trade in Services (GATS), and aims at substantial sectoral coverage that includes: “professional and business services, telecommunications services, courier and postal services, distribution services, environmental services, financial services and transport services.” An agreement on market access and national treatment for service providers is necessary for this arrangement, and should also:
- deal with the issue of entry and temporary stay of natural persons for business purposes “in defined areas”;
- establish a framework for “voluntary regulatory cooperation in areas of Union interest”, and
- include a framework to enable negotiations on conditions for domestic authorities to recognise professional qualifications, necessary in the pursuit of specific regulated professions.
With regards to mobility arrangements, the mandate provides that there should be visa-free travel for short-term stays with the requirement of non-discrimination and reciprocity.
In the context of law enforcement and judicial co-operation, the mandate initially only referred to criminal matters that would fall under the proposed “security partnership” component, but was amended to also incorporate family law matters in so far as they were not addressed by the 2007 Hague Maintenance Convention to which the UK is expected to accede.
The criminal law co-operation is envisaged to include provisions relating to the prevention, investigation, detection and prosecution of criminal offences. Cooperation between law enforcement authorities is also explicitly expected to include Europol and Eurojust. The partnership is intended to automatically terminate “if the United Kingdom were to denounce the European Convention of Human Rights (ECHR).”
The mandate seeks the establishment of a Governing Body to deal with issues arising from the agreement in which a dissatisfied party can refer the dispute to an independent arbitration panel. Alternatively, the UK or EU could refer to the arbitration panel if it was not satisfied with a decision of the Governing Body. In the event of a dispute concerning a question of interpretation of European Union law, the arbitration panel should refer the question to the CJEU.
Amendments to the draft mandate
The adopted negotiating mandate contains some important revisions from the draft released on 3 February 2020. In the context of the economic partnership, there was in particular a strengthening of guarantees for a level playing field. Several provisions also now explicitly refer to the importance of level playing field commitments which can stand the test of time.
Secondly, as mentioned above, there was an important expansion on judicial co-operation, with the final mandate now calling for “enhanced judicial cooperation in matrimonial, parental responsibility and other related matters”, taking into account the UK’s intention to accede to the 2007 Hague Maintenance Convention.
Formal negotiations between the United Kingdom and European Union were due to begin the week of 2 March 2020.
Contributors: Marcus Corry, EU Policy Advisor and Sheyda Rimmer, Legal Intern