Theresa May's uncomfortable dinner last week with European Commission chief Jean-Claude Juncker has been the focus of intense media attention in the UK and Europe for the last three days.
According to reports, separately published with varying degrees of detail by Politico, the Sunday Times, and German newspaper Frankfurter Allgemeine (FAZ), the PM clashed with Juncker over Brexit – he reportedly accused her of living in a "parallel reality" and said he left the meeting 10 times more sceptical than when he went in.
Downing Street has dismissed the accounts as "Brussels gossip". But beyond the posturing and spin on both sides, the dinner highlighted a series of real concerns about Britain's position that, rightly or wrongly, have been been widespread in EU capitals for some time.
1. The continued lack of detailed plans
Tens months after the Brexit referendum, European officials believe that once they scratch under the surface, the UK still lacks substantive plans that translate the broad principles set out by May in her Lancaster House speech and Article 50 letter into detailed proposals.
Merkel: Need better understanding of what UK wants before can negotiate trade deal #brexit #euco #eu27
During a press conference after Saturday’s EU27 Brexit summit, Juncker lamented that every time he asked May a question, she told him to be "patient and ambitious".
One topic of last Wednesday's dinner conversation was about the rights of EU nationals living in the UK, and those of Britons living elsewhere in the EU.
Going into the summit, European Council president Donald Tusk revealed the EU has already prepared a precise and detailed list of citizens' rights and benefits it wants to protect. The guidelines agreed at the summit make clear that the EU’s intention is to safeguard the status and entire body of rights of EU and UK citizens, and their families, affected by Brexit in a manner that is “comprehensive, effective, enforceable and nondiscriminatory”.
Europe’s capitals also want to see an arrangement put in place that makes any administrative procedure smooth and simple.
Meanwhile, the UK has already seen attempts to sort the issue out through a political declaration dismissed, and is understood to be angling to guarantee citizens’ rights through UK law.
May is said to have told Juncker over dinner that the issue can be solved within a matter of weeks.
But beyond the specific rights to guarantee – there are many, and resolving the issue is far from straightforward – it is unclear how such a solution could be enforced over time once the UK leaves the EU, and how it would be reciprocal to the guarantees provided by EU states to British nationals.
Pretty much all of Brexit comes down to dispute over jurisdiction: who sets rules and decides hard cases. EU citizens rights no different.
At the post-summit press conference, Tusk said: "Over the past weeks we have repeatedly heard from our British friends they are ready to agree on this issue very quickly, but I would like to state very clearly that we need real guarantees," adding that "in order to achieve significant progress we need a serious British proposal".
2. The UK underestimates the technical complexity of withdrawing from the EU
Speaking to reporters on Saturday afternoon, Juncker said he had the impression "our British friends" underestimate the technical difficulties of Brexit.
On Tuesday, the European parliament's Brexit negotiator Guy Verhofstadt tweeted that a "strong and stable" understanding of the complex issues involved in a deal were needed.
Any #Brexit deal requires a strong & stable understanding of the complex issues involved.The clock is ticking - it's time to get real.
UK and EU officials BuzzFeed News has spoken to over the past week acknowledged that concluding both a withdrawal and a final trade deal by March 2019 is unlikely. They admitted the amount of detail and work needed had been underestimated.
Officials from both sides point out that the UK would not be able to simply transpose into UK law the functions covered by EU agencies operating in dozens of different sectors. These include, for example, the certification provided by the European Aviation Safety Agency that enables planes to fly between member states, or functions established by trEuratom (which the UK is leaving) to oversee safety standards in the nuclear industry.
In some cases, Britain would probably need to create its own agencies, and this alone, as well as filling a shortage of the required skills, could take more than two years.
There are many other examples that could be made once thousands of EU rules, processes, and norms, as well as existing EU trade deals with third countries to which the UK is currently party to, are examined closely.
3. Brexit must mean Brexit
May is understood to have suggested that a possible model for Brexit is the current protocol that enabled Britain as an EU member to opt out from home affairs measures and then opt back into the ones it likes.
This suggestion will have set alarm bells ringing because such an approach would amount in effect to cherry-picking and a sectoral deal to maintain the preferred benefits of membership – the EU27 have repeatedly stressed these are all red lines, and enshrined the respective points in Saturday’s guidelines.
For the 27, the Brexit process is first and foremost a divorce: How the UK will depart the EU and intends to untangle itself from the single market, as well as how any transition period will work and be regulated, will all need to be clear before diving into the substance of a trade negotiation.
“It must be absolutely clear what happens the day after day UK leaves,” an EU official told BuzzFeed News last week.
The guidelines also state that the EU27's negotiating principles will also apply to any transitional deal, and that an interim deal must be “clearly defined, limited in time, and subject to effective enforcement mechanisms.”
4. There is no agreement on how to phase the talks
Another point of contention that emerges from FAZ’s account of the May-Juncker dinner is the difference that currently exists between the two parties' understanding of a “phased approach” to the negotiations.
In addition to agreement on the rights of EU and UK nationals, sorting out the UK’s financial commitments to the EU, and finding a solution to the Northern Ireland border question, the EU27 guidelines also state that the first phase of talks must provide as much clarity and legal certainty as possible to citizens, businesses, stakeholders, and international partners on the immediate effects of the UK's withdrawal from the EU.
Only once the 27 will have determined “sufficient progress” has been made on these issues, will the two sides be able to move onto a second phase: "preliminary and preparatory discussions on a framework for the Union – United Kingdom future relationship".
These discussions would take place in parallel to talks about details of withdrawal. Once this hurdle will have been cleared, the negotiations could then include discussions about any transitional arrangements.
In the roadmap envisioned by the 27 member states, detailed trade negotiations could only commence once withdrawal and interim terms have been agreed.
Officials claim the decision to phase talks in blocs stems not from a willingness to punish the UK, but because it is the most efficient way of allocating and focusing resources due to the negotiation’s timeframe.
The UK has so far said it wants to see exit and trade terms negotiated together from the word go. Add to this the perception the UK is failing to acknowledge the complexity of the issues at stake, and the differences on how to phase the talks also become a question of pace. The prime minister is said to have made these points to Juncker over dinner, and they are also clear from her alleged views on EU citizens' rights and reference to Protocol 36.
May wants the talks to be held in secret, while the EU says they have to be transparent. The prime minister is also said to have told the commission president the UK does not legally owe any money to the EU under existing treaties, and that the issue of the so-called Brexit bill could be sorted at the end of talks once the future relationship was clear.