The leaders of the European Union’s remaining 27 member states have unanimously signed off on their Brexit negotiating guidelines with the UK.
A source in the room said the agreement was adopted "in under a minute" and followed by applause from the 27 leaders who are meeting in Brussels for a summit where much emphasis has been placed on unity, and the absence of controversies.
The agreed-upon guidelines define the framework for negotiations between the EU27 and the UK, and set out the overall positions and principles that the EU will pursue during the upcoming talks.
Most of their guiding principles have been known for some time now: Keeping the EU together is what is most important. The single market’s four freedoms (of movement of goods, services, people and capital) are indivisible – there can be no cherry picking. The rights of EU citizens living in the UK, as well as those of Britons living elsewhere in the EU, must be guaranteed, and an agreement on how the UK will fulfil its financial obligations must be found, before talks can progress.
But, since a first draft was circulated at the end of March the terms tightened at every iteration. As the UK prepares itself for a general election, the 27 heads of state and government closed ranks, pinned down what they want from the upcoming negotiations, and tightened the screws on the UK rebuffing any attempt to divide and conquer.
“The text has remained stable throughout, but what was already understood has been strengthened and clarified,” a senior EU official told BuzzFeed News.
"The 27 leaders set the bar of unity ‘this high’. Having reached that, they felt they could raise it further", the official said.
A number of capitals welcomed Theresa May’s decision to call a snap election because, they hoped, it could help bring stability and clarity to the UK’s stance. But the widespread feeling is that whatever the size of any potential increased mandate, it will do little to move the EU’s position.
Talking to reporters on Saturday morning, Luxembourg prime minister Xavier Bettel dismissed any advantage May could gain from a big election win: "It's an internal problem she wants to resolve in the Conservative party, to have not a hard Brexit or a soft Brexit, but Theresa's Brexit," he said.
"We are very united, you seem surprised, but it's a fact."
Negotiators will be mandated 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 non-discriminatory”. Compared to earlier drafts, Europe’s capitals now also want to see an arrangement put in place that makes any administrative procedure smooth and simple. Guaranteeing citizens’ rights at the date of withdrawal (29 March 2019) has been flagged as the negotiation’s first priority.
Going into the summit on Saturday morning, European Council president Donald Tusk said the EU had already prepared a precise and detailed list of citizens' rights and benefits it wants to protect.
At a press conference after the summit he said "not only speed is of the essence but above all quality as so many people’s lives depend on it. We are talking about 4.5 million people: Europeans residing in the UK and Britons residing on the continent.
"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," Tusk continued, adding that "in order to achieve significant progress we need a serious British proposal".
A second priority in the early stages of talks will be ensuring the peace process in Northern Ireland isn’t hindered, and both parties will be aiming to avoid a hard border. How this will be achieved in practice is still not clear. Meanwhile, a brief declaration recognises the potential of a united Ireland: should Northern Ireland vote to join the Republic of Ireland in a referendum, per the terms of the Good Friday Agreement, a reunified Ireland would automatically join the EU in accordance with international law. The brief text is not an endorsement for a united Ireland, but, according to Reuters, has been described as a statement of the “obvious”.
The third priority in the first phase of negotiations will be sorting out Britain’s so-called Brexit bill. Its size is unlikely to be known before 2019. The aim will be to settle on a method to calculate the amount due based on ongoing and contingent liabilities, budget commitments beyond the exit date, as well as take into account British claims.
Only if the 27 agree “significant progress” has been made on these three issues will the talks be able to progress to a second phase, and begin to talk about the future relationship.
During the post-summit press conference Tusk said it was too early to speculate when this might be, but highlighted that it will be for the EU leaders to assess and decide if sufficient progress had been made.
During a working lunch, the 27 leaders, and the EU’s chief negotiator Michel Barnier, dedicated part of the time to discuss member states' sensitivities, including those raised by Ireland, Spain and Cyprus. The 27 also elaborated on some of the guideline's key points, such as how the leaders would determine whether “sufficient progress” had been made at each step of the talks so to allow negotiations to move on to a next phase, and what that second phase of negotiations would entail.
The wording has been kept abstract on purpose, one of the leaders told BuzzFeed News. Considerations on how to define progress will likely be driven more by political judgement than by a technical definition, two separate sources said.
Now that the guidelines have been finalised, it's clear what the EU's priorities are, how it wants the negotiations to be phased, and what it will be looking for from Britain before it even begins to discuss a future trade deal.
Negotiators believe aspects of complicated technical details relating to the status in Northern Ireland, beyond the principles, will inevitably depend on the future UK-EU relationship. Meanwhile, they expect both parties to agree on the principle of protecting EU citizens rights but there are plenty of details that will have to be nailed down. In terms of the divorce bill, the opposite applies: the principle will be contentious because of the politics involved, but the technicalities, once a formula is agreed, become straightforward.
Officials hope the second phase of talks can begin next year. Then the two sides would scope out a framework for the future UK-EU relationship in parallel to the details of withdrawal. Once this hurdle will have been cleared, the negotiations can then include discussions about any transitional arrangements.
“Before agreeing a transition phase, you need to know where you end up, what the end point is,” the senior official said.
The guidelines state that any such transitional arrangements must be “clearly defined, limited in time, and subject to effective enforcement mechanisms.”
In the roadmap envisioned by the 27 member states, detailed trade negotiations can only commence once withdrawal and interim terms have been agreed. The thinking in a number of capitals is that how Britain untangles itself from the single must be clear before trade negotiations can begin in earnest.
Referring to the phased approach, Tusk said: “We are united not only on the substance, but also on the method of conducting the Brexit talks”.
How much time is spent on dealing with each of the initial three issues will ultimately also depend on how the UK responds to the principles set out in the EU’s negotiating position - and indeed if Britain agrees to a phased approach as argued by the EU27. The UK has so far said it wants to see exit and trade terms negotiated together from the word go.
The guidelines also highlight the need to avoid a vacuum after the UK leaves.
“What happens to goods that enter the market a few days before Britain leaves the EU? And we’re not talking bananas here, but goods that are often parts in other products, like cars for example,” a second EU official told BuzzFeed News.
“The first phase of the talks must provide as much clarity and legal certainty as possible to all stakeholders [citizens, businesses, and international partners]. It must be absolutely clear what happens the day after day UK leaves,” the first official said. “This point has been led in particular by the Germans,” they added.
Speaking to the German parliament ahead of the summit, chancellor Angela Merkel told MPs it made no sense to talk about the future relationship without an agreement on the UK’s financial commitments.
She also warned that as a third party Britain would not have the same rights as EU members, a point that was re-stated by all the leaders on Saturday. "I must say this clearly here because I get the feeling that some people in Britain still have illusions – that would be wasted time," Merkel told the Bundestag.
May used a rally in Leeds to respond to the German chancellor. Referring to her "illusions" remark, the prime minister said 27 EU countries were “lining up to oppose” Britain.
Some of the noises coming out of Britain, and what some perceive as an underlying irreverence, have contributed to hardening attitudes. They could cause friction as talks progress, especially when it comes to agreeing the terms of a transitional arrangement.
“May will need to be careful to not fall for the hype of her own majority,” one of the two EU officials told BuzzFeed News.
The text approved on Saturday makes clear the EU’s guiding principles would also apply in full to any interim arrangement, excluding for example any sectoral deal, temporarily splitting the EU’s four freedoms, or settlements free from the continued oversight of EU law.
“Any transition period will include elements the hard Brexiteers will find unpalatable. This could embolden the ‘no deal is better than a bad deal’ camp especially if the arrangement were to be a lengthy one,” one of the diplomats said.
Over the course of the past month, British officials have sensed that EU capitals have closed ranks, with increasingly less information trickling through, including from those governments that have been identified as being more sympathetic to the British cause, one UK source told BuzzFeed News.
A report in news outlet Bloomberg suggests that repeated British efforts to foster informal contacts with the German government have made little headway.
Last month, a European government official told BuzzFeed News their government was anxious about the consequences of Brexit on security-related issues, and how these could play out during the negotiations. This week, the same official said though concerns remained, they had notably diminished and were overridden by their administration's emphasis on prioritising unity among the 27 above other matters.
“There is a quiet, steely, determination among the 27. Not everyone is relaxed by they all know what they want: yes, a fair deal, but we won’t let the UK get away with it,” the diplomat said.
Much of the 27’s confidence stems from what is described as the asymmetrical nature of these negotiations: they believe they hold the stronger cards, and are well aware of the difference in negotiating resource between the UK and the EU.
Still, on other ongoing issues, such as the migrant and refugee crisis, dealing with growing claims of illiberalism in Poland and Hungary, and how to fill the budget hole that will be left by the UK’s departure, there are divisions among member states. How these will play out as talks progress is not known; Especially once the future trade relationship enters the fray, member states’ views may differ.
The guidelines call for a balanced, ambitious and wide-ranging free trade agreement. But, a deal would need to ensure a level playing field in terms of competition and state aid, not endanger financial stability in the EU and encompass safeguards against unfair competitive advantages.
Both UK and EU officials BuzzFeed News has spoken to acknowledged that concluding both a withdrawal and a final trade deal by March 2019 is unlikely. They admit the amount of detail and work needed had been underestimated.
Speaking to reporters on Saturday afternoon, the president of European Commission Jean-Claude Juncker said he had the impression "our British friends" underestimate the technical difficulties of Brexit.
Officials from both sides mentioned as way of example the fact the UK would not be able to simply transpose into UK law the functions covered by EU agencies operating in dozens of different sectors, such as the certification provided by the European Aviation Safety Agency that enables planes to fly between member states or functions established by Euratom (which the UK is leaving) to oversee safety standards in the nuclear industry.
In some cases, Britain would likely 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.
Meanwhile, suggestions that Britain could remain home to the European Union's banking and medicines agencies have been slapped down. At a press conference after the guidelines had been adopted, the president of the European Parliament Antonio Tajani said it was clear the European agencies would leave the UK.
Criteria setting out their relocation are expected to be agreed in June.
In his letter to the leaders on the eve of the summit, Tusk urged the 27 to unite behind the principle, and to stand ready to defend its logic throughout the negotiations. Tusk also highlighted the idea of a phased approach as an element that would be key for the success of the negotiations, and therefore needed to be “precisely understood and fully accepted… This is not only a matter of tactics, but – given the limited time frame we have to conclude the talks – it is the only possible approach,’ Tusk wrote.
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 focussing resources due to the negotiation’s timeframe. An approach where everything is negotiated at the same time, given the sheer complexity of the tasks at hand, would descend into chaos.
The European Commission is expected to circulate its own recommendations next Wednesday with content expected to mostly trace a document circulated earlier this month. The 27 are meeting again on 22 May to finalise a negotiating mandate that will formally authorise negotiations and nominate the Commission as their negotiator.
Then, once Britain elects a new parliament on 8 June, and a new government is in place, negotiations can finally begin.