The European Council has said that a future trading relationship between the EU and the UK can only be agreed if commitments already made by London are "respected in full."
The EU's draft guidelines on negotiating a post-Brexit EU-UK trade deal tie Theresa May's British government to the December agreement guaranteeing no hard border on the island of Ireland.
Although Northern Ireland is not explicitly mentioned, the draft insists that "negotiations can only progress as long as all commitments undertaken so far are respected in full, and calls for intensified efforts on the remaining withdrawal issues."
In effect, a reiteration of previous “no backsliding” commitments to ensure that there would be no introduction of a hard border in Ireland, as set out in the provisions of the December joint accord.
The council repeated that “nothing is agreed until everything is agreed.”
The draft guidelines illustrate the divide between the EU and UK’s negotiating positions as the council rules out any “cherry-picking” of EU rules post-Brexit, a position directly at odds with the British government.
The council says that sector-by-sector "cherry-picking", which UK prime minister Theresa May set out as the UK's position for a deal last Friday, would undermine the integrity and proper functioning of the EU single market.
“A non-member of the union that does not live up to the same obligations as a member cannot have the same rights and enjoy the same benefits as a member,” the guidelines state.
There are few surprises in well-rehearsed positions in the draft that first and foremost reiterate the EU’s insistence that outside the union the UK will not be able to enjoy the rights it had and that there can be “no ‘cherry-picking’ through participation based on a sector-by-sector approach.”
The document, published by European Council president Donald Tusk, sets out a free-trade agreement as the only option, should the UK stick with its desire to leave the customs union and single market.
The guidelines highlight the contradictions around the UK’s position of wanting to leave the customs union and single market while maintaining a frictionless border in Ireland and between the EU and UK.
The council repeats the EU’s desire to have “as close as possible a partnership with the UK.”
“Such a partnership should cover trade and economic cooperation as well as other areas, in particular the fight against terrorism and international crime, as well as security, defence and foreign policy,” the guidelines state.
They stress, however, that the EU has to take into account the UK’s positions, which “limit the depth of such a future partnership.”
“Being outside the customs union and single market will inevitably lead to frictions,” the guidelines state.
“Divergence in external tariffs and internal rules as well as absence of common institutions and a shared legal system, necessitates checks and controls to uphold the integrity of the EU single market as well as of the UK market.
“This unfortunately will have negative economic consequences.”
Divergences, it should be noted, will pose problems for the UK’s preferred option for the Border, the guidelines say.
Speaking in Luxembourg Mr Tusk said that the UK red lines in leaving the customs union, the single market, and the jurisdiction of the European Court of Justice meant that the “only possible remaining model was a free trade agreement.”
The European Council president said that it would be the first free-trade agreement in history that “loosens economic ties instead of strengthening them” and that it would make trade “more costly and complicated.”
“This is the essence of Brexit,” he said.
Mr Tusk underlined the European Union’s position not to permit cherry-picking by the British.
“A pick and mix approach for a non-member state is out of the question,” he said. “We are not going to sacrifice these principles. It is simply not in our interest.”
Mr Tusk said the draft, which pitches for free trade in goods in all sectors with zero tariffs, invites the UK to continue its security cooperation with the EU and participation in EU research and development, and education and culture.
He called for urgent discussions to ensure there as no danger of disruption to airline travel.
Speaking alongside Mr Tusk, Luxembourg's prime minister Xavier Bettel said that he had met Taoiseach Leo Varadkar in Dublin this week and noted that Mr Varadkar "still has no answers" to solutions to the question of maintaining an open border in Ireland.
The draft of the broad principles of a post-Brexit free trade agreement has been sent to member states for their approval at the leaders’ summit on March 23rd.
The guidelines will then form the basis of negotiating directives produced for the commission’s Brexit task force. It will be “elaborated in a political declaration accompanying and referred to in the withdrawal agreement.”
The guidelines state that the EU is ready “to initiate work towards a free trade agreement, to be finalised and concluded once the UK is no longer a member state.”
“Such an agreement cannot offer the same benefits as membership and cannot amount to participation in the single market or parts thereof,” the draft states.
But an agreement will have to contain “robust guarantees which ensure a level playing field.”
“The aim should be to prevent unfair competitive advantage that the UK could enjoy through undercutting of current levels of protection with respect to competition and state aid, tax, social, environment and regulatory measures and practices,” state the guidelines.
The agreement may contain provisions for the trade in services, an area where the UK is particularly concerned.
But services would not enjoy the same unfettered access as goods and would have to be provided “under host state rules, including as regards right of establishment for providers, to an extent consistent with the fact that the UK will become a third country and the Union and the UK will no longer share a common regulatory, supervisory, enforcement and judiciary framework.”
The draft makes clear that special arrangements can be made to continue close collaboration in aviation, research and innovation, police and judicial cooperation, and security and defence.
In these areas funding support will be expected from the UK.
“Personal data protection should be governed by union rules on adequacy with a view to ensuring a level of protection essentially equivalent to that of the union,” the guidelines state.
