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22nd Jan 2022

Report: Post-Brexit payments, ECJ jurisdiction could last years

  • Barnier will have to negotiate for keeping the jurisdiction of the ECJ post-Brexit (Photo: European Commission)

The UK could be paying off its financial obligations to the EU and remain under the jurisdiction of the European Court of Justice for years after Brexit, and allow relatives of EU citizens already living in the UK settle with their family after the negotiations, an EU's draft negotiating document shows.

The draft mandate for EU chief negotiator Michel Barnier, seen by Reuters, echoes the draft negotiating guidelines to be adopted by EU leaders next week, and foreshadows a clash with London.

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British prime minister Theresa May, who is facing voters on 8 June in a snap election, has made ending the free movement of EU citizens, budget contributions to the bloc, and oversight by the European Court of Justice (ECJ) central tenets of her position for Brexit talks.

The draft EU paper says EU citizens must be covered by the full range of rights "derived from EU law" after Brexit. It would mean pension rights for those who have already left the UK, and that relatives of EU citizens living in the UK should be able to join them after Brexit, enjoying the same rights.

The EU would also want to make sure these rights are protected and are enforceable. The draft says jurisdiction of the ECJ should therefore be maintained during the transition period.

Agreeing to such a deal would be contrary to May’s earlier pledges, who reportedly has made getting rid of ECJ jurisdiction part of the Tory manifesto for the election.

The EU says that ECJ jurisdiction is the "only possible solution" to make interim rules enforceable. Britain argues for a special UK-EU court, or an informal system without judges.

The leaked document says the EU might consider an "alternative dispute settlement" system for the treaty but only if that was "equivalent" to the ECJ.

On financial settlement, the document does not give an exact figure of how much Britain should pay to compensate its existing commitments to the EU. An earlier estimate around €60 billion was dismissed.

Instead, it says the exit treaty should set a "global amount" to honour financial obligations, but should be adjustable.

The document states that there should be "a schedule of annual payments" that would reflect the fact that loans and guarantees made by the EU while Britain was a member extend beyond 2019.

In line with the EU's view that an exit agreement should come before any talks on future trade relations between the EU and the UK, the document only describes the Brexit negotiations, but not any future settlement.

Highlighting the complexity of untangling EU-UK ties, the paper said goods placed on the market on either side of the EU-UK border before Brexit would continue to be covered by EU rules even if only sold afterwards, addressing uncertainties about guarantees and labelling.

The negotiating directives can be approved once EU leaders agree on the bloc's negotiating guidelines next week.

Negotiations are set to start after the 8 June snap elections in the UK, in which May hopes to sideline those Tories who supported remaining in the bloc, and negotiate a "hard Brexit".

European Commission president Jean-Claude Juncker, along with Barnier, is to meet May in London next week.

EU guidelines set out two-phase Brexit talks

According to the draft negotiating guidelines, the EU-27 would open negotiations on future EU-UK relations when "sufficient progress" has been made on citizens' rights, the British financial bill and the status of the border in Ireland.

Juncker to visit May in London next week

The British prime minister invited the European Commission president for a discussion about the upcoming EU exit negotiations, while she prepares for general elections on 8 June with a "hard" Brexit agenda.

May surprises EU with snap election

The UK prime minister has blamed the parliament for divisions in the country and called for a vote on 8 June, which she hopes will result in a pro-Brexit majority. The EU says the vote will not change its plans.

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