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5 takeaways from the Brexit talks: Sweet mood music but little real progress

U.K. Brexit Secretary David Davis, left, and the EU's chief Brexit negotiator Michel Barnier | Emmanuel Dunand/AFP via Getty Images

5 takeaways from the Brexit talks: Sweet mood music but little real progress

Both sides have shown they are prepared to horse-trade on the rights of their citizens.

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By the standards of the Brexit talks thus far, this was a good week — but it’s a pretty low bar.

The two sides met in Brussels between Monday and Thursday in what the EU’s chief negotiator Michel Barnier described as a changed atmosphere. He hailed “a new dynamic” in which Prime Minister Theresa May’s Florence speech last week and the commitments therein had — to some extent — “made it possible to unblock” a negotiation that had hit the buffers.

What was achieved was a mix of warm words and incremental progress on technical points. But on the big stuff, there was a continued stalemate that does not augur well for the U.K.’s hopes of persuading Barnier to declare “sufficient progress” in the talks. That’s the green light that European leaders will want to see if they are to allow the talks to advance to planning for the U.K’s future relationship with the EU.

Ticking clocks have been a motif of these talks, which have been running now for three months. With the U.K. still scheduled to leave at midnight on March 29, 2019, Barnier’s warning that sufficient progress is “weeks and maybe even months” away will send a shiver down the spine of anyone on either side of the Channel who wants a final deal.

Here are five takeaways from a week that promised much, but delivered only a little:

1. The mood music is improving

Whereas in previous negotiating rounds, you could cut the tension in Brussels with a knife, this time both sides described a genuinely “warm and constructive” atmosphere, in the words of one U.K. official.

May’s speech, which reassured the EU on the key question of financial obligations, has done a lot to help the teams see eye to eye. Barnier directly referred to May’s twin commitments that no EU27 country would pay more into or receive less from the current EU budget as a result of Brexit, and that the U.K. would honor the commitments it made as an EU member. The precise details of those commitments were still not forthcoming though, he complained. But the two sides are not talking past each other anymore.

The mood was helped by what two U.K. officials characterized as a tacit commitment from both sides not to leak extensive details of the talks to the media during the negotiating round. In previous rounds, loose tongues in Brussels, on both sides, have sparked briefing wars that led to tensions behind closed doors, the officials said. Those on the EU side of the table clearly got the memo. “It is the first time that there is such a silence,” said one senior EU diplomat working on Brexit, in mild wonderment.

2. But no slam dunk

With EU leaders about to meet face-to-face over dinner in Tallinn on Thursday night, the U.K.’s negotiating team had a terrific chance to prove the skeptics on the EU side wrong and demonstrate without any shadow of doubt that “sufficient progress” had been achieved on the divorce terms.

But it needed to be a slam dunk, a show of forward motion so vivid and clear that the 27 would look around the dinner table and know, without saying anything, that the verdict at their October summit would be to approve a shift to the next phase of talks on a transition period.

It didn’t happen.

While U.K. Brexit Secretary David Davis tried to nudge things in that direction, citing “real progress” and “considerable progress” during his news conference on Thursday, the fourth round ended with still too many loose threads to make “sufficient progress” an irrefutable conclusion.

The most frayed of those threads remains the financial settlement. May’s speech promising the EU budget would be kept whole through to 2020 created a real possibility of settling the money matter. But both sides are still haggling over other legacy commitments, like pension costs.

That alone gave Barnier the basis to declare, “We have had a constructive week, yes. But we are not yet there in terms of achieving sufficient progress.”

And with that one sentence, nothing Theresa May says at dinner in Tallinn could possibly convince the 27 otherwise.

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3. Only one side is giving ground

It was always going to be a lopsided negotiation.

Throughout, the U.K. has sought to conduct itself like an equal negotiating partner, despite the fact it is a medium-sized country (albeit a rich one) of 65 million people dealing with an economic powerhouse of 450 million.

But even more than the disparity in economic clout, the fact that the EU’s position is based on a delicately negotiated joint stance of 27 governments has meant that Barnier has no room for flexibility. He can’t reconvene the European Council and redraw his mandate every time the U.K. requests a concession — even if he wanted to.

The upshot has been that the onus is on the U.K. to be flexible where it can be if it wants to get a deal. The big example is on financial obligations, but there have been smaller, but still significant examples.

On the European Health Insurance Card, one of the most visible “consumer” benefits of being an EU member, the British had been demanding that their citizens keep it after Brexit. U.K. officials say they haven’t dropped that request, but have yielded to the EU’s assertion that this is a future relationship issue — not to be discussed now. Et voilà! There is now agreement on this matter and “sufficient progress” is one inch closer.

4. When is direct effect not direct effect?

On the vexed question of the European Court of Justice jurisdiction, Davis was more lucid in the closing press conference than has previously been the case.

“We must also acknowledge that a major question remains open between us — it relates to the enforcement of citizens’ rights after we leave the European Union,” he said. “The U.K. has been clear that, as a third country outside of the European Union, it would not be right for this role to be performed by the European Court of Justice.”

Then he repeated an apparent concession from May’s Florence speech: “But we have listened to the concerns that have been raised — and as a direct result of hearing those concerns, the United Kingdom has committed to incorporating the final withdrawal agreement fully into U.K. law. Direct effect if you like.”

In other words, the agreement that the U.K. and the EU reach on citizens’ rights — which will be heavily influenced by existing, ECJ-formulated EU law — will be enshrined in U.K. law. So far so good.

But the problem for the EU arises when it comes to future ECJ rulings and EU rules. Will EU citizens in the U.K. still be protected by those? Will they be able to go straight to the Luxembourg court to enforce them?

“We … recognise the need to ensure the consistent interpretation of EU law concepts,” Davis admitted. “We have not agreed the right mechanism for doing this yet but discussions this week have again been productive.”

One question for the final round will be: Can someone dream up such a mechanism, and will it be in the form of a new, U.K.-EU court?

5. Tit for tat on citizens’ rights

The question of citizens’ rights has, until now, been an opportunity for both sides to hype up their claim to the moral high ground. Both sides call it their “priority” and the direct impact on the lives of 3.2 million EU citizens living in the U.K. and the 1.2 million British living in the EU makes it a uniquely emotive issue. Both sides have proposed things that the other finds morally objectionable. The U.K.’s request to carry out criminal records checks on every EU citizen applying for settled status angered the European Parliament and continues to be rejected by the EU’s negotiators. But the EU’s demand that British citizens settled in an EU country should not, after Brexit, have an automatic right to settle in another EU country, has riled the Brits.

For all the talk of moral outrage, though, at this late stage of negotiations, both sides have discovered they are not above horse-trading with the rights of their citizens. The U.K. side, in an attempt to bring the EU round on the question of so-called onward movement for British citizens, has made an offer to the EU to tempt them into agreeing.

“We have offered the European Union guaranteed rights of return for settled EU citizens in the U.K., in return for onward movement rights, right for onward movement, for our U.K. nationals who currently live within the EU27,” said Davis, meaning that EU citizens with settled status who leave the U.K. for a number of years would have the guaranteed right of return.

“And I look forward to the response of the Commission to this offer, once they have consulted with the member states,” he added.

Also looking forward to some clarity will be thousands of ordinary people who said they did not want to be pawns in this negotiation — and have so far been let down by both sides.

Giulia Paravicini, Quetin Ariès and Maïa de la Baume also contributed reporting.

Authors:
Charlie Cooper 
ccooper@politico.eu 

and

David M. Herszenhorn