Euro­pean court may prove stick­ing point as round two be­gins

PM’s vow to take UK out of ju­ris­dic­tion will over­shadow talks agenda of cit­i­zens’ rights, fi­nan­cial claims and Ir­ish bor­der

The Guardian - - NATIONAL BREXIT - Jen­nifer Rankin Dan Roberts

Fights over the Euro­pean court of jus­tice (ECJ) are ex­pected to over­shadow the sec­ond round of Brexit talks as both sides brace for a clash that could ham­per progress on cit­i­zen­ship and money.

David Davis, the Brexit sec­re­tary, will meet the Euro­pean Union’s chief ne­go­tia­tor Michel Barnier this morn­ing at the Euro­pean com­mis­sion head­quar­ters to set up the sec­ond round of for­mal talks.

Over three and a half days, the two sides will hold de­tailed dis­cus­sions on all as­pects of the di­vorce treaty: pro­tect­ing cit­i­zens’ rights, money and the Ir­ish bor­der. They will also dis­cuss how to en­sure a smooth tran­si­tion on Brexit day – a set of top­ics known as “other sep­a­ra­tion is­sues”, where the ECJ looms large.

Brus­sels wants to en­sure that, when Bri­tain leaves the EU on 29 March 2019, in­di­vid­u­als and com­pa­nies do not fall into a le­gal black hole; for ex­am­ple, goods in tran­sit or on­go­ing Bri­tish court cases at the ECJ. Ne­go­tia­tors aim to guar­an­tee, for ex­am­ple, that a con­sign­ment of car parts or­dered be­fore Brexit day could still be sub­ject to EU prod­uct rules – and the ECJ – even if it reached its in­tended des­ti­na­tion af­ter Bri­tain has left the EU.

Defin­ing the role of the ECJ will be one of the most sen­si­tive is­sues of the Brexit di­vorce treaty, as Theresa May has vowed to take the UK out of the ju­ris­dic­tion of the Lux­em­bourg court. She also wants to en­sure that any dis­putes over EU cit­i­zens’ rights are set­tled by Bri­tish courts, not judges in Lux­em­bourg.

De­spite con­cern in West­min­ster that the gov­ern­ment’s op­po­si­tion to a fu­ture role for the court has lim­ited its room for ma­noeu­vre, three po­si­tion pa­pers pub­lished last week recom­mit­ted Davis to re­ject any role for the ECJ af­ter Brexit.

Euro­pean diplo­mats fear that the UK is con­tin­u­ing to tie it­self to an un­com­pro­mis­ing po­si­tion and are ex­pect­ing it to push back strongly on the court, as both sides map out their dif­fer­ences in de­tail.

Davis is ex­pected to call for both sides to get down to busi­ness as he ar­rives for the sec­ond round. White­hall sources say he will set out cit­i­zens’ rights as his per­sonal pri­or­ity for the round, with a push to lift un­cer­tainty for the 3 mil­lion EU cit­i­zens liv­ing in the UK and 1 mil­lion Bri­tons liv­ing in other EU coun­tries.

“We’ll be get­ting into the real sub­stance,” Davis is ex­pected to say. “Pro­tect­ing the rights of all our cit­i­zens is the pri­or­ity for me go­ing into this round and I’m clear that it’s some­thing we must make real progress on.”

On the eve of the talks, sources in Brus­sels were also more op­ti­mistic about avoid­ing a to­tal break­down in ne­go­ti­a­tions af­ter the UK for­mally recog­nised fi­nan­cial obli­ga­tions to the EU in a writ­ten state­ment to par­lia­ment last week.

The prime min­is­ter had made sim­i­lar pro­nounce­ments be­fore, but the state­ment to MPs and peers car­ried weight in Brus­sels. Diplo­mats had feared a col­lapse in talks af­ter Boris John­son, the for­eign sec­re­tary, caused con­fu­sion with his state­ment that the EU should “go whis­tle” for the “ex­tor­tion­ate” sums de­manded.

Dis­cus­sions on the po­lit­i­cally charged is­sue of the Ir­ish bor­der is­sue will be led by Sabine Weyand, Barnier’s deputy, and Oliver Rob­bins, the per­ma­nent sec­re­tary of the De­part­ment for Ex­it­ing the EU. They will meet reg­u­larly through the week, with the aim of keep­ing the talks on track.

But this next round of talks is un­likely to be de­fin­i­tive: EU of­fi­cials ex­pect to map out their dif­fer­ences with the Bri­tish rather than strike any fi­nal agree­ments.

Fur­ther talks are ex­pected in late Au­gust and the au­tumn be­fore a Brus­sels sum­mit in late Oc­to­ber, where EU lead­ers will de­cide whether the UK has made “suf­fi­cient progress” on the Brexit di­vorce to al­low trade talks to go ahead.

Chris Pat­ten, the for­mer Tory chair­man, warned yes­ter­day that the Brexit dead­lock rep­re­sented one of the bleak­est mo­ments in Bri­tish post-war his­tory.

“I think it’s the worst time since Suez, though maybe even worse than that be­cause Suez was the end of an era, the end of our colo­nial as­pi­ra­tions,” he told ITV’s Pe­ston on Sun­day. “The Euro­pean Union was our re­place­ment for that colo­nial role and thanks to the calami­tous er­rors of two Con­ser­va­tive prime min­is­ters in a row, who thought they could man­age the un­man­age­able – the English na­tion­al­ist right wing of the Con­ser­va­tive party – we’re in this hell of a mess.”

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