Stijn Smismans, Professor of EU Law, Cardiff University
Why a separate citizens’ rights agreement under article 50 is required
The European Council Guidelines for the Brexit negotiation adopted on 29th April 2017 (further referred to as Negotiation Guidelines), as well as the Council Directives for the negotiation adopted on 22nd May 2017 (further referred to as Negotiation Directives), show a clear EU commitment to defend the rights of the nearly five million people whose lives are most directly affected by Brexit, namely the EU citizens residing in the UK, and British citizens residing in the EU. The Negotiation Directives clearly state that the withdrawal negotiations should ensure ‘the necessary effective, enforceable, non-discriminatory and comprehensive guarantees’ and they favor a rather maximalist defense of the rights of these citizens (including judicial protection by the CJEU). The UK’s promises to protect the rights of these citizens are comparatively vague. However, both the EU and the UK have agreed that dealing with the rights of these citizens is the first priority of negotiations. However, there is no procedural guarantee that these citizens would not end up as a bargaining chip.
The Negotiation Guidelines and Directives provide for a phased approach to the negotiations. However, this phased approach aims primarily at separating the negotiation of the withdrawal settlement under Article 50TEU (phase 1) from the negotiation of an agreement on the future relationship between the UK and the EU (phase 2). In addition to that, it provides for a second stage within the first phase (Article 50 withdrawal settlement). In that second stage, the withdrawal negotiation can start to reflect on the potential scenarios for the future UK-EU relationship. Article 50 requires ‘taking account of the framework for its [withdrawing Member State’s] future relationship with the Union’ when dealing with the withdrawal agreement. However, the Guidelines state clearly that this second stage of the first phase will only start when the European Council has decided that there is ‘sufficient progress’ on the issues identified as priorities of the first phase.
Citizens’ rights have been identified as the first item on the agenda of the first phase of the negotiation process. The proposed ‘phasing’ thus gives some level of separating citizens’ rights from other parts of the negotiation. However, this is far from ring-fencing. The EU has taken the approach that as far as the withdrawal issues (phase 1) are concerned ‘nothing is agreed until everything is agreed’. This at least means that citizens’ rights issues might be traded off against other topics of the first phase of negotiation, such as the financial settlement and the Ireland-Northern Ireland border issue. Moreover, they may even be influenced by the reflections about the future UK-EU relationship which will appear on the negotiation table as issues ‘to be taken into account’ prior to the finalisation of the Article 50 withdrawal agreement. Hence, EU citizens in the UK and British in the EU remain fully at risk of becoming bargaining chips.
The proposed negotiation procedure entails two additional dramatic consequences for the 4.5 million citizens directly affected. The principle ‘nothing is agreed until everything is agreed’ unnecessarily prolongs the uncertainty these people are living in. Moreover, in the case that the withdrawal agreement fails, citizens will find themselves in a legal limbo with dramatic consequences.
The only solution to solve the uncertainty of 4.5 million people is to adopt an agreement on citizen’s rights at the start of the Article 50 negotiation, independently from other withdrawal issues.
So why has it not happened so far?
One can understand the EU’s reluctance to negotiate on citizens’ rights PRIOR to the triggering of Article 50. The UK referendum was merely an internal affair as long as Article 50 had not been triggered. Moreover, if negotiating a citizens’ rights agreement prior to Article 50 had been attempted, it would not have profited from the decision-making procedure of Article 50 (which allows for the agreement to be adopted via Qualified Majority in Council and consent by the EP, and thus not requiring ratification by national parliaments in the EU 27). Negotiation outside Article 50 would be more cumbersome since it may require ratification by all national parliaments. Hence the ‘time advantage’ of starting negotiation prior to triggering Article 50 would immediately have been lost as the procedure itself would slow down the process. Finally, the EU feared that negotiation on partial issues prior to the triggering of Article 50 would undermine the unity of the EU 27.
However, now that Article 50 has been triggered, there is no reason why a separate agreement on citizens’ rights cannot be negotiated prior to all other issues.
The moral argument in favor of that remains as strong as ever before. The strategic argument of the EU that it would encourage ‘cherry-picking’ is also hardly convincing. The EU has by now set out its institutional framework, priorities and strategy for the negotiations. It is no longer unprepared, and has the institutional mechanism in place to ensure unity in response to the UK in negotiations. Moreover, arguments that a separate citizens’ rights agreement opens the way for cherry-picking are based on the wrong assumption. Accepting ring-fencing for citizens’ rights does not create any obligation to do the same for other issues. There is a strong moral argument to state: ‘a separate agreement will only be done on citizens’ rights given the human costs involved’. As will be shown below that does not create any legal precedent for the EU to accept separate agreements on other issues.
The only remaining question then is whether it is legally possible. More precisely, the question is whether the rights of post-Brexit EU citizens can be legally ring-fenced from other negotiation topics and be safeguarded prior to the end of the withdrawal negotiation, and in a way that it stands even in failure of the latter.
To show whether ring-fencing is legally possible we need to address three questions:
- Is it possible to adopt a separate agreement on citizens rights signed under Article 50?
- How to ensure procedurally that the negotiation of these citizens’ rights, and of this separate agreement, is not mixed up with other Brexit negotiation issues (ring-fencing in the strict sense).
- How to ensure that the agreement comes into force even if other aspects of the Brexit negotiation fail (safeguarding)
Is a separate agreement legally possible under Article 50 TEU?
As confirmed in Article 5 of the Negotiation Guidelines, Article 50 TEU confers on the Union an ‘exceptional horizontal competence to cover in this agreement all matters necessary to arrange the withdrawal. This exceptional competence is of a one-off nature and strictly for the purposes of arranging the withdrawal from the Union.’ There is no doubt that addressing the rights of the 4.5 million is inherently an issue of withdrawal, and can thus be dealt with via Article 50. These are issues on which the EU has been able to act on behalf on the Member States so far, and this competence extends (thanks to Article 50) to dealing with all withdrawal aspects related to it.
However, Article 50 TEU talks about a withdrawal agreement in the singular. The question is then whether a separate agreement on citizens’ right under Article 50 is possible. I will argue that the use of the singular in relation to ‘agreement’ does not exclude legally that the withdrawal could be composed of several agreements, as long as the objectives and spirit of Article 50 TEU are respected. Continue reading