How the UK could remain in the EU ‘by the back door’?

    Etienne Goffin

    Yesterday the United Kingdom (UK) confirmed that it wants to leave the EU while staying closely associated with several European Union (EU) arrangements. The UK published a technical note (1) on temporary customs arrangement where most statements indicating that UK will leave the Internal Market (IM) are counterbalanced by pledges to keep abiding by EU rules. In the Joint EU-UK Report of 8 December 2017 (2), the United Kingdom already promised to maintain full alignment of Northern Ireland with the rules of the IM and the Customs Union (CU), in the absence of agreed-upon solutions to keep the border open.

    Furthermore, the UK confirmed that this backstop solution would apply as long as they do not agree on permanent end state settlement with the EU to keep the Northern Ireland land border open after Brexit. The UK expects such permanent arrangement to be in place by the end of December 2021 at the latest. However, this deadline is not a must… it is just an aspiration. In addition, it confirms that the backstop arrangement could last a year longer than previously planned. Up to now, the UK had always said that transition period would end on December 31, 2020. As the UK keeps postponing the cutoff date, the objective of 2021 does not appear credible.

    The UK requests that this backstop option apply to the whole of the UK, and not just Northern Ireland as previously agreed. The territory of the UK would either form part of the EU’s customs territory as it is the case today, or a new customs territory comprising the customs territories of the UK and the EU would be created. The UK pledges to apply the EU customs legislation while trying to give the impression that it leaves the Custom Union (CU): “the UK  will be outside the scope of the Common Commercial Policy (CCP), except where it is required to enable the temporary customs arrangement to function”. This makes as much sense as saying I refuse to breath except for when I needs oxygen.

    In fact, this simply means that the whole of UK will be applying most of the CCP. This includes the EU’s common external tariff (CET) at the UK’s external border, alongside the Union Customs Code (UCC).The UK will only be able to negotiate, sign, ratify, and implement free trade agreements (FTAs) with other world partners, when they do not affect the functioning of the backstop arrangement. Thus, in practice the UK will remain in the CU and will not be able to negotiate new trade deals on their own, as long as the backstop solution is in place. For the British Overseas Territory of Gibraltar, nothing changes; it will remain outside of the CU.

    The UK wishes to remain at the negotiation table to benefit from the new FTA deals concluded by the EU during the backstop arrangement period. The UK demands to continue to participate in any new FTAs that come into force during the period to keep pace with any changes to the EU’s tariff policy and apply the CET. Apart from that, the UK will be able to make its own laws . It will cease to fall under the jurisdiction he European Court of Justice (ECJ). Yet, the British Prime Minister, Theresa May, expects that Westminster would pass laws identical to the EU and that UK courts would have to respect the remit of the ECJ in that regard.

    This technical note on temporary customs arrangement gives the impression that the UK could leave the EU in name only. The EU should simply refuse all the alternative proposals made by the UK to impose the backstop solution. To prevent that, the note maintains the possibility of a cliff-edge Brexit (the UK crashing out of the EU with no deal at all). With such a threat, the UK is trying to tilt the negotiation in its favor. It still dreams to retain most benefits of EU membership without the obligations (cherry picking). Unfortunately, the UK has yet to explain how it intends to take back control of its borders while keeping them open in Ireland.


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