Thoughts on M. Michel Barnier's statement at the press conference following round three of the brexit negotiations
From Michael Donnan, 5-Star VIP Supporter
M. Barnier said that trust needs to be built in two areas. First, he stated that recent events reinforce the need to ensure that citizens' rights are directly enforceable before national jurisdictions. However, he then at a stroke reduced that thus far unobjectionable statement to absurdity by adding "under the control of the European Court of Justice." M. Barnier seems not to have taken on board the simple truth that once the UK ceases to be a member of the EU, it becomes an independent sovereign state. No sovereign state can sensibly permit residents or visitors within its territory who are not its citizens to be subject to a foreign legal system instead of its own, or to have a foreign court take precedence over its own courts in respect of those non-citizens.
Furthermore, the task of the ECJ is to ensure that the law is observed in the interpretation and application of the Treaties (Article 19). However, under paragraph 3 of Article 50, upon the entering into force of a withdrawal agreement between the UK and the EU or, in the absence of such an agreement upon the expiration of the prescribed two-year period (an extension being possible but highly unlikely), the Treaties will cease to apply to the UK. It presumably follows that the UK will then automatically be beyond the ECJ's jurisdiction.
The second area is the financial settlement. Here M. Barnier resorted to mere sophistry in order to appear to be making a case. Having recited some projects - such as the granting of loans to the Ukraine and the support of development in Africa and elsewhere – he said that it is clear that the UK does not feel legally obliged to honour its obligations after departure. Note the phrase "its obligations". However, the point at issue – which M. Barnier carefully avoided - is whether the continued financial support for such projects actually is a legal obligation for the UK: if not, it obviously ceases to be one of "its obligations".
But that is not the end of the sophistry. M. Barnier said that EU taxpayers should not pay at 27 for the obligations undertaken at 28, as that would be unfair. He said that we have joint obligations to third countries (the Ukraine loans and the development support mentioned above) and that we have also jointly committed to support innovative enterprises and green infrastructure in European regions until 2020. This language was intended to convey the idea that the UK entered various joint ventures with the other 27 EU members (and is now trying to duck the consequent obligations).
However, the projects in question are not joint ventures undertaken by the UK in partnership with the other 27 member states: they are projects undertaken by the European Union. Under the Treaties (see Article 47) that Union enjoys legal personality: it is therefore an entity that is legally distinct from its member states, irrespective of whether those states are taken individually or in aggregate. The financial obligations remain those of the European Union as the responsible legal entity and should therefore be paid out of European Union funds and not be apportioned (even notionally) among individual member states.