EU Willing to Soften Brexit Position Over Court’s Role, Officials Say

  • Joint arbitration for citizens’ rights explored by both sides
  • U.K. position still falls short of EU demands for protection

U.K. Cabinet's Mixed Message on Brexit Bridging Deal

The European Union is willing to give ground on its demand that its judges protect the future rights of EU citizens in the U.K., according to three EU officials, potentially eliminating a major obstruction to progress in the Brexit negotiations.

In what would be a significant concession to the U.K., the EU could settle for alternatives to its original position that the European Court of Justice must be the ultimate arbiter. That would put the onus back in the U.K. to increase the level of protection it’s offering, which the EU says is below existing rights.

While Prime Minister Theresa May’s government said on Monday that the U.K. was making a “fair offer” to the 3 million EU citizens in Britain, Michel Barnier, the bloc’s chief negotiator, demanded “more ambition, clarity and guarantees.” The issue looks set to dominate the next round of talks in Brussels in July.

The British have signaled a willingness to make a deal, too. Brexit Secretary David Davis said on Sunday that the U.K. would consider working with the EU to establish a new arbitration body featuring representatives from both sides. This is one of the alternatives that the EU would be willing to consider, one of the officials said.

In a document obtained by Bloomberg News on Wednesday, the European Commission said May’s proposal contained a “general lack of clarity” and left “many issues still to be clarified.” It said there wasn’t enough legal certainty or an offer of life-long protection against future changes in British laws. It also noted the U.K.’s reluctance to let the ECJ to help enforce the rights.

Neither side wants to be accused of using the rights of individuals as a bargaining chip, and the EU’s willingness to compromise is an indication that its negotiators want to get on with other aspects of the U.K.’s withdrawal from the bloc. Outlines of agreements on citizens’ rights as well as the other thorny topics of money owed by the U.K. and the border between Northern Ireland and the Republic of Ireland are needed before Barnier will allow discussions to turn to the future trade deal that May wants.

‘Full Jurisdiction’

In a document setting out its position on the issue published last month, the EU said its court system should have “full jurisdiction” on protection of citizens’ rights and there should be a “mechanism” to allow U.K. courts to refer to the ECJ for rulings on violations.

The U.K. government’s paper on the subject, issued on Monday, made no reference to any such mechanism or enforcement procedure and said “the Court of Justice of the European Union will not have jurisdiction in the U.K.”

While agreement on jurisdiction would remove a major stumbling block, the EU is looking for concessions from the U.K. on other aspects of citizens’ rights.

According to the U.K.’s proposal, EU citizens who move to the U.K. before a yet-to-be-set cut-off date will be treated as if they’re British for the purposes of receiving state education, health care, benefits and pensions. That would mean the loss of some existing rights, including the unconditional right to bring family members into the U.K. from non-EU countries, which is one of the EU’s main objections to the U.K.’s stance, according to one of the officials.

Some Leniency

The EU is prepared to show some leniency on citizens’ rights because it understands how central the demand to control migration was to the U.K.’s decision to leave the bloc, said Camino Mortera-Martinez, a Brussels-based research fellow of the Centre for European Reform.

“The EU has understood this; I believe this stance is just an opening negotiation position and they will soften it over time,” she said. “It doesn’t make any sense for the EU to insist on the U.K. copy-pasting EU laws on free movement.”

— With assistance by Michael Winfrey

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