The way to Brexit is paved with good intentions

The EU Commission has announced a breakthrough in the Brexit talks. EU Commission President Juncker recommend entering the second phase of the negotiations now.

Allegedly, important points of contention have now been dispelled. But from the cep's point of view, however, much remains unclear. The joint report which has been agreed by both sides contains some very vague and partly contradictory wording.

In particular, the future role of the Court of Justice of the European Union (CJEU) is unclear. According to the Joint Report, the agreement on the rights of EU and UK citizens is to be interpreted in line with the case law of the Court of Justice, which was given up to the date of the UK's withdrawal from the EU. Elsewhere, it states that the UK courts "shall have due regard" to the CJEU's case law without limiting this in time. The latter provision could be understood as merely a reference to the former provision. However, the two provisions could also be interpreted in such a way that the case-law of the CJEU, which was issued before the date of withdrawal, is to be strictly observed, while the subsequent case-law is only to be duly taken into account - a kind of step-by-step obligation. A similar wording also obliges the EFTA Court of Justice, which has jurisdiction for Norway and the other EEA countries, to have due regard to the case law of the CJEU. In any case, the two provisions allow for different interpretations. Only the possibility for UK courts to submit questions to the ECJ is clearly limited to eight years.

The question of Northern Ireland also remains open. It is true that a "hard border" between Northern Ireland and the Republic of Ireland is to be prevented in principle. However, the Joint Report also considers the possibility that such a hard border cannot be avoided. In this case, the United Kingdom will, if necessary, apply the rules of the internal market and the customs union, but only in so far as they support cooperation between Northern Ireland and the Republic of Ireland. What this means is completely open. At the same time, however, there should be no regulatory barriers between Northern Ireland and the rest of the United Kingdom. This would mean that the internal market and customs union rules applied between Northern Ireland and the Republic of Ireland would in principle also apply between Northern Ireland and the rest of the United Kingdom. To that extent, agreements between Northern Ireland and the rest of the United Kingdom should be possible. Hence, a solution to the Northern Ireland problem has not yet been achieved but has merely been postponed to the future.

All in all, the joint report is a wordy declaration of intent full of inconsistencies, rather than a squaring of the circle. The impression is therefore that both sides want to spread confidence and open the second phase of the negotiations.

Only one point of the joint report seems to be really certain at this point in time: that nothing has been agreed until everything is agreed.