60 / 169
THE STATE OF THE EUROPEAN UNION
60
the reality that withdrawal will suppose the UK’s
total exclusion from the Single Market and EU
Customs Union. Although the EU could be said
to have enjoyed an initial advantage in terms of
structural bargaining power, ongoing challeng-
es to May’s leadership within the Conservation
Party and in the British Parliament as well as di-
visions within her cabinet regarding the future
relationship between the UK and the EU, all of
which impeded UK negotiators from defining
and maintaining coherent positions, also con-
tributed to this outcome. The EU, on the other
hand, was able to count on a high level of unity
and cohesion between Member States, which in
order to sustain the momentum, it will need to
maintain throughout the rest of the process.
Phase II: drafting the withdrawal treaty
and negotiating a transition period
Following the December Council meeting, prep-
arations got underway for the second phase of
negotiations, which will entail the drafting of
the withdrawal treaty set to enter into effect on
30 March 30, 2019, the provisions it must con-
tain for the transition period and a joint declara-
tion on future relations. The need to accomplish
these tasks within a short period of time places
everyone involved under intense pressure to pro-
duce results. In order to ensure there is time for
the agreement to be approved by EU institutions
and ratified by the UK, negotiations must con-
clude by October 2018. This means that negotia-
tors have only seven months to finish their work.
The European Council adopted a new set of
guidelines in December that complemented
those established in April 2017 and rounded
out an
acquis constitutionnel
for negotiation on
outstanding issues.
19
These included the follow-
ing stipulations:
1. The transition period to begin the day the
withdrawal treaty enters into effect must be
clearly defined and limited in time. During
this allotted time, the UK, as a third country,
must respect the whole of the EU acquis and
fulfil all legal obligations incumbent upon
Member States, including those approved
during the period of transition. It will, how-
ever, lose its right to participate in EU institu-
tions the moment the withdrawal agreement
enters into effect.
2. An agreement on the future relationship can
only be finalised and concluded once the
United Kingdom has become a third country.
Point nine of the Council guidelines issued in
December states that the understanding
reached on this point should be “elaborated
in a political declaration” based on a general
consensus and “referred to in the withdraw-
al agreement”. This being the case, negotia-
tions are actually playing out in three phases
rather than two, an assumption I have ap-
plied to this analysis: the first (concluded in
December) devoted to issues related to with-
drawal, the second devoted to tidying up
unfinished business on withdrawal and the
negotiation of a transition period during
which the UK will remain a member of the
EU, and a third dealing with a future rela-
tionship. Although ideas concerning the
third may be exchanged prior to the UK’s
withdrawal, EU negotiators are not expect-
ing major movement on the future relation-
ship until the UK officially becomes a third
country.
19
European Council (Art. 50),
Guidelines,
15 December
2017, (EUCO XT 20011/17).