Britain will have to pay off obligations to Brussels for years after Brexit, remain subject to European Union courts and continue to let relatives of European immigrants settle in the UK, according to draft EU negotiating documents.
The demands are contained in a paper, seen by Reuters, that outlines key negotiating guidelines for Michel Barnier, the EU’s chief negotiator, who will launch talks on a Brexit treaty after Britain’s general election on 8 June.
Ending free movement of workers from EU states, budget contributions to Brussels and oversight by the European court of justice (ECJ) are central to Theresa May’s plans for leaving the EU, due to happen in March 2019 after a two-year negotiating period.
But in language that echoes a tough line taken by the 27 other EU leaders who will endorse a common position at a summit on 29 April, the paper spells out Brussels’ aim to protect the rights of 3 million EU citizens living in Britain, extract cash from London to cover a wide range of existing commitments and ensure EU judges can hold Britain to the treaty after Brexit.
The paper does not set out a figure on what Britain might owe – an estimate of €60bn (£50bn) floated by the EU has been dismissed by ministers – but says the exit treaty should both set a “global amount” to honour financial obligations, subject to later adjustments and “a schedule of annual payments” that would reflect the fact that loans and guarantees made by the EU while Britain is a member extend well beyond 2019.
During the transition period, rules would be enforced by the ECJ, the paper states, in one of numerous references to the Luxembourg judges’ continuing jurisdiction over Britain.
Agreeing to such a deal would fly in the face of May’s pledge to “bring an end to the jurisdiction of the court in Britain”, which she is expected to highlight in the Tory manifesto. This would put her at odds with EU negotiators should she win the snap general election.
The EU claims that ECJ jurisdiction is the “only possible solution” and it has previously been a sticking point in other negotiations. Relations with Switzerland have been repeatedly pushed to breaking point by the refusal of the Swiss to accept a role for “foreign judges” in enforcing the treaties.
An agreement between the EU, Norway, Iceland and Liechtenstein is interpreted by the court of justice of the European Free Trade Association (Efta) states, but Britain argues that a special UK-EU court, or a more informal system without judges, would be better suited.
The leaked document states the EU might consider an “alternative dispute settlement” system for the treaty but only if that was “equivalent” to the ECJ.
Addressing concerns that Britain would weaken rights for EU citizens, the paper adopts tougher language on the rights of European citizens, insisting they must be covered by the full range of rights after Brexit and crucially the words “derived from EU law” have been added.
The original guidelines sent to the EU’s 27 capitals on 31 March referred only to the need to “settle the status and situations” of Europeans living in Britain and Britons living in Europe.
The new draft says: “Agreeing reciprocal guarantees to safeguard the status and rights derived from EU law at the date of withdrawal of EU and UK citizens, and their families, affected by the UK’s withdrawal from the union will be the first priority for the negotiations.”
A separate “draft negotiating directive” drawn up by the European commission makes clear that the ECJ must oversee citizens’ rights. It states: “The jurisdiction of the court of justice of the EU (and the supervisory role of the commission) should be maintained. Those rights should be protected as directly enforceable vested rights for the lifetime of those concerned.”
A government spokesman told the Times: “We have always been clear that securing the rights of EU citizens in the UK and those of UK citizens in the other member states is a priority for us.”
The EU has already voiced concern that British red tape is making it hard to claim rights to permanent residence after five years. The paper says there must be a “simple and swift” procedure in place that should be free or at worst no more than what Britons pay for similar public documents.
Showing just how complex leaving the EU will be, the paper sets out plans for goods placed on the market on either side of the new EU-UK frontier before Brexit, saying they would continue to be covered by EU rules even if only sold afterwards due to uncertainties about guarantees, labelling and other issues.
The paper does not include guidelines on future trade agreements, however, and only deals with the immediate issues of Britain’s withdrawal.