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Future EU-UK Partnership: Q&A on the negotiating directives

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What has the Council adopted today?

The General Affairs Council has today adopted a decision, as expected, to authorise the opening of the future partnership negotiations with the United Kingdom and the associated negotiating directives.

The negotiating directives adopted today are based on the draft recommendation put forward by the Commission on 3 February 2020. They fully respect existing European Council guidelines and conclusions, as well as the Political Declaration agreed between the EU and the United Kingdom in October 2019.

What did the Commission adopt previously?

The European Commission adopted on 3 February 2020 a recommendation to the Council to authorise it to open negotiations for a new partnership with the United Kingdom of Great Britain and Northern Ireland, in accordance with Articles 218(3) and (4) TFEU and Article 101 EAEC.

This recommendation was based on existing European Council guidelines and conclusions, as well as the Political Declaration agreed between the EU and the United Kingdom in October 2019. It included a comprehensive proposal for negotiating directives, defining the scope and terms of the future partnership that the European Union envisages with the United Kingdom.

What is the scope of these negotiating directives?

In line with the European Council guidelines of 23 March 2018 and the European Council conclusions of 13 December 2019, the directives cover all areas of interest for the negotiations, including trade and economic cooperation, law enforcement and judicial cooperation in criminal matters, foreign policy, security and defence, participation in Union programmes and other thematic areas of cooperation. A dedicated chapter on governance provides an outline for an overall governance framework covering all areas of economic and security cooperation.

Have you agreed with the United Kingdom yet about practical arrangements for the negotiations, such as language regime?

Practical issues, such as language regime and negotiation structure, will be agreed jointly between the EU and UK negotiators.

When will negotiations start?

Formal negotiations with the United Kingdom are set to begin the week of 2 March 2020.

GENERAL QUESTIONS

Can you really negotiate everything by the end of the year?

The Commission intends to achieve as much as possible during the transition period. We are ready to work 24/7 to make the best out of the negotiations. It is possible to extend the transition period by 1 to 2 years. This decision must be taken jointly by the EU and the UK before 1 July.

Extending the transition period: if no decision is taken by July 2020, surely there is an alternative mechanism, if needs be?

If no decision has been taken by the Joint Committee before July 2020, there is no other legal basis for extending the transition beyond 2020.

Is there still a risk of a “no-deal” scenario at the end of the year?

As in every negotiation, the risk of not reaching an agreement is there. Regardless of whether a future partnership will be in place, all businesses need to prepare now for the end of the transition period, as the UK will no longer be in the Single Market or the Customs Union.

Will all issues in the negotiating directives be negotiated in parallel?

We will work on all topics in parallel. We will be particularly vigilant to progress in areas where the risk of disruption at the end of the transition period is particularly high, in case no agreement has been reached.

Why was this legal basis chosen for the negotiations? Does that mean that the agreement does not need to be approved by national parliaments?

Given the scope of the envisaged partnership, at this stage, the choice of Article 217 of TFEU as a legal basis is the most natural since it is the widest legal basis possible. It is also suitable in order to provide for an overarching governance framework, which is one of the EU’s objectives. Obviously, the legal basis can only be final once we know the content of the final agreement. What is important is to ensure that the future agreement can enter into force on 1 January 2021.

Will there be one agreement or several agreements?

The aim is to negotiate an ambitious and comprehensive partnership with the United Kingdom that can enter into force by the end of the transition period. The Commission’s intention is to negotiate that partnership as a package that comprises three main components:

 -general arrangements (including provisions on basic values, essential principles and on governance);

– economic arrangements (including provisions on trade, level playing field guarantees and fisheries); and

– security arrangements (including provisions on law enforcement and judicial cooperation in criminal matters, as well as on foreign policy, security and defence).

Will the new partnership be an ‘association agreement’ and how will such an agreement be ratified?

‘Association agreement’ is the term used in Article 217 of the Treaty on the Functioning of the European Union for an agreement ‘establishing an association involving reciprocal rights and obligations, common action and special procedure’. Article 217 TFEU allows for the closest possible partnership with a country that is not an EU member. There are many different types of association agreement, but what they all have in common is their comprehensive nature and the fact that they establish a long-term institutional framework. An association agreement must be approved by unanimity in the Council and requires the consent of the European Parliament before it can enter into force. Whether the future partnership must be ratified by national parliaments depends on its final content and can only be determined at the end of the negotiations.

How will you ensure unity during these negotiations?

Just as with the Article 50 negotiations on the UK’s withdrawal from the EU, the Commission will conduct these negotiations in continuous coordination with the Council and its preparatory bodies. It will consult and report to the preparatory bodies of the Council in a timely manner, and will provide all the necessary information and documents relating to the negotiations. The Commission will also keep the European Parliament fully informed of the negotiations. For Common Foreign and Security Policy matters, the Commission will furthermore conduct negotiations in agreement with the High Representative of the Union for Foreign Affairs and Security Policy.

Will EU negotiating positions be made public?

Yes, the Commission’s aim will be to ensure full transparency. This is also why the Commission made its recommendation public.

What is the purpose of the High-Level Conference between the EU and the UK in June 2020?

The High-Level Conference in June, as foreseen by the Withdrawal Agreement, aims to take stock of the progress in negotiations. The Commission will also use the Conference to take stock of the state of implementation of the Withdrawal Agreement, in particular when it comes to citizens’ rights and the Protocol on Ireland and Northern Ireland.

Will the future agreement supersede the Protocol on Ireland and Northern Ireland?

Unlike earlier versions, the Protocol on Ireland and Northern Ireland agreed in October 2019 and which is a part of the Withdrawal Agreement is not a “backstop”. It was conceived as a stable and lasting solution. The Protocol will apply alongside any agreement on the future relationship. Nevertheless, it is clear that the terms of the future trading relationship between the EU and the United Kingdom – in terms of the shared ambition to have zero customs duties and quotas between the EU and the United Kingdom – will have some bearing on the practical application of the Protocol.

GOVERNANCE

How to ensure effective implementation of any future agreement?

For the agreement to be correctly implemented and applied, there must be effective governance arrangements with credible enforcement and compliance mechanisms, as of 1 January 2021. Where the future partnership relies on EU law, there must be a role for the European Court of Justice. Only the European Court of Justice can interpret EU law.

What would happen if the United Kingdom were to breach the future agreement?

Many international treaties have rules on how disputes between the parties must be resolved. The future agreement should also have such rules. The typical process is that the parties must first attempt to resolve their differences amicably through a process of ‘consultations’. If those attempts are unsuccessful, the dispute may be brought before an arbitration panel for a binding ruling. If a party continues to infringe the agreement, the other party can take action to safeguard its interests and to urge compliance. In certain situations, there should be a possibility for a party to act quickly to avoid irreparable harm. An important part of the negotiations with the United Kingdom will be about making sure that the rules governing disputes between the parties are clear and effective and that breaches can be remedied quickly.

What will be the role of the European Court of Justice?

The European Court of Justice is the final arbiter when it comes to the interpretation and application of rules of Union law. The future agreement must respect this by making sure that no other court, tribunal or arbitration panel set up by the parties may encroach upon the role of the Court of Justice. The precise role of the European Court of Justice under the future agreement will depend on the content of the future relationship with the United Kingdom.

Will there be sanctions if the UK does not play by the rules?

We are looking at the best possible safeguards to allow for a quick reaction and protection of the EU’s interests. The precise details and scope of the overall governance framework will depend on the content of the future relationship.

ECONOMIC PARTNERSHIP

How does the European Commission envisage the future economic partnership?

The envisaged partnership should be comprehensive including a free trade agreement, as well as wider sectoral cooperation.. It will be underpinned by robust commitments ensuring a level playing field for open and fair competition, as well as by effective management and supervision, dispute settlement and enforcement arrangements, including appropriate remedies.

What kind of customs cooperation do you foresee?

Within the framework of the EU’s Customs Code, the envisaged partnership should aim at optimising customs procedures, supervision and controls and facilitating legitimate trade by making use of available facilitative arrangements and technologies, while ensuring that customs authorities can take effective measures at the border. .

Customs authorities must be able to take effective measures at the border to enforce legitimate public policies (protection of health and safety of consumers, protecting businesses, for example regarding enforcement of intellectual property rights) and protect financial interests. Therefore, the customs cooperation that we envisage achieves, as is the case with our existing free trade agreements, limited facilitation and in any event cannot be described as going in the direction of frictionless trade. Only membership of the Single Market and the Customs Union can ensure such frictionless trade.

Will a free trade agreement (FTA) allow goods to be exchanged between the UK and the EU as they are today?

Trading under FTA terms, even a so-called “best in class” FTA, will be of a very different nature compared to the free movement of goods enabled by the EU’s Customs Union and Single Market. In an FTA context, rules of origin and customs formalities will apply; all imports will need to comply with the rules of the importing party and will be subject to regulatory checks and controls for safety, health and other public policy purposes.

That being said, the proposal we are ready to table, as the Political Declaration already announced, will be a very ambitious FTA: no tariffs and no quotas across all goods, including agricultural and fisheries products.

This privileged access is conditioned on the existence of robust provisions ensuring a level-playing field, guaranteeing competition between economic operators on both sides. In addition, the access conditions that the Union grants under the free trade area  will be guided by the terms on access and quota shares in the fisheries agreement to be established by 1 July 2020. .

Without an FTA in place by the end of the transition period, tariffs and quotas will apply to all trade in goods between the EU and the UK. In this scenario, we must apply what is known as “MFN tariffs” to the UK. Indeed, under the WTO Most Favoured Nation (MFN) principle, benefits given to one trading partner need to be extended to all other WTO members, unless a preferential trade arrangement, such as an FTA, allows this. Therefore, without an FTA in place as of 1 January 2021, economic operators and consumers should not expect privileged treatment when dealing with the UK.

What does “level playing-field” mean?

The EU is ready to offer a high-ambition trade deal, with zero tariffs and zero quotas on all goods entering our single market of 450 million people. However, because of our high levels of economic inter-connectedness, the volume of trade and geographical proximity, the draft negotiating directives also make clear that this offer is conditional on robust level playing field safeguards to prevent unfair competitive advantages the UK could derive from regulatory divergence (via lowering of standards or a “race to the bottom”) or subsidisation of UK operators. In the Political Declaration, the EU and the UK already agreed that they would prevent distortions of trade and unfair competitive advantages. We must now agree on effective assurances to guarantee common high standards and corresponding high standards over time on social, environmental, tax, state aid and competition matters. Union standards in these areas will serve as a point of reference to establish these guarantees. Robust level playing field commitments will entail also the establishment of adequate mechanisms to ensure effective enforcement and monitoring, dispute settlement and the possibility to adopt appropriate remedies, including autonomous measures to react quickly to disruptions of the equal conditions of competition in relevant areas..

What if the UK will not commit to any level playing field guarantees?

We agreed in the Political Declaration that the scope and depth of the future relationship will depend on the level playing field commitments that the UK is willing to undertake. The EU will not agree on an FTA without solid level playing field guarantees and an agreement on fisheries. Our geographic proximity, volume of trade and economic interconnectedness are such that it is in our mutual interest to agree on fair competition standards between us, as well as on their effective enforcement. Given the current very close integration of British companies with the Single Market and the UK’s desire for a comprehensive free trade agreement, it is only fair that the EU requires commensurately strong level playing field guarantees. This will also be in the interest of British consumers and businesses. The EU is by far the greatest export market for UK businesses and most UK imports come from the EU.

Will sanitary and phytosanitary requirements (SPS) change?

There will be no changes to the Union’s food safety standards. Union law, including systematic controls, will fully apply to imported food, animals and plants without exceptions or equivalency. High-level SPS standards will be safeguarded. As in existing FTAs, relations will be built on and will go beyond existing multilateral instruments [World Trade Organization (WTO), Codex Alimentarius, International Plant Protection Convention (IPPO) and World Organisation for Animal Health (OIE)] recommendation and requirements. Co-operation should be ensured in combating antimicrobial resistance as well as protecting animal welfare and ensuring sustainable food systems.

Will the EU allow for mutual recognition of rules and standards?

By choosing to leave the Single Market, the UK has opted to have the status of a third country regarding EU law. The EU and UK will therefore form separate markets and distinct legal orders, after the end of the transition period. The future relationship will therefore result in a lower level of integration than is the case today. The future economic partnership on goods will seek to facilitate trade as far as possible but this cannot be expected to replicate the same frictionless conditions of trade that exist between EU Member States. Such conditions are based on adherence, by Member States, to a full ‘ecosystem’ of rules, including the Treaties, and their supervision and enforcement, including the jurisdictional system under the Court of Justice of the EU. Mutual recognition can only be granted between participants to that ecosystem.

What can be achieved on services in the context of an FTA?

We can aim at a level of liberalisation of trade in services beyond the baseline provided by our existing WTO GATS commitments, similarly to the approach in our most recent FTAs. As required under GATS rules, the FTA would need to cover most services sectors, such as telecommunication services or business services to name a few. But, as in any FTA negotiated by the EU, there will be exceptions. For example, the EU proposes to exclude audiovisual services from the scope of the Agreement.. It is also important to recall that, under its FTAs, the EU maintains its right to regulate its own markets and its full regulatory autonomy. We will be particularly attentive to include provisions that preserve the EU’s public servicesThis preservation of our right to regulate will be paramount in all sectors, and a good illustration is financial services. Indeed, in that area, the key instruments the EU and the UK will use in this area are their respective unilateral equivalence frameworks, as laid down in their legislation. The FTA will cover financial services, but it will not go beyond what the EU offers in its FTAs with other third countries. It will also contain the prudential carve-out.

Finally, it should be recalled that while free trade agreements’ provisions are important in the area of services, a number of other rules impact trade in services. Some of them imply unilateral decisions such as EU regimes on data protection and financial services regulation and supervision. The EU intends to assess the UK for adequacy on data protection and equivalence on financial services. That is what we have agreed in the Political Declaration. Decisions should be reciprocal. Services are also closely linked to the free movement of people (professionals such as lawyers, consultants, accountants etc.), which the UK explicitly intends to stop post-Brexit. Those elements should be taken into account too when assessing priorities for the coming negotiations.

Will audiovisual services and public services be covered?

The EU always excludes certain services (e.g. audiovisual, public services) from its FTAs and considers carefully any commitments made in the other sectors. The EU also needs to consider the Most Favoured Nation commitment it has taken that would extend the benefits of the agreement with the UK to other FTA partners such as Canada, Japan and Korea.

What about roaming?

The provisions on roaming-like-at-home will stop applying in respect of the UK. When traveling to the UK, the situation will be similar to that of travelling to Switzerland: roaming changes may apply. Telecoms operators have obligations to be transparent as to the tariffs they charge.

What do you foresee on digital trade?

The objective is to facilitate digital trade, such as e-commerce, while respecting consumer rights and personal data protection rights. This is something that the EU has been doing in its FTAs for long time.

Will financial services be covered by the FTA?

Yes, we usually cover financial services in EU FTAs. The standard approach is to have limited market access commitments, notably on cross-border supply of financial services. In addition, even where there is market access the EU will continue to apply its host state-rules to incoming providers. Finally, like in all FTAs we will have a prudential carve-out that allows to Union to adopt any measure for prudential reasons.

The EU’s equivalence regimes are the instruments that the EU will use to regulate interactions with the UK in the financial services area. The EU’s equivalence frameworks only provide for the possibility to give market access in a few cases. They do not cover all financial services. The granting (or not granting) of equivalence is a unilateral measure by the EU. Equivalence can be withdrawn at any time. Decisions should be reciprocal.

What are you proposing on geographical indications, and how does that differ from the Withdrawal Agreement?

All EU geographical indications registered on 31.12.2020 (the “stock”) will be protected in the United Kingdom as a result of the Withdrawal Agreement. However, beyond this, the future FTA should provide a framework to ensure the protection of newly registered geographical indications at the same level as that guaranteed by the Withdrawal Agreement.

What are you proposing on public procurement?

We aim at securing procurement opportunities on top of those guaranteed by the UK’s accession to the WTO Government Procurement Agreement (the UK is in the process of acceding to that agreement).

Mobility: will EU and UK citizens still be able to move freely?

The UK has decided to end the free movement of persons and has limited ambition for specific arrangements with the EU on the mobility of persons.

This does not mean that mobility will stop. Today, citizens move from one country to another to live, work, study and carry out research. However, after the end of the transition period, mobility to and from the UK will be different and will happen under different rules than before when free movement rules applied. What exactly those rules will be depends on the outcome of the negotiations but our objective is to ensure reciprocity and no discrimination between EU nationals.

How about short-term trips by EU citizens to the UK and by UK nationals to the EU?

After the end of the transition period, the EU will not require visas for short stays (less than 90 days in 180 days) for UK nationals independently of the purpose of the trip (except in case of paid work), so short-term tourists, students, journalists, trainees, etc. from the UK will be able to come visa free.

This arrangement is dependent on the UK also granting full visa reciprocity to the nationals of all EU Member States travelling to the UK.

Will there be different entry checks on UK nationals when entering the EU?

Yes, UK nationals will be treated as third-country nationals as of the end of the transition period. There is no legal alternative under the Schengen acquis. This means that the entry conditions for third-country nationals and the procedures applicable to the crossing of the EU external borders will also apply to UK nationals, as will the relevant provisions of the Union Customs Code and directives relating to VAT.

Concretely, this means that: UK nationals will no longer be able to use the designated lanes at Border Crossing Points (EU, EEA, CH); their passports will be subject to stamping upon entry and exit from the Schengen Area; they will be subject to checks including checks against databases upon entry and exit; they will be subject to the EU’s Entry/Exit-System (EES) and the European Travel Information and Authorisation System (ETIAS) when these systems will be deployed in the future.

The entry checks on UK nationals will include verification of the possession of a valid travel document for crossing the border; the duration of the stay; the purpose (e.g. tourism or work) and the conditions of the intended stay (e.g. accommodation, internal travels); the existence of sufficient means of subsistence (i.e. having sufficient means to pay for the intended stay and return travel).

How about the possibility of EU citizens to move to the UK and UK nationals to the EU for longer terms (longer than 90 days)?

After the end of the transition period, mobility to and from the UK will be different and will happen under different rules than before when EU free movement rules applied. What exactly those rules will be depends on the outcome of the negotiations.

Nevertheless, even in the absence of specific provisions, the default rules of the EU and the UK would cover the entry and stay for different purposes. On the EU side, national rules and the EU’s legal migration acquis for long stays sets out the conditions of entry and stay in the EU for categories such as students, researchers, some types of workers, family members, long-term residents, au pairs, volunteers etc. These rules apply in the same way to citizens of all third countries, including the UK when it becomes a third country. For stays of less than 90 days in a 180-day period, the Schengen acquis applies. On the UK side, its national migration regime would apply.

What do you foresee on mobility of citizens within the FTA?

As regards  mobility, FTAs only deal with the entry and temporary stay of natural persons for business purposes in defined areas. However, host State rules continue to apply as regards conditions for entry and stay, access to labour market and working conditions.

What do you foresee on social security coordination?

In order to facilitate the future mobility of persons, appropriate social security coordination will also need to be agreed. The scope of social security coordination rules in the future relations with the UK should cover the possible mobility of UK and Union citizens in a situation where there will not be free movements of persons anymore. . The social security coordination should be based on non-discrimination between EU Member States and full reciprocity.

It is noted that one of the stated objectives of Brexit was to stop the free movement of citizens. This means that in any event, the situation on citizens’ mobility after 1 January 2021 will be very different compared to today.

Will smooth transport links still be ensured?

In the future relationship, the EU will aim to ensure a continued flow of goods and persons between the UK and the EU, but the UK, as a third country, does not have the same rights as a Member State.

The situation is very different depending on the mode of transport: Ensuring connectivity for air traffic and road haulage will require an agreement, e.g. on market access. Without an agreement, there is no fall-back to allow traffic to continue.

What kind of an air transport agreement do you foresee?

In terms of air transport, UK operators currently benefit from full market access in the EU: a UK airline can offer air services within the EU without restrictions. Without an EU-UK partnership in aviation, and in absence of unilateral contingency measures, no flight would take place between the UK and the EU as the WTO does not offer any fall-back for air services.

We are aiming for an aviation relationship that allows for continued connectivity and ensures a high level of aviation safety and security standards, air traffic management, and sector specific level playing field provisions to allow for open and fair competition, including appropriate and relevant consumer protection requirements and social standards.

What do you foresee on road transport?

In the area of road transport, we are aiming for a system of open market access allowing journeys between the UK and the EU, while preserving the integrity of the internal market for road haulage services. We also need to ensure sector specific level playing field provisions, in particular as regards the rules that affect our operators, our drivers and our vehicles.

Will you need an agreement on energy?

The negotiating directives foresee cooperation in the area of energy. An important pre-condition for cooperation in this area is to ensure we have robust level playing field requirements. In particular carbon pricing (Emission Trading System – ETS) and provisions on State aid are both a pre-condition for future cooperation on energy.

In the area of electricity and gas, there is no precedent for this type of arrangement.

As regards Euratom issues, the EU has experience regarding Nuclear Cooperation Agreements with other third countries.

What about climate change?

In the introductory paragraphs of the negotiating directives, five binding political clauses underpinning the all-encompassing relationships between the EU and third countries are highlighted, namely: the respect for and safeguarding of human rights, democracy and the rule of law; support for non-proliferation of weapons of mass destruction; the fight against terrorism; prosecution of those accused of the most serious crimes of concern to the international community; small arms and light weapons. The fight against climate change has been added as an essential element of the envisaged partnership.

Will the UK continue to participate in the ETS system?

In line with the Political Declaration, the negotiating directives foresee the possibility of a so-called linking agreement by which the EU and the UK could link their respective emission trading systems.

Will EU fishermen continue to have access to UK waters?

Access to each other’s waters will be negotiated as part of the provisions on fisheries, which should provide for continued reciprocal access, in line with the objectives set out in the March 2018 European Council Guidelines.  

Will the EU impose tariffs on UK fisheries products?

The envisaged partnership should include, in its economic part, provisions on fisheries setting out a framework for the management of shared fish stocks, as well as the conditions on access to waters and resources. The intention is to have fully liberalised market access across all goods, i.e. no tariffs and no quotas, which will be guided by the agreement on fisheries.

What happens if there is no agreement on fisheries by July 2020?

The Political Declaration includes a joint commitment on best endeavours to reach an agreement on fisheries by 1 July 2020. The time to negotiate such an agreement will be very short (four months), but it is in our mutual interest to conclude the fisheries agreement in due time, so it can be implemented as of 1 January 2021 in view of ensuring sustainable fisheries management.

Union programmes: will the UK still get grants and subsidies from the EU? Will they contribute to the EU budget?

As set out in the Withdrawal Agreement, UK beneficiaries will continue to benefit from programmes under the Multi-annual framework for 2014-2020, even where this continues after the end of the transition period.

The UK will be treated as a third country for the purposes of the next Multiannual Financial Framework (MFF) 2021-2027. If the UK requests participation in some areas, the EU could consider participation in accordance with the MFF rules for third country participation.

What about Erasmus?

Activities under the current Erasmus+ (2014-2020) programme are covered by the Withdrawal Agreement, and will continue without interruption until their closure. For the future Erasmus programme, under the next Multiannual Financial Framework (2021-2027) it will depend on the possible participation of the UK in Union programmes.

Will the United Kingdom be able to continue to participate in EU regulatory agencies as a third country?

No. These agencies have been set up to support the EU and its Member States to develop and implement EU rules. A third country leaving these rules, and their supervision, can no longer participate in these agencies..

Will our data still be safe if transferred to the UK and processed there?

In view of the importance of data flows, the envisaged partnership should be underpinned by a high level of personal data protection. The adoption by the Union of adequacy decisions, if the applicable conditions are met, should be an enabling factor for cooperation and personal data flow, in particular in the area of law enforcement and judicial cooperation in criminal matters. The Commission endeavours to adopt such decisions by the end of 2020, if applicable conditions are met.

Would the UK still be able to use the European Arrest Warrant? How would criminals be extradited between the EU and the UK?

The European Arrest Warrant is an internal EU instrument, used exclusively among Member States. Therefore, it will no longer be used with the UK.

The draft negotiating directives propose new and effective arrangements between the United Kingdom and EU Member States to render criminals swiftly to justice. This would be an ambitious scheme, based on streamlined procedures and strict deadlines, subject to judicial control. It would be conditional upon robust safeguards on fundamental rights and the role of Court of Justice.

At the same time, it will offer flexibility to each Member State and to the United Kingdom to decide how far they wish to go in common relations. It will help, for example, to address constitutional constraints related to extradition of own nationals in some Member States and allow for the possibility to ask for additional guarantees in particular cases.

Why do you have reference to “UK continuous commitment” to the European Convention on Human Rights? Why would cooperation cease if the UK leaves the Convention?

The draft negotiating directives propose close relations with the UK on law enforcement and judicial cooperation in criminal matters. It would cover, amongst other things, ambitious extradition or exchange of sensitive information that may impact human lives or rights (e.g. deprivation of liberty). Such relations require a high degree of confidence that the human rights concerned will be upheld. We need a common understanding on how we protect those rights. Within the Union we have the Charter of Fundamental Rights. This is a part of our Treaties. With regard to the UK, the negotiating directives propose a strong commitment to respect the European Convention on Human Rights (ECHR), a common pan-European instrument applied for over 70 years by the United Kingdom and other countries across Europe. Commitment to ECHR is also set out in the Good Friday (Belfast) Agreement.

Will Passenger Name Records (PNR) continue to be exchanged to prevent, detect and investigate terrorism and other forms of serious crime?

The negotiating directives foresee that arrangements should be established for timely, effective, efficient and reciprocal exchanges of Passenger Name Records (PNR). This means that arrangements need to be made for two situations: first, for exchanges between EU27 Member States’ and UK Passenger Information Units and, second, for transfers of PNR data by air carriers to the UK authorities for flights between the United Kingdom and EU27 Member States. There are examples of cooperation with third countries on PNR transfers: the EU has PNR agreements with the USA and Australia; there is a draft negotiated text with Canada and a mandate for negotiations with Japan. An essential precondition for any such arrangements is that the UK applies data protection standards essentially equivalent to those set out in the EU’s standards, i.e. the GDPR and Law Enforcement Directives, and complies with specific additional data protection standards stemming from the CJEU opinion on EU-Canada PNR agreement (opinion 1/15).

Will DNA, fingerprints and vehicle registration data be exchanged between the UK and EU for law enforcement purposes? (Prüm)

The negotiating directives provide that arrangements should be established for timely, effective, efficient and reciprocal exchanges of data on DNA, fingerprints and vehicle registration (so- called ‘Prüm data’). However, there will be no direct access to such sensitive personal data but only through a decentralised system based on a “hit/no hit” model. After a “hit”, i.e. a confirmation that something is available, this needs to be followed up by a request to receive this data from the Member State concerned.

The EU currently has concluded Prüm-agreements with Schengen Associated Countries (Iceland, Norway, Switzerland and Liechtenstein), but the model is open to third countries outside Schengen.

Essential preconditions for any such arrangements are that the UK applies data protection standards essentially equivalent to those set out in the EU’s Law Enforcement Directive standards, and provides reciprocal access to EU Member States of data available at UK national level in the same way as EU27 Member States do.

Will the UK keep access to the Schengen Information System (SIS)?

Non-Schengen third countries do not have access to SIS. SIS is a measure that contributes to security within the EU, in which there are no internal borders. It is intrinsically linked to the free movement of persons. The Court of Justice has consistently defended the coherence of the Schengen acquis.

We need to set up new effective ways of data sharing on wanted and missing persons and objects, while taking into account the UK’s future status. This would be achieved through alternatives for simplified, efficient and effective exchanges of existing information and intelligence between the United Kingdom and Member States law enforcement authorities, in so far as is technically and legally possible, and considered necessary and in the Union’s interest..

What would the UK role in Europol be?

The negotiating directives provide for cooperation between Europol and the United Kingdom law enforcement authorities. This will be done in line with the rules for third countries established in EU legislation.

In practice, this means that the UK would be able to:

-share any relevant data, initiate new cases, use common secure communication channel – as it is the case now;

-participate in all Europol analysis projects where Europol, Member States and other partners cooperate on ongoing live-investigations, if Member States participating in such analysis projects agree; and

-take part in common operations, get analytical support from Europol, keep its Liaison Officers at Europol and be informed about relevant data concerning the UK. However, it would not get access to the Europol Information System or have any role in governance of the EU agency.

The negotiating directives propose an ambitious law enforcement and judicial cooperation in criminal matters, guaranteeing at the same time security and fundamental rights of our citizens. Cooperation will, however, be different from what we have today. This is a logical consequence of the UK’s decision to withdraw from the EU. The UK will leave the common rules-based system underpinned by shared principles, common obligations and enforcement.

Will the EU and the UK continue to cooperate on sanctions?

EU sanctions will continue to be driven solely by EU interests. However, cooperation is important to maximise the impact of our sanctions. We should cooperate with the UK the same way we cooperate with other like-minded third countries.

Will UK participation in EU missions and operations have to stop?

The UK will be invited to participate by the Union in its missions and operations on a case-by-case basis (no standing invitation), following the existing rules and preserving the independence of the Union’s decision-making process.

Will you continue to cooperate in third countries on development cooperation?

The EU will maintain its autonomy and strategic programming of development priorities. The EU and the UK will continue to cooperate on the ground to maximise the impact of development cooperation. The UK will be able to make use of existing mechanisms for third countries’ participation, including with regard to any proposals for development cooperation instruments.

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EU Politics

Explainer: Commission adopts new EU Air Safety List

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What is the EU Air Safety List?

The EU Air Safety List (ASL) is a list of air carriers from non-EU countries, which do not fulfil the necessary international safety standards. The carriers on the ASL are banned from operating to, in and from the EU. Also, carriers that do not operate to the EU can be put on the ASL, in order to warn the public travelling outside of the EU about their unsafe status. If the safety authorities of a third country are not able to fulfil their international safety oversight obligations, all the carriers of such country can be put on the ASL.

The EU Air Safety List, while evidently not popular with the affected countries, has developed into a very powerful, and internationally recognised tool to help improve the safety of international aviation. This is the case both for flights to the EU, but also for aviation outside of the EU. The ASL is also seen as a strong preventive tool, because countries, which are under scrutiny, tend to improve their safety oversight to prevent seeing their air carriers on the list.

Which carriers are currently on the EU Air Safety List?

After the update of June 2020, the 35th update, 96 air carriers are banned from EU skies:

  • 90 airlines certified in 16 states*, due to a lack of safety oversight by the aviation authorities from these states;
  • Six individual airlines, based on safety concerns with regard to these airlines themselves: Avior Airlines (Venezuela), Blue Wing Airlines (Suriname), Iran Aseman Airlines (Iran), Iraqi Airways (Iraq), Med-View Airlines (Nigeria) and Air Zimbabwe (Zimbabwe).

An additional three airlines are subject to operational restrictions and can only fly to the EU with specific aircraft types: Air Service Comores (the Comoros), Iran Air (Iran) and Air Koryo (North Korea).

Who is responsible for the updates to the EU Air Safety List?

For the purpose of updating the list, the Commission is assisted by the EU Air Safety Committee (ASC), which is composed of aviation safety experts from all the EU Member States and chaired by the Commission, with the support of the European Union Aviation Safety Agency (EASA). Acting on a proposal by the Commission, the Air Safety Committee adopts its opinion by qualified majority, which is then submitted to the European Parliament before final adoption by the Commission and subsequent publication in the Official Journal. To date, all decisions taken by the Commission to impose or to lift restrictions have always been reached with the unanimous support of the ASC. Equally, every update of the ASL met with the unanimous support of the European Parliament’s Transport Committee.

What is the procedure for updates to the EU Air Safety List?

All Member States and the European Union Aviation Safety Agency (EASA) have the obligation to communicate information to the Commission, which may be relevant in the context of updating the ASL. The European Commission and the Air Safety Committee use a variety of sources of information when assessing whether or not international safety standards are respected. These sources include ICAO, FAA, EASA, SAFA** and TCO*** reports, as well as information gathered by individual Member States and the Commission itself. It is important to note that this assessment is made against international safety standards (and not the EU safety standards, which are sometimes more stringent), and notably the standards promulgated by the International Civil Aviation Organisation (ICAO).

To whom does it apply?

The rules establishing the list of banned carriers apply to all air carriers irrespective of their nationality – EU and non-EU ones. The rules apply only to commercial air transport, i.e. to air transport of passengers and cargo for remuneration or hire. The rules do not apply to private and non-commercial flights (e.g. positioning flights for maintenance purposes).

How often is the list updated and what is the timeframe for this? Is there not a risk that it will quickly become obsolete?

The Air Safety List may be updated whenever the Commission deems it is necessary, or upon request of an EU Member State. The ASC normally meets two or three times every year, as necessary. In cases of emergency, a specific procedure is foreseen.

How can an airline be cleared and taken off the list?

It is possible for states and air carriers to be removed from the air safety list. If an airline considers that it should be taken off the list because it complies with the relevant safety standards, it can address a request to the Commission, either directly or through its civil aviation authority. To enable a ban to be lifted, sufficient evidence needs to be provided to the EU to prove that the capacity of the airline and of its oversight authority to implement international safety standards is of a sufficient level. The Commission services will then assess the evidence presented by the airline and/or its oversight authority to substantiate its request for being withdrawn from the air safety list, and if the result of the assessment is positive, the Commission will make a proposal to the EU Air Safety Committee.

Notwithstanding the case of individual air carriers, if the underlying reason for an air carrier being on the ASL is due to the poor level of compliance with ICAO standards by its safety oversight authorities, it will require the state to address the significant non-compliances before that air carrier can be removed from the list.

In practical terms, this involves the air carrier and its state providing written information, attending meetings with the Commission and Member States, sometimes being subject to an on-site visit led by the Commission, and taking part in hearings in front of the Air Safety Committee.

How is an airline added to the list?

If the Commission or a Member State acquires and confirms evidence indicating serious safety deficiencies on the part of an airline or its oversight authority anywhere in the world, the list will be updated to include such airline or all the airlines of such country.

Does the inclusion of an airline in the air safety list always mean that it is no longer allowed to fly in Europe?

YES. As long as the air carrier is subject to a total ban, it cannot operate with its aircraft and personnel in the Union’s airspace. The airline is included in Annex A to the regulation whereby the Air Safety List is updated. Equally, as long as an air carrier is subject to a partial ban it can operate only with the aircraft stipulated in the Regulation. The airline is included in Annex B to the regulation whereby the Air Safety List is updated.

Banned airlines can, however, use the aircraft and personnel of other airlines, which are not on the ASL, on the basis of contracts called “wet-lease agreements”. In this way, passengers and cargo can still be transported on the basis of tickets sold by a banned airline, whereas the actual flight is operated by airlines which fully comply with the safety rules. Furthermore, aircraft which are used for government or state purposes (e.g. transport of the heads of state and/or government, humanitarian flights), do not fall under the safety requirements of ICAO. Such aircraft are considered to be operating “state flights” and they can fly into the EU even if they are banned from operating commercial flights to the EU. However, such flights do need a special authorisation (“diplomatic clearance”) from all the Member States, which the state aircraft overflies, as well as from the state of destination.

In essence, banned airlines cannot enter the sovereign airspace of any Member State and fly over their territory while they are banned (totally or partially).

Does the list prevent EU Member States from taking individual safety measures at a national level?

NO. The general principle is that whatever measure is considered at national level must be also examined at Union level. When an air carrier is considered unsafe and therefore banned in one Member State, there is an obligation to examine this measure at EU level with a view to applying it throughout the European Union. Nevertheless, even where a ban is not extended to the EU, there is scope for Member States to continue to act at national level in certain exceptional cases, particularly in emergencies or in response to a safety issue specifically affecting them.

What are airlines’ “rights of defence”?

Airlines that have been banned, or that are being investigated in view of a potential ban, have the right to express their points of view, submit any documents, which they consider appropriate for their defence, and make oral and written presentations to the Air Safety Committee and the Commission. This means that they can submit comments in writing, add new items to their file, and ask to be heard by the Commission or to attend a hearing before the Aviation Safety Committee, which then formulates its opinion based on these proceedings and the materials submitted prior to or during the hearing.

Is the Commission approach a punitive one?

The Commission’s sole aim is to improve aviation safety, which is in everyone’s interest, and in no way to affect a country’s economic or social development. Countries affected can put in place technical assistance measures to help airlines achieve a satisfactory level of aviation safety. While in the past the focus has been to put countries and carriers on the ASL, the Commission is now also focusing on working with affected states to help them improve their safety situation, in order to allow them to be released from the EU Air Safety List once the necessary safety levels have been reached.

How is the public informed about the EU Air Safety List?

The latest version of the list is made available to the public online at https://ec.europa.eu/transport/modes/air/safety/air-ban_en. The Commission also liaises closely with European and international travel agent associations each time that any changes are made to the list in order that they may be in the best possible position to aid their clients – the passengers – in making informed decisions when making their travel arrangements. Moreover, the “Air Safety List” regulation also obliges national civil aviation authorities, EASA and airports in the territory of the Member States to bring the ASL to the attention of passengers, both via their websites and, where relevant, in their premises.

In what way does the EU Air Safety List provide rights to European travellers?

The Air Safety List Regulation establishes the right of any passenger to know the identity of every airline they fly with throughout their trip. To this effect, the contracting carrier is required to inform passengers of the identity of the operating air carrier or carriers when making a reservation, whatever the means used to make the booking. The passenger must also be kept informed of any change of operating carrier, either at check-in or, at the latest, when boarding. The Regulation also gives passengers the right to reimbursement or re-routing if a carrier with which a booking has been made is subsequently added to the Air Safety List, resulting in cancellation of the flight concerned.

In what way does the publication of the EU Air Safety List help European citizens travelling beyond EU territory?

The ASL does not only ban unsafe airlines from operating to, from and in the EU. The publication of the list also provides useful information to people wishing to travel outside the European Union, in order for them to avoid flying with these airlines. The list also safeguards the rights of consumers who have bought a trip at a travel agent, which includes a flight operated by an airline on the ASL.

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Explainer: rescEU and Humanitarian Aid under the new MFF

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Why is the Commission proposing to strengthen the EU Civil Protection Mechanism and rescEU?

The EU Civil Protection Mechanism is a crisis management structure that allows Member States and Participating States[1] to strengthen their cooperation in the field of civil protection, to improve prevention, preparedness and response to disasters. It is based on voluntary contributions of Member States, with the European Commission playing a key coordinating and co-financing role.

The need for a more flexible, faster and reactive system to respond to large-scale emergencies is one of the lessons learnt from the outbreak of the coronavirus pandemic.

The rapid spread of the virus exposed some limitations in the current crisis management framework. At times when Member States are hit by the same emergency simultaneously and unable to offer each other assistance, the EU is currently unable to help quickly enough to fill these critical gaps as it does not have its own assets and has to rely on voluntary support from Member States.

A reinforcement and upgrade of the EU Civil Protection Mechanism – as requested by the European Council in March 2020 – is therefore necessary to avoid situations where Member States are left alone during crises.

What is the main objective of the proposal?

The Commission’s proposes to allow the EU and its Member States to be better prepared for and able to react quickly and flexibly to crises, in particular those with a high-impact given the potential disruption to our economies and societies.

Under the Commission’s proposal, the EU will be able to;

  • directly procure an adequate safety net of rescEU capacities;
  • use its budget more flexibly to be able to prepare more effectively and react faster in times of exceptional needs
  • dispose of the logistical capacity to provide multi-purpose air services in case of emergencies and to ensure timely transport and delivery of assistance;

These strategic capacities will be supplementary to those of the EU Member States. They should be strategically pre-positioned in such a way as to ensure the most effective geographic coverage in response to an emergency.

In this way, a sufficient number of strategic assets will be available in order to support Member and Participating States in situations of large-scale emergencies and offer an effective EU-response.

What kinds of action will be financed under the proposal?

The upgraded EU Civil Protection Mechanism will equip the European Union with assets and logistical infrastructure that can cater for different types of emergencies, including those with a medical emergency dimension. This would allow the EU to:

  • Acquire, rent, lease and stockpile identified rescEU capacities;
  • Fully finance the development and the operational cost of all rescEU capacities as a strategic European reserve in case national capacities are overwhelmed;
  • Enhance the funding for national capacities deployed under the European Civil Protection Pool to increase their availability for deployment;
  • Ensure timely transport and delivery of requested assistance. This also includes internationally deployable experts, technical and scientific support for all types of disasters as well as specific medical equipment and personnel such as ‘flying medical experts’, nurses and epidemiologists.

Humanitarian Aid

How will EU humanitarian aid be enhanced under the new MFF?

The Commission proposes €14.8 billion for humanitarian aid, of which €5 billion come from the European Union Recovery Instrument to reinforce the humanitarian aid instrument.

The increased budget reflects the growing humanitarian needs in the most vulnerable parts of the world. The Humanitarian Aid Instrument will provide needs-based delivery of EU assistance to save and preserve lives, prevent and alleviate human suffering, and safeguard the integrity and dignity of populations affected by natural hazards or man-made crises.

A significantly enhanced Solidarity and Emergency Aid Reserve will reinforce EU action in response to all aspects of the health crisis, as well as other emergencies. Funds can be channelled to provide emergency support as and when needed through EU instruments such as humanitarian aid in cases where funding under dedicated programmes proves insufficient.

Why is the Commission proposing to increase humanitarian aid budget?

Humanitarian crises in the world are increasing: In 2020, nearly 168 million people will need humanitarian assistance and protection, a significant increase from 130 million people in 2018 (OCHA humanitarian needs overview 2020). The needs are stemming from the conflicts, global refugee crisis, worsening natural disasters due to climate change.

The coronavirus pandemic further increases already existing humanitarian needs. It has a major health, social and economic impact on societies around the globe, in particular on the poorest countries. It is estimated that up to 265 million people worldwide could be under severe threat of hunger by the end of 2020 due to the effects of the pandemic (OCHA humanitarian needs overview 2020). This requires strong reinforcements to the humanitarian aid budget to meet the growing needs.

The EU adapted its humanitarian response in light of the needs stemming from the coronavirus pandemic. However, the impact of the pandemic and the economic fall-out, are compounding existing needs, making it all the more important that the Union is equipped to demonstrate solidarity with the rest of the world.

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Explainer: The proposed InvestEU Programme

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Why do we need InvestEU for the post-coronavirus recovery?

InvestEU is the EU’s proposed flagship investment programme to kick-start the European economy. It is well-placed to provide long-term funding and to support Union policies in the recovery from a deep economic and social crisis. This has been shown with the successful implementation of the European Fund for Strategic Investments and other EU financial instruments in the wake of the past financial crisis.

In the current coronavirus crisis, the market allocation of financial resources is not fully efficient and perceived risk impairs private investment significantly. Deep uncertainty currently compromises the quality of financial market information and lenders’ ability to assess the viability of companies and investment projects. If left unchecked, this can create pervasive risk aversion towards private investment projects and contribute to a ‘credit crunch’. Under such circumstances, the key feature of InvestEU of de-risking projects to crowd in private finance is particularly valuable and should be utilised.

An enhanced InvestEU programme thanks to Next Generation EU will be able to provide crucial support to companies and to ensure a strong focus of investors on the Union’s medium- and long-term policy priorities, such as the European Green Deal and the digitalisation transition and greater resilience. To address all of these challenges, the Commission is updating its original InvestEU proposal from 2018 to make sure it can better respond tothe current economic crisis.

What are the main changes to InvestEU?

The new proposal contains two main changes to the InvestEU Programme as partially agreed between co-legislators in April 2019:

  • An increase of the InvestEU budget to reflect the higher investment needs and an environment of increased risk. The financial envelope for the sustainable infrastructure window is doubled, in line with the President’s Communication “Europe’s moment: Repair and Prepare for the Next Generation”.
  • A broadened scope through the addition of a fifth window – the strategic European investment window – in order to cater for the future needs of the European economy and to promote and secure EU strategic autonomy in key sectors.

What will the new strategic European investment window finance?

The outbreak of the pandemic has shown the interconnectivity of global supply chains and exposed some vulnerabilities, such as the over-reliance of strategic industries on non-diversified external supply sources. Such vulnerabilities need to be addressed, to improve the Union’s emergency response as well as the resilience of the entire economy, while maintaining its openness to competition and trade in line with its rules. The new strategic European investment windowwill focus on building stronger European value chains in line with the strategic agenda of the Union and the New Industrial Strategy for Europe, as well as supporting activities in critical infrastructure and technologies

This reinforcement is of particular importance in the post-crisis situation, as some Member States might not have sufficient financial capacity to support these projects with national State aid. Moreover, many of these projects are cross-border and require a European approach.

How will the new window complement the pre-existing windows?

In the current context, the strategic European investment window would bring value added to the original windows, as it focuses on recipients or projects based on their high European strategic importance.

The new window would both target specific projects (e.g. supporting large consortia or public-private partnerships aimed at developing a specific technology and building critical infrastructure) and provide diffused financing, for instance by supporting the emergence of whole ecosystems of entrepreneurs active in the targeted sectors (e.g. innovative SMEs working on technologies of potential relevance to industrial biotechnology and pharmaceuticals).

The additionality requirements under this window would also differ from those envisaged for the other windows. For instance, the additionality of the support under the new window to large corporates would be in maintaining and developing their production within the Union or under the control of European investors and in scaling up the deployment of innovative technologies, rather than in purely risk-related considerations of the InvestEU support.

What are the changes in budgetary terms[1]?

The new proposal foresees an increase of the original financial envelope. This includes a doubling of the guarantee amount allocated to the sustainable infrastructure window under the InvestEU Fund as well as the allocation of an additional guarantee amount to the new window. More concretely:

  • Sustainable infrastructure window: €20 bn
  • Research, innovation and digitisation window: €10 bn
  • SME window: €10 bn
  • Social investment and skills window: €3.6 bn
  • Strategic European investment window: €31 bn

The new proposal also foresees an increase of the financial envelope allocated to the InvestEU Advisory Hub by an amount of €200 million to cater for the needs of the new window as well as the increasing needs of the other four windows.

How will InvestEU work?

The main principle of how InvestEU will function does not change. The InvestEU Fund will mobilise public and private investment through an EU budget guarantee of €75 billion that will back the investment projects of implementing partners such as the European Investment Bank (EIB) Group and others, and increase their risk-bearing capacity.

Under the new proposal, the guarantee will be provisioned at 45%, meaning that €34 billion of the EU budget is set aside in case calls are made on the guarantee. The size of the provisioning is based on the type of envisaged financial products and the riskiness of the portfolios, taking into account the experience under the EFSI and current financial instruments, as well as the likely changes in market circumstances following the coronavirus crisis.

What is the role of the EIB Group in the new proposal?

Given its role under the Treaties, its capacity to operate in all Member States and the existing experience under the current financial instruments and the EFSI, the European Investment Bank Group will remain a privileged implementing partner for the InvestEU. It will implement 75% of the EU guarantee.

The EIB Group will also play a central role in implementing advisory support under the InvestEU Advisory Hub. Moreover, it will advise the Commission and perform operational tasks in relation to the Hub.

Is the new window open to other implementing partners than the EIB Group?

Yes. The new window is open to other implementing partners than the EIB Group, including national promotional banks and institutions, as well as international financial institutions such as the European Bank for Reconstruction and Development or the Council of Europe Development Bank.

The Commission will continue the discussions with potential implementing partners to ensure a swift and efficient deployment of the instrument, which is even more crucial under the current circumstances.

Are there any changes to the InvestEU governance?

An Investment Committee composed of independent experts will remain responsible for approving the individual requests. As the Investment Committee will operate in different configurations corresponding to the InvestEU policy windows, a fifth configuration has been added to the proposal.

Are there any changes to the InvestEU eligibility criteria?

The policy areas eligible for financing and investment operations under the existing four windows remain the same as proposed and negotiated in annex II to  the InvestEU Regulation. However, for the strategic European investment window, new intervention areas are introduced, as referenced above.

In case a financing or investment operation proposed to the Investment Committee falls under more than one policy window, it will be attributed to the policy window under which its main objective or the main objective of most of its sub-projects falls. The Investment Guidelines will specify the criteria for the allocation of financial products (under which financing and investment operations will be submitted) to specific windows.

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