by Petr Ježek
The political will on both sides has been clear from the outset. In the event of a disorderly United Kingdom departure from the European Union (“hard Brexit”), there should be a visa exemption for UK citizens travelling to the EU, and reciprocally for EU citizens travelling to the UK.
Therefore when the European Commission submitted the draft EU regulation on visa exemptions for short term stays for British nationals, its approval was expected to be quick and easy. The European Parliament, through lead negotiator Claude Moraes, adopted its position on it by rare unanimity of 53 MEPs in favour, none against or abstaining in the Civil Liberties Committee.
However, the other co-legislator – the EU Council, composed of member states – took a different path. In an obscure manner and without broader discussion, on the insistence of Spain, the final Council position listed 15 British Overseas Territories, and singled out one of them by inserting a footnote to the Article saying:
“Gibraltar is a colony of the British Crown. There is a controversy between Spain and the United Kingdom concerning the sovereignty over Gibraltar, a territory for which a solution has to be reached in light of the relevant resolutions and decisions of the General Assembly of the United Nations.”
The text adopted by the Council is clearly against the principles of EU law-making which require a legal act to be simple and concise, and to avoid unnecessary elements. The Council’s position led to a stalemate in the inter-institutional negotiations (trilogue). The European Parliament´s team, composed of representatives from each of its political groups, insisted that the Council accept the Parliament’s unanimous position based on Commission proposal, which included no reference to Gibraltar. Furthermore, during the Parliament’s process, not one amendment was tabled in this respect.
However, in order to get the regulation adopted the Parliament looked for a solution and made quite a leap towards the Council’s position and accepted a specific footnote on Gibraltar. We proposed a number of compromise proposals, using a reference from the Protocol on Gibraltar attached to the Withdrawal Agreement between the EU and the UK or from other hard Brexit related contingency regulations.
The Romanian Presidency, representing the Council, arrived at each trilogue and simply said ‘We have no mandate to change the Council’s position’. We had five frustrating trilogue meetings, where we were met with a brick wall from the Council. The Commission, unusually, did not advocate its original clear text and changed the representatives it sent to the meetings several times.
From some sources who were privy to the Council discussions, I learned that the Parliament’s compromise proposals were barely discussed by member states between each round of talks. The Presidency was said to be weak and member states preferred to turn a blind eye to the situation in a strange form of “solidarity” with the Spanish demand.
After heavy lobbying by Spain, the situation escalated internally in the European Parliament. The Parliament’s largest political group, the centre right EPP, lobbied the other political groups and was able to achieve majority support of the leaders of the political groups. Subsequently, group representatives to the lead committee removed Claude Moraes as chief negotiator on April Fool’s day, citing his British nationality as a reason for a conflict of interests.
In the evening of that day, the 6th inter-institutional negotiation meeting was convened for the next morning.
A new Parliament chief negotiator from Bulgaria tried to discuss a new compromise text agreed by Parliament’s negotiators team to the Council but was rebuffed by the Romanian Presidency with the same mantra: ‘We have no mandate from the Council to change our position’.
I was once again surprised by the Commission, which supported the Council’s position. Due to the time pressure, with April 12th at that moment being the potential ‘no deal Brexit’ day, the majority of the EP team backed down and accepted putting the Council’s footnote into the final text, and to hold a vote on the trilogue outcome the next morning in the Civil Liberties Committee. As the potential outcome was either a visa waiver with a footnote or no visa waiver in time, the committee approved the text of the regulation, which was confirmed in the Parliament’s plenary sitting the next day. The Council of course approved the text as well.
Throughout the process, as the representative of my political group I defended the Parliament’s initial position, which was a product of good law making. Indeed, in my view, it is not acceptable, in 2019, to have EU regulations that speak about some Europeans living in a colony. Such inflammatory language has the potential to raise tensions in Europe, particularly given the anger of the British, and particularly Gibraltarians, who perceive the regulation as exploiting the UK as it goes through the process of leaving the EU. Ultimately, I failed to convince the main political groups. However, I am afraid it may just be the beginning.
It was proven through this process that despite the UK’s claim of “holding all the cards”, it is out of the game entirely, its role on its way out of the EU very weak. If completely outside the EU’s structures, it would be even weaker, especially in comparison to any EU member state. The decision by the majority of UK voters to leave the EU seems to have been made, to some extent, on the basis of misleading or false claims by many prominent Brexit campaigners. Added to that, the withdrawal process could not have been more mishandled.
Nevertheless, the lives of British people should not be made even more difficult, and no EU member state should be using the situation to make inappropriate political gains at the expense of the UK. Furthermore, the EU should not turn a blind eye to such efforts. On the contrary. It should stick to its principles and values and not tolerate such behaviour and possible antagonism. Any other European approach is not cricket.
Petr Ježek is a Member of the European Parliament from the Czech Republic. He is part of the Group of the Alliance of Liberals and Democrats for Europe.
MAIN PHOTO: Fred MARVAUX/© European Union 2019