Donald Tusk just couldn’t resist. It was September 2018, and an informal European Council summit was taking place in Salzburg. As the leaders relaxed after lunch, someone snapped a photo of Tusk offering a tray of small cakes to the then British prime minister, Theresa May. Tusk posted the picture to his Instagram with the caption: ‘A piece of cake, perhaps? Sorry, no cherries.’
The joke/dig (depending on your point of view) worked because everyone knew what was being referred to. Ever since Article 50 had been triggered in March 2017, the British side had been attempting to ‘cherry pick’ – to try and gain the advantages of EU membership (in particular frictionless access to the single market) without the obligations or constraints of membership.
The UK’s attempts at cherry picking infuriated the EU. The UK, the EU insisted, would be a third country just like any other post-Brexit, and should expect to be treated as such. Michel Barnier famously made this point in diagrammatic form in a celebrated PowerPoint slide, which became colloquially known as the ‘Barnier staircase’. The slide depicted the various pre-existing options for the future relationship available to the UK on a descending staircase, with each step representing decreased ease of access to the single market. Red text underneath the steps explained how each of the May government’s red lines ruled that option out, until the bottom-step option of a free trade agreement (symbolised by the flags of Canada and South Korea) – accompanied by a large green tick.
The message was clear. We are not punishing you; we are not treating you differently to any other third country. The options available to you for the future relationship are dictated by the logic of your own choices. As Barnier put it when presenting the slide to the EU Parliament’s Brexit Steering Group, ‘I find it very important to explain to the outside world that it’s them who open or close doors, not us.’
Fast forward to 2020, however, and there is a new form of cherry picking in town – and it’s the EU that’s after the cherries. The logic of cherry picking has been inverted in the negotiations on the future relationship: the EU is trying to force the UK, a third country, to shoulder obligations normally only required of EU member states.
On fishing, the EU is demanding automatic access rights to fish in UK waters with quota shares remaining unchanged. In other words, the UK would remain in the EU’s ecologically disastrous Common Fisheries Policy (CFP) in all but name. Moreover, a trade deal will be contingent on such a deal on fisheries being agreed.
This is cherry picking of the highest order. Even Norway and the other EEA states – the closest type of relationship with the EU short of full membership – are not part of the CFP. Norway and the EU negotiate annual bilateral agreements on reciprocal access to each other’s waters. In theory, if they failed to come to an agreement, EU access would cease the following year. It is this leverage that means Norway is able to get a fair deal from the EU, based on exchange of fishing opportunities of equal value.
Reassuringly, this very point was made by Michael Gove on Monday: ‘The EU don't appear to accept their own logic when it comes to fisheries.…It’s another example of one of the areas where the EU’s negotiators are not treating the UK yet as they would treat other independent countries.’
There is no EU precedent for an FTA with a third country being made conditional on access to natural resources; indeed, there is no international precedent. If there were, it would be reminiscent of a colonial relationship, rather than free trade between sovereign nations.
More EU disingenuousness comes on the issue of a ‘level playing field’. While level playing field arrangements are common in FTAs, the specific arrangements the EU is demanding are uniquely one-sided, based on regulatory subjugation.
The EU is insisting on ‘dynamic regulatory alignment’, meaning that the UK must automatically comply with EU rules on labour, environmental protection and state aid. This is completely contrary to standard international practice in FTAs, which does not require one country to submit to another’s country’s laws. Rather, they combine non-regression clauses (meaning that neither party can weaken their current domestic arrangements) with commitments to abide by standards set by international bodies. Indeed, this is precisely the approach taken in the EU’s FTAs with Canada and Japan; there is certainly no requirement to align with EU law.
As Japanese trade expert Dr Kazuhito Yamashita is at pains to point out, the EU is not only being ‘unreasonable’ in demanding of the UK what it did not require of Canada or Japan, it is ‘calling for an unequal treaty.’ If the agreement were one of genuine reciprocity, in theory the EU would also have to keep pace with any tightening of regulations by the UK. But, needless to say, this is not at all what the EU has in mind.
The reason for the EU’s new-found love of cherry picking is of course understandable. The entire EU establishment sees Brexit as an existential threat. As German MEP Manfred Weber, Leader of the European People's Party in the European parliament succinctly put it, ‘If Brexit feels like a success, then it is the beginning of the end of the EU.’
But if the EU wants to play power politics, it can no longer pretend to be an objective, rules-based order where the options available to the UK are determined automatically and dispassionately by technocratic logic. Michel Barnier’s famous staircase, which seemed so rational at the time, has now been exposed as at best misleading, at worst deliberately dishonest; the big green tick proffered under the Canadian and South Korean flags snatched away as soon as the UK government dared to reach for it.
Those calling for the UK to request an extension to the transition period would do well to reflect on this. Barnier complained on Friday that the UK side was refusing to ‘budge’ on the issues detailed above, apparently missing the irony that the EU is also refusing to budge from an unreasonable position. Indeed, by refusing to comply with international norms on the provisions of FTAs and fisheries agreements, there is a case to be made that the EU is already in breach of its legally binding commitment in the Withdrawal Agreement to use its ‘best endeavours’ to reach a mutually acceptable outcome.
Nor does the present stance of the EU negotiating team suggest that any extension of the transition period would facilitate a more reasonable approach that treats the UK as a sovereign nation. Barnier’s statement on Friday merely confirmed that, as matters stand, there is no deal to be had. It follows that there is little point in continuing to pay approximately £1 billion net a month to remain under EU vassalage.