The Brexit negotiations have maintained a familiar pattern, even if the format has changed. Negotiating sessions come and go, both chief negotiators issue polite but downbeat assessments on progress.

But it would be a mistake to think that the serious stuff will only get underway in September and October.

Senior EU figures have made it clear this week that to get a deal over the line by 31 October, then big decisions will have to be taken in July.

"The next few weeks are more important than people realise," says one senior EU source.

Both sides are at least agreed on that. Michael Gove, the British Cabinet Office Minister, has twice emphasised the importance of July.

On 16 June, he told the House of Commons that July was all about "finding an early understanding on the principles that will underpin a broad agreement".

This week, Mr Gove repeated that the UK was committed to "working hard to find an early understanding on the principles underlying an agreement out of the intensified talks process during July".

However, both sides disagree on what has to be done to break the impasse. The four big sticking points remain the level playing field, fisheries, police and judicial cooperation and how disputes should be resolved.

The EU believes that Michel Barnier, the chief negotiator, has made a significant overture in recent days, and that the UK now needs to reciprocate.

Senior figures suspect, however, that Boris Johnson is not preparing either his cabinet or the wider Brexit constituency for that reciprocation and that he has only a couple of weeks to do so.

One Brussels source said: "If the Brits really want to land some time in the summer with a political outline of things, they really need to show some opening.


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"The problem there is that neither Johnson nor [UK chief negotiator David] Frost have prepared their cabinet or troops for any decent landing zone which is outside the Tory manifesto."

This week's letter from trade secretary Liz Truss to Michael Gove and Chancellor Rishi Sunak, in which she issued stark warnings about the government’s post-Brexit border plans and the Northern Ireland Protocol, are a taster for cabinet battles to come.

What has Barnier offered? 

On Thursday 2 July, Mr Barnier said the EU had "listened carefully" to Johnson’s recent statements, "in particular, his request to reach a political agreement quickly, and his red lines: no role for the European Court of Justice in the UK; no obligation for the UK to continue to be bound by EU law; and an agreement on fisheries that shows Brexit makes a real difference."

After the last but one round of negotiations, Mr Barnier repeated that message in a briefing to member states.

"He was signalling clearly that we get the red lines from the UK on things like the ECJ," says one source briefed on the meeting. "We get it. That was seen as quite a big move from the EU, to put that clearly out there."

Privately, EU officials acknowledge that the UK is not going to accept a role for the ECJ in the future agreement.

For issues like the level playing field, where the EU wants both sides to commit to not lowering standards on workers’ and social rights, the environment, climate change and taxation in order to gain an unfair advantage, the EU has largely accepted that the UK will neither be bound by EU rules nor by any arbitration from the ECJ.

"Mentally the member states are ready for a compromise on the ECJ," said one source familiar with the negotiations.

State aid and police and judicial cooperation are a different matter, however.

On the latter, the UK is asking for access to EU crime databases, such as Europol, Eurojust, PNR (Passenger Name Records) and the shared data system under the Prüm Convention, which deals with cross-border crime, terrorism and illegal immigration.

For the EU, the sharing of such data cuts across the fundamental rights of EU citizens. On 23 June, Michel Barnier told the House of Lords EU Committee: "These fundamental rights are called into question when there is an exchange of personal data — sometimes very personal data, like DNA data.

"There, we are obliged to interpret EU law that protects our citizens with the Court of Justice."

It appears the EU will not budge on this. The ECJ’s jurisprudence on fundamental rights is built upon case law and the Luxembourg court has recently taken a progressively tougher line on the rights of individuals when it comes to data privacy.

Michel Barnier, the chief EU negotiator, is thought to have made a significant overture in recent days

Exempting the UK from ECJ arbitration will be a bridge too far, and could even be subject to legal challenge.

If London insists on no role for the ECJ that will constrain the UK’s access to EU crime databases. These are the kinds of trade-offs that EU officials fear have not been politically metabolised by Downing Street.

"In the end," says one EU source, "they will have to settle for something less, or a lot less.

"In other words, the conventional international instruments of judicial and police cooperation. If they want something upgraded, then there are strings attached.

"Again, they will have to make choices and for the time being they don’t want to make those choices."

State aid is the most difficult sticking point of all

The EU’s opening pitch was that the UK effectively copy-and-paste into British law the EU’s model of state aid. Over time, as EU state aid rules evolved, the UK would follow suit. 

An independent authority, such as the Competition and Markets Authority (CMA), would effectively police the implementation of the EU model in the UK.

In return, the UK would have enhanced access to the single market, knowing it would be treated like any other member state when it came to state aid.

While senior EU sources accept that this is politically impossible for Boris Johnson, they are in the dark about what the alternative is.

Brussels has flatly rejected the UK proposal that both sides rely on the WTO’s state aid protections. Beyond that, London has yet to declare what its state aid regime will look like and how it will work post-Brexit.

"If they start developing their own system or they start to interpret state aid rules totally differently then it will lead to a competitive distortion in our market," said the source.

Officials point to the case of Nissan. In May, the car manufacturer closed its plant in Barcelona with the loss of 3,000 jobs.

Observers believe the reticence from Downing Street to show its intentions on state aid may be down to both the hostility of Dominic Cummings, Johnson's chief advisor, to state aid rules, and to an unexpected complication linked to UK devolution.

What if, in the near future, the UK poured money into the Sunderland Nissan plant to prevent it going the way of Barcelona? "You can imagine what kind of row and trade friction this would create," said one official.

Would the UK pour money into vulnerable industries and undercut European competitors who are subject to a stricter state aid regime? 

While Boris Johnson’s government hasn’t spelt out its plans, a clue might be found in a document the Conservative Party circulated during the December general election (notably, it was not included in the manifesto).

The document promised "a new state aid regime which makes it faster and easier for the government to intervene to protect jobs when an industry is in trouble". It would not be based on the EU’s treaties but on the UK’s "needs".

Observers believe the reticence from Downing Street to show its intentions on state aid may be down to both the hostility of Dominic Cummings, Johnson’s chief advisor, to state aid rules, and to an unexpected complication linked to UK devolution.

When Britain was a member of the EU, all of the UK’s regions were subject to the same state aid rules. Now it is unclear whether or not Scotland, for example, will have to acquiesce to state aid rules dictated by Westminster — especially those rules which might prevent Scotland from putting up clever barriers to trade from the south.

"None of that is in the devolution settlement," said George Peretz QC, who has written extensively on state aid. "There’s no control whatsoever on the Scots suddenly deciding they want a new bit of regulation that just happens to favour Scottish suppliers. It’s simply not there.

"So they have huge scope to do things once EU law is taken away. From the Scottish point of view, Brussels telling them what to do was one thing; Westminster is quite another. State aid is part of this." 

Whatever the reason behind British reticence, for the EU state aid remains a critical roadblock.

Officials privately admit that a "landing zone" will have to, on the one hand, avoid the politically unacceptable (for the UK) oversight of the ECJ, but on the other hand, create a legally-binding and sustainable arrangement that is not fraught with endless state aid disputes and retaliatory measures.

Timing is everything

This is why July is so critical. Dreaming up such an alternative can not be done on the hoof.

"The moment you try desperately to avoid any concepts of EU law coming into the picture, or ECJ jurisdiction," said another source, "that requires even more complex writing.

"You can’t say, we’ll just resort to a toolbox, which will take one paragraph. You’re going to have to replicate [the effect of EU law], so it’s going to take you 25 pages.

"The actual translation of what’s been agreed in principle into legal text is far from insignificant. It’s time consuming."

The time factor has been made more difficult by the UK’s rejection of an extension to the transition period.  Whereas Boris Johnson could plunder a last gasp agreement in the Withdrawal negotiations on the Irish Protocol last October, that only required minor changes to the existing text.

One source said: "Everything has to be written from scratch. This has to be a joint operation and it has to take place now in the coming weeks."

Indeed, in March 2018, large swathes of the draft Withdrawal Agreement had already been coloured green, meaning both sides had signed off on those parts of the text, well ahead of the final agreement that November (the agreement was subsequently rejected by the House of Commons).

This time around, there is not yet a joint draft text. The EU believes that both sides need to start working on such a text by late August if all the work is to be done by 31 October, the deadline for a deal.

One source said: "Everything has to be written from scratch. This has to be a joint operation and it has to take place now in the coming weeks."

Is this a negotiating tactic? EU officials are adamant there are certain time frames that are not compressible.

The treaty will run to around 200 pages, it will have to be legally "scrubbed" by the European Commission’s legal service, then the lawyer-linguists will have to make sure - when the text is translated into 24 official languages - that each translation is legally sound.

So the whole text will have to be ready by late October.

Unlike with the Withdrawal Agreement, the European Parliament will not have seen the text in detail by the time it is agreed. That means the relevant parliamentary committee will take its time going through the text line by line, with ratifying vote during the Strasbourg Plenary Session in December.

"There is no way the European Parliament will generously help the UK, or the [European] Council, and say, don’t worry we will wrap this up in a week just because the member states have agreed to it," said one senior official. "That’s not going to happen."

What exactly will be in the text?

That itself has yet to be agreed. The EU is demanding one overall treaty, comprising a fully elaborated free trade agreement (FTA), with other chapters that can be "built on" in the future.

The UK wants an FTA followed by other stand-alone agreements with separate rules on resolving disputes.

However, even if there is an outline agreement on principles by the end of July, there is considerable potential for those principles to be snagged in numerous disagreements.

On the trade-in-goods component, officials say that 70% of that can be copy-and-pasted from other FTAs with third countries.

But then there are immediate conflicts on the mutual recognition of goods compliance, the rules-of-origin issue (ie, how much of a product entering the EU has to be British, and how much of it can be sourced elsewhere), police and judicial cooperation, services and so on.

Again, each of these issues will require a political choice by London. The more the UK wants beneficial access for British manufacturers and service providers, the more there is a sliding scale of obligations. 

Michel Barnier has recently raised the alarm on the UK wanting a rules-of-origin agreement that would mean the EU accepting component parts of a "British" product that have, in fact, come from somewhere else. 

"Why would we accept a very generous system of rules-of-origin," asked one EU official, "if the UK becomes the springboard to the single market for manufacturing, without any strings attached on the level playing field and state aid?

"Again, you always bump into the same thing. It requires choices from the UK."

The 20 July session will be a full round. The EU believes that is the week where the UK must make a move. Officials suspect the UK strategy is one of stealth and speed, in the hope that principles can be agreed by the end of July, and a "landing zone" identified.

British officials insist they are looking for nothing more than what the EU has granted to other countries which have concluded FTAs with the EU.

"I would reiterate that we are not asking for a special, bespoke, or unique deal," said a UK spokesman. "We are looking for a deal like those the EU has previously struck with other friendly countries like Canada."

Such an argument has been long dismissed by EU officials who counter that the UK is much bigger and closer than Canada, and that the UK is, in fact, looking for privileges enjoyed by member states, or EEA members, who are also bound by single market rules.

"On the one hand," Michel Barnier told the House of Lords EU Committee, "the UK, in each of the sectors, is asking for a status that is more or less equivalent to that of a member state for the single market, the customs union, Schengen, rules of origin, mutual recognition, financial services, professional qualifications, data flow and exchange of electricity.

"So you are actually asking for the advantages of being a member state without having the limitations and the discipline."

The big moment in July will be the last round of talks beginning Monday week. The first two rounds have been so-called restricted sessions, smaller groups of experts working face to face on the key sticking points, picking at knots and prodding at work-arounds.

There is the feeling on both sides that the technical experts have been round the houses numerous times on the key issues. Now is the time for high level intervention.

Michel Barnier and David Frost chaired last week’s sessions and had dinner in Downing Street on Tuesday night (which Boris Johnson dropped in on).

The 20 July session will be a full round. The EU believes that is the week where the UK must make a move. Officials suspect the UK strategy is one of stealth and speed, in the hope that principles can be agreed by the end of July, and a "landing zone" identified.

"They want to go quickly and they want to go discreetly, and end at such a landing zone in the hope that this will quash debate," said a senior EU source.

"But if we go step-by-step and this thing drags out until September or October, then the deal will probably be dead before we’ve even seen part of the solution."