Mr Barnier has said that the role of the ECJ in the issue of citizens’ right is a “stumbling block” when he spoke at a joint press conference with the UK Brexit negotiator, David Davis.
The EU chief negotiator said: “Our citizens will be able to invoke the rights as defined by the withdrawal agreement before UK courts.
“We agreed to guarantee for the citizens concerned that the UK will apply EU law concepts in a manner that is consistent with EU law after Brexit.
“But we failed to agree that the European Court of Justice must play an indispensable role in assuring this consistency, this is a stumbling block for the EU.”
Theresa May has previously said membership of the ECJ, the EU’s highest legal authority, was “not going to happen” after Brexit.
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In July Mr Barnier instead that the EU will not back down over having the ECJ rule over its citizens living in the UK after Brexit.
In August, the UK agreed to compromise on a new legal framework for Brexit, accepting that EU judges could continue to have a say in UK affairs during a transition period and in overseeing any future trade deal with the EU.
Earlier today Mr Barnier said Theresa May’s Brexit Speech in Florence created a “new dynamic” in the Brexit talks.
Following Theresa May’s Florence speech proposing a two-year transition in which Britain will continue to pay into EU coffers after Brexit, Mr Davis said the talks in Brussels had made “decisive steps” forward.
Mr Barnier said a solution was also needed on the border with Ireland which fully respected both requirements of the EU single market and the Good Friday Agreement.
He said: “We have had a constructive week but we are not there yet in terms of achieving sufficient progress. Further work is needed in the coming weeks and coming months.”
However, both men acknowledged there were gaps between them – including on future citizens’ rights which the EU is insisting must be enforced through the European Court of Justice.
Mr Davis said: “We have made important progress and capitalised on the momentum created by the Prime Minister’s speech.
“We are working quickly through a number of complex issues but there remain some points where further discussion and pragmatism will be required to reach an agreement.”