Annotation Of The Proposed Withdrawal Agreement, Version 2: The Empire 2.0 Strikes Back?

Professor Steve Peers, University of Essex

Earlier today, the UK authorities tabled its response to the European Union Commission’s proposed text of constituent of the Brexit withdrawal agreement. This spider web log post updates my first version of the ‘running commentary’ on the draft text of the understanding as it develops, to select line of piece of occupation organisation human relationship of the UK’s position.

To summarise the points I made inwards the start version: a) ultimately the withdrawal understanding (if it is successfully negotiated too comes into force) volition hold upwards the key legal text governing the Brexit physical care for as such; b) however, in that location volition hold upwards post-Brexit treaties governing the hereafter human relationship betwixt the European Union too the UK (for instance, reckon my recent post on hereafter treaties on security); c) this is exclusively a partial text, concerning the transitional catamenia (in EU27 jargon) or implementation catamenia (in UK jargon) too maybe around (probably non all) of the constituent on mutual provisions; d) the Commission proposal is non yet the official seat of the Council; e) as the draft understanding takes shape, it becomes viable legally to inquire the ECJ for its persuasion on it (the Court could fast-track such an opinion); too f) the numbering of Articles is provisional for now.

For clarity, starting from this edition, I take hold divided the annotation of each of the proposed Articles into iii sections: the UK position; the background to the Commission proposal; too my comments. Obviously, all the sections on the UK seat are new. I take hold updated my comments on each proposed Article to include intelligence of the UK position, where relevant; all novel comments are underlined.

In add-on to the parts of the withdrawal understanding on the transition or implementation catamenia too mutual provisions, in that location volition hold upwards parts dealing with governance too dispute settlement, the financial settlement, the rights of EU27 too UK citizens who moved earlier Brexit day, the Irish border, too on ‘winding up’ the UK’s involvement with European Union law. According to the press, farther texts from the EU27 side volition hold upwards proposed on Feb 28^th.

For convenience, hither is a summary of the principal differences betwixt the UK too the European Union Commission position: a) the UK would explicitly exclude novel Treaty amendments from applying to the UK; b) the UK wants to verbalise over flexibility over the destination date of the transition period; c) the UK wants to hold upwards excluded from to a greater extent than European Union measures; d) conversely, the UK wants more ability to opt in to judge too abode affairs measures; e) the UK wants to render for a possible early on replacement treaty on policing too criminal law; f) the UK wants more consultation rights on novel European Union laws too international relations; g) the UK questions the demand to forbid UK bodies from making risk assessments; h) the UK wants a dissimilar approach to “rolling over” international treaties; i) the UK wants to a greater extent than ability to become jump by international treaties; j) the UK wants a dissimilar approach to dispute settlement, along with a good faith clause; too k) the UK wants to agree fisheries catches separately with the EU, rather than exactly hold upwards consulted.

The UK newspaper does non cite the fiscal settlement, on which the Commission proposal says:

It should hold upwards noted that the detailed provisions relating to the fiscal village aspects of the transition volition hold upwards covered nether the Financial Provisions of the Withdrawal Agreement. In add-on to the elements contained inwards the Joint study of 8 Dec 2017, the Financial Provisions of the Withdrawal Agreement should also encompass the financing, during the transition period, of the relevant Common Foreign too Security Policy too Common Security too Defence Policy agencies or operations on the footing of the same contribution key as earlier the withdrawal date.

Moreover, the Commission proposal did non refer to the EU27 seat that acquired rights for EU27 citizens who moved to the UK, too for UK citizens who moved to the EU27, volition silent hold upwards obtained for those who movement during the transition period. The UK authorities has contested this proffer publicly, but its newspaper does non cite this point.

Barnard & Peers: chapter 27

Photo credit: The Telegraph

Commentary on the draft Withdrawal Agreement

Version of 21 Feb 2018

PART [X] [of the Withdrawal Agreement]

COMMON PROVISIONS

[Article x

Definitions]

[1. ‘Union law’ shall mean:]

 (i) the Treaty on European Union ("TEU"), the Treaty on the Functioning of the European Union ("TFEU") too the Treaty establishing the European Atomic Energy Community ("Euratom Treaty"), together referred to as “the Treaties”, as amended or supplemented, as good as the successive Treaties of Accession;

(ii) the full general principles of Union law;

(iii) the acts adopted past times the institutions, bodies, offices or agencies of the Union;

(iv) the international agreements to which the Union and/or Euratom is party;

(v) the agreements betwixt Member U.S.A. entered into inwards their capacity as Member U.S.A. of the Union and/or of Euratom;

(vi) decisions too agreements of the Representatives of the Governments of the Member U.S.A. coming together inside the European Council or the Council.

UK position: The UK proposes that this text appears inwards the Withdrawal Agreement department of the agreement, instead of the department on Common Provisions. It labels it “Article XA” and gives it the championship “Definitions”.

Substantively, the UK takes a partly dissimilar approach from the Commission, suggesting definitions for “acts”, “Treaties”, “bilateral international agreement” too “Union law”.  “Acts” are defined past times reference to diverse European Union measures; “Treaties” exclusively includes Treaty amendments earlier Brexit day; “bilateral international agreement” agency those treaties which the European Union entered into as a bloc; it’s clarified that Treaty Annexes, Protocols etc are covered; too acts adopted during the transitional/implementation catamenia are explicitly covered.

Background: The text hither is taken from footnote 1 to the Commission proposal, which reads: “The Withdrawal Agreement volition contain, inwards its Part on Common Provisions, an article defining Union police clit as meaning:…” This text reflects (and fleshes out) the start judgement of para thirteen of the negotiation directives, which say that the transition rules should encompass “the whole of the Union acquis, including Euratom matters”.

Comments: This text could hold upwards compared a contrario to the text of an accession treaty to the EU. Oddly, in that location is no explicit cite of the European Union Charter of Rights inwards either the Commission or UK draft; although it is referred to inwards the Treaties too legislation, it is a separate legal text. The UK’s seat excluding the application of post-Brexit Treaty amendments to the UK is an of import clarification, although it is non explicitly clear whether or non the Commission intended such amendments to apply.

[Article X + 1

Interpretation]

1.       The provisions of this Agreement referring to concepts or provisions of Union police clit inwards their implementation too application are interpreted inwards conformity with the relevant decisions of the Court of Justice of the European Union given earlier the destination of the transition period.

2.       Where a provision of Union police clit is amended, supplemented or replaced during the transition period, the reference to this provision of Union police clit is to hold upwards read as referring to the amended, supplemented or successor provision, provided that the alter takes termination earlier the destination of the transition period.

UK position: Accepted inwards principle, but the UK suggests technical changes – inserting para 1 into Article X+1 (discussed below), too adding a reference to the Commission. Para 2 is apparently covered past times the UK proposal on definitions.

Background: The text hither is also taken from footnote 1 to the Commission proposal, which reads: “The Part on Common Provisions volition also incorporate an article to the termination that…” the text of paragraph 1, too “Furthermore, a specific article of the Part on Common Provisions volition clarify that…” the text of paragraph 2. I take hold added a suggested heading for the championship of the Article. It is possible that these volition destination upwards as separate Articles. There mightiness hold upwards other rules added on interpreting the withdrawal agreement.

Comments: If they seem inwards the Common Provisions of the agreement, these cross-references to the evolution of illustration police clit or legislation during the transition catamenia volition presumably also apply to the citizens’ rights too fiscal village provisions of the agreement.

The UK authorities is especially concerned well-nigh beingness jump past times European Union legislation adopted during the transition catamenia without its involvement, although greenback that inwards the Commission proposal this dominion exclusively applies where existing police clit is amended too where that amendment "takes effect" earlier the destination of the transition period. Possibly indicate (iii) inwards the previous Article is meant to encompass cases of construct novel legislation, but this is unimpressive drafting. Also, the term “takes effect” is unclear: Directives larn into into forcefulness immediately, but exclusively take hold total legal impact after the deadline to transpose them, which is unremarkably ii years later. The UK’s approach inwards its proposed definitions clause is simpler too clearer. The UK also suggests a “good faith” clause to bargain with novel European Union legislation it disagrees with (see intelligence below) but does non advise a text for this.

In whatever event, the Commission proposals do non reverberate para 59 of the Dec joint report on progress inwards the Brexit talks, which states that hereafter changes to the basic European Union funding too spending laws which impact the UK volition non apply to it, which would for illustration forbid whatever changes beingness made to the UK rebate after it loses its ability to veto such changes. However, as noted above, the Commission states that issues relating to the fiscal village volition hold upwards inwards a separate constituent of the withdrawal agreement, so this number mightiness hold upwards covered there.

[Article NN

References to Member States]

For the purposes of this Agreement, all references to Member U.S.A. too competent authorities of Member U.S.A. inwards provisions of Union police clit made applicable past times this Agreement shall hold upwards read as including the Britain too its competent authorities, except as regards:

(a) the nomination, appointment or election of members of the institutions, bodies, offices too agencies of the Union, as good as the participation inwards the decision-making of the institutions;

(b) the attendance inwards the meetings of the committees referred to inwards Article 3(2) of Regulation (EU) No 182/2011 of the European Parliament too of the Council, of Commission adept groups or of other similar entities, or inwards the meetings of adept groups or similar entities of bodies, offices too agencies of the Union, unless otherwise provided inwards this Agreement;

(c) the participation inwards the decision-making too governance of the bodies, offices too agencies of the Union; […].

UK position: the UK comments on the proposed Article X+2 select this clause, with exclusively technical amendments.

Background: The text hither is taken from footnote 2 to the Commission proposal, which reads: “The Withdrawal Agreement volition contain, inwards its Part on Common Provisions, the following:” I take hold suggested a championship for the Article. I refer to this as “Article NN” because the proposed Article X+2(1), which refers to it, does so (see below). There volition probable hold upwards other Articles inwards the “Common Provisions” constituent of the agreement. It is non clear why in that location are deleted words inwards indicate (c). Note that the proposed Article X+2(4) includes a derogation from this Article, allowing around express participation of the UK inwards European Union bodies as an exception.

This text reflects the instant judgement of para thirteen of the negotiation directives, which states that “the Union acquis should apply to too inwards the Britain as if it were a Member State”, as good as the concluding judgement of para xviii too the start judgement of para nineteen on the exclusions from a UK role inwards the institutions.

Comments: While the Treaties exclusively refer to Member U.S.A. as having a total decision-making role inside European Union institutions, in that location is nada to dominion out consultation with non-Member States. Indeed, the Schengen association understanding with Kingdom of Norway too Republic of Iceland gives them consultation rights at ministerial level. The notion that the UK is expected to apply novel European Union police clit (see the previous Article) without fifty-fifty beingness informally consulted on the relevant proposals so has a vindictive tinge to it. In whatever event, the proposals do non reverberate para thirty of the Dec joint report on progress inwards the Brexit talks, which states that in that location should hold upwards a scheme to create upwards one's heed jointly on the incorporation of hereafter amendments to the social safety rules inwards the withdrawal agreement.

PART [X] [of the Withdrawal Agreement]

TRANSITION PERIOD

Article X

Transition period

There shall hold upwards a transition period, which shall start on the engagement of entry into forcefulness of this Agreement too destination on 31 Dec 2020.

UK position: the UK prefers the term “implementation period”, too so uses the intelligence “Period” throughout its version of this text. It also places the destination engagement inwards foursquare brackets, which agency the text is for discussion. In the UK view, the destination engagement should non hold upwards fixed but needs to hold upwards flexible to select line of piece of occupation organisation human relationship of the implementation process.

Background: The Commission’s proposed text reflects para 22 of the European Union Council negotiation directives.

Comments: The Commission’s proposed destination engagement is convenient for the EU27 side as it corresponds with the destination of the electrical current multi-annual European Union budget cycle. The UK’s wish for a to a greater extent than flexible engagement reflects its dubiety well-nigh the timing of beingness ready post-Brexit, although its newspaper refers to a transition/implementation catamenia of “around ii years”, as the Prime Minister has mentioned before. Any prospect of providing inwards the withdrawal understanding itself for an indefinite renewal of the transition/implementation catamenia could lift legal issues as to whether this falls beyond the ambit of Article 50 TEU.

As the Commission’s proposal stands, the transition catamenia could non hold upwards extended unless around other clause is added inwards the withdrawal understanding to allow for this. If no such clause is added, extending the transition catamenia after Brexit solar daytime would demand a novel treaty adopted on a dissimilar legal footing than Article 50 (which exclusively applies to the withdrawal process) which would demand to hold upwards adopted past times unanimity too maybe also ratification past times national parliaments (although around or all of the treaty could apply provisionally spell national ratification was taking place).

Note that Article X+1(2), discussed below, provides conversely for constituent of the transition catamenia to hold upwards curtailed as regards unusual policy issues.

Article X + 1

Scope of the transition

1. Unless otherwise provided inwards this Part, Union police clit shall hold upwards binding upon too applicable inwards the Britain during the transition period.

However, the next provisions of the Treaties too acts adopted past times the institutions, bodies, offices or agencies of the Union shall non hold upwards applicable to too inwards the Britain during the transition period:

(a) provisions of the Treaties too acts which, pursuant to Protocol (No 15) on sure provisions relating to the Britain of Britain too Northern Ireland, Protocol (No 19) on the Schengen acquis integrated into the framework of the European Union or Protocol (No 21) on the seat of the Britain an Republic of Ireland [sic] inwards honor of the expanse of freedom, safety too justice, or pursuant to the provisions of the Treaties on enhanced cooperation, were non binding upon too applicable inwards the Britain earlier the engagement of entry into forcefulness of this Agreement as good as acts amending such acts;

(b) Article 11(4) TEU, Articles 20(2)(b), 22 too the start paragraph of Article 24 TFEU too acts adopted on the footing of those provisions;

UK position: the UK would split this into paragraphs (1) too (1a). In paragraph 1, the UK accepts the wording of the Commission’s proposed start sub-para “Unless otherwise provided inwards this Part, Union police clit shall hold upwards binding upon too applicable inwards the Britain during the transition period”, except for the intelligence “transition”. An explanatory greenback makes the indicate that this clause should hold upwards understood as reciprocal, ie the European Union would silent take hold obligations to the UK.

The UK version of the start exclusion clause would also exclude international agreements related to the opt-out clauses, as good as the policing too criminal police clit measures it opted out of inwards 2014 pursuant to the Lisbon Treaty protocol on transitional provisions.

The UK would movement the instant exclusion clause to an Annex, too exclude a number of other Treaty clauses: Article 10(4) TEU (EU political parties); Article 12 TEU (provisions on national parliaments, apart from 12(a), on consultation of national parliaments); Article xx TEU (enhanced cooperation); Article 69 TFEU (national parliaments too JHA measures); Article 223 TFEU (some rules relating to the European Parliament); Articles 293-297 TFEU (some rules on the decision-making process); Articles 326-334 TFEU (enhanced cooperation, except the UK could silent opt inwards to JHA measures it had opted out of, past times using this process); Article 353 TFEU (Treaty amendments); Article 354 TFEU (suspension of European Union membership); constituent of the Protocol on national parliaments; too around provisions of the Euratom treaty.

Background: The rules well-nigh what is included inwards the ambit of UK obligations seem as a proposed Article discussed above.

In the Commission proposal sub-paragraph 1(a) keeps the UK’s existing opt outs from the unmarried currency, Schengen, Justice too Home Affairs (JHA) police clit too enhanced cooperation (a scheme where around Member U.S.A. travel ahead too adopt European Union police clit without the others), except where the UK opted inwards to European Union laws inwards these areas earlier Brexit day. The JHA exclusion reflects the concluding judgement of para thirteen of the negotiation directives; the other exclusions are non mentioned inwards those directives.

Comments: The UK’s concern well-nigh reciprocal application of the obligations past times the European Union likewise is valid. This clause should hold upwards amended to construct clear that both sides volition hold to apply the relevant European Union police clit to the other side.

There is no opt-out from Treaty amendments inwards the Commission proposal, but inwards the UK version of the “definitions” clause in that location would be. It is strange that the text does non exclude the UK from “permanent structured cooperation” inwards the expanse of defence, given that the UK decided to opt out when most Member U.S.A. decided to trigger that physical care for recently.

Sub-paragraph 1(a) excludes the Treaty rules too legislation related to the European citizens’ initiatory (on that process, reckon the illustration police clit discussed here) too also voting too standing for role inwards the European Parliament too local government. There is a demand for a transitional clause to bargain with the province of affairs of those EU27 citizens who were elected to local authorities inwards the UK (and vice versa) earlier Brexit day.

Conversely other European Union citizenship provisions volition logically silent apply. This includes the “Ruiz Zambrano” illustration police clit on UK citizen children with non-EU parents, which I discussed here.

The UK’s suggested additional exclusions are mostly consistent with the ease of the text, although the EU27 side mightiness non concur that the UK tin sack opt inwards to JHA measures it did non opt inwards to earlier Brexit day. To hold upwards consistent with the UK’s proposed exclusions from the TFEU rules on time out too amendment, certainly it should also hold upwards excluded from Articles seven too 48 TEU, dealing with the same issues.

2. Should an understanding betwixt the Union too the Britain governing their hereafter human relationship inwards the expanse of the Common Foreign too Security Policy too the Common Security too Defence Policy travel applicable during the transition period, Chapter 2 of Title V of the TEU too the acts adopted on the footing of those provisions shall cease to apply to the Britain from the engagement of entry into forcefulness of that agreement.

UK position: Agreed with exclusively technical amendments suggested.

Background: This proposed clause is partly consistent with a statement adopted past times the Council when it adopted the negotiation directives. However, that declaration also referred to the “fight against terrorism too international crime”, which are JHA issues.

Comments: This is the 1 plain where the Commission’s proposal contemplates an early on destination to the transitional period. By contrast, the UK Prime Minister’s Florence speech communication referred to the possibility of ending the transitional (or ‘implementation’) catamenia early on for a number of issues at dissimilar times. An early on destination to the transition catamenia inwards this plain would avoid the awkward province of affairs where the UK becomes jump past times unusual policy measures which it could take hold vetoed if it were a Member State. It would also destination a possibility for linking defense forcefulness issues to merchandise issues, although the policy inwards the Florence speech communication (and since) was non to insist upon such a link. As noted above, a to a greater extent than recent speech communication past times the Prime Minister (discussed here) goes into to a greater extent than item on this issue.

Legally it is questionable whether the UK too European Union would genuinely hold upwards constrained past times the withdrawal understanding if they wanted to sign a treaty replacing these rules inwards other fields of European Union police clit during the transition period.

3. During the transition period, the Union police clit applicable pursuant to paragraph 1 shall deploy inwards honor of too inwards the Britain the same legal effects as those which it deploys inside the Union too shall hold upwards interpreted too applied inwards accordance with the same methods too full general principles as those applicable inside the Union.

UK position: Agreed with exclusively technical amendments suggested.

Background: This proposed para transposes para xiv of the Council negotiation directives, which refer explicitly to the direct termination too supremacy of European Union law.

4. The Britain shall non participate inwards whatever enhanced cooperation:

(a) inwards relation to which authorisation has been granted on or after the engagement of entry into forcefulness of this Agreement; or

(b) inside the framework of which no acts take hold been adopted earlier the engagement of entry into forcefulness of this Agreement.

UK position: Agreed inwards principle, but with a dissimilar approach to drafting – these measures would hold upwards referred to inwards an Annex, rather than inwards this Article.

Background: This paragraph is non reflected inwards the Council negotiation directives.

Comments: This clause is especially relevant to the proposal on the fiscal transaction tax, which is dependent area to the enhanced cooperation physical care for (without UK participation) but where in that location is no understanding yet (see to a greater extent than on the background to the taxation proposal here). If this para is agreed, the proffer that the UK mightiness somehow travel jump as such past times the taxation during the transition catamenia is therefore, as things stand, frankly scaremongering. There is a run a jeopardy that the taxation would take hold around extraterritorial termination upon the City of London, but that run a jeopardy would every bit be if the UK were silent a Member State, since it could non veto an enhanced cooperation mensurate that it was non participating in.

5. In relation to acts adopted pursuant to Title V of Part III of the TFEU past times which the Britain is jump earlier the engagement of entry into forcefulness of this Agreement, Article v of Protocol (No 19) on the Schengen acquis integrated into the framework of the European Union too Article 4a of Protocol (No 21) on the seat of the Britain too Republic of Ireland inwards honor of the expanse of freedom, safety too judge shall hold to apply during the transition period. The Britain shall, however, non take hold the correct of opt-in provided for inwards those Protocols to measures other than those referred to inwards Article 4a of Protocol No 21.

UK position: Agreed inwards principle, with dissimilar drafting too the add-on of the ability to opt inwards to an international understanding which was non yet inwards forcefulness on Brexit day.

However, the UK proposes iii to a greater extent than clauses on this issue, which would allow it to opt inwards to novel measures if agreed with the EU, too would render for an early on removal of this number from the withdrawal agreement. As noted above, this is consistent with a declaration of the Council, but non the Commission’s proposal. It is also the dependent area of a recent speech communication past times the Prime Minister. For an analysis of the speech communication too a proposed treaty, reckon here.

Background: This paragraph is reflected inwards the quaternary judgement of para thirteen of the Council negotiation directives.

Comment: The Commission proposal agency that the UK tin sack opt inwards to novel JHA laws amending JHA laws which it is already jump by. Note that the UK has already opted out of the ‘Dublin IV’ proposal on allotment of asylum seekers, so the proffer that it could hold upwards jump past times that police clit during the transitional catamenia is pure scaremongering.

6. Unless otherwise provided inwards this Part, during the transition period, whatever reference to Member U.S.A. inwards the Union police clit applicable pursuant to paragraph 1 shall hold upwards understood as including the United Kingdom.

However, where acts of the Union render for the participation of Member States, nationals of Member U.S.A. or natural or legal mortal residing or established inwards a Member State inwards an information exchange, physical care for or programme too where such participation would grant access to sensitive information that a 3rd province or natural or legal mortal residing or established inwards a 3rd province is non to take hold cognition of, these references to Member U.S.A. shall hold upwards understood as non including the United Kingdom.

UK position: the UK accepts the first sub-paragraph, apart from the intelligence ‘transition’ too an additional reference referring to an annex with around ‘horizontal provisions’ – such as that all references to the “European Union” include the UK.

The UK sees footling indicate to the instant sub-paragraph too has placed it inwards foursquare brackets for farther discussion.

Background: The start sub-paragraph reflects the instant judgement of para thirteen of the Council negotiation directives. However, the instant sub-paragraph does non reverberate those directives.

Comments: It seems that the Commission is concerned that the UK mightiness manus information over to non-EU countries without authorisation, whereas the UK cannot reckon the indicate of this concern.

Article X+2

Institutional arrangements

1. Notwithstanding Article X+1, during the transition catamenia [points (a), (b) too (c) of Article NN from the Common Provisions] shall apply.

See the text of “Article NN”, discussed above. As a reminder, this Article removes the UK from the European Union institutions too other bodies. The UK accepts this paragraph, as good as (as noted above) the text of Article NN, with exclusively technical amendments.

2. For the purposes of the Treaties, during the transition period, the parliament of the Britain shall non hold upwards considered to hold upwards a national parliament.

UK position: the UK accepts this but a purely technical amendment would movement it to an Annex.

Background: This sub-paragraph does non explicitly reverberate anything inwards the Council negotiation directives.

Comments: It arguably is implicit that if the UK is non constituent of the European Union institutions, in that location is no requirement to consult the UK’s national parliament on proposed European Union measures. But fifty-fifty if in that location is no longer a legal obligation to do so, it is difficult to reckon what terms would hold upwards caused past times consulting the UK parliament, or what legal dominion would forbid the European Union agreeing to do so exterior the context of the formal role for national parliaments of Member U.S.A. laid out inwards the Treaties.

3. For the purposes of Articles 282 too 283 TFEU too of Protocol (No 4) on the Statute of the European scheme of cardinal banks too of the European Central Bank, during the transition period, the Bank of England shall non hold upwards considered to hold upwards a national cardinal bank.

UK position: the UK accepts this with a technical amendment but seeks to confirm that all other references to cardinal banks volition silent include the UK.

Background: This sub-paragraph does non explicitly reverberate anything inwards the Council negotiation directives.

Comments: Arguably it’s implicit that if the UK is non constituent of the European Union institutions, it follows that the Bank of England does non take hold the status of a national cardinal banking concern inwards its relations with the ECB.

4. By way of derogation from paragraph 1, during the transition period, representatives or experts of the United Kingdom, or experts designated past times the United Kingdom, may, upon invitation too on an case-by-case basis, exceptionally attend meetings or parts of meetings of the committees referred to inwards Article 3(2) of Regulation (EU) No 182/2011 of the European Parliament too of the Council, of Commission adept groups, of other similar entities, or of bodies, offices or agencies where too when representatives or experts of the Member U.S.A. or experts designated past times Member U.S.A. select part, provided that 1 the next weather condition is fulfilled:

(a) the intelligence concerns private acts to hold upwards addressed during the transition catamenia to the Britain or to natural or legal persons residing or established inwards the United Kingdom;

(b) the presence of the Britain is necessary too inwards the involvement of the Union, inwards particular for the effective implementation of Union police clit during the transition period.

During such meetings or parts of meetings, the representatives or experts of the Britain or experts designated past times it shall take hold no voting rights too their presence shall hold upwards express to the specific agenda points that fulfil the weather condition laid out inwards indicate (a) or (b). In the invitation to hold upwards sent to representatives or experts of the Britain or to experts appointed or designated past times it, the chair of the coming together concerned shall clearly seat the agenda points for which their attendance is allowed.

UK position: Consultation would non hold upwards case-by-case or exceptional; the essay of ‘necessary too inwards the interests of the Union’ would hold upwards dropped; this would extend to international agreements; too the restriction on voting would hold upwards dropped (although it is covered past times Article NN). Note that the UK also suggests a novel paragraph 4a, nether which proposals other legal acts would also hold upwards sent to the UK for consultation.

Background: The start one-half of this sub-paragraph reflects para nineteen of the Council negotiation directives, too the instant one-half elaborates upon that rule. Note that a statement past times the Commission commits itself to number a guidance document on how to apply this dominion consistently inwards practice.

A footnote refers to the official publication of Regulation 182/2011, which sets out full general rules for Member States’ participation inwards committees which regulation the Commission’s exercise of implementing powers.

Comments: As inwards the ease of this Article too Article NN, it is questionable whether it is genuinely necessary to boundary the UK’s purely consultative role to this extent. Certainly in that location is exclusively a weak declaration that it is legally required.

5. During the transition period, the Britain shall non deed as leading say-so for run a jeopardy assessments, examinations, approvals too authorisation procedures provided for inwards Union law.

UK position: the UK sees no indicate to this provision, too has placed it inwards foursquare brackets for discussion.

Background: This sub-paragraph does non explicitly reverberate anything inwards the Council negotiation directives.

Comments: It is non so manifestly implicit that the UK’s exclusion from the European Union institutions agency that it cannot take hold a role as atomic number 82 say-so inwards run a jeopardy assessment et al. Put around other way, this is arguably an number of European Union noun police clit – where the UK volition inwards termination stay a Member State during the transition catamenia – rather than European Union institutional law, where it volition not.

Article X+3

Specific arrangements relating to the Union's external action

1. Without prejudice to Article X+1(2), during the transition period, the Britain shall hold upwards jump past times the obligations stemming from the international agreements concluded past times the Union, or past times Member U.S.A. acting on its behalf, or past times the Union too its Member U.S.A. acting jointly.

2. During the transition period, representatives of the Britain shall non participate inwards the travel of whatever bodies laid upwards past times international agreements concluded past times the Union, or past times Member U.S.A. acting on its behalf, or past times the Union too its Member U.S.A. acting jointly.

UK position: Both paragraphs would change. Paragraph 1 would province that the UK would silent hold upwards constituent of international treaties inwards accordance with a technical note past times the UK side. Paragraph 2 would give participation rights to the UK inwards accordance with proposed amendments to the previous Article. Both paras would hold upwards express inwards ambit to “bilateral agreements” which the UK had negotiated as a bloc

Background: These ii paragraphs transpose para 17 of the Council negotiation directives.

Comments: The Commission text of these provisions entail the UK silent beingness jump to the EU as regards treaties with non-EU states. Logically this applies vice versa too it would hold upwards preferable to spell that out directly. It should follow that individuals tin sack silent invoke the direct termination of such treaties (where it exists) inwards the UK during the transition catamenia (for instance, Turkish citizens with rights nether the EU/Turkey association understanding framework).

However, the UK is non jump to non-EU countries to apply such treaties; neither tin sack non-EU countries straight invoke such treaties against the UK.  Since this could inwards particular impact UK exports, it makes feel for the UK to focus on replicating such treaties: reckon para 4 below.

The UK’s choice approach would circumvent this, but its proposed version of the withdrawal understanding would bind non-EU countries, which is untenable as a affair of international law. This seems to contradict the UK government’s ain technical greenback which accepted that non-EU countries would take hold to concur past times a simplified physical care for that the UK would silent hold upwards regarded as constituent of the European Union during the transitional period.

3. In accordance with the regulation of sincere cooperation, the Britain shall abstain, during the transition period, from whatever activeness or initiatory which is probable to hold upwards prejudicial to the Union's interests inwards the framework of whatever international organisation, agency, conference or forum of which the Britain is a political party inwards its ain right.

UK version: Delete this para since this legal obligation applies to the UK anyway.

Background: This paragraph is non reflected inwards the Council negotiation directives.

Comments: This para explicitly sets out the obligation that would anyway arguably silent apply implicitly, since other European Union Treaty provisions on sincere cooperation would silent hold upwards applicable to the UK. The UK’s proposed deletion so makes sense. Note that the UK would presumably take hold to a greater extent than liberty to deed 1 time whatever early on post-Brexit treaty on EU/UK safety too defense forcefulness cooperation or policing too criminal police clit came into forcefulness (see Article X+1 above).

4. During the transition period, the Britain may non travel jump past times international agreements entered into inwards its ain capacity inwards the areas of exclusive competence of the Union, unless authorised to do so past times the Union.

UK version: Accepted with the add-on of the ability to travel political party to treaties concerning the continued application of pre-Brexit agreements.

Background: This para transposes the wording of the concluding judgement of para xvi of the Council’s negotiation directives, with the of import alter that it exclusively applies to ‘exclusive’ competence of the EU. This alter narrows the limits on the UK’s external action.

Comments: Note that the exact extent of exclusivity of European Union external competence is oftentimes disputed too fifty-fifty litigated. Some intelligence of the EU27 seat on the transition catamenia suggests that the UK would hold upwards banned from signing treaties, but this is false: rather the UK could do so, but exclusively with authorisation, too that boundary would exclusively apply inside the expanse of exclusive European Union competence.

Also, greenback that the restriction is on the UK becoming ‘bound by’ international treaties during the transition period, non upon negotiation or signing such treaties. However, it mightiness hold upwards argued that such negotiations would breach para 3 of this Article, although the obvious counter-argument from the UK would hold upwards that a treaty which does non apply until after the transition catamenia could non impact the Union’s interests given that the UK volition no longer hold upwards jump past times European Union police clit as such after that point.

There is no cite of the physical care for of blessing of the UK becoming jump past times treaties. Note that 1 of the statements attached to the Council negotiation Directives says that the Council volition approve the UK becoming jump past times such treaties, inwards accordance with the commons Treaty rules. 

The UK’s proposal that it would non demand authorisation to concur hold upwards jump past times treaties which exactly hold pre-Brexit rights too obligations inwards forcefulness makes sense, although from the EU27 in that location mightiness hold upwards a valid concern that without around form of consultation physical care for such a clause could hold upwards used to do to a greater extent than than re-create the UK’s previous rights too obligations.

5. Without prejudice to Article X+1(2), whenever in that location is a requirement for coordination, including on sanctions policy, or representation inwards international organisations or conferences, the Britain may hold upwards consulted past times the Commission or the High Representative of the Union for Foreign Affairs too Security Policy, as the illustration may be, on a case-by-case basis.

UK position: This para would hold upwards amended: to construct consultation mandatory; to “recognise the need” for it rather than applying “whenever in that location is a requirement”; to drib “on a illustration past times illustration basis” too to render for farther modalities to hold upwards agreed.

Background: This para is non reflected inwards the Council’s negotiation directives.

Comments: This paragraph takes line of piece of occupation organisation human relationship of the UK’s important unusual policy rule, inwards particular regarding sanctions. It’s conceivable, due to the loss of the UK veto over European Union unusual policy during the transition period, that the UK could hold upwards legally jump to exercise (or non to use) its Security Council veto during the transition period.  As with para 3, inwards the unusual policy context the UK would presumably take hold to a greater extent than liberty to deed 1 time whatever early on post-Brexit treaty on EU/UK safety too defense forcefulness cooperation came into forcefulness (see Article X+1(2) above). Given the cardinal importance of unusual too defense forcefulness policy the UK’s proposal for mandatory consultation to a greater extent than mostly makes sense.

6 During the transition period, the Britain shall non render commanders of civilian operations, heads of mission, performance commanders or forcefulness commanders for missions or operations conducted nether Articles 42 to 44 TEU, nor shall it render the operational headquarters for such missions or operations. During the transition period, the Britain shall non render the caput of whatever operational actions nether Article 28 TEU.

UK position: placed inwards foursquare brackets for discussion.

Background: This para is non reflected inwards the Council’s negotiation directives, although it is consistent with the overall thrust of removing the UK from roles inwards European Union bodies.

Article X+4

Specific arrangements relating to Fisheries Policy

As regards the fixing of angling opportunities inside the pregnant of Article 43 TFEU for whatever catamenia prior to the destination of the transition period, the Britain shall hold upwards consulted past times the Commission during the decision-making physical care for inside the Council too during international negotiations inwards honor of the angling opportunities related to the United Kingdom.

UK position: proposed amendments: a) adding “fixing and allocation of angling opportunities”; b) deleting the intelligence “transitional”; c) replacing “the Britain shall hold upwards consulted past times the Commission during the decision-making process” past times “the European Union too the Britain shall concur the angling opportunities prior to the decision-making process” d) replacing the words starting “and during international negotiations” with the novel judgement “The Britain shall participate amongst the European Union too other coastal states inwards international fisheries negotiations”; too e) adding a instant paragraph, reading: “The modalities relating to the inwards a higher house shall hold upwards agreed betwixt the Parties.”

Background: The Commission draft reflects para 21 of the Council negotiation Directives, which states that “Specific consultations should also hold upwards foreseen with regard to the fixing of angling opportunities (total allowable catches) during the transition period, inwards total honor of the Union acquis.”.

Comments: If the transition catamenia ends as proposed at the destination of 2020, this would exclusively hold upwards relevant for 1 year. It could hold for longer if the UK’s proffer of a to a greater extent than flexible fourth dimension boundary is accepted. The UK’s seat differs significantly from the Commission draft inwards providing for a separate negotiation physical care for on angling opportunities, too inwards providing for UK to negotiate separately inwards international bodies, which would amount to an exception to Article X+3(2) of the Commission draft. Whether the UK could larn into into fisheries treaties would hold upwards addressed past times Article X+3(4).

A reasonable compromise betwixt the UK too EU27 positions would hold upwards to guarantee inwards the withdrawal understanding that the European Union decisions on catches inwards UK waters made during the transitional/implementation catamenia must hold upwards based on the rules which applied earlier Brexit Day. 

Article X+5

Supervision too enforcement

During the transition period, the institutions, bodies, offices too agencies of the Union shall take hold the powers conferred upon them past times Union police clit also inwards relation to the Britain too natural too legal persons residing or established inwards the United Kingdom. In particular, the Court of Justice of the European Union shall take hold jurisdiction as provided for inwards the Treaties.

UK position: Accepts this provision (apart from deleting the instant judgement for technical reasons) but implicitly rejects a related Commission footnote, discussed farther below. The UK also suggests powers for a Joint Committee to verbalise over too settle disputes relating to this constituent of the agreement, as good as the thought of a “good faith” clause (with no text proposed).

Background: This reflects the start judgement of para xviii of the Council negotiation Directives, but leaves out the instant sentence, which reads: “In particular, Union institutions, bodies too agencies should comport all supervision too command proceedings foreseen past times Union law.”

Comments: The most controversial constituent of this proposal is a footnote 4 hither which states as follows: “In addition, the Governance too Dispute Settlement Part of the Withdrawal Agreement should render for a machinery allowing the Union to suspend sure benefits deriving for the Britain from participation inwards the internal marketplace where it considers that referring the affair to the Court of Justice of the European Union would non convey inwards appropriate fourth dimension the necessary remedies.” Since in that location is no suggested text of this clause, I take hold non inserted this indicate separately into this proposed draft of the agreement.

While sanctions inwards full general are mutual remedies for breaches of treaties inwards international law, too the disapplication of around provisions of an understanding is mutual inwards European Union treaties with non-EU states inwards particular, this specific proffer inwards the context of the withdrawal understanding negotiations is highly legally too politically problematic.

As a affair of principle, this approach is contradictory: the Commission thinks that the UK should hold upwards a Member State fully covered past times the Treaties, plus a special dominion ought to apply which is similar to those inwards international treaties inwards which non-EU countries take hold a to a greater extent than distant human relationship with the EU. On the contrary: noun status quo membership should hateful noun status quo membership.

Moreover, this number is non referred to inwards the Council negotiation directives; inwards fact, creating such a special dominion contradicts the seat inwards those directives that the European Union institutions shall take hold their normal enforcement role. Arguably it also interferes with the ‘essential nature’ of the jurisdiction of the ECJ, contradicting the dominion inwards ECJ illustration police clit on its jurisdiction inwards treaties with non-EU countries. The declaration well-nigh timing of ECJ activeness is unconvincing, since the Commission tin sack inquire for interim measures inwards ECJ proceedings, too the deadlines to apply many of the laws concerned would autumn after the destination of the transition period. While the UK could presumably challenge the legality of whatever sanctions conclusion inwards the European Union courts, as this proposal does non boundary the UK’s standing to sue European Union institutions during the transition period, the number is whether such a ability should be inwards the start place.

Furthermore, the footnote makes no reference to the dispute village physical care for that would unremarkably precede such a sanction, or to the limits on the proportionality of such measures found inwards treaties such as the EEA. The proffer ignores the careful residue found inwards the EEA, where partial disapplication of the Treaty could exclusively follow a conclusion past times Kingdom of Norway et al non to apply a novel police clit inside the ambit of the EEA; but in that location is no such potential ability to reject to apply a novel European Union police clit foreseen for the UK.  It is non clear whether the proposed sanction would exclusively apply to breaches of the transitional rules (and if so, which), or to other parts of the withdrawal understanding too.

The proposal is so non exclusively legally too politically questionable, but poorly thought out too justified, non exclusively breaching the Commission’s obligations as European Union negotiator but also spreading sick volition inwards the negotiations. The phrase “frolic of the Commission’s own” scarcely does judge to the problematic nature of this proposal.

As for the UK proposal, it is carefully drafted non to impinge upon the autonomy of European Union law, since it would non give the Joint Committee ability to select a conclusion which binds the European Union institutions or Member U.S.A. as regards the interpretation of European Union police clit inside the EU.  However, the role of the Joint Committee could potentially come upwards into conflict with the jurisdiction of the ECJ interpreting the agreement. For illustration what if the UK was exempted from a novel law, but someone argued inwards a UK courtroom that it should non take hold been, too the UK courtroom asked the ECJ to translate the withdrawal agreement? Also the proposal does nt construct clear what happens if the parties cannot concur on a resolution of a dispute inside the Joint Committee. In general, though, the UK proposal comes closer to the normal rules on the seat of non-EU countries nether international agreements, although it silent maintains the same flaw as the Commission proposal of treating the UK as an European Union too a non-EU province at the same time.

Article X+6

European Schools

The Britain shall hold upwards jump past times the Convention defining the Statute of the European Schools until the destination of the schoolhouse yr that is ongoing at the destination of the transition period.

UK position: accepts, with the deletion of the intelligence “transitional”

Background: There is a footnote referring to the text of the Convention. This number was non referred to inwards the Council negotiation Directives.

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