web analytics

Category Archives

7 Articles

Draft Article 50 Withdrawal Agreement

The European Commission has today (28 February 2018) published a draft document on the Withdrawal Agreement between the European Union and the United Kingdom as a Position Paper from the EU Commission to the EU 27.

This document will ultimately form a Treaty between the UK and the EU

The draft Withdrawal Agreement translates into legal terms the Joint Report from the negotiators of the EU and the UK Government on the progress achieved during phase 1 of the negotiations, published on 8 December 2017, and proposes text for those outstanding withdrawal issues which are mentioned in, but not set out in detail, in the Joint Report. It also integrates the text on the transition period, based on the supplementary negotiating directives adopted by the Council (Article 50) on 29 January 2018.

https://ec.europa.eu/commission/brexit-negotiations/negotiating-documents-article-50-negotiations-united-kingdom_en

The document is a basis for negotiations with the UK and reflects the EU position which has not (necessarily) been agreed to by the UK for example, on the role of the ECJ (European Court of Justice). So compromise is still required but to-date there doesn’t not appear to have been much (if any) compromise from the EU side.

The Draft Withdrawal Agreement sets out the arrangements for the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and from the European Atomic Energy Community. It will now be discussed over the coming weeks with the Council (Article 50) and the Brexit Steering Group of the European Parliament before transmission to the UK authorities for negotiation.

The document is almost 120 pages long and contains 168 paragraphs (Articles). It wraps up previous discussions into a formal legal text.

There are six main parts

  • Common Provisions (articles 1-7)
  • Citizens’ Rights (articles 8-35)
  • Separation Provisions (articles 36-120)
  • Transition (Implementation) (articles 121-126 )
  • Financial Provisions (articles 127-150 )
  • Institutional and Final Provisions (articles 151-168 )

Also included are a Protocol on Ireland/Northern Ireland and a Protocol relating to the Sovereign Base Areas in Cyprus and various Annexes, some of wich are yet to be completed.

The role of the Court of Justice seems to continue after the Transition (Implementation) period, as in Article 4

In the interpretation and application of this Agreement, the United Kingdom’s judicial and administrative authorities shall have due regard to relevant case law of the Court of Justice of the European Union handed down after the end of the transition period.

I also noted a lack of Reprocity in certain articles e.g.

Article 7 – Access to network and information systems and data bases

At the end of the transition period, the United Kingdom shall cease to be entitled to access any network, any information system, and any database established on the basis of Union law. The United Kingdom shall take appropriate measures to ensure that it does not access a network, information system, or database which it is no longer entitled to access.

Fair enough but should it also state

At the end of the transition period, the EU and member states of the EU, shall take appropriate measures to ensure that it does not access a network, information system, or database which it is no longer entitled to access.

Other points worthy of note:

  • The EU wants to extend Citizens Rights to the end of the Transition (Implementation) period rather than from the Withdrawal Date as agreed in December.
  • Transition (Implementation) Period will end on 31 December 2020. (Art 121)
  • Union law shall be applicable to and in the United Kingdom during the transition period. (Art 122)
  • Unless otherwise provided in this Agreement, during the transition period, any reference to Member States in the Union law applicable pursuant to paragraph 1, as implemented and applied by Member States, shall be understood as including the United Kingdom.(Art 122)
  • Notwithstanding paragraph 3, during the transition period, the United Kingdom may not become bound by international agreements entered into in its own capacity in the areas of exclusive competence of the Union, unless authorised to do so by the Union.(Art 124)
  • Financial – Payments by the UK to the EU

  • For the years 2019 and 2020, in accordance with Part Four, the United Kingdom shall contribute to and participate in the implementation of the Union budgets. (Art 128) [no mention of the rebate in payments]
  • The applicable Union law concerning the Union’s own resources relating to financial years until 2020 shall continue to apply to the United Kingdom after 31 December 2020, including where the own resources concerned are to be made available, corrected or subject to adjustments after that date. (Art 129)
  • Unless otherwise provided for in this Agreement, the United Kingdom shall be liable to the Union for its share of the budgetary commitments of the Union budget and of the budgets of the Union decentralised agencies outstanding on 31 December 2020 and the commitments made in 2021 on the carryover of commitment appropriations from the budgets for 2020. (art 133)
  • In particular, the United Kingdom shall contribute to its share of the Union liability for the pension and other employee benefits as it stands on 31 December 2020. Payments related to this liability shall be made when the amounts fall due. [forever] (art 135)
  • Participation in the European Development Fund (art 145)
  • Commitments toward the Trust Funds and the Facility for Refugees in Turkey (art 148)
  • The United Kingdom’s obligations from the date of entry into force of this Agreement Until 31 December 2020, the United Kingdom shall contribute to the financing of the European Defence Agency, the European Union Institute for Security Studies, and the European Union Satellite Centre, as well as of Common Security and Defence Policy operations, on the basis of the same contribution key as before the date of entry into force of this Agreement. (art 149)
  • Payments from the EU to the UK

    These payments are all staged over a number of years. Why not pay in full?

  • Article 138 – The Union shall be liable to the United Kingdom for its share of the net assets of the European Coal and Steel Community in liquidation. The relevant amount shall be reimbursed to the United Kingdom in 5 equal annual instalments.
  • Article 139 – The Union shall be liable to the United Kingdom for its share of the Union’s investment in the paid-in capital of the EIF on 31 December 2020. The relevant amount shall be reimbursed to the United Kingdom in 5 equal annual instalments.
  • Article 142 – The European Central Bank shall on behalf of the Union reimburse to the Bank of England the paid-in capital provided by it. The date of the reimbursement and other practical arrangements shall be established in accordance with Protocol (No 4) on the Statute of the European System of Central Banks and of the European Central Bank.
  • Article 143 – The EIB shall pay to the United Kingdom on behalf of the Union an amount equal to the share of the United Kingdom of the paid-in subscribed capital of the EIB as it stood immediately prior to the date of entry into force of this Agreement. The payment shall be made in accordance with Protocol No 5 on the Statute of the European Investment Bank. It shall be made in twelve yearlyinstalments. The first eleven instalments, each equal to EUR 300,000,000, shall be due on 15 December of each year starting in 2019. The balance of EUR 195,903,950 shall be due on 15 December 2030. The payments made in accordance with this paragraph shall not release the United Kingdom from its liability in accordance with paragraph 5. The obligation to pay the amount not yet paid pursuant to this paragraph shall lapse in the event that the EIB enters liquidation.
  • Article 144 – Participation of the United Kingdom in EIB group after the withdrawal date As from the date of entry into force of this Agreement, the United Kingdom, entities established in the United Kingdom and projects located in the United Kingdom shall not be eligible for new financial operations from the EIB group reserved for Member States, including those under Union mandates.
  • Disputes

  • A Joint Committee is hereby established, comprising representatives of the Union and of the United Kingdom. The Joint Committee shall be co-chaired by the Union and the United Kingdom. (art 157)
  • The Joint Committee may, at any point, decide to submit the dispute brought before it to the Court of Justice of the European Union for a ruling. The Court of Justice of the European Union shall have jurisdiction over such cases and its rulings shall be binding on the Union and the United Kingdom. (art 162)
  • Suspension of benefits during the transition period. Notwithstanding Article 126 of this Agreement, if during the transition period the Union considers that the United Kingdom has not fulfilled, during the transition period, an obligation under Union law as found in a judgment rendered pursuant to Article 126 of this Agreement in accordance with Article 258 TFEU, or that the United Kingdom does not respect an order rendered pursuant to Article 126 of this Agreement in accordance with Article 279 TFEU, and where the functioning of the internal market, of the customs union, or the financial stability of the Union or its Member States would be jeopardised as a result, the Union may suspend certain benefits deriving for the United Kingdom from participation in the internal market.(art 165)
  • The subject of the Withdrawal Agreement on Ireland and Northern Ireland is worthy of a specially devoted article and will be discussed/summarised in a separate post.

    The European Commission also produced a Fact Sheet related to this document titled:

    Questions & Answers: Publication of the draft Withdrawal Agreement between the European Union and the United Kingdom

    Transitional Arrangements in the Withdrawal Agreement

    Another position paper issued by the EU on Transitional Arrangements in the Withdrawal Agreement to the EU27. This paper translates into legal terms the principles laid down in the European Council Guidelines of 29 April and 15 December 2017 and in the supplementary negotiating directives annexed the Council Decision of 29 January 2018.

    This has been created for approval by the EU27 before it’s presented to the UK. It remans unclear whether this document is to be used as the basis for discussion with the UK or whether, as shown on past experience, it will be presented as a fait accompli

    On this basis, this paper outlines in legal terms how such arrangements should be given effect in the Withdrawal Agreement.

    Position paper “Transitional Arrangements in the Withdrawal Agreement”

    The topics mentioned include:

    • There shall be a transition period, which shall start on the date of entry into force of this Agreement and end on 31 December 2020.
    • Unless otherwise provided in this Part, Union law shall be binding upon and applicable in the United Kingdom during the transition period
    • The United Kingdom shall not participate in any enhanced cooperation
    • During the transition period, the United Kingdom may not become bound by international agreements entered into in its own capacity in the areas of exclusive competence of the Union, unless authorised to do so by the Union
    • During the transition period, the institutions, bodies, offices and agencies of the Union shall have the powers conferred upon them by Union law also in relation to the United Kingdom and natural and legal persons residing or established in the United Kingdom. In particular, the Court of Justice of the European Union shall have jurisdiction as provided for in the Treaties.
    • etc.

    Full details are available in the full document at

    https://ec.europa.eu/commission/sites/beta-political/files/transition.pdf (pdf)

    It is not clear whether the UK can accept not being allowed to sign any International Trade Agreements during this period.

    Also, it is worth noting a footnote to the paragraph relating to the role of the European Court of Justice which states:

    In addition, the Governance and Dispute Settlement Part of the Withdrawal Agreement should provide for a mechanism allowing the Union to suspend certain benefits deriving for the United Kingdom from participation in the internal market where it considers that referring the matter to the Court of Justice of the European Union would not bring in appropriate time the necessary remedies.

    which effectively allows the EU to become Judge, Jury and executioner to matters which they themselves decide break terms of the Withdrawal Agreement.

    EU Position Papers – Sep 7 2017

    The EU has published a number of Position Papers, which outline the positions held by the EU in various issues related to the Brexit negotiations, for discussion at the Council Working party (Art. 50) meeting held on 7 September 2017. These papers will be presented to the UK for future rounds of negotiation.

    Papers cover the following topics:

    Public Procurement (pdf)

    The withdrawal of the United Kingdom from the European Union will create uncertainty in relation to administrative procedures in the area of public procurement on-going on the withdrawal date, as to which law should govern the completion of those procedures and how tenderers and contractors from the EU27 or the United Kingdom should be treated by contracting authorities from, respectively, the United Kingdom or the EU27 Member States.

    The Withdrawal Agreement should ensure that administrative procedures in the area of public procurement on-going on the withdrawal date continue to be carried out in accordance with the relevant provisions of Union law until their completion, and in accordance with the principle of nondiscrimination.

    Dialogue on Ireland/Northern Ireland (pdf)

    The European Council Guidelines following the United Kingdom’s notification under Article 50 TEU and the subsequent directives for the negotiation of an agreement with the United Kingdom on its withdrawal from the European Union include specific provisions relating to the unique circumstances on the island of Ireland (paragraphs 11 and 14 respectively). In its resolution of 5 April 2017, the European Parliament also recognises the unique position of and the special circumstances confronting the island of Ireland.

    Issues unique to Ireland include the protection of the gains of the peace process and of the Good Friday Agreement (‘Belfast Agreement’) in all its parts, the maintenance of existing bilateral agreements and arrangements between the United Kingdom and Ireland including the Common Travel Area, and specific issues arising from Ireland’s unique geographic situation, including the aim of avoiding a hard border between Ireland and Northern Ireland.

    The invisible border on the island of Ireland is one of the major achievements and societal benefits of the Peace Process. Border issues are broader than economic questions. The physical border itself was a symbol of division and conflict.

    Customs related matters needed for an orderly withdrawal of the UK from the Union (pdf)

    As of the withdrawal date, the United Kingdom will no longer be part of the customs and tax (VAT and excise) territory of the Union. Consequently movements of goods between the UK and the EU 27 will constitute third country trade. The principles outlined in this paper aim to ensure an orderly withdrawal of the United Kingdom from the Union in respect of customs related matters.

    Use of Data and Protection of Information Obtained or Processed before the Withdrawal Date (pdf)

    It is recalled that the United Kingdom’s access to networks, information systems and databases established by Union law is, as a general rule, terminated on the date of withdrawal.

    The United Kingdom or entities in the United Kingdom may keep and continue to use data or information received/processed in the United Kingdom before the withdrawal date and referred to below only if the conditions set out in this paper are fulfilled. Otherwise such data or information (including any copies thereof) should be erased or destroyed.

    The principles set out in this paper should also apply, mutatis mutandis, to personal data, data or information which was received /processed by the United Kingdom or entities in the United Kingdom after the withdrawal date pursuant to the Withdrawal Agreement.

    Intellectual property rights (including geographical indications) (pdf)

    The withdrawal of the United Kingdom from the European Union will create uncertainty for UK and EU27 stakeholders alike in relation to the scope of protection in the United Kingdom of certain intellectual property rights; to the treatment of applications for certain rights and to the exhaustion of rights conferred by intellectual property rights. This uncertainty will significantly affect the conditions under which goods that are placed on the market in the Union before the withdrawal date could continue to circulate between the EU27 and the UK.

    References

    Negotiating documents on Article 50 negotiations with the United Kingdom

    UK Position Paper – The exchange and protection of personal data

    The UK Government recently published a paper that discusses options for the protection of personal data after the UK leaves the EU.

    https://www.gov.uk/government/news/uk-outlines-proposals-for-shared-approach-on-data-protection

    Recent technological advances have led to huge increases in the amount of personal data being processed and transferred, including across borders. Over time this has necessitated the development of more robust rules to:

    • protect personal data from being stolen or disclosed to those without authorisation
    • prevent personal data from being misused by those who have access to it
    • keep personal data accurate, particularly where automatic decisions are being taken which have an impact on people, such as those concerning pensions, insurance, or creditworthiness.

    After leaving the EU, the UK will continue to play a leading global role in the development and promotion of appropriate data protection standards and cross-border data flows.

    The UK’s data protection law will fully implement the most up-to-date EU framework, and this will remain the case at the point of the UK’s withdrawal from the EU.

    It is essential to agree a UK-EU model for exchanging and protecting personal data:

    • to maintain the free flow of personal data between the UK and the EU
    • to offer sufficient stability and confidence for businesses, public authorities and individuals
    • to provide for ongoing regulatory cooperation between the EU and the UK on currentand future data protection issues, building on the positive opportunity of a partnership between global leaders on data protection
    • to continue to protect the privacy of individuals
    • to respect UK sovereignty, including the UK’s ability to protect the security of its citizens and its ability to maintain and develop its position as a leader in data protection
    • to not impose unnecessary additional costs to business
    • is based on objective consideration of evidence

    Read more details at:

    The exchange and protection of personal data (pdf)

    UK Position Paper – Confidentiality and access to documents

    The UK Government has published a position paper Confidentiality and access to documents .

    This paper outlines the United Kingdom’s position on confidentiality and access to documents, relating to information obtained by the UK and the European Union whilst the UK was a Member State.

    On the matter of confidentiality and access to documents, the Government will continue to take into full account the interests of all parts of the UK, including Scotland, Wales and Northern Ireland, as well as considering the priorities of the governments of Gibraltar, the other Overseas Territories and the Crown Dependencies.

    Arrangements agreed with respect to confidentiality and the handling of information produced while it was a Member State should be reciprocal, affording an equivalent level of protection to the UK and the EU after the UK’s withdrawal.

    Full details of the UK’s position are outlined in the paper at

    Confidentiality and access to documents (pdf)

    css.php