UK nationals and EU citizenship: References to the European Court of Justice and the February 2018 decisions of the District Court, Amsterdam

Professor Anthony Arnull, University of Birmingham, UK

The decision of 7 February 2018

The interim decision of the District Court, Amsterdam, of 7 February 2018 caused quite a stir among Brexit-watchers. The case concerned promised not only to be the first reference to the Court of Justice on Brexit but also to raise one of the most fundamental questions posed by the UK’s decision to withdraw from the EU: whether, in the absence of an agreement to the contrary, withdrawal would necessarily mean that UK nationals would lose their EU citizenship and the rights that status gave them.

The proceedings had been brought by seven claimants. The first five were UK nationals resident in the Netherlands. The sixth and seventh were associations. One, Brexpats, had been established to protect the interests of UK nationals affected by Brexit. Its claim was found to be inadmissible. The other, CADS, had been established to promote Anglo-Dutch trade relations. A challenge to the admissibility of its claim was rejected. The defendants were the State of the Netherlands and the Municipality of Amsterdam. The case was heard by Judge F B Bakels, a former Vice President of the Netherlands Supreme Court who, it is understood, had chosen to devote a short period of time before his retirement to hearing first instance cases.

The claimants were seeking a ruling that, should UK citizens retain EU citizenship after Brexit, the defendants would respect the attendant rights of the first five claimants. In particular, they asked the court to rule that the defendants should not agree to implement any agreement between the UK and the EU27 which failed to guarantee those rights. Such a ruling may not strictly speaking be necessary, since the withdrawal agreement, as an act of secondary EU law, could not alter the rights conferred by citizenship of the Union, which derive ultimately from the TFEU. In practice, however, a ruling in the terms sought might avoid the need for further litigation on the point.

Should the withdrawal of the UK from the EU be found to remove from UK citizens their status as citizens of the EU (as the wording of Article 20(1) TFEU would suggest), the claimants sought an order requiring the Netherlands to carry out an individual assessment of the compatibility with the principle of proportionality of any decision to restrict rights deriving from EU citizenship; ordering the Municipality to give effect to the individual assessments carried out; prohibiting the State from insisting that one of the claimants should relinquish her UK nationality; and ordering the Municipality and the State to facilitate multiple nationality for a person seeking Netherlands nationality within two weeks of the court’s ruling. The claimants argued that these claims required an authoritative ruling on the effect of Article 20 TFEU. They had therefore drafted a number of questions with a view to having them referred to the Court of Justice for a preliminary ruling.

The claimants stated that they had all made use of the fundamental freedoms to reside and work in another Member State and that the uncertainty surrounding their future legal position was already causing them harm. In organising their lives, they had to take account of the distinct possibility that the Netherlands might after Brexit classify them as third country nationals and require them to leave without conducting an individual assessment of their circumstances. That threat meant that they had to decide now whether to seek citizenship of the Netherlands. This was an expensive process and might have consequences for their right to retain UK nationality and therefore for their continuing right to visit the UK. There were also questions about the status of partners who might or might not have UK nationality; parents of UK nationality who had children born in the Netherlands; and UK nationals in the Netherlands whose work made it essential for them to continue to be able to travel freely throughout the EU27.

The judge ruled that, in order to assess these claims, it was necessary to establish whether loss of the status of nationality of a Member State automatically resulted in loss of citizenship of the Union or whether considerations of fundamental, acquired and minority rights and solidarity between EU citizens might require that outcome to be qualified. He therefore announced his intention to submit two questions to the Court of Justice:

Whether, in the absence of an agreement on the matter in the Brexit negotiations, UK withdrawal from the EU would automatically deprive UK nationals of their status as EU citizens and of the rights and freedoms attaching thereto;

If not, whether those rights and freedoms were subject to any conditions or restrictions.

The parties were given the right to comment on the proposed questions within a week of the judgment. They were expressly told they could not comment on any other aspect of the judgment or on the judge’s intention to refer questions to the Court of Justice.

The decision of 20 February 2018

It therefore seemed likely that the Court of Justice would be given the opportunity to rule on issues of profound significance for the scope of EU citizenship and the course of the Brexit negotiations. However, on 20 February 2018, Judge Bakels granted the State and the Municipality permission to appeal to the Court of Appeal, Amsterdam, against his earlier ruling. The appellants argued that the uncertainty of which the claimants were complaining could not be resolved by the proposed questions because their legal position depended on the content of the withdrawal agreement. This was not entirely correct because, as noted above, the provisions of the TFEU on citizenship will take precedence over the terms of the withdrawal agreement. The appellants rejected the claimants’ argument that they were already suffering harm and asserted that there was no real dispute between the parties.

Appearing to have a change of heart, Judge Bakels decided to depart from the normal rule laid down by the Netherlands Code of Civil Procedure that an appeal could be lodged only at the same time as the final judgment. He acknowledged that this did not in itself suspend the decision to refer to the Court of Justice. However, he observed that it would be contrary to due process for a reference to be made at this stage and decided that this should not now be done. It would be for the Court of Appeal, Amsterdam, to decide whether a reference should be made and, if so, what questions should be referred.

Challenging reference decisions

There is a considerable body of case law on the circumstances in which a decision of a national court to make a reference to the Court of Justice may be challenged before a superior national court. It may seem surprising that such an appeal is possible. In Joined Cases C-332/92, C-333/92 and C-335/92, Eurico Italia, for example, the Court of Justice pointed out (para 17) that

‘it has consistently held that it is solely for the national courts before which actions are brought, and which must bear the responsibility for the subsequent judicial decision, to determine in the light of the special features of each case both the need for a preliminary ruling in order to enable them to deliver judgment and the relevance of the questions which they submit to the Court.’

Moreover, the Court made it clear in Case 166/73 Rheinmühlen v Einfuhr- und Vorratsstelle Getreide that a national court cannot be deprived of its power to make a reference by the rulings of superior national courts. Indeed, in that case Advocate General Warner argued (at pp. 43-44) that ‘national legislation cannot effectively provide for a right of appeal against an order of a lower Court referring a question to this Court.’ The discretion conferred on lower national courts by what is now Article 267 TFEU, he said, was exercisable at any stage of proceedings before them and could not ‘be fettered by any rule or provision of national law’ (at p. 47).

The view of Advocate General Warner was not initially followed by the Court. In Case 146/73 Rheinmuhlen-Düsseldorf (para 3), the Court ruled:

‘in the case of a court against whose decisions there is a judicial remedy under national law, Article [267] does not preclude a decision of such a court referring a question to this Court for a preliminary ruling from remaining subject to the remedies normally available under national law.’

The Court added: ‘Nevertheless, in the interests of clarity and legal certainty, this Court must abide by the decision to refer, which must have its full effect so long as it has not been revoked.’

In 2008, that approach was substantially modified in Case C-210/06 Cartesio. In that case, the Court of Justice declared (paras 95 and 96):

‘Where rules of national law apply which relate to the right of appeal against a decision making a reference for a preliminary ruling, and under those rules the main proceedings remain pending before the referring court in their entirety, the order for reference alone being the subject of a limited appeal, the autonomous jurisdiction which Article [267 TFEU] confers on the referring court to make a reference to the Court would be called into question, if – by varying the order for reference, by setting it aside and by ordering the referring court to resume the proceedings – the appellate court could prevent the referring court from exercising the right, conferred on it by the [TFEU], to make a reference to the Court.

In accordance with Article [267 TFEU], the assessment of the relevance and necessity of the question referred for a preliminary ruling is, in principle, the responsibility of the referring court alone, subject to the limited verification made by the Court in accordance with the case-law… Thus, it is for the referring court to draw the proper inferences from a judgment delivered on an appeal against its decision to refer and, in particular, to come to a conclusion as to whether it is appropriate to maintain the reference for a preliminary ruling, or to amend it or to withdraw it.’

The Court’s ruling in Cartesio effectively made judgments of superior courts on the appropriateness of a reference advisory only. That outcome might in some cases be incompatible with the national court hierarchy. In the Lady & Kid case (Order of 11 February 2010), the Danish Supreme Court therefore ruled that references made by lower Danish courts should no longer be subject to appeal. (See M Broberg and N Fenger, Preliminary References to the European Court of Justice (OUP, 2nd ed, 2014) 329-330; M Broberg and N Fenger, ‘Preliminary references as a right: but for whom? The extent to which preliminary reference decisions can be subject to appeal’ (2011) 36 European Law Review 276.) Similarly, in a decision of 30 March 2010, the Belgian Cour de Cassation declared an appeal brought against a reference by a lower court inadmissible (see K Lenaerts, I Maselis and K Gutman, EU Procedural Law (OUP, 2014, 81). The same conclusion was reached by the Irish Supreme Court as long ago as 1983: see Campus Oil v Minister for Industry and Energy [1984] 1 Common Market Law Reports 479; D O’Keeffe, ‘Appeals against an order to refer under Article 177 of the EEC Treaty’ (1984) 9 European Law Review 87.

It should be noted, however, that Cartesio does not apply unless it is only the decision of the lower court to make a reference that is the subject of an appeal and where the main proceedings therefore ‘remain pending before the referring court in their entirety’ (para 98). Thus, in Case C-525/06 Nationale Loterij, the Court held that there was no need to reply to a reference made by a court before which the case concerned was no longer pending, having been brought in its entirety before a higher court. Responsibility for ensuring that the outcome was consistent with the requirements of Union law in such circumstances belonged to the latter court.

Implications for the Amsterdam proceedings

What are the implications of the case law briefly summarised above for the proceedings brought before the District Court, Amsterdam? It will be noted that no reference has so far been made in those proceedings. It would therefore seem to follow that the argument that a reference should be made will need to be repeated before the Amsterdam Court of Appeal.

The question whether an appeal could be brought against a decision of a national court not to make a reference was considered by the Danish Supreme Court in Lady & Kid. It was held there that this remained possible and that, if the appellate court decided that a reference should be made, that ruling would be binding on the lower court. However, O’Keeffe (above, p103) argues persuasively that ‘[t]he reference in a case where the appellate court finds it necessary should be by order of the appellate court, otherwise the discretion of the lower court under Article [267] is directly violated...’ This appears to have been the view taken by Judge Bakels in his decision of 20 February 2018.

The grounds of appeal put forward by the Netherlands Government are varied. On the central issue of the effect of Article 20 TFEU, the Government asserts that this provision is acte clair and rejects the judge’s reasoning on acquired rights. A national court might easily conclude that these questions at least should be referred to the Court of Justice, provided it did not accept the argument of the Netherlands Government that the case is artificial or contrived.

As the Court explained in Case C-62/14 Gauweiler v Deutscher Bundestag (para 25),

‘…questions concerning EU law enjoy a presumption of relevance. The Court may refuse to give a ruling on a question referred by a national court only where it is quite obvious that the interpretation, or the determination of validity, of a rule of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it…’

This makes it necessary for the national court to ‘give at least some explanation’ of why it has chosen the EU provisions of which it is requesting an interpretation (Case C-370/12 Pringle, para 84).

The claimants in the case under discussion have given plausible explanations of the range of ways in which the uncertainty surrounding their status is causing them direct and immediate harm. Even if the claims of only one of the claimants were considered credible, that would be enough to justify a reference to the Court of Justice. In his first ruling, the judge was satisfied that there was in the circumstances ‘no question of a hypothetical or notional dispute’. The questions he decided to refer to the Court were based on a detailed examination of the legal background and included extensive analysis of the case law of the Court. It therefore seems unlikely that the Court would refuse to give a ruling if it were asked to do so.

It is not clear why Judge Bakels departed from the normal rule by permitting an appeal to be brought at the interim stage and changed his mind about the desirability of a reference. If the case were none the less to reach the Court of Justice by way of a reference from either the District Court or the Court of Appeal, it would present the Court of Justice with a welcome opportunity to clarify the scope of citizenship of the Union. This would enable the Brexit negotiations to proceed on the basis of a correct understanding of the law and provide a degree of certainty to current citizens of the Union whose interests are in danger of being overlooked.

Barnard & Peers: chapter 27

Photo credit: DutchReview

A Bridge to Nowhere? The Brexit transition period: analysis and annotation

Professor Steve Peers, University of Essex

Last week saw significant developments in the Brexit talks. On Monday March 19th, the EU27 and the UK agreed on a large part of the proposed withdrawal agreement, most notably the details of a transition period (lasting from Brexit day in March 2019 to the end of 2020) which the UK was particularly concerned to agree. (There were earlier drafts of the entire agreement on February 28 and March 15). Subsequently, on Friday March 23^rd, the EU27 decided that there was sufficient progress in the talks to move to adopt its guidelines for the future relationship with the UK, which will take the form (for now) of a declaration linked to the withdrawal agreement. Ultimately, that future relationship will be regulated by separate treaties ratified after Brexit day.  

For now, though, I will focus on the core issue of the transition period, since it attracted a lot of controversy during the week, in particular as regards fisheries and trade issues. I’ve previously annotated a first draft of the transition period rules, as proposed by the Commission, and then updated that in light of the UK response to that draft.  These followed on from the negotiation guidelines on the transition period adopted by the EU Council in January, which I annotated here.

Overall, the UK has obtained some concessions during these talks: explicit powers to hold treaty talks with non-EU countries; the possibility to abstain on controversial EU foreign policy measures which it would have vetoed as a Member State; some greater consultation rights; an attempt to consider the UK still part of treaties with non-EU states for the time being; and protection against any grab of fisheries catches in UK waters. However, the UK government had to concede on issues which it had placed much stress on: taking fisheries catch issues out of the transition period and not extending all acquired rights to EU27 citizens who came to the UK during this period.

It seems likely that the UK government was concerned about the economic impact of not agreeing a transition period a year before Brexit day; in the event, that prospect has been averted. But then again, the transition period is only one part of the withdrawal agreement, and some controversial issues in the rest of that agreement have yet to be agreed; the agreement would also then have to be ratified. So we can’t be certain that the transition period will apply in practice yet.

For those concerned about the transition period making the UK a “vassal state”, it should be noted that some Leaver supporters had long advocated an interim period after EU membership based on being a member of the EEA, which would have given the UK more rights to consultation over EU legislation, less coverage by new EU laws, the possibility of refusing to apply new laws and a different court to apply them in a less mandatory way. So such critics might wish to ask why the UK government did not pursue such an approach to the transition period – or explain why they have never bothered to present a serious alternative proposal of their own (besides, obviously, not continuing with Brexit at all).

The annex to this blog post is a detailed annotation and analysis of the agreed rules on the transition period in the withdrawal agreement. Before that though, I look in detail at two other issues: how the specific provisions on the transition period fit into the agreement as a whole; and what happens if the two sides want to extend the transition period, given that it might be difficult to agree all aspects of the UK/EU future relationship by the agreed deadline of end-2020.

Structure of the withdrawal agreement

The recent deal on the transition period, which also includes agreement on a large part of the rest of the withdrawal agreement, can only be understood fully in the context of the rest of that agreement, which I’ll summarise here.

Part One of the withdrawal agreement (Articles 1-7) sets out the “Common Provisions”. These deal with basic issues like definitions and territorial scope. This Part is agreed except for the rules on interpretation of the agreement (Article 4).

Part Two of the withdrawal agreement (Articles 8-35) deals with citizens’ rights. It is entirely agreed. It will mostly not apply until the end of the transition period, and as part of the recent agreement, the UK government has accepted that EU27 citizens arriving in the UK during the entire period will retain the same rights as those who arrived before Brexit day.

Part Three of the agreement sets out “separation provisions” (Articles 36-120). These deal with issues like what happens to European Arrest Warrants pending at the end of the transition period. This part will largely apply as from the end of that period. It has been partly agreed, as follows: issues of goods on the market, public procurement, and Euratom: mostly agreed; pending criminal and police proceedings, data protection: mostly not agreed; civil litigation: conflict of laws points agreed, but jurisdiction and mutual recognition points not yet agreed; intellectual property rights: mostly agreed; pending ECJ cases and administrative proceedings (like competition investigations): not agreed; and other institutional issues (like privileges and immunities): agreed.

Next, Part Four sets out the rules on the transition period as such (Articles 121-126). These provisions are annotated below. As noted already, this part is fully agreed.

Part Five concerns the financial settlement (Articles 127-150). It incorporates the earlier agreement that the UK is takes part in the EU’s financial rules until the end of the transition period. (The end-2020 cut-off date of the transition period in Article 121 matches the end of the current EU budget cycle). This part is also fully agreed.

Part Six sets out “Final Provisions” (Articles 151-168). This part is partly agreed. For instance, the rules on ECJ jurisdiction over EU citizens (which applies, for the most part, for eight years after the end of the transition period) is agreed (Article 151). So is the clause on a new authority to help guarantee EU citizens’ rights, which might be shut down at the end of that same eight-year period (Article 152).  The UK and EU have agreed to continued ECJ jurisdiction over EU budget law rules referred to in the financial settlement part, but not yet to that Court’s continued jurisdiction over "separation rules" (Article 153). The existence of a Joint Committee to monitor the agreement and take some decisions to implement it is agreed (Articles 157-159), but the rules on dispute settlement (Articles 162-165) – some of which would apply during the transition period and some of which would apply from after that point – are not.

There will also be Protocols on Irish border issues and UK bases in Cyprus, both of which would apply from the end of the transition period; the latter has not yet been proposed. The parties have agreed that there will be a "backstop" text on Irish border issues, which will apply if no other solution can be found. This is a controversial issue, but the text has been partially agreed: the Common Travel Area (fully agreed); equality rights (agreed as a policy); movement of goods issues (not agreed); but electricity market and state aids clauses agreed as a policy; a vague reference to other North/South cooperation is agreed in principle; and some institutional issues are agreed.

Overall, then, a substantial proportion of the withdrawal agreement is already agreed in principle. The main issues outstanding – in increasing order of political difficulty – are parts of the separation provisions, the general rules on dispute settlement, and Irish border issues.

Note that I have separately annotated the withdrawal agreement provisions on: the common provisions and citizens’ rights; the final provisions (mainly focussing on dispute settlement and the role of the CJEU); and the Irish border. (These annotations concern earlier drafts of the agreement, although there are not vast changes in the March 19^th version; I hope to prepare an updated annotation of the entire text eventually).

Extending the transition period?

As noted above, it’s widely believed that at least for some issues, it may prove necessary to extend the transition period, since negotiations on the future EU/UK relationship might not be complete by the end of 2020. Leaving aside the politics of the issue, is that legally possible?

First of all, a procedural point: it would arguably be possible to settle this (and other legal questions about the withdrawal agreement) in advance, by using the special power to ask the ECJ to interpret a planned agreement between the EU and a non-EU country in advance (see Article 218(11) TFEU). While the UK is not now a non-EU country, it will be when the withdrawal agreement applies, and while Article 50 TEU does not refer to Article 218(11), such a quibble is excessively pedantic: the ECJ has always interpreted its jurisdiction on this point widely, and the point of asking it questions on the withdrawal agreement would be consistent with the established purpose of Article 218, which is to avoid in advance complications which may arise from legal problems which may arise in a future agreement between the EU and a non-EU country. This reasoning applies a fortiori if one of the questions is whether the withdrawal agreement can even be amended after Brexit day, in part or whole: if it can’t, then the complications which may arise will be greater than ever.  

Although the Court has to give its rulings in such cases before a treaty enters into force (the withdrawal agreement is set to come into force on 30 March 2019: Article 168), and its judgments usually take over a year to decide, it can fast-track rulings into four to six months if necessary. However, since any adverse ruling by the ECJ would mean that the draft withdrawal agreement would have to be amended to address the Court’s concerns, and in any event there would need to be time for ratification of the agreement after the Court’s judgment, the clock is ticking if the Court is going to be asked to rule on the draft.

Moving to the substantive issue, can the withdrawal agreement be amended after Brexit day, and if so, how?  The drafting of Article 50 TEU is not explicit on this point, but it seems to set out special rules only relating to a state in the process of withdrawal – not a state which has already left. So Article 50 can’t apply after Brexit day to amend the withdrawal agreement. At first sight, though, other EU treaty provisions could be the basis of an EU power to amend the withdrawal agreement after Brexit day, with the mutual agreement of the UK. This might lead to a more difficult process of amendment, since Article 50 provides for the EU only as a party to the withdrawal agreement, not its Member States, as well as qualified majority voting, rather than unanimous voting; and there is a good chance that requirements of unanimous voting and national ratification would apply after Brexit day.

But at least it would be possible – or would it? Some have argued not, for two reasons. The starting point is the rule in the Vienna Convention on the Law of Treaties (Article 39), which says simply that the parties to a treaty can amend it using the general rules on negotiating a treaty, “except in so far as the treaty may otherwise provide.” The withdrawal agreement does not explicitly rule out amendments, or explicitly provide for them either, except for a few amendment powers for the Joint Committee which it sets up to amend it. Does that mean a contrario that the parties can’t amend it otherwise? Such an interpretation is not EU practice: for instance, the Association Council set up to implement the EU/Turkey Association Agreement has very broad powers, yet he EU and Turkey have also agreed Protocols to that treaty in practice.

The second argument: given that the Article 50 powers expire on Brexit day, should it necessarily follow that the EU is prohibited from using other powers to amend the withdrawal agreement after Brexit day? In the absence of express wording to that effect, this argument that the agreement must be legally “frozen” is untenable. The text of the agreement already specifies that other treaties can replace it as regards foreign policy and the Irish border, and it would be odd if the parties could not choose to amend it otherwise even on a minor point – for instance, to take a different (or supplementary) approach to how to deal with European Arrest Warrants pending at the end of the transition period, or to add rules on how to deal with issues that were left out of the withdrawal agreement because the parties forgot about them or couldn’t agree on them at the time. For example, the draft agreement has no “separation” rule on what happens to the transfer of responsibility for asylum applications which are pending at the end of the transition period.

To some extent, the dynamism of the agreement itself inherently raises the possibility that new legal issues will arise which weren’t foreseen when it was signed – given that the UK will be bound by new EU laws which are adopted during the transition period, and even earlier laws which are adopted between the signature and entry into force of the withdrawal agreement. (There might be quite a few of the latter, since Brexit day coincides with the end of a European Parliament term, when a large batch of outstanding legislation is usually agreed). The post-signature case law of national, EU and international courts might raise issues that the parties might choose to take into account too.

However, this brings to another problem. Any prospect of providing in the withdrawal agreement itself for an indefinite renewal of the transition/implementation period could raise legal issues as to whether this falls beyond the scope of Article 50 TEU, given that (on the EU’s interpretation, at least) Article 50 cannot serve as the basis for a permanent future relationship with the EU. Amending the withdrawal agreement post-Brexit to the same effect might arguably run into the same problem.

Could this issue be avoided entirely, by simply adopting a new EU/UK treaty post-Brexit, which simply includes the transition period rules in the withdrawal agreement? Those rules could, for instance, constitute the first phase of the future EU/UK relationship in a post-Brexit association or partnership agreement, being replaced by more permanent rules whenever those are agreed. There’s an argument that this would be “going too far” as compared to what the EU treaties permit as regards a permanent relationship with a non-EU state, but it seems little more significant than the EU/Turkey agreement discussed above, which provides for Turkey to fully join the customs union, internal market and common agricultural policy.

Whether either one of the parties could denounce the withdrawal agreement is a different question – which could be particularly relevant for EU27 citizens living in the UK, or those concerned about the Irish border. Denunciation of treaties is regulated by Article 56 of the Vienna Convention, which provides that:

1. A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless:

(a) It is established that the parties intended to admit the possibility of denunciation or withdrawal; or

(b) A right of denunciation or withdrawal may be implied by the nature of the treaty.

It is hard to see how either of these criteria is satisfied here. There’s no express clause on denunciation and the parties contemplate the agreement lasting some time, not only eight years after the end of the transition period (Articles 151 and 152) but for the lifetime of the citizens protected by Part Two (Article 35). That same clause points to the nature of the treaty being indefinite – otherwise the citizens’ rights protected by Part Two would be undermined. Equally there is no final time limit on the Irish Protocol, with only the possibility of replacing it by an alternative set of rules.

Finally, it’s worth noting that Article 50 expressly provides for the alternative of extending EU membership – although the UK government does not seem interested in that idea. While that would give the UK a full role in the EU while talks continue, it would not avoid the EU side’s belief that there is a legal problem negotiating fully on the future relationship as long as the UK is a Member State. There is also the possibility that the withdrawal agreement has a different date of entry into force than the two-year default set out in Article 50; but again the UK government may not be enthused about staying in the EU longer.

Both solutions would raise the political difficulty of the UK participating in the next elections to the European Parliament. While some argue that the UK could simply be exempted from this, I doubt the legal validity of excluding any current EU Member State from participation in EU elections; and such a decision would surely be vigorously litigated by those who wanted to vote.   

Finally, during the transition period any attempt to rejoin the EU would be subject to the normal rules on new Member States’ accession, as noted in Article 50(5) TEU. These could well be fast-tracked for a country which already applies most EU law (as in the example of Iceland), but the question will arise whether the UK’s opt-outs and budget rebate will still remain. The issue here is whether they will automatically expire on membership, or whetehr the Treaties and legislation will have to be revised to remove them. (The exemption from Schengen should necessarily stay in any event, as it’s necessarily linked to the Irish exemption on the same issue, due to the Common Travel Area).

Barnard & Peers: chapter 27

Photo credit: Der Speigel

PART FOUR

TRANSITION

Article 121

Transition period

There shall be a transition or implementation period, which shall start on the date of entry into force of this Agreement and end on 31 December 2020.

Background: The Commission’s proposal referred to ‘transition’ only. It reflected para 22 of the EU Council negotiation directives. The UK proposal preferred the term ‘implementation’, which is the UK government’s proposed term. As a compromise, both terms are used here, although the withdrawal agreement refers solely to a ‘transition’ period in all other Articles of the withdrawal agreement. The UK raised some questions about the end date, but eventually agreed to it.

Comment: The key issues are how the transition period relates to the rest of the agreement, and whether it can be extended. See the discussion above on these issues.

The end date is convenient for the EU27 side as it corresponds with the end of the current multi-annual EU budget cycle. The UK’s desire for a more flexible date reflected its uncertainty about the timing of being ready post-Brexit, although its paper referred to a transition/implementation period of “around two years”, as the Prime Minister mentioned before.

Note that Article 122, discussed below, provides conversely for the transition period to be potentially curtailed early as regards foreign policy issues.

Article 122

Scope of the transition

1. Unless otherwise provided in this Agreement, Union law shall be applicable to and in the United Kingdom during the transition period.

However, the following provisions of the Treaties and acts adopted by the institutions, bodies, offices or agencies of the Union shall not be applicable to and in the United Kingdom during the transition period:

(a) provisions of the Treaties and acts which, pursuant to Protocol (No 15) on certain provisions relating to the United Kingdom of Great Britain and Northern Ireland, Protocol (No 19) on the Schengen acquis integrated into the framework of the European Union or Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, or pursuant to the provisions of the Treaties on enhanced cooperation, were not binding upon and in the United Kingdom before the date of entry into force of this Agreement as well as acts amending such acts;

(b)  Article 11(4) TEU, Articles 20(2)(b), 22 and the first paragraph of Article 24 TFEU, Articles 39 and 40 of the Charter of Fundamental Rights of the European Union, and acts adopted on the basis of those provisions.

Background: The JHA exclusion reflects the final sentence of para 13 of the negotiation directives; the other exclusions are not mentioned in those directives.

The UK accepted the Commission’s proposal, although the exclusions from the Charter were added during negotiations. The UK wanted to move the second exclusion clause to an Annex, and 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 20 TEU (enhanced cooperation); Article 69 TFEU (national parliaments and 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 still opt in to JHA measures it had opted out of, by using this process); Article 353 TFEU (Treaty amendments); Article 354 TFEU (suspension of EU membership); part of the Protocol on national parliaments; and some provisions of the Euratom treaty.

Comments: Union law is defined in Article 2. Sub-paragraph 1(a) keeps the UK’s existing opt outs from the single currency, Schengen, Justice and Home Affairs (JHA) law and enhanced cooperation (a system where some Member States go ahead and adopt EU law without the others), except where the UK opted in to EU laws in these areas before Brexit day. Paragraph 4 says more about enhanced cooperation, while para 5 says more about JHA.

Sub-paragraph 1(b) excludes the Treaty rules and legislation related to the European citizens’ initiative (on that process, see the case law discussed here) and also voting and standing for office in the European Parliament and local government. There is no transitional clause on the situation of those EU27 citizens who were elected to local government in the UK (and vice versa) before Brexit day, even in the “Separation Provisions” of Part Three of the withdrawal agreement. Conversely other EU citizenship provisions will logically still apply. This includes the “Ruiz Zambrano” case law on UK citizen children with non-EU parents, which I discussed here.

2. Should the Union and the United Kingdom reach an agreement governing their future relationship in the area of the Common Foreign and Security Policy and the Common Security and Defence Policy which becomes applicable during the transition period, Chapter 2 of Title V of the TEU and the acts adopted on the basis of those provisions shall cease to apply to the United Kingdom from the date of application of that agreement. 

Background: The UK accepted this proposed text. This paragraph is partly consistent with a statement adopted by the Council when it adopted the negotiation directives. However, that statement also referred to the “fight against terrorism and international crime”, which are JHA issues.

Comments: There are also provisions on foreign policy in paragraph 7 and in Article 124(6) and (7).

This is the only area where the transition period contemplates a potential early end to the transitional period. By contrast, the UK Prime Minister’s Florence speech referred to the possibility of ending the transitional (or ‘implementation’) period early for a number of issues at different times. An early end to the transition period in this field would avoid the awkward situation where the UK becomes bound by foreign policy measures which it could have vetoed if it were a Member State, although note that Article 124(6) preserves that possibility in certain circumstances. It would also end a possibility for linking defence issues to trade issues, although the UK policy in the Florence speech (and since) was not to insist upon such a link. A more recent speech by the Prime Minister (discussed here) goes into more detail on what a “future relationship” treaty in this area might include.

Legally it is questionable whether the UK and EU would actually be constrained by the withdrawal agreement if they wanted to sign a treaty replacing these rules in other fields of EU law during the transition period. However, this point goes back to whether the withdrawal agreement can be amended at all, as discussed above.

3. During the transition period, the Union law applicable pursuant to paragraph 1 shall produce in respect of and in the United Kingdom the same legal effects as those which it produces within the Union and its Member States and shall be interpreted and applied in accordance with the same methods and general principles as those applicable within the Union.

Background: This proposed para transposes para 14 of the Council negotiation directives, which refer explicitly to the direct effect and supremacy of EU law. The UK agreed to the EU proposal without amendment.

4. The United Kingdom shall not participate in any enhanced cooperation:

(a)  in relation to which authorisation has been granted after the date of entry into force of this Agreement; or

(b)  within the framework of which no acts have been adopted before the date of entry into force of this Agreement.

Background: This paragraph is not reflected in the Council negotiation directives. The UK agreed to the EU proposal.

Comments: On “enhanced cooperation”, see also para 1(b) of this Article, discussed above. This clause is particularly relevant to the proposal on the financial transaction tax, which is subject to the enhanced cooperation process (without UK participation) but where there is no agreement yet (see more on the background to the tax proposal here). Now this paragraph is agreed, the suggestion that the UK might somehow become bound as such by the tax during the transition period is therefore, as things stand, frankly scaremongering. There is a risk that the tax would have some extraterritorial effect upon the City of London, but that risk would equally exist if the UK were still a Member State, since it could not veto an enhanced cooperation measure that it was not participating in. It could also have such an effect if the UK were no longer even a “transition” ex-Member State.

5. During the transition period, in relation to measures which amend, build upon or replace an existing measure adopted pursuant to Title V of Part Three of the TFEU by which the United Kingdom is bound before the date of entry into force of this Agreement, Article 5 of Protocol (No 19) on the Schengen acquis integrated into the framework of the European Union and Article 4a of Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice shall continue to apply mutatis mutandis. The United Kingdom shall, however, not have the right to notify its wish to take part in the application of new measures pursuant to Title V of Part Three of the TFEU other than those referred to in Article 4a of Protocol No 21. 

In order to support continuing cooperation between the Union and the United Kingdom, under the conditions set out for cooperation with third countries in the relevant measures, the Union may invite the United Kingdom to cooperate in relation to new measures adopted under Title V of Part III TFEU.

Background: This paragraph is reflected in the fourth sentence of para 13 of the Council negotiation directives. The UK proposed to amend it, to add: a) the power to opt in to an international agreement which was not yet in force on Brexit day; b) the power to opt in to additional new JHA measures (ie not just those amending existing acts the UK was bound by) if agreed with the EU; and c) for an early removal of this issue from the withdrawal agreement. As noted above, this is consistent with a statement of the Council, but not the Commission’s proposal. It is also the subject of a recent speech by the Prime Minister. For an analysis of the speech and a proposed “future relationship” treaty, see here.

During negotiations, the EU agreed to add the second sub-paragraph as a compromise. This does not give the UK the power to opt in to all new measures, but recognises the possibility of EU cooperation with the UK as a non-EU country in this field.

Comment: The agreed text means that the UK can opt in to new JHA laws amending JHA laws which it is already bound by. Note that the UK has already opted out of the ‘Dublin IV’ proposal on allocation of asylum seekers, so the suggestion that it could be bound by that law during the transitional period is pure scaremongering. On the other hand, it cannot opt in to new JHA measures which do not amend JHA laws which it is already bound by. At most it can seek to cooperate with the EU in those measures as a non-EU country, on the same basis as other non-EU countries.

At the end of the transition period, the winding up of cooperation in this field is dealt with by the proposed separation provisions in Articles 58-61 (criminal law) and Articles 62-65 (civil litigation). The majority of those proposed provisions have not been agreed yet. There is no proposal for how to deal with pending proposals to transfer responsibility for asylum seekers (the “Dublin III” Regulation) at the end of that period.   

One provision relevant to this field was initially added in the March 15 draft (in Article 123(7)), but then moved to Article 168 of the treaty, which has been agreed at the level of policy, but not in detail. It provides for the possibility, as from Brexit Day, of refusing to surrender a State’s own citizens under the European Arrest Warrant (EAW) law:

When making the written notification referred to in this Article, the Union, in respect of any of its Member States which have raised reasons related to its fundamental structures, may declare that, during the transition period, that Member State will not surrender its nationals pursuant to Framework Decision 2002/584/JHA to the United Kingdom; in such a case, the United Kingdom may declare, no later than 1 month after the receipt of the Union declaration, that it will not surrender its nationals to that Member State

The March 19 draft adds references to “reasons related to its fundamental structures”, as well as the possibility of a reciprocal declaration by the UK. This clause raises some key questions, in particular what separation rule will apply to a European Arrest Warrant pending on Brexit Day, and whether some other obligation applies instead of surrender (extradition treaties often contain an “extradite or prosecute” rule, although the EAW law also applies to those who have been convicted already; in that case the obvious course would be to transfer the sentence using the applicable EU rules). Note that the majority of those surrendered are not nationals of the State surrendering them; Germany could still return UK citziens to the UK, for instance.

6. Unless otherwise provided in this Agreement, during the transition period, any reference to Member States in the Union law applicable pursuant to paragraph 1, including as implemented and applied by Member States, shall be understood as including the United Kingdom.

7. By way of derogation from paragraph 6:

(a) for the purposes of Articles 42(6) and 46 TEU and of Protocol (No 10) on permanent structured cooperation established by Article 42 of the Treaty on European Union, any references to Member States shall be understood as not including the United Kingdom. This shall not preclude the possibility for the United Kingdom to be invited to participate as a third country in individual projects under the conditions set out in Council Decision (CFSP) 2017/2315 on an exceptional basis, or in any other form of cooperation to the extent allowed and under the conditions set out by future Union acts adopted on the basis of Articles 42(6) and 46 TEU;

(b) where acts of the Union provide for the participation of Member States, nationals of Member States or natural or legal persons residing or established in a Member State in an information exchange, procedure or programme which continues to be implemented or starts after the end of the transition period, and where such participation would grant access to security related sensitive information that only Member States (or nationals of Member States, or natural or legal persons residing or established in a Member State) are to have knowledge of, in such exceptional circumstances the references to Member States in such Union acts shall be understood as not including the United Kingdom. The Union shall notify the United Kingdom of the application of this derogation;

(c) for the purposes of the recruitment of officials and other servants of the institutions, bodies, offices or agencies of the Union, any references to Member States in Articles 27 and 28(a) of the Staff Regulations and in Article 1 of Annex X thereto and in Articles 12, 82 and 128 of the Conditions of Employment of Other Servants of the European Union, or in the relevant provisions of other staff rules applicable to those institutions, bodies, offices or agencies, shall be understood as not including the United Kingdom. 

Background: Paragraphs 6 and 7 were split into two separate paragraphs during negotiations. Paragraph 6 reflects the second sentence of para 13 of the Council negotiation directives. However, paragraph 7 does not reflect those directives.

Comments: Paragraph 7(b) was in the Commission’s first draft. In its comments, the UK saw little point to this text and placed it in square brackets for further discussion. It was amended during talks to a) add the words “which continues to be implemented or starts after the end of the transition period”; b) reword “info which non-EU citizens aren’t meant to know” to read ““info which only EU citizens are meant to know” (paraphrasing); c) to add the word “exceptional” and d) to add the notification requirement in the final sentence. These amendments don’t appear to be significant.

Paragraph 7(a) was added in the March 15 draft and accepted by the UK. It concerns “permanent structured cooperation” in the area of defence, from which the UK decided to opt out when most Member States decided to trigger that process recently (in the 2017 Council Decision referred to in the text of para 7(a)). I noted in my earlier annotations that it was odd not to mention this point. The text sets out a compromise: the UK continues its opt out but, like JHA measures, can cooperate as a non-EU country in this and other future defence measures. Note that following paragraph 2 there may be an early EU/UK treaty in this area which would likely address this issue. 

Paragraph 7(c) was added in the March 15 draft and accepted by the UK. It excludes the UK from EU staff legislation.

Article 123

Institutional arrangements

1. Notwithstanding Article 122, during the transition period Article 6 shall apply.

Background: The UK accepted the Commission’s proposal here.

Comments: Article 6 (which has been agreed) states that the UK should be regarded as a Member State when Union law (defined in Article 2(a)), refers to Member States, except as regards EU institutions, governance of agencies, or voting in the committees that oversee the adoption of implementing measures by the Commission.

In effect, although Article 2(b) implicitly defines the UK as not a Member State, the UK will remain a de facto Member State during the transition period for the purposes of substantive EU law, but not institutional EU law.

Note that paragraph 5 is an express derogation from paragraph 1, and that Articles 124 and 125 lay out specific rules on external action and fisheries.

2. For the purposes of the Treaties, during the transition period, the parliament of the United Kingdom shall not be considered to be a national parliament of a Member State, except as regards Article 1 and, in respect of proposals which are in the public domain, Article 2 of Protocol (No 1) on the role of national parliaments in the European Union.

Background: This paragraph does not explicitly reflect anything in the Council negotiation directives. The UK accepted the Commission proposal on this in principle, but the two exceptions were added in the March 19 draft.

It’s not clear what the exception for Article 1 of the withdrawal agreement is meant to do, since Article 1 only sets out the basic purpose of the agreement. The exception for Article 2 of the Protocol on national parliaments means that proposals for EU legislation will still be sent to the UK parliament. However, the rest of that Protocol will no longer apply to the UK parliament: it concerns EU consultation documents (Article 1); national parliament objections (Article 3); a waiting period (Article 4); Council agendas (Article 5); simplified Treaty amendments (Article 6); the Court of Auditors (Article 7); bicameral parliaments (Article 8); and COSAC, the joint EP/national parliament body (Title II).

Comments: It arguably is implicit that if the UK is not part of the EU institutions, there is no requirement to consult the UK’s national parliament on proposed EU measures. But even if there is no longer a legal obligation to do so, it is hard to see what harm would be caused by consulting the UK parliament, or what legal rule would prevent the EU agreeing to do so outside the context of the formal role for national parliaments of Member States set out in the Treaties. Ultimately it seems that there was a compromise which partly accepts the case for a continued link with the UK parliament during the transition period.

3. During the transition period, provisions of the Treaties which grant institutional rights to Member States enabling them to submit proposals, initiatives or requests to the institutions shall be understood as not including the United Kingdom.

Background: A footnote here states “This should in particular concern Articles 7, 30, 42(4), 48(2) – (6) and 49 TEU and Articles 25, 76(b), 82(3), 83(3), 86(1), 87(3), 135, 218(8), 223(1), 262, 311 and 341 TFEU.” This text was added in the February 28 draft.

Comment: This exclusion follows from the removal of the UK from the institutional law of the EU.

4. For the purposes of participation in the institutional arrangements laid down in Articles 282 and 283 TFEU and in Protocol (No 4) on the Statute of the European system of central banks and of the European Central Bank with the exception of Article 21(2) of that Protocol, during the transition period, the Bank of England shall not be considered to be a national central bank of a Member State.

Background: This paragraph does not explicitly reflect anything in the Council negotiation directives. The exception for article 21(2) of the ECB Protocol was added to the March 19 draft; it means that the Bank of England can still act as a fiscal agent for those buying government debt without this violating the Treaties’ no-bailout clause.

Comments: Arguably it’s implicit that if the UK is not part of the EU institutions, it follows that the Bank of England does not have the status of a national central bank in its relations with the ECB.

5. By way of derogation from paragraph 1 and from Article 6, during the transition period, representatives or experts of the United Kingdom, or experts designated by the United Kingdom, may, upon invitation, exceptionally attend meetings or parts of meetings of the committees referred to in Article 3(2) of Regulation (EU) No 182/2011, of Commission expert groups, of other similar entities, or of bodies, offices or agencies where and when representatives or experts of the Member States or experts designated by Member States take part, provided that one the following conditions is fulfilled:

(a) the discussion concerns individual acts to be addressed during the transition period to the United Kingdom or to natural or legal persons residing or established in the United Kingdom;

(b)  the presence of the United Kingdom is necessary and in the interest of the Union, in particular for the effective implementation of Union law during the transition period.

During such meetings or parts of meetings, the representatives or experts of the United Kingdom or experts designated by it shall have no voting rights and their presence shall be limited to the specific agenda items that fulfil the conditions set out in point (a) or (b). 

Background: The first half of this paragraph reflects para 19 of the Council negotiation directives, and the second half elaborates upon that rule. Note that a statement by the Commission commits itself to issue a guidance document on how to apply this rule consistently in practice.

The UK objected to the first draft and obtained the removal of the words “case-by-case” during negotiations, as from the 19 March draft. However, the UK also objected to the word “exceptional”; wanted the test of “necessary and in the interests of the Union” to be dropped; and suggested more consultation on other measures in a new para.

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

Comments: As in many other aspects of the transition period rules, it is questionable whether it is really necessary to limit the UK’s purely consultative role to this extent. Certainly there is only a weak argument that it is legally required. There was, however, a small compromise on this point during negotiations.

6. During the transition period, the United Kingdom shall not act as leading authority for risk assessments, examinations, approvals and authorisations at the level of the Union or of Member States acting jointly referred to in the [acts/provisions] listed in Annex [y+6].*

Background: This paragraph does not explicitly reflect anything in the Council negotiation directives. The UK objected to it but accepted it, although the last phrase (beginning “acting jointly…”) was added in the March 15 draft. The annex it refers to is not yet drafted, and the footnote (added in the March 19^th draft) states that “Agreement on this paragraph is conditional on the provision of an exhaustive list in Annex y+6, building on an indicative list already provided.”

Comments: It is not so obviously implicit that the UK’s exclusion from the EU institutions means that it cannot have a role as lead authority in risk assessment et al. Put another way, this is arguably an issue of EU substantive law – where the UK will in effect remain a Member State during the transition period – rather than EU institutional law, where it will not. If the EU can trust the UK to implement EU law, why not accept that it can have a role in risk assessment, et al?

7. During the transition period, where draft Union acts identify or refer directly to specific Member State authorities, procedures, or documents, the United Kingdom shall be consulted by the Union on such drafts with a view to ensuring the proper implementation and application of that act by and in the United Kingdom.

Background: This paragraph does not explicitly reflect anything in the Council negotiation directives. It was added in the March 15 draft. It reflects a compromise with the UK version which stated that when EU legislation is proposed, the EU “shall submit copies to the United Kingdom, and may seek advice from experts of the United Kingdom”.

Comments: Another issue where the UK negotiators secured an amendment to the text, although it falls some way short of what the UK had proposed. In practice it is unusual for EU legislation to refer to specific Member State authorities.

Article 124

Specific arrangements relating to the Union's external action

1. Without prejudice to Article 122(2), during the transition period, the United Kingdom shall be bound by the obligations stemming from the international agreements concluded by the Union, or by Member States acting on its behalf, or by the Union and its Member States acting jointly as referred to in Article 2(a)(iv).** 

Background: This paragraph transposes para 17 of the Council negotiation directives. The cross-reference to Article 2(a)(iv) was added in the March 15 draft.

A footnote, added in the March 19 draft, states that: “The Union will notify the other parties to these agreements that during the transition period, the United Kingdom is to be treated as a Member State for the purposes of these agreements.” This is a compromise; the UK had sought an amendment to state that “Any reference to Member States, the European Union, or Euratom in such a bilateral international agreement shall be understood as including the United Kingdom.” This followed from a technical note by the UK side.

Comments: The UK will still be bound to the EU as regards treaties with non-EU states. Logically this applies vice versa and it would have been preferable to spell that out directly. It should follow that individuals can still invoke the direct effect of such treaties (where it exists) in the UK during the transition period (for instance, Turkish citizens with rights under the EU/Turkey association agreement framework).

However, the UK is not bound to non-EU countries to apply such treaties; neither can non-EU countries directly invoke such treaties against the UK.  Since this could in particular affect UK exports, it makes sense for the UK to focus on replicating such treaties: see para 4 below.

The UK’s proposed alternative approach would have circumvented this, but its proposed version of the withdrawal agreement would arguably have bound non-EU countries who are not party to the withdrawal agreement, which is arguably untenable as a matter of international law. This seemed to contradict the UK government’s own technical note which accepted that non-EU countries would have to agree by a simplified process that the UK would still be regarded as part of the EU during the transitional period.

In the agreed compromise version, the assumption seems to be to hope that a unilateral notification by the EU regarding its customs territory (and other issues) will suffice for non-EU countries, legally and politically. Time will tell if this assumption is correct. In any event, the compromise regarding para 4 will make it somewhat easier for the UK to address the problem if it is not, although note that new treaties pursuant to para 4 could not come into force before the end of the transition period. So there is some risk of a legal gap during that period.

2. During the transition period, representatives of the United Kingdom shall not participate in the work of any bodies set up by international agreements concluded by the Union, or by Member States acting on its behalf, or by the Union and its Member States acting jointly, unless:

(a)  the United Kingdom participates in its own right; or 

(b) the Union exceptionally invites the United Kingdom to attend meetings or parts of meetings of such bodies, as part of its delegation, where the Union considers that the presence of the United Kingdom is necessary and in the interest of the Union, in particular for the effective implementation of those agreements during the transition period. Such presence shall only be possible where Member States participation is allowed under the applicable agreements.

Background: This paragraph transposes para 17 of the Council negotiation directives. The initial draft had no exceptions; the first exception was added in the 28 February draft, and the second exception in the March 15 draft. The words “on a case-by-case basis” were then dropped in the March 19 version. This reflects the UK position, which pushed for amendments to give participation rights to the UK in accordance with proposed amendments to the previous Article; indeed this exception is very similar to the agreed Article 123(5)(b).

Comments: The compromise here is a modest but significant concession to the UK.

3. In accordance with the principle of sincere cooperation, the United Kingdom shall refrain, during the transition period, from any action or initiative which is likely to be prejudicial to the Union's interests, in particular in the framework of any international organisation, agency, conference or forum of which the United Kingdom is a party in its own right. 

Background: This paragraph is not reflected in the Council negotiation directives. The UK sought to delete it, but it remained.

Comments: This para explicitly sets out the obligation that would anyway arguably still apply implicitly, since other EU Treaty provisions on sincere cooperation would still be applicable to the UK. The UK’s proposed deletion therefore made sense.

The particular relevance of the “sincere cooperation” principle in EU external relations law is that it limits Member States from negotiating treaties; but that issue is explicitly addressed by para 4. Note that the UK would presumably have more freedom to act once any early post-Brexit treaty on EU/UK security and defence cooperation or policing and criminal law came into force (see Article 122(2) above).

4. Notwithstanding paragraph 3, during the transition period, the United Kingdom may negotiate, sign and ratify international agreements entered into in its own capacity in the areas of exclusive competence of the Union, provided those agreements do not enter into force or apply during the transition period, unless so authorised by the Union.

Background: This para transposes the wording of the final sentence of para 16 of the Council’s negotiation directives, with the important change that it only applies to “exclusive” competence of the EU. This change narrows the limits on the UK’s external action.

The UK sought to add an exception for treaties “in order to give effect to the continuing application of the agreements referred to in paragraph 1”. This was not accepted, but the original EU wording (“the United Kingdom may not become bound by”) was altered in the March 19 version to read that “the United Kingdom may negotiate, sign and ratify international agreements…provided those agreements do not enter into force or apply during the transition period”.

Comments: It might be argued that the compromise text which the UK agreed is only a superficial change, but the “sincere cooperation” principle referred to in para 3 does limit Member states’ power to negotiate or sign treaties, according to ECJ case law. So an express exclusion from those limits is significant.

Note that the exact extent of exclusivity of EU external competence is often disputed and even litigated.

There is no mention of the process of approval of the UK becoming bound by treaties. Note that one of the statements attached to the Council negotiation Directives says that the Council will approve the UK becoming bound by such treaties, in accordance with the usual Treaty rules. 

The UK’s proposal that it would not need authorisation to agree be bound by treaties which simply continue pre-Brexit rights and obligations in force made sense, although from the EU27 perspective, there might be a valid concern that without some sort of consultation process such a clause could be used to do more than copy the UK’s previous rights and obligations.

5. Without prejudice to Article 122(2), whenever there is a need for coordination, the United Kingdom may be consulted, on a case-by-case basis.

Background: This para is not reflected in the Council’s negotiation directives. The original proposal read: “…whenever there is a requirement for coordination, including on sanctions policy, or representation in international organisations or conferences, the United Kingdom may be consulted by the Commission or the High Representative of the Union for Foreign Affairs and Security Policy, as the case may be, on a case-by-case basis.” The more general version first appeared in the 28 February text, and remained the same afterward.  

The UK position on the original version suggested: to make consultation mandatory; to “recognise the need” for it rather than applying “whenever there is a requirement”; to drop “on a case by case basis” and to provide for further modalities to be agreed. The second of these four proposals was accepted by the EU27, as part of the broader amendment of the text.

Comments: This paragraph takes account of the UK’s significant foreign policy rule, in particular regarding sanctions, although there is ultimately no specific reference to them. In the earlier versions of the text, there was a risk that, due to the loss of its veto over EU foreign policy during the transition period, the UK could be legally bound to use (or not to use) its Security Council veto during the transition period, so these consultations would be particularly important. However, the addition of para 6 (see below) makes this less of an issue. 

As with para 3, in the foreign policy context the UK would presumably have more freedom to act once any early post-Brexit treaty on EU/UK security and defence cooperation came into force (see Article 122(2) above). Given the central importance of foreign and defence policy the UK’s proposal for mandatory consultation made sense.

6. Following a decision of the Council falling under Chapter 2 of Title V TEU, the United Kingdom may make a formal declaration to the High Representative of the Union for Foreign Affairs and Security Policy, indicating that, for vital and stated reasons of national policy, in those exceptional cases it will not apply the decision. In a spirit of mutual solidarity, the United Kingdom shall refrain from any action likely to conflict with or impede Union action based on that decision and the Member States shall respect its position.

Background: this text was not in the original proposals. It does not reflect the Council negotiation position. The UK did not make a specific formal proposal on this. The text was added in the March 15 version. I had raised the issue of the UK being required to follow EU foreign policy measures in my earlier annotations.

Comment: This is a significant possibility for the UK not to be bound by an EU measure during the transition period. The wording is adapted from two different rules on foreign policy decision-making in Article 31 TEU, although note that the consequence of a UK government declaration here would not be exactly the same as the provisions in the EU Treaty. This would not be a veto as such – since the EU could still adopt the planned act. Rather it would be what the EU calls a “constructive abstention” – the UK would not be bound by what the EU does, but would have to avoid frustrating it.

Note that since Union law applies to the UK during the transition period, this must include Article 275 TFEU, which limits Court of Justice jurisdiction over EU foreign policy measures to cases about sanctions and disputes over EU competence.

The future relationship treaty foreseen in Article 122(2) may make this provision redundant.  

7. During the transition period, the United Kingdom shall not provide commanders of civilian operations, heads of mission, operation commanders or force commanders for missions or operations conducted under Articles 42, 43 and 44 TEU, nor shall it provide the operational headquarters for such missions or operations or serve as framework nation for Union battlegroups. During the transition period, the United Kingdom shall not provide the head of any operational actions under Article 28 TEU.

Background: This para is not reflected in the Council’s negotiation directives. The words “or serve as framework nation for Union battlegroups” were added in the 28 February version. The UK placed this text in in square brackets for discussion, but ultimately agreed to it.

Comments: The future relationship treaty foreseen in Article 122(2) may make this provision redundant. While this para is consistent with the overall thrust of removing the UK from roles in EU bodies, it is liable to make it harder to run an effective EU defence policy, given the extent of the contribution by the UK military. 

It’s notable that the guidelines on the EU/UK future relationship don’t copy this limitation, and it’s surely possible to imagine the idea of an ‘EU-UK’ battlegroup, and similar approaches to defence cooperation in a future treaty, to reflect the extent of the possible UK contribution in this field. Only the Putins of the world would benefit from a rigid approach in this area.  

                                                        

Article 125

Specific arrangements relating to fishing opportunities

1. As regards the fixing of fishing opportunities within the meaning of Article 43(3) TFEU for any period falling within the transition period, the United Kingdom shall be consulted in respect of the fishing opportunities related to the United Kingdom, including in the context of the preparation of relevant international consultations and negotiations. 

2. For the purpose of paragraph 1, the Union shall offer the opportunity to the United Kingdom to provide comments on the Commission Annual Communication on fishing opportunities, the scientific advice from the relevant scientific bodies and the Commission proposals for fishing opportunities for any period falling within the transition period.

3. Notwithstanding Article 124(2)(b), with a view to allowing the United Kingdom to prepare its future membership in relevant international fora, the Union may exceptionally invite the United Kingdom to attend, as part of the Union delegation, international consultations and negotiations referred to in paragraph 1 of this Article, to the extent allowed for Member States and permitted by the specific forum.

4. Without prejudice to Article 122(1), the relative stability keys for the allocation of fishing opportunities referred to in paragraph 1 of this Article shall be maintained.

Background: Para 1 is the original proposal, with the addition of a reference to the Commission and international talks, which were added in the February 28 draft. The reference to international negotiations was added to para 1 in the March 15 draft. The other three paras were also added in the March 15 draft. The initial Commission draft reflected para 21 of the Council negotiation Directives, which states that “Specific consultations should also be foreseen with regard to the fixing of fishing opportunities (total allowable catches) during the transition period, in full respect of the Union acquis.”.

The UK position was to “agree the fishing opportunities prior to the decision-making process” and for the UK to “participate alongside the EU and other coastal states in international fisheries negotiations”, with the “modalities” to be “agreed between the Parties.”

Comments: Fisheries has been the most controversial issue in the initial UK reaction to the transition deal, although it should also be noted that the deal equally preserves full market access for UK fisheries’ main export market during that period. The catch allocation/market access trade off is going to be central to the future relationship talks with the EU, given the EU’s intention to link these two issues in its guidelines on the future relationship.

If the transition period ends as proposed at the end of 2020, this provision would only be relevant for one year. It could continue for longer if in some way the transition period is extended (assuming that it still applied to fisheries).

Paras 2 and 3 elaborate further upon the consultations and international negotiations points referred to in para 1, but para 4 is separate: it freezes the catch allocations existing on Brexit day. As such it is a compromise (suggested in my earlier annotations) which prevents a possible “grab” of the UK fisheries catch by EU countries during the transition period, given that the UK objective of exempting that issue from the transition period rules was not going to be accepted. 

Article 126

Supervision and enforcement

During the transition period, the institutions, bodies, offices and agencies of the Union shall have the powers conferred upon them by Union law 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.

The first paragraph shall also apply during the transition period as regards the interpretation and application of this Agreement. 

Background: As noted already, “Union law” is defined in Article 2 of the agreement. This reflects the first sentence of para 18 of the Council negotiation Directives. The UK accepted the text. The second sub-paragraph, concerning the withdrawal agreement as distinct from EU law generally, was added in the March 15 draft.

The original Commission proposal on the transition period also included an Article on European Schools, but that has been moved (with amendments) to Article 120, where it forms part of the “Separation Provisions” rules in the withdrawal agreement. The Commission’s original proposal also contained a controversial footnote on dispute settlement during the transitional period; this was ultimately included (in amended form) as Article 165 of the agreement, which is not yet agreed. I commented on that proposal here.

The UK pushed also for a “good faith” clause in relation to the transition period. It was agreed as Article 4a, in Part One concerning common provisions. It applies to the entire agreement, not just the transition period part; but it does not set out any specific substantive rules.