The Brexit Withdrawal Agreement: Overview and First Observations

Professor Steve Peers, University of Essex

Introduction

The recently agreed Brexit withdrawal agreement may turn out to be dead on arrival, or at some point not long after. Nevertheless, if the agreement is ratified, it is the basis on which the UK would leave the EU – unless the two sides agree to amendments to the text.

Since the agreement is both complex and legalistic, but also the subject of intense political debate, there’s a need for a summary and explanation of the text for non-lawyers. This blog post aims to do that by outlining the structure of the agreement and the main content of each part of it in turn. It does not aim to be exhaustive, but only to give a broad indication of what the agreement entails.

Throughout the blog post, I’ve scattered the answers to ‘key questions’ which have been raised about what the withdrawal agreement does. Let’s start with this one:

Key question: Does the withdrawal agreement cover the long-term relationship between the UK and EU after Brexit?

No. The withdrawal agreement governs only the details of leaving the EU, not the long-term relationship between the UK and EU. On that issue, alongside the text of the agreement, there was also initially a draft outline of the political declaration on the future UK/EU relationship. This is the basis for negotiations that would take place after Brexit day. This declaration has since been finalised. Finally, there’s also a joint report on the state of negotiations to date.

This is (hopefully) the first in a series of several blog posts on the withdrawal agreement. I aim to come back to three specific issues in more detail: the ‘backstop’ relating to the Irish border; the role of the CJEU; and the future relationship. (Update, Dec 8: the blog post on the future relationship is here).

Also, for more detailed discussion on parts of the withdrawal agreement, I’ll refer to some blog posts on the March draft of the agreement – although, as I point out below, that draft has been amended on a number of issues.

Key question: What if the withdrawal agreement is not ratified?

Unless the two sides agree to amend it and then ratify the amended text, in principle the alternatives are the UK leaving the EU without any withdrawal agreement, or staying in the European Union. However, it remains to be seen if remaining by revoking the Article 50 notice of withdrawing is even legally possible: the Wightman case, now pending before the CJEU, will clarify this issue. A general election might be held, but that will not in itself change the options available. The Brexit date could be delayed, but both the UK government and the EU27 Member States (acting unanimously) would have to agree to this.

The EU Commission has issued preparedness notices setting out its view on what would happen if the UK leaves the EU without a withdrawal agreement. The UK government has also issued its own no deal notices. Last week, the Commission published a communication explaining what it would do in the event of no deal. In particular, it would suggest unilateral EU measures to keep basic aviation services to the UK (less than current aviation service). It would not propose issuing extra lorry permits, so access to the EU by UK commercial drivers would be highly curtailed. There would be no ‘adequacy decision’ on flows of personal data from the UK to the EU, so digital services would be somewhat more complicated.

It also proposed to waive visa requirements for short-term visits by UK citizens to the EU (for 90/180 days). This will not address residence for longer periods, which will be subject to EU and national laws on non-EU citizens, which are more restrictive than EU free movement rules. (For more details of the law applicable to UK citizens visiting or staying in the EU after Brexit, see my discussion here).

Structure of the withdrawal agreement

Part One of the withdrawal agreement (Articles 1-8) sets out the “Common Provisions”. These deal with basic issues like definitions and territorial scope.

Part Two of the withdrawal agreement (Articles 9-39) deals with citizens’ rights, for those EU27 citizens in the UK, and UK citizens in the EU27, before the end of the transition period.

Part Three of the agreement sets out “separation provisions” (Articles 40-125), ie the exact details of phasing out the application of EU law in the UK at the end of the transition period.

Next, Part Four sets out the rules on the transition period (Articles 126-132), during which substantive EU law still applies to the UK for two to four years after Brexit day.

Part Five concerns the financial settlement (Articles 133-157).

Part Six sets out “Institutional and Final Provisions” (Articles 158-185). This includes rules on CJEU jurisdiction over EU27 citizens, dispute settlement, making further decisions to implement the agreement and rules on entry into force and dates of application.

In addition there are three Protocols to the agreement (these have the same legal force as the main treaty), on Irish border issues,  UK bases in Cyprus, and Gibraltar.

Part One: Common Provisions

The main legal issue in Part one is the legal effect of EU law for the UK. The agreement must have the same legal effect for the UK as EU law does for EU Member States – including the principles of direct effect (meaning that the agreement as such can be enforced in national courts) and implicitly supremacy (meaning that national law which breaches the agreement must be disapplied by national courts). The UK must also pass an Act of Parliament to give effect to the Agreement; this is above and beyond the planned ‘meaningful vote’ on the agreement in Parliament.

All references to EU law require it to be interpreted in accordance with the normal rules of EU law. As for case law of the CJEU, references to EU law must be ‘interpreted in conformity with’ CJEU case law delivered before the end of the transition period. However, the rule is different for CJEU case law after the end of the transition period: in that case, the UK courts and authorities are only required to have ‘due regard’ for the case law. Note that none of this gives jurisdiction to the CJEU as such as regards the UK (although other parts of the Treaty give the Court some jurisdiction).

References to EU law include that law as amended until the end of the transition period, while references to Member States include the UK except when they refer to having voting or representation rights on EU bodies etc.

Part Two: Citizens’ rights

This part will mostly not apply until after the end of the transition period, since free movement of people will continue during that period. In principle, it provides that EU27 citizens in the UK before the end of that period (and UK citizens who are in the EU27 before the end of that period) will retain the same rights as those who arrived before Brexit day. To that end, it requires the two sides to keep applying EU free movement legislation to the people concerned, including legislation on social security coordination and the recognition of qualifications.

Some aspects of their legal status will change, however: the UK or EU27 Member States may require them to apply to prove their right to stay on the territory. The UK in particular plans to implement this, by means of a ‘settled status’ scheme. The risk is that some people will not have the documentation to prove their right to stay. Some categories of people currently covered by EU law (such as UK citizens returning to the UK with non-EU family members, or UK children in the sole care of one non-EU parent) will not be covered by the withdrawal agreement, so their position will be up to UK law. Similarly a number of EU27 citizens who would not qualify for status because they do not meet the ‘comprehensive sickness insurance’ requirement will be covered by a unilateral waiver of this rule by the UK, not the withdrawal agreement.

Also, the rules on family reunion in EU free movement law (which are more favourable than those under national law or EU law on non-EU families) will only apply where the family relationship existed before the end of the transition period, or the family member was legally resident in the same State then. If the citizens commit a criminal offence after the end of the transition period, national rules on expulsions will apply – and they may be more stringent than EU free movement rules on this issue.

The CJEU will have jurisdiction to rule on how the rules apply to EU27 citizens in the UK, on the basis of requests from UK courts, for eight years after the transitional period ends. There will also be an independent monitoring body in the UK with power to bring court cases on their behalf.

For further details, see my annotation of a previous version of the citizens’ rights Part of the treaty, which is only a little different from the final version.

Key question: Does the withdrawal agreement end free movement of people?

Yes, free movement ends at the end of the transition period, unless the UK and EU decide to sign a separate treaty as part of the future relationship extending free movement in the future. Currently the UK government opposes this idea. The ‘backstop’ relating to Northern Ireland, if it ends up applying, does not include free movement of people, but only the continuation of the UK/Ireland common travel area, which is more limited.

The withdrawal agreement also ends free movement for UK citizens already in the EU27, unless (again) a separate treaty as part of the future relationship addresses this issue.

Part Three: Separation provisions

This part tells out exactly how EU law ceases to apply at the end of the transition period, for a list of different issues. It was mostly agreed in March, with a few more Articles agreed in June, and the rest agreed since. The biggest difficulties were over geographical indications (ie, protection for those who call their product ‘Parma ham’) and what happens to cases pending before the CJEU on Brexit day.

Key question: Is the UK bound to EU law on geographical indications forever?

No, but it would be guaranteeing the continued protection of geographical indications for products which were protected at the end of the transition period.

More precisely, this part sets out rules for ending the application of EU law as regards thirteen issues: goods placed on the market; ongoing customs procedures; ongoing VAT and excise procedures; intellectual property protection; police and criminal law cooperation; cross-border civil litigation; personal data; public procurement; Euratom; judicial and administrative procedures; administrative cooperation; privileges and immunities; and other issues, such as the European Schools.

Key question: Does the CJEU have jurisdiction in the UK indefinitely?

No. Some have misread Article 89 of the withdrawal agreement, which refers to CJEU jurisdiction as regards cases coming from the UK, to mean that the UK will be covered by the Court’s jurisdiction forever. In fact, Article 89 simply confirms that the Court will have jurisdiction for cases sent from UK courts before the end of the transition period.

After that point, UK courts can send the CJEU cases only in limited contexts: for eight years after the transition period ends as regards EU27 citizens in the UK, or the protocols on Northern Ireland (in part) and Cyprus. Also, the Court has jurisdiction after this point to decide on how to interpret EU law if a dispute about the withdrawal agreement goes to arbitration (see Part Six).

Furthermore, the Commission can sue the UK in the CJEU for failure to implement EU law correctly for four years after the end of the transition period (though this can only concern alleged breaches which occurred before the end of the transition period as an EU Member State, or under the transition period Part of the agreement). Finally, the Commission can sue the UK to enforce State aid and competition decisions which were based on proceedings which started before the end of the transition period, but concluded afterward. 

It is possible that the future relationship will provide for continued EU/UK cooperation on some of these issues, in which case some of these separation clauses either will not come into practical effect at all, or will only apply in part. For instance, the EU and UK might end up agreeing in a new security treaty on another form of fast-track extradition instead of the European Arrest Warrant (EAW), and may therefore choose to agree different rules on transition from the EAW system to that new fast-track system.

Part Four: transition period 

This is a short part of the withdrawal agreement, yet it has the biggest effect: it keeps substantive EU law in place in the UK until the end of 2020.  It was agreed by March, except the negotiators have now added a new Article allowing for a possible extension.

The key elements of the transition period are that EU law (including new EU law) applies to the UK, except in areas covered by UK opt-outs (such as the single currency and justice and home affairs law; in the latter case, the UK retains part of its power to opt-in to new proposals on a case-by-case basis). There are special rules on external relations: for instance, the EU will notify non-EU countries that the UK should still be regarded as covered by EU free trade agreements, or other types of EU treaties between the EU and non-EU countries (the non-EU countries aren’t obliged to agree to this). The current rules on the allocation of fisheries catches can’t be changed to benefit either the EU or UK fishing fleets.

However, the UK will not be represented on any EU institutions or bodies – including on the CJEU, which will continue to have its usual jurisdiction regarding the UK during the transition period. The UK will only be consulted on new EU measures as a special exception. In one area – foreign and defence policy – the UK can refuse to apply new EU measures if it has fundamental objections to them, and the withdrawal agreement foresees an early treaty between the EU and UK that will replace the transition period rules.

For a detailed annotation of the transition period clauses – except for the extension clause which has now been added – see my earlier blog post.

Key question: Which EU laws does the transition period cover?

I’m often asked if the transition period covers a particular EU law like driving licences or aspects of the free movement of people, because readers can’t find a specific reference to that law in the withdrawal agreement. The simple answer is that the transition period covers all laws applying to the UK except a handful of exclusions, so the drafters didn’t bother with a list of those EU laws which are covered by it.

The EU laws which are not covered by the transition period are those about 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. The UK (or its devolved legislatures) can, if it chooses, unilaterally continue to let EU27 citizens vote in local elections, and EU27 countries can choose to do the same for UK citizens. Also, as noted above, EU foreign and defence policy might not fully apply to the UK for the whole of the transition period.

This brings us to the new clause on extension of the transition period. It’s possible for the Joint Committee set up by the withdrawal agreement – which works by the mutual consent of the EU and UK – to decide by July 2020 if the transition period will be extended, for a period of up to a date to be decided (reportedly that date could be the end of 2022).

In that case, the transition period rules continue to apply to the UK for that extended period, except there would have to be an ad hoc negotiation on how much the UK pays into the EU budget during the extended period.  There are also special rules on agricultural support.

Key question: Can the UK be forced to stay in the transition period indefinitely?

No – and no. First of all, any extension of the transition period has to be agreed jointly, as noted already. Secondly, any extension won’t be indefinite, since the negotiators will add a final possible date for extension when they agree the final text of the withdrawal agreement.

On the other hand, the UK might theoretically end up in the backstop relating to Northern Ireland indefinitely. Although the withdrawal agreement says that this arrangement must be temporary, unlike the transition period there is no final date to end it and the UK cannot unilaterally end it at a certain date. However, the backstop is more limited in scope than the transition period, as it concerns only some EU laws (mainly on external trade, customs, and goods regulation, plus some limited application of EU laws on labour, the environment, state aids and competition in its Annexes). In particular, the backstop does not concern the free movement of people or services, or contribution to the EU budget.

Part Five: financial settlement 

This part incorporates the earlier agreement that the UK takes part in the EU’s spending until the end of the current budget cycle (end 2020), which matches the end of the transition period (unless that period is extended). As noted above, though, if the transition period is extended, the UK and EU will negotiate a separate EU contribution to the EU budget. It also includes UK payments to the budget incurred because the EU often makes financial commitments in one year and then pays them out in later years (the system known as reste à liquider). Furthermore, it includes continued payments to ‘off-budget’ EU spending such as commitments to developing countries, until the current versions of those programmes expire. For a detailed discussion of the finances of the deal, see reports from the OBR, the National Audit Office and the Institute for Government.

Key question: Has the UK agreed to pay £39 billion in return for nothing?

No. First of all, this begs the question: the EU regards the financial settlement as money which is payable in any event regardless of any future relationship, and took the view that the future relationship could not be formally negotiated before Brexit day anyway. Even on its own terms, the argument that ‘£39 billion is paid for nothing’ is wrong, since about half of of the money relates to the UK still applying substantive EU law during the transition period (see the OBR report), during which the UK still has its current access to EU goods and services markets (and vice versa). Anyway, a free trade deal could not have been negotiated in the time available, even if that had been legally possible (again: the EU says it was not).

Part Six: Institutional and Final Provisions

First of all, as noted above (in Part Two), the CJEU will have jurisdiction to rule on how the rules on citizens’ acquired rights apply to EU27 citizens in the UK, on the basis of requests from UK courts, for eight years after the transitional period ends. There will also be an independent monitoring body in the UK with power to bring court cases on their behalf. The two sides might agree to wind up the monitoring body at the end of the same time period.

Secondly, the CJEU will have jurisdiction, after the end of the transitional period, over the references to EU law in the financial settlement part of the agreement, in references from national courts or as regards Commission infringement actions brought against the UK.

Next, there’s a Joint Committee set up to oversee and implement the agreement. It will meet at least once a year, and there are a number of sub-committees dealing with specific issues like Northern Ireland and citizens’ rights. It can take certain decisions to add to the agreement – such as an extension of the transition period – but for all these decisions the EU and UK must both agree.

There are detailed rules on dispute settlement, providing for arguments about the agreement to go to a panel of arbitrators. However, if the arbitrators have to decide an issue of EU law when settling the dispute, they will have to ask the CJEU to give a ruling. This is unavoidable, since CJEU case law insists that the EU and its Member States cannot be bound by an interpretation of EU law other than the CJEU’s (see, for instance, CJEU Opinion 1/92).

The Northern Ireland backstop rules out the arbitration process (including the CJEU) from much of the ‘level playing field’ rules on labour law, environmental law, tax, and competition and state aids law (see below). However, the CJEU has jurisdiction over part of the backstop, as well as the Protocol on bases in Cyprus.

Key question: Does the CJEU have jurisdiction over the entire agreement?

No. The Court has its usual jurisdiction under the transition period, and following that specific jurisdiction over EU27 citizens’ rights and EU law referred to in the financial settlement, as well as the protocols on Northern Ireland (in part) and bases in Cyprus. But the arbitrators can only refer disputes over EU law to it, not disputes over the entire agreement – although a lot of the agreement does refer to EU law. Also, some key points in the backstop are outside the arbitrators’ or the CJEU’s jurisdiction.

Note that this part of the agreement differs a lot from the dispute settlement clauses as the Commission proposed them in March (see discussion here) – which included powers (tilted toward the EU) for both sides to impose sanctions on each other. The final version looks a lot more like traditional international dispute settlement, and is presumably a concession by the EU to the UK.

Finally, the last provisions of the main withdrawal agreement set out ‘boilerplate’ rules: confirming that the three Protocols and nine Annexes are binding; setting out the authentic languages of the text and the depositary; and setting the date of entry in force (30 March 2019). The withdrawal agreement applies from that date, except the parts on citizens’ rights, separation provisions, dispute settlement and the three Protocols mostly apply from the end of the transition period (with specified exceptions which apply immediately). There’s also a commitment to negotiate on the future relationship, referring to the separate joint declaration on that issue, ‘with a view to’ agreeing those texts by the end of the transition period ‘to the extent possible’.

Protocol on Irish border issues

The Northern Ireland Protocol starts with three new Articles compared to the March draft, on UK territorial integrity and emphasising that the Protocol is meant to be temporary. Also there’s a link back to the possible extension of the transition period mentioned above (Part Four). A new review clause was added, but both sides would have to agree to disapply the protocol partly or wholly.

As for the substance of the Protocol, it refers to equality rights and the common travel area between the UK and Ireland, as already agreed (these issues were never controversial).

Key question: Does the common travel area continue the free movement of people between the UK and EU?

No. The absence of border checks makes it impossible to refuse entry to people at the border with Ireland, but that does not mean any EU27 citizens crossing that border (besides Irish citizens) have the right to reside or work in the UK (and vice versa for people crossing into Ireland, besides UK and EU citizens). There is UK legislation on liability for employers, landlords et al who hire or do business with people who are not authorised to work or reside that will be relevant here.

Then there’s the UK-wide customs union backstop, part of which is specific to Northern Ireland. There are a number of elements of this. This part of the Protocol links to Annexes on: a) trade in goods between EU/UK/non-EU states; b) customs cooperation; and c) a ‘level playing field’, which means some degree of continued harmonisation of law relating to tax, the environment, labour law, state aid, competition, and public companies/monopolies.

However, this falls short of the obligations of EU Member States; there are limited obligations to keep up with new EU legislation and CJEU case law; and as noted above (Part Six), the arbitration rules (including CJEU jurisdiction) mostly do not apply to this ‘level playing field’. There’s a lot of EU law that wouldn’t apply to the UK – most notably the free movement of persons, services and capital, and contributions to the EU budget. So while the backstop would still commit the UK to a chunk of EU law on trade in goods, and in a limited way to some law in the ‘level playing field’ areas, the continued application of EU law would be much less than under the rules on the transition period.

The Protocol also contains provisions on the UK internal market, as well lists of specific EU laws that apply in Northern Ireland: product regulation, VAT and excise tax, agriculture and the environment, a single electricity market,  and state aids. There’s also a vague reference to other North/South cooperation. Finally, the institutional provisions of the Protocol provide that EU bodies, including the CJEU, have competence to apply or interpret the provisions of the Protocol that are specific to Northern Ireland.

Protocol on UK bases in Cyprus

This Protocol confirms that the bases in Cyprus remain within EU customs territory after Brexit, and EU regulations on goods, including agricultural and fisheries laws, still apply. EU law on excise taxes and VAT also continues to apply. Goods supplied to the staff on the bases are exempt from customs and taxes, and the UK and Cyprus may agree further rules on social security coordination. There are rules on checks at the border of the bases area, and a general obligation to cooperate to prevent fraud. Finally, the EU institutions, including the CJEU, have competence to apply and interpret EU law referred to in the Protocol.

Protocol on Gibraltar

First of all, this Protocol provides for the UK and Spain to cooperate on workers’ rights as regards the Spain/Gibraltar crossing. Next, it retains the status quo on access to aviation, unless the Joint Committee decides differently. It also contains general provisions on cooperation on tax and fraud, environmental protection and fishing, and police cooperation.

Assessment

The desirability of the withdrawal agreement can only be assessed in light of the alternative options available. Whether it’s possible to end the Brexit process at all by revoking the notification under Article 50 remains to be clarified by the CJEU, as noted above. If that’s not possible, Brexit could be averted only by extending the period of negotiations under Article 50 in order to amend the Treaties to permit revocation of the withdrawal notice, but that is a stretch.

Amendment of the text of the withdrawal agreement is technically possible, but the EU has signalled that it would not be willing to consider any significant amendment to the text. Holding a general election obviously appeals to anyone who wants a change of government in any event, but does not change the fundamental issues relating to the withdrawal agreement or the Brexit process as such.

Objecting to the withdrawal agreement because of objections to the separate future relationship declaration makes little sense. The EU always took the view that it would not and could not negotiate the future relationship formally before Brexit day, and there would anyway not have been enough time to negotiate a full future relationship in two years (unless the UK decided to stay in the EEA as an off-the-shelf model, which would still have required some separate issues to be negotiated). Furthermore, since the future relationship declaration is not binding, the nature of that future relationship is still all to play for.

The options as regards the withdrawal agreement are therefore to support it, to overturn the Brexit process (if that turns out to be legally possible), or to leave the EU without a withdrawal agreement, and therefore without a trade agreement. Each of these three options may individually lack a majority in Parliament, but the no deal option – although it probably commands the least support – is the default if one of the two other options does not command a majority. A no deal outcome – damaging UK exports to their largest market, leaving the position of UK citizens in the EU27 and EU citizens in the UK less secure, disrupting the UK security relationship with the EU, significantly limiting flights and commercial lorry transport with the EU, and raising barriers to transfers of data from the EU to the UK – is manifestly not in the UK’s interest, and no responsible politician should support it. The choice is therefore between the withdrawal agreement or reversing the Brexit process (if possible) as a means to avoid this end.

For supporters of Brexit, the withdrawal agreement may be a disappointment, applying substantive EU law to the UK for the transition period and potentially a proportion of EU law to the UK via the backstop after that. From this perspective, it’s unfortunate that the possibility of staying in the EEA – giving the UK a judge on the EFTA Court and consultation rights on EU proposals, limiting the effect of EU law in the UK, and possibly reducing the scope of EU law applicable to the UK at an earlier point – wasn’t explored from the outset as at least a partial substitute for the transition period.

However, given that new Member States have a transition period of several years when they join the EU (as the UK did when it joined the previous EEC) and usually gear up alignment with EU law for several years before joining, it was unrealistic to imagine ending the UK’s application of substantive EU law would happen all in one go. The withdrawal agreement recognises the unavoidable complexity of the process, phasing out membership via different stages while still offering options for a future relationship – subject to the need to avoid checks on the Irish border.

Whichever of these two routes is ultimately chosen – managed withdrawal or reconsidered reversal – it’s important to find a way of avoiding the worst-case scenario of a no deal Brexit: the project of greedy capitalists, seedy jingoists, tweedy fantasists and needy narcissists.

Barnard & Peers: chapter 27

Photo credit: BBC

UK citizens in the EU after Brexit: Securing unilateral guarantees after a ‘no deal’ Brexit

Professor Steve Peers, University of Essex*

What happens to EU27 citizens and UK citizens who have moved within the EU in the event of a ‘no deal’ Brexit? In principle their position will be regulated by the withdrawal agreement under negotiations, but since it seems that talks on this agreement are becomingly increasingly difficult the possibility of the UK leaving the EU without any such agreement may have risen. This would leave the two groups of people in limbo, unless an alternative approach to securing their acquired rights is found.

It’s possible that a separate agreement on their rights could be agreed between the UK and the EU: I have suggested a text for such a “ring-fenced” deal here. Another alternative is matching unilateral guarantees. The EU Withdrawal Act, which recently came into force, retains EU27 citizens’ rights in UK law for the time being, and the UK government has already tabled planned changes to the Immigration Rules to give effect to it. This could be matched by national law guarantees for UK citizens in the EU27 States, but for the sake of legal security a better approach would be EU-wide legislation on the issue.

I suggest here a draft Regulation to give effect to that idea. (Denmark would not be covered, so would have to act unilaterally; Ireland could opt in). It is based on the text of the withdrawal agreement (which I commented on here), with several adaptations: retaining free movement for UK citizens who registered under the new system; a cut-off of the withdrawal date (Brexit day), on the assumption that there would be no transition period; and references to UK citizens and their family members only, except where EU27 citizens have been covered by the UK social security system and need recognition of those prior contributions.

It might be questioned whether the EU has the legal competence to adopt laws treating a Member State as a non-Member State before it leaves. However, the Commission has already made several legal proposals on the assumption that the UK is leaving, and if those proposals are legally sound it should follow that this one is also, provided that it does not apply until the withdrawal date. In the event that it were only adopted after the withdrawal date, it could be backdated to ensure that no UK citizens or their family members will be treated as illegal residents. The Regulation would be based on Article 79 TFEU, which gives the EU power to adopt legislation on the legal migration status of non-EU citizens. Although the EU cannot harmonise national law on the numbers of people coming from non-EU countries to seek work (Article 79(5)), this Regulation would concern non-EU citizens already resident on the territory.

Barnard & Peers: chapter 27

Photo credit: ITV news

*Supported by an ESRC Priority Brexit Grant on 'Brexit and UK and EU Immigration Policy'

TITLE I

GENERAL PROVISIONS

Article 1

Objective

This Regulation sets out the rights of United Kingdom nationals and their family members, who exercised rights pursuant to European Union law before the withdrawal of the United Kingdom from the European Union.

Article 2

Definitions

For the purposes of this Regulation, and without prejudice to Title III, the following definitions shall apply:

(a) "family members" means:

(i) family members of Union citizens or United Kingdom nationals as defined in point (2) of Article 2 of Directive 2004/38/EC of the European Parliament and of the Council;

(ii) persons other than those defined in Article 3(2) of Directive 2004/38/EC whose presence is required by Union citizens or United Kingdom nationals in order not to deprive them of a right of residence granted by this Regulation;

irrespective of their nationality and who fall within the personal scope provided for in Article 3 of this Regulation; 

(b) "frontier workers" means United Kingdom nationals who pursue an economic activity in accordance with Article 45 or 49 TFEU in one or more States in which they do not reside;

(c) "host State" means the Member State in which the United Kingdom nationals exercised their right of residence in accordance with Union law before the withdrawal date and continue to reside there thereafter;

(d) "State of work" means a Member State in which the United Kingdom nationals pursued an economic activity as frontier workers before the withdrawal date and continue to do so thereafter;                                                    

(e) "rights of custody" means rights of custody within the meaning of point (9) of Article 2 of Council Regulation (EC) No 2201/2003, including rights of custody acquired by judgment, by operation of law or by an agreement having legal effect.  

(f) "Member States" means the Kingdom of Belgium, the Republic of Bulgaria, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, Ireland, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Republic of Croatia, the Italian Republic, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, Hungary, the Republic of Malta, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, Romania, the Republic of Slovenia, the Slovak Republic, the Republic of Finland and the Kingdom of Sweden;

(g) "Union citizen" means any person holding the nationality of a Member State;

(h) "United Kingdom national" means a national of the United Kingdom, as defined in the New Declaration by the Government of the United Kingdom of Great Britain and Northern Ireland of 31 December 1982 on the definition of the term ‘nationals’1 together with Declaration No 63 annexed to the Final Act of the intergovernmental conference which adopted the Treaty of Lisbon;

(i) "withdrawal date" means the date on which the United Kingdom ceased to be a Member State, in accordance with Article 50 of the Treaty on European Union.

Article 3

Personal scope

1.  Without prejudice to Title III, this Regulation shall apply to the following persons: 

(a) United Kingdom nationals who exercised their right to reside in a Member State in accordance with Union law before the withdrawal date and continue to reside there thereafter; 

(b) United Kingdom nationals who exercised their right as frontier workers in one or more Member States in accordance with Union law before the withdrawal date and continue to do so thereafter; 

(c) family members of the persons referred to in points (a) to (b), where they fulfil one of the following conditions:

(i) they resided in the host State in accordance with Union law before the withdrawal date and continue to reside there thereafter;

(ii) they were directly related to a person referred to in points (a) to (d) of this paragraph and resided outside the host State before the withdrawal date, provided that they fulfil the conditions set out in point (2) of Article 2 of Directive 2004/38/EC at the time they seek residence under this Regulation in order to join the person referred to in points (a) to (d) of this paragraph;

(iii) they are born to, or legally adopted by, persons referred to in points (a) to (d) after the withdrawal date, whether inside or outside the host State, where they fulfil the conditions set out in point (2)(c) of Article 2 of Directive 2004/38/EC at the time they seek residence under this Regulation in order to join the person referred to in points (a) to (d) of this paragraph and fulfil one of the following conditions:

 - both parents are persons referred to in points (a) to (d);

 - one parent is a person referred to in points (a) to (d) and the other is a national of the host State; or       

 - one parent is a person referred to in points (a) to (d) and has sole or joint rights of custody of the child, in accordance with the applicable rules of family law of a Member State, including applicable rules of private international law under which rights of custody established under the law of a third state are recognised in the Member State, in particular as regards the best interests of the child and without prejudice to the normal operation of such applicable rules of private international law;

[footnote: The notion of rights of custody is to be interpreted in accordance with point (9) of Article 2 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility. Therefore, it covers rights of custody acquired by judgment, by operation of law or by an agreement having legal effect.]

(d) family members who resided in the host State in accordance with Articles 12 and 13, Article 16(2) and Articles 17 and 18 of Directive 2004/38/EC before the withdrawal date and continue to reside there thereafter.

2. Persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC whose residence was facilitated by the host State in accordance with its national legislation before the withdrawal date in accordance with Article 3(2) of Directive 2004/38/EC shall retain their right of residence in the host State in accordance with this Regulation provided they continue to reside in the host State thereafter.

3. Paragraph 2 also applies to persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC who have applied for facilitation of entry and residence before the withdrawal date, and whose residence is facilitated by the host State in accordance with its national legislation after that date.

4. Without prejudice to any right to residence which the persons concerned may have in their own right, the host State shall, in accordance with its national legislation and in accordance with point (b) of Article 3(2) of Directive 2004/38/EC, facilitate entry and residence for the partner with whom the person referred to in points (a) to (d) has a durable relationship, duly attested, and who resided outside the host State before the withdrawal date, provided that the relationship was durable before the withdrawal date and continues at the time the partner seeks residence under this Regulation.

5. In the cases referred to in paragraphs 3 and 4, the host State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to such persons.  

Article 4

Continuity of residence

Continuity of residence for the purposes of Articles 2 and 3 shall not be affected by absences as referred to in Article 8(2).

The right of permanent residence acquired under Directive 2004/38/EC before the withdrawal date shall not be treated as lost through absence from the host State for a period specified in Article 8(3).                                                     

Article 5

Non-discrimination

Within the scope of this Regulation and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality within the meaning of the first subparagraph of Article 18 TFEU shall be prohibited in the host State and the State of work in respect of the persons referred to in Article 3 of this Regulation.

 

TITLE II

RIGHTS AND OBLIGATIONS

CHAPTER 1

Rights related to residence, residence documents

Article 6

Residence rights

1. United Kingdom nationals shall have the right to reside in the host State under the limitations and conditions as set out in Articles 21, 45 or 49 TFEU and in Article 6(1), Article 7(1)(a), (b) or (c), Article 7(3), Article 14, Article 16(1) or Article 17(1) of Directive 2004/38/EC. 

2. Family members who are United Kingdom nationals shall have the right to reside in the host State as set out in Article 21 TFEU and in Article 6(1), Article 7(1)(d), Article 12(1) or (3), Article 13(1), Article 14, Article 16(1) or Article 17(3) and (4) of Directive 2004/38/EC, subject to the limitations and conditions set out in those provisions.

3. Family members who are not United Kingdom nationals shall have the right to reside in the host State under Article 21 TFEU and as set out in Article 6(2), Article 7(2), Article 12(2) or (3), Article 13(2), Article 14, Article 16(2), Article 17(3) or (4) or Article 18 of Directive 2004/38/EC, subject to the limitations and conditions set out in those provisions.

4.  The host State may not impose any limitations and conditions other than those provided for in this Title on the persons referred to in paragraphs 1, 2 and 3 for obtaining, retaining or losing residence rights. There shall be no discretion in applying the limitations and conditions, other than in favour of the person concerned.  

Article 7

Right of exit and of entry

1. United Kingdom nationals, their respective family members and other persons, residing in its territory in accordance with the conditions set out in this Title shall have the right to leave the host State and the right to enter it as set out in Articles 4(1) and 5(1) first paragraph of Directive 2004/38/EC with a valid passport or national identity card for United Kingdom nationals, and a valid passport for their respective family members who are not Union citizens or United Kingdom nationals.

After five years following the withdrawal date, the host State may decide no longer to accept a national identity card to enter or exit its territory, if the respective national identity card does not include a chip compliant with the applicable International Civil Aviation Organisation standards related to biometric identification. 

2. No exit or entry visa or equivalent formality shall be required for holders of a valid document issued in accordance with Article 11 or 19 of this Regulation.

3.  Where the host State requires family members who join the United Kingdom national after the withdrawal date to have an entry visa, the host State shall grant such persons every facility to obtain the necessary visas. Such visas shall be issued free of charge as soon as possible and on the basis of an accelerated procedure.  

Article 8

Right of permanent residence

1.  United Kingdom nationals and their family members who have resided legally in accordance with Union law for a continuous period of five years in the host State, or for the duration specified in Article 17 of Directive 2004/38/EC, shall have the right to reside permanently in the host State under the conditions set out in Articles 16, 17 and 18 of Directive 2004/38/EC. Periods of legal residence or work in accordance with Union law before and after the withdrawal date shall be included in the calculation of the qualifying period necessary for acquisition of the right of permanent residence.

2.  Continuity of residence for the purposes of acquisition of the right of permanent residence shall be determined in accordance with Article 16(3) and Article 21 of Directive 2004/38/EC.

3.  Once acquired, the right of permanent residence shall be lost only through absence from the host State for a period exceeding five consecutive years.

Article 9

Accumulation of periods

United Kingdom nationals and their family members who before the withdrawal date resided legally in the host State under the conditions of Article 7 of Directive 2004/38/EC for a period of less than five years, shall have the right to acquire the right to reside permanently under the conditions set out in Article 8 of this Regulation once they have completed the necessary periods of residence. Periods of legal residence or work in accordance with Union law before and after the withdrawal date shall be included in the calculation of the qualifying period necessary for acquisition of the right of permanent residence.  

Article 10

Status and changes

1.  The right of United Kingdom nationals and their family members to rely directly on this Regulation shall not be affected when they change status, for example between student, worker, self-employed person and economically inactive person. Persons who, at the withdrawal date, enjoy a right of residence in their capacity as family members of United Kingdom nationals cannot become persons referred to in points (a) to (d) of Article 9(1).

2.  The rights provided for in this Title for the family members, who are dependent on United Kingdom nationals before the withdrawal date, shall be maintained even after they cease to be dependent.  

Article 11

Issuance of residence documents

1.  The host State may require United Kingdom nationals, their family members and other persons residing in its territory in accordance with the conditions set out in this Title, to apply for a new residence status which confers the rights under this Title and a document evidencing such status which may be in a digital form.

Applying for such a residence status shall be subject to the following conditions:

(a) the purpose of the application procedure shall be to verify whether the applicant is entitled to the residence rights set out in this Title. Where that is the case, the applicant shall have a right to be granted the residence status and the document evidencing it;

(b) the deadline for submitting the application shall not be less than 6 months from the withdrawal date for persons residing in the host State before the withdrawal date. 

The deadline for persons who have the right to commence residence in the host State in accordance with this Regulation shall be 3 months after their arrival or expiry of the deadline referred to in the first subparagraph, whichever is later.

A certificate of application for the residence status shall be issued immediately;

(c) the deadline for submitting the application referred to in point (b) shall be extended automatically by one year where a Member State has notified Commission that technical problems prevent that State either from registering the application or from issuing the certificate of application referred to in point (b). That Member State shall publish that notification and shall provide appropriate public information for the citizens or nationals concerned in good time;

(d) where the deadline for submitting the application referred to in point (b) is not respected by the persons concerned, the competent authorities shall assess all the circumstances and reasons for not respecting the deadline and allow those persons to submit an application within a reasonable further period of time, where there are reasonable grounds for the failure to respect the deadline;

(e) the host State shall ensure that administrative procedures for applications are smooth, transparent and simple and that any unnecessary administrative burdens are avoided;

(f) application forms shall be short, simple, user friendly and adjusted to the context of this Regulation; applications made by families at the same time shall be considered together;

(g) the document evidencing the status shall be issued free of charge or for a charge not exceeding that imposed on citizens or nationals for the issuing of similar documents;

(h) persons who, before the withdrawal date, are holders of a valid permanent residence document issued under Article 19 or 20 of Directive 2004/38/EC or a valid domestic immigration document conferring a permanent right to reside in the host State, shall have the right to exchange that document within the period referred to in point (b)for a new residence document upon application after a verification of their identity, a criminality and security check in accordance with point (p) of this paragraph and confirmation of ongoing residence; such a document shall be free of charge;

(i) the identity of the applicants shall be verified through the presentation of a valid passport or national identity card for United Kingdom nationals, and a valid passport for their respective family members who are not Union citizens or United Kingdom nationals; the acceptance of such identity documents shall not be made conditional upon any criteria other than that of validity. Where the identity document is retained by the competent authorities of the host State while the application is pending, the host State shall return that document upon application without delay and before the decision on the application is taken;

(j) supporting documents other than identity documents, such as civil status documents, may be submitted in copy. Originals of supporting document can be required only in specific cases where there is a reasonable doubt as to the authenticity of the supporting documents submitted;

(k) the host State may only require United Kingdom nationals to present, in addition to the identity documents referred to in point (i) of this paragraph, the following supporting documents as referred to in Article 8(3) of Directive 2004/38/EC:

(i) where they reside in the host State in accordance with Article 7(1)(a) of Directive 2004/38/EC as workers or self-employed, a confirmation of engagement from the employer or a certificate of employment, or proof that they are self-employed;

(ii) where they reside in the host State in accordance with Article 7(1)(b) of Directive 2004/38/EC as economically inactive persons, evidence that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host State during their period of residence and have comprehensive sickness insurance cover in the host State;

(iii) where they reside in the host State in accordance with Article 7(1)(c) of Directive 2004/38/EC as students, proof of enrolment at an establishment accredited or financed by the host State on the basis of its legislation or administrative practice, and of comprehensive sickness insurance cover and a declaration or equivalent, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host State during their period of residence. The host State may not require this declaration to refer to any specific amount of resources.

With regard to the condition of sufficient resources, Article 8(4) of Directive 2004/38/EC shall apply;

(l) the host State may only require family members who fall under Articles 3(1)(e)(i), 3(2) or 3(3) of this Regulation and who reside in the host State in accordance with Article 7(1)(d) or 7(2) of Directive 2004/38/EC to present, in addition to the identity documents referred to in point (i) of this paragraph, the following supporting documents as referred to in Articles 8(5) or 10(2) of Directive 2004/38/EC:

(i) a document attesting to the existence of a family relationship or of a registered partnership;

(ii) the registration certificate or, in the absence of a registration system, any other proof of residence in the host State of the Union citizen or of the United Kingdom nationals with whom they reside in the host State;

(iii) for direct descendants who are under the age of 21 or are dependants and dependent direct relatives in the ascending line, and for those of the spouse or registered partner, documentary evidence that the conditions set out in Article 2(2)(c) or (d) of Directive 2004/38/EC are fulfilled;

(iv) for the persons referred to in Article 3(2) or (3) of this Regulation, a document issued by the relevant authority in the host State in accordance with Article 3(2) of Directive 2004/38/EC.

With regard to the condition of sufficient resources as concerns family members who are themselves Union citizens or United Kingdom nationals, Article 8(4) of Directive 2004/38/EC shall apply;

(m) the host State may only require family members who fall under Articles 3(1)(e)(ii) or 3(4) of this Regulation, in addition to the identity documents referred to in point (i) of this paragraph, the following supporting documents as referred to in Articles 8(5) and 10(2) of Directive 2004/38/EC:

(i) a document attesting to the existence of a family relationship or of a registered partnership;

(ii) the registration certificate or, in the absence of a registration system, any other proof of residence in the host State of the Union citizen or of the United Kingdom nationals whom they are joining in the host State;

(iii) for spouses or registered partners, a document attesting to the existence of a family relationship or of a registered partnership before the withdrawal date;

(iv) for direct descendants who are under the age of 21 or are dependants and dependent direct relatives in the ascending line and those of the spouse or registered partner, documentary evidence that they were related to Union citizens or United Kingdom nationals before the withdrawal date and fulfil the conditions set out in Article 2(2)(c) or (d) of Directive 2004/38/EC relating to age or dependence;

(v) for the persons referred to in Article 3(4) of this Regulation, proof that a durable relationship with Union citizens or United Kingdom nationals existed before the withdrawal date and continues to exist thereafter;

(n) for cases other than those set out in points (k), (l) and (m), the host State shall not require applicants to present supporting documents that go beyond what is strictly necessary and proportionate to provide evidence that the conditions relating to the right of residence under this Title have been fulfilled;

(o) the competent authorities of the host State shall help the applicants prove their eligibility and avoid any errors or omissions in the application; they shall give the applicants the opportunity to furnish supplementary evidence and to correct any deficiencies, errors or omission;

(p) criminality and security checks may be carried out systematically on applicants with the exclusive aim of verifying whether restrictions set out in Article 13 of this Regulation may be applicable. For that purpose, applicants may be required to declare past criminal convictions which appear in their criminal record in accordance with the law of the State of conviction at the time of the application. The host State may, should it consider this essential, apply the procedure set out in Article 27(3) of Directive 2004/38/EC on enquiries to other States regarding previous criminal records;

(q) the new residence document shall include a statement that it has been issued in accordance with this Regulation;

(r) the applicant shall have access to judicial and, where appropriate, administrative redress procedures in the host State against any decision refusing to grant the residence status.

The redress procedures shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed decision is based. They shall ensure that the decision is not disproportionate.

2.  During the period referred to in point (b) of paragraph 1 of this Article and its possible one-year extension under point (c) of paragraph 1 of this Article, all rights provided for in this Regulation shall be deemed to apply to United Kingdom nationals, their family members, and other persons residing in the host State in accordance with the conditions and subject to the restrictions set out in Article 13.

3. Pending a final decision by the competent authorities on any application referred to in paragraph 1, as well as a final judgment handed down in case of judicial redress sought against any rejection of such application by the competent administrative authorities, all rights provided for in this Regulation shall be deemed to apply to the applicant, including Article 14 on safeguards and right of appeal, subject to the conditions set out in Article 13(4).

4. Where a host State has chosen not to require United Kingdom nationals, their family members, and other persons residing in its territory in accordance with the conditions set out in this Title, to apply for the new residence status referred to in paragraph 1 as a condition for legal residence, those eligible for residence rights under this Title shall have the right to receive, in accordance with the conditions set out in Directive 2004/38/EC, a residence document which may be in a digital form that includes a statement that it has been issued in accordance with this Regulation.  

Article 12

Issuance of residence documents during the transition period

1.  A host State may allow applications for a residence status or a residence document as referred to in Article 17(1) and (4) to be made voluntarily from the date of entry into force of this Regulation.

2.  A decision to accept or refuse such an application shall be taken in accordance with Article 11(1) and (4). A decision under Article 11(1) shall have no effect until the withdrawal date. 

3.  If an application under Article 11(1) is accepted before the withdrawal date, the host State may not withdraw the decision before that date on any grounds other than those set out in Chapter VI and Article 35 of Directive 2004/38/EC.

4.  If an application is refused before the withdrawal date, the applicant may apply again at any time before the expiry of the period set out in Article 11(1)(b).

5.  Without prejudice to paragraph 4, redress procedures under Article 11(1)(r) shall be available from the date of the decision.  

Article 13

Restrictions of the right of residence

1.  Conduct of United Kingdom nationals, their family members or other persons exercising rights under this Title, that occurred before the withdrawal date shall be considered in accordance with Chapter VI of Directive 2004/38/EC.

2.  Conduct of United Kingdom nationals, their family members or other persons exercising rights under this Title, that occurred after the withdrawal date may constitute grounds for restricting the right of residence by the host State or the right of entry in the State of work in accordance with national legislation.

3. The host State or the State of work may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Title in the case of abuse of those rights or fraud as set out in Article 35 of Directive 2004/38/EC. Such measures shall be subject to the procedural safeguards provided for in Article 14 of this Regulation.

4. The host State or the State of work may remove applicants who submitted fraudulent or abusive applications from its territory under the conditions set out in Directive 2004/38/EC, in particular Articles 31 and 35 thereof, even before a final judgment has been handed down in case of judicial redress sought against any rejection of such an application.  

Article 14

Safeguards and right of appeal

The safeguards set out in Article 15 and Chapter VI of Directive 2004/38/EC shall apply in respect of any decision of the host State that restricts residence rights of the persons referred to in Article 3 of this Regulation.  

Article 15

Related rights

In accordance with Article 23 of Directive 2004/38/EC, irrespective of nationality, the family members of a Union citizen or a United Kingdom national who have the right of residence or the right of permanent residence in the host State or the State of work shall be entitled to take up employment or self-employment there.  

Article 16

Equal treatment

1. In accordance with Article 24 of Directive 2004/38/EC, subject to the specific provisions provided for in Titles I, II and IV of this Regulation, all United Kingdom nationals residing on the basis of this Regulation in the territory of the host State shall enjoy equal treatment with the nationals of that State within the scope of this Regulation. The benefit of this right shall be extended to family members of United Kingdom nationals and who have the right of residence or permanent residence.

2. By way of derogation from paragraph 1, the host State shall not be obliged to confer entitlement to social assistance during residence in accordance with Articles 6 or 14(4)(b) of Directive 2004/38/EC, nor shall it be obliged, prior to acquisition of the right of permanent residence in accordance with Article 8 of this Regulation, to grant maintenance aid for studies, including vocational training, consisting in student grants or student loans to persons other than workers, self-employed persons, persons who retain such status and members of their families.

CHAPTER 2

Rights of workers and self-employed persons

Article 17

Rights of workers

1.  Subject to the limitations set out in Article 45(3) and (4) TFEU, workers in the host State and frontier workers in the State or States of work shall enjoy the rights guaranteed by Article 45 TFEU or granted by Regulation (EU) No 492/2011 of the European Parliament and of the Council. These rights include:

(a) the right not to be discriminated against on grounds of nationality as regards employment, remuneration and other conditions of work and employment;

(b) the right to take up and pursue an activity in accordance with the rules applicable to the nationals of the host State or the State of work;

(c) the right to assistance afforded by the employment offices of the host State or the State of work as offered to own nationals;

(d) the right to equal treatment in respect of conditions of employment and work, in particular as regards remuneration, dismissal and in case of unemployment, reinstatement or re-employment;

(e) the right to tax and social advantages;

(f) collective rights;

(g) the rights and benefits accorded to national workers in matters of housing;

(h) the right for their children to be admitted to the general educational, apprenticeship and vocational training courses under the same conditions as the nationals of the host State or the State of work, if such children are residing in the territory where the worker works.

2.  Where a direct descendant of a worker who has ceased to reside in the host State is in education in that State, the primary carer for that descendant shall have the right to reside in that State until the descendant reaches the age of majority, and after the age of majority if that descendant continues to need the presence and care of the primary carer in order to pursue and complete his or her education.

3. Employed frontier workers shall enjoy the right to enter and exit the State of work in accordance with Article 7 and shall retain the rights they enjoyed as workers there in accordance with Article 7(3) of Directive 2004/38/EC.  

Article 18

Rights of self-employed persons

1.  Subject to the limitations set out in Articles 51 and 52 TFEU, self-employed persons in the host State and self-employed frontier workers in the State or States of work shall enjoy the rights guaranteed by Articles 49 and 55 TFEU. These rights include:

(a) the right to take up and pursue activities as self-employed persons and to set up and manage undertakings under the conditions laid down by the host State for its own nationals, as set out in Article 49 TFEU;

(b) the rights as set out in points (c) to (h) of Article 17(1) of this Regulation.

2.  Article 17(2) shall apply to direct descendants of self-employed workers.

3. Article 17(3) shall apply to self-employed frontier workers, without prejudice to Article 27 concerning the scope of rights.  

Article 19

Issuance of a document identifying frontier workers' rights

The State of work may require United Kingdom nationals who have rights as frontier workers under this Title to apply for a document certifying that they have such rights under this Title. Such United Kingdom nationals shall have the right to be issued with such a document.

CHAPTER 3

Professional qualifications

Article 20

Recognised professional qualifications

1.  The recognition, before the withdrawal date, of professional qualifications, as defined in point (b) of Article 3(1) of Directive 2005/36/EC of the European Parliament and of the Council, of United Kingdom nationals and their family members by their host State or their State of work shall maintain its effects in the respective State, including the right to pursue the profession under the same conditions as its nationals, where such recognition was made in accordance with any of the following provisions:

(a) Title III of Directive 2005/36/EC in respect of the recognition of professional qualifications in the context of the exercise of the freedom of establishment, whether such recognition fell under the general system for the recognition of evidence of training, the system for the recognition of professional experience or the system for the recognition on the basis of coordination of minimum training conditions;                                                        

(b) Article 10(1) and (3) of Directive 98/5/EC of the European Parliament and of the Council in respect of gaining admission to the profession of lawyer in the host Member State;

(c) Article 14 of Directive 2006/43/EC of the European Parliament and of the Council in respect of the approval of statutory auditors from another Member State;

(d) Council Directive 74/556/EEC in respect of the acceptance of evidence of the knowledge and ability necessary in order to take up or pursue activities of self-employed persons and of intermediaries engaging in the trade and distribution of toxic products or activities involving the professional use of toxic products.

2.  Recognitions of professional qualifications for the purposes of point (a) of paragraph 1 of this Article shall include:

(a) recognition of professional qualifications which have benefited from Article 3(3) of that Directive;

(b) decisions granting partial access to a professional activity in accordance with Article 4f of that Directive;

(c) recognitions of professional qualifications for establishment purposes made under Article 4d of that Directive.  

Article 21

Ongoing procedures on the recognition of professional qualifications

Article 4, Article 4d in respect of recognitions of professional qualifications for establishment purposes, Article 4f and Title III of Directive 2005/36/EC, Article 10(1), (3) and (4) of Directive 98/5/EC, Article 14 of Directive 2006/43/EC and Directive 74/556/EEC shall apply in respect of the examination by a competent authority of their host State or State of work of any application for the recognition of professional qualifications introduced before the withdrawal date by United Kingdom nationals and in respect of the decision on any such application.

Articles 4a, 4b and 4e of Directive 2005/36/EC shall also apply in so far as relevant for the completion of the procedures for the recognitions of professional qualifications for establishment purposes under Article 4d of Directive 2005/36/EC.

Article 22

Administrative cooperation on recognition of professional qualifications

1. With regard to the pending applications referred to in Article 21, the Member States shall cooperate with the United Kingdom in order to facilitate the application of Article 21. Cooperation may include the exchange of information, including on disciplinary action or criminal sanctions taken or any other serious and specific circumstances which are likely to have consequences for the pursuit of the activities falling under the Directives referred to in Article 21. 

Title III

Coordination of social security systems

Article 23

Persons covered

1.  This Title shall apply to the following persons:

(a) United Kingdom nationals who are subject to the legislation of a Member State on the withdrawal date, as well as their family members and survivors;

(b) United Kingdom nationals who reside in a Member State, and are subject to the legislation of the United Kingdom on the withdrawal date, as well as their family members and survivors;

(c) persons who do not fall within points (a) to (b) but are United Kingdom nationals who pursue an activity as employed or self-employed person in one or more Member States on the withdrawal date, and who, based on Title II of Regulation (EC) No 883/2004, are subject to the legislation of the United Kingdom, as well as their family members and survivors;

(d) stateless persons and refugees, residing in a Member State, who are in one of the situations described under points (a) to (e), as well as their family members and survivors; 

(3) nationals of third countries, as well as members of their families and survivors, who are in one of the situations described under points (a) to (e), provided that they fulfil the conditions of Council Regulation (EC) No 859/2003.

2. These persons shall be covered for as long as they continue without interruption to be in one of the situations set out in paragraph 1 involving both a Member State and the United Kingdom at the same time.

Article 24

Social security coordination rules

1. The rules and objectives set out in Article 48 TFEU, Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009, shall apply to the persons covered by this Title. 

Member States shall take due account of the Decisions and Recommendations of the Administrative Commission for the Coordination of Social Security Systems attached to the European Commission, set up under Regulation (EC) No 883/2004 ("Administrative Commission") listed in [Annex II to] this Regulation.

2. By way of derogation from Article 2 of this Regulation, for the purposes of this Title, the definitions in Article 1 of Regulation (EC) No 883/2004 shall apply. 

3.  With regard to the persons referred to in Article 23(1)(g) of this Regulation, the reference to Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 in this Article shall be understood as reference to Regulation (EC) No 1408/71 and Regulation (EC) No 574/72 respectively.  

Article 25

 Special situations covered

1. The following situations, insofar as they relate to persons  not covered by Article 23, shall be covered by this Title only to the extent set out below:

(a) the following persons shall be covered by this Title for the purposes of reliance on and aggregation of periods of insurance, employment, self-employment or residence, including rights and obligations deriving from such periods in accordance with Regulation (EC) No 883/2004:

(i) Union citizens, as well as stateless persons and refugees residing in a Member State and nationals of third countries who fulfil the conditions of Regulation (EC) No 859/2003, who have been subject to the legislation of the United Kingdom before the withdrawal date but are no longer subject to that legislation;

(ii) United Kingdom nationals, as well as stateless persons and refugees residing in the United Kingdom and nationals of third countries who fulfil the conditions of Regulation (EC) No 859/2003, who have been subject to the legislation of a Member State before the withdrawal date but are no longer subject to that legislation; 

For the purposes of aggregation of periods, both periods completed before and after the withdrawal date shall be taken into account in accordance with Regulation (EC) No 883/2004;

(b) the rules set out in Articles 20 and 27 of Regulation (EC) No 883/2004 shall continue to apply to a person who has begun a course of planned health care treatment before the withdrawal date in a Member State, while that State was not the competent State until the end of the treatment. The corresponding reimbursement procedures shall also apply even after the treatment ends. They enjoy the right to enter and exit the State of treatment in accordance with Article 7, mutatis mutandis;

(c) the rules set out in Articles 19 and 27 of Regulation (EC) No 883/2004 shall continue to apply to a person, covered by Regulation (EC) No 883/2004, who is staying at the withdrawal date in a Member State, until the end of the stay. The corresponding reimbursement procedures shall also apply even after the treatment ends;

(d) the rules set out in Articles 67 to 69 of Regulation (EC) No 883/2004 shall continue to apply to awards of family benefit to which there is entitlement on the withdrawal date to Union citizens, stateless persons and refugees residing in a Member State as well as nationals of third countries who fulfil the conditions of Regulation (EC) No 859/2003, residing in a Member State, who are subject to the legislation of a Member State and have family members residing in the United Kingdom on the withdrawal date; 

(e) in the situations set out in Article 25(1)(d)(i) or (ii), for any persons who have rights as family members pursuant to Regulation (EC) No 883/2004, such as derived rights for sickness benefits in kind, the Regulation and the corresponding provisions in Regulation (EC) No 987/2009 shall continue to apply for as long as the conditions provided therein are fulfilled.

2. If, following the grant of a pension or a benefit based on periods of insurance, employment, selfemployment or residence in accordance with point (a) of paragraph 1 of this Article, a Member State is competent for the sickness benefits of a person residing in the United Kingdom, that person, as well as his or her family members and survivors, shall be entitled to sickness benefits as set out in Articles 22 to 30, 33 and 34 of Regulation (EC) No 883/2004 (in the case of a pensioner or a pension claimant), or Articles 17 to 21, 33 and 34 of Regulation (EC) No 883/2004 (in the case of a person receiving a benefit other than pension). The corresponding reimbursement procedures shall apply.

This provision shall apply mutatis mutandis as regards family benefits based on Articles 67 to 69 of Regulation (EC) No 883/2004.  

Article 26

Development of law and adaptations of Union acts

1. Where Regulations (EC) No 883/2004 and (EC) No 987/2009 are referred to in this Regulation and where those Regulations are amended or replaced after the withdrawal date, the reference to those Regulations shall be read as referring to them as amended or replaced, in accordance with the acts listed in [Annex I] to this Regulation.

2. Regulations (EC) No 883/2004 and (EC) No 987/2009 shall, for the purposes of this Regulation, be understood as comprising the adaptations listed in [Annex II] to this Regulation.

3. The Decisions and Recommendations of the Administrative Commission shall, for the purposes of this Regulation, be understood as comprising the list set out in [Annex I].

TITLE IV

OTHER PROVISIONS

Article 27

Free movement

United Kingdom nationals who have been issued documentation pursuant to Article 11 shall retain the right of free movement to other Member States in accordance with the relevant provisions of the Treaties and the legislation to give them effect.

Article 28

Publicity

The Member States shall disseminate information concerning the rights and obligations of persons covered by this Regulation, in particular by means of awareness-raising campaigns conducted, as appropriate, through national and local media and other means of communication.  

Article 29

More favourable provisions

1. This Regulation shall not affect any laws, regulations or administrative provisions applicable in a host State or a State of work which would be more favourable to the persons concerned. This paragraph shall not apply to Title III.

2.  Article 5 and Article 16(1) shall be without prejudice to the Common Travel Area arrangements between the United Kingdom and Ireland as regards more favourable treatment which may result from these arrangements for the persons concerned.  

Article 30

Life-long protection

The persons covered by this Regulation shall enjoy the rights provided for therein for their lifetime, unless they cease to meet the relevant conditions.

Article 31

Entry into force and application

1.   This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

2.   It shall apply from the withdrawal date.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, xx date 2018.