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

EU/UK Dispute resolution post-Brexit in the light of the White Paper

Catherine Barnard and Emilija Leinarte*

*Professor of EU law, University of Cambridge and PhD student, University of Cambridge. This research has received support from the ESRC’s UK in a Changing Europe programme.

The recent report published by UK in a Changing Europe discussed different governance structures that could potentially regulate UK-EU relations post-Brexit. The now published White Paper provides insight into the sort of institutional framework the UK will seek from the EU upon its withdrawal. Is there merit in the UK’s proposals? Are there alternatives? We look into the options for the dispute resolution mechanism post-Brexit.

Institutional arrangements

The White Paper suggests that the governance of the UK-UK relations could be laid down in an association agreement (AA). The agreement would provide an overarching institutional structure which would cover the majority of the individual agreements for different elements of economic, security and cross-cutting cooperation. The form of economic cooperation is likely to be concluded in the form of a mixed free trade agreement (FTA).

The White Paper suggests governance through two main institutions:

-          a Governing Body which would set the general direction for the future relationship and,

-          a Joint Committee which would be directed by the Governing Body and would manage the implementation of the relationship.

Member States will be given authority through the Governing Body, which would consist of the heads of states and the presidents of the EU institutions and would meet at least biannually. Ad hoc meetings at ministerial level would also be held. The Joint Committee would consist of officials from the EU and the UK. In addition, the UK Parliament and the European Parliament would maintain a regular and formal dialogue.

The overall structure proposed in the White Paper is hybrid (see p. 21 of the report) because Member States of the EU as well as EU institutions would have authority in the governance of the relationship. This is different to other EU association agreements where Member States do not have a direct role in the supervision and implementation of the agreement. For example, under both the EU-Ukraine AA and the EU-Moldova AA the Association Council plays a role similar to that of the Governing Body. The Association Council consists, on the EU’s part, of members of the Council of the European Union and members of the European Commission. The structure of the EU’s AAs is commonly supranational because representatives from the EU institutions rather than member states are given the task of overseeing the implementation of the agreements.

Dispute resolution

The White Paper also proposes a framework for dispute resolution between the parties to the AA. The suggested mechanism would cover binding commitments between the parties, such as trade obligations. Protection of private rights is not covered and so British individuals or companies who consider their rights under the AA to have been infringed would only be able to enforce their rights in the UK through the UK courts and in the EU by the EU courts (para. 33 of the White Paper). This is typical of the EU’s AAs. For example, Article 402 of the EU-Moldova AA also excludes private rights from dispute resolution. The Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), which replaced the Trans-Pacific Partnership (TPP) when the US withdrew from negotiations last year, also expressly excludes private action against the contracting parties (Article 28.22).

Private rights are also excluded from the dispute resolution mechanism under the Agreement on the European Economic Area (EEA Agreement) between the EU and members of the European Free Trade Area (EFTA) Norway, Liechtenstein and Iceland. To fill the gap, the European Commission, on the EU’s side, and the EFTA Surveillance, on the EFTA side, can receive complaints concerning the application of the EEA Agreement (Article 109(3) of the EEA Agreement) and may impose a fine on private persons if they breach the EEA Agreement (Article 110 of the EEA Agreement).

The EU’s recently concluded FTAs, such as the EU-Canada Comprehensive Economic and Trade Agreement (CETA), establishes a separate mechanism for investor claims and disputes arising in the financial services sector. Compensation awarded to investors is the primary remedy for such claims. The White Paper does not discuss this option. It is unclear whether the UK-EU FTA will contain an investment protection chapter.

Dispute resolution body

The White Paper says that disputes between the EU and the UK must be raised in the Joint Committee. Intermediation by an executive body is common to dispute resolution under the EU’s AAs. For example, under the EU-Moldova AA consultations are sought by sending a written request to the other party, copied to the Association Committee in Trade configuration (equivalent to a trade subcommittee of the Joint Committee). A similar arrangement for filing trade disputes is provided in the EU-Ukraine AA (Article 306).

If negotiations fail after a reasonable period of time, either of the parties may refer the dispute to an independent arbitration panel. Dispute resolution by independent arbitration panels is also typical in the EU’s AAs, including the EU-Moldova AA (Article 385) and the EU-Ukraine AA (Article 306). State-to-state dispute resolution under the EEA Agreement is different in this respect as it does not provide for the establishment of independent arbitration and instead gives the judicial function to an executive body (Article 111(2)).

The composition and process for appointment of an arbitration panel are not laid down in the White Paper, nor are the criteria for access to it, nor whether its findings will be published. All that is known so far is that the panel would include members from both parties. To this end, Article 28.9 of the CPTPP may serve as a template as it provides detailed rules on the composition of panels.

Remedies

The White Paper provides that in case of non-compliance, a complaining party may take measures to mitigate harm caused by the breach. These measures may include financial penalties or suspension of specific obligations (i.e. retaliation). As is common with trade regimes such as the WTO and CETA, such measures must be temporary and proportionate. Compensation and suspension of obligations for violations of trade obligations is typical to the EU’s AAs and are provided in both the EU-Moldova AA (Article 393) and the EU-Ukraine AA (Article 315).

In relation to suspension of obligations, WTO law allows a complaining party to cross-retaliate against any economic sector of the non-compliant state. In case of non-compliance by the EU, the so-called ‘carousel’ principle applies – goods and member states which are targeted by cross-retaliation rotate so that consequences are not concentrated in one member state and with respect to one product. The White Paper does not consider whether the same principle should apply to the UK-EU relationship. It only notes that suspension of obligations should be localised to the extent possible to the area of the future relationship that the dispute concerned (para. 46 of the White Paper). This is likely to be interpreted as meaning that in case of breach of trade obligations, suspension of obligations should be limited to trade.

In sum, the dispute resolution mechanism outlined in the White Paper is a mix of common features found in other EU association agreements as well as some innovative features. The proposal is up for negotiation with the EU, but it is Westminster rather than Brussels that will likely subject the proposal to most intense scrutiny and criticism.

The role of the CJEU

The influence of the Court of Justice of the European Union (CJEU) over the judicial system of the United Kingdom was, according to the Prime Minister, one of the key reasons which led to the Brexit vote. The Government has repeated time and time again that leaving the EU means leaving the jurisdiction of the EU Court. This has been a government red line. Yet, both in her Florence speech delivered on 22 September 2017 as well as in her Mansion House speech of 2 March, Theresa May suggested that judgments of the CJEU could be taken into account by the UK courts to ensure consistent interpretation of relevant EU law. This particular red line has already shown a pinkish hue.

So what exactly does it mean to leave the jurisdiction of a court but take its judgments into account?

Perhaps intentionally, the White Paper does not provide a straightforward answer to such a fundamental question. The document does suggest that the CJEU could have a dual role post-Brexit: (1) in relation to the UK courts when enforcing private rights stemming from the future relationship, and (2) in relation to the state-to-state dispute resolution mechanism. This is different to the EU’s recently negotiated FTAs, such as CETA where the CJEU has no role whatsoever. It is, however, typical in the EU’s AAs, perhaps because the aim of AAs is to lead to membership in the EU (this is not the case for economic cooperation under the FTAs). What the White Paper does demonstrate is that the sloughing of the CJEU skin is considerably more difficult than many Brexiters liked to think.

Let us address the dual role of the CJEU suggested in the White Paper.

The role of the CJEU in domestic cases

An obligation for the UK courts to follow the CJEU’s case-law differs depending on whether the dispute concerns the ‘common rulebook’ or other binding commitments under the future agreements. A ‘common rulebook’ is a customs arrangement proposed in the White Paper which effectively means that the UK would maintain the same rules for trade in goods as those of the EU in order to maintain frictionless trade and avoid Ireland/Northern Ireland border. It is not clear whether the UK intends to update its rules in line with changes in EU law.

The White Paper also suggests that when the UK courts enforce private rights stemming from commitments other than those related to the common rulebook, they ‘could’ take into account the relevant case law of the CJEU. This broadly confirms the language of s.6(2) of the recently adopted EU (Withdrawal) Act 2018 which provides ‘a court or tribunal may have regard to anything done on or after exit day by the European Court … so far as it is relevant to any matter before the court or tribunal.’

In addition, the White Paper opens a backdoor to the CJEU’s case law. In case of ‘significant’ divergence between the interpretation of the agreements by the EU and UK courts, the Joint Committee (the governing body for the future relationship) ‘could be empowered to act to preserve the consistent interpretation’ (para. 34 of the White paper). The practicalities of indirectly giving such unprecedented power over domestic courts to an executive body are not detailed.

An obligation for the UK courts to follow the CJEU’s case-law is stronger in relation to the common rulebook: the UK ‘would’ commit to its courts paying due regard to the CJEU’s case law. This effectively means that the CJEU’s interpretation of rules governing trade in goods would be binding on UK courts. Neither the EU-Moldova, nor the EU-Ukraine AAs set such obligation, perhaps because the EU does not have a common rulebook with them. Instead, they commit themselves to progressive legislative approximation, that is making their laws similar to those of the EU. In the process of legislative approximation, due regard must be given the case-law of the CJEU (e.g. Article 153 of the EU-Ukraine AA on the approximation of public procurement rules) but that is different from directly binding domestic courts to follow the CJEU’s case-law.

On the other hand, the implementation of rights and obligations stemming from the EU-Turkey Customs Union, in so far as they are identical to corresponding provisions of EU Treaties, must be interpreted in conformity to CJEU’s case-law (Article 66 of Decision No 1/95 of the EC-Turkey Association Council). Unlike association with Moldova and Ukraine which do not have a customs union with the EU, Turkey must ensure that its trade policies are compatible with those of the EU in order to maintain frictionless trade.

The UK courts would not, however, be able to make a preliminary ruling to the CJEU to ask for the CJEU’s interpretation on a certain aspect of EU law (para. 35 of the White Paper). However, the draft Withdrawal Agreement, which governs the UK’s exiting from the EU as well as matters related to the transitional relationship (i.e. post 29 March 2019 until 31 December 2020), does allow EU citizens to ask UK courts to make a reference to the Court of Justice. Article 151(1) of the Withdrawal Agreement states that when dealing with cases concerning citizens’ rights which were commenced within 8 years from the end of the transition period, the UK courts will be able to request the preliminary ruling (i.e. decision on interpretation) from the CJEU (without the presence of a British judge). The time-limits of the transition period are not (yet) known, but it may be extended for some years.

So, in answer to the question, has the UK been set free from the CJEU, the answer must be: not as much as many might like.

The role of the CJEU in dispute resolution between the parties

The White Paper also discusses resolution of disputes between the UK and the EU, as opposed to cases in the UK courts enforcing private rights.

Disagreements between the UK and the EU over the common rulebook for trade in goods would have to be resolved consistently with the CJEU’s case law. The Joint Committee (by mutual consent) or the arbitration panel would be able to make a preliminary reference to the CJEU. The CJEU’s interpretation of points of EU law would be binding on the Joint Committee and the arbitration panel (para. 42 of the White Paper).

This is not novel. Article 403 of the EU-Moldova AA provides that the CJEU’s rulings are binding on matters of EU law in disputes between the EU and Moldova (this would cover the common rulebook). Similarly, Article 322 of the EU-Ukraine AA provides that where a dispute raises a question of EU law, the arbitration panel must request the CJEU’s ruling which would be binding on the arbitration panel.

The approach adopted under the EEA Agreement is different. Reference to the CJEU is neither mandatory nor automatic – only if the dispute has not been settled within three months after it has been brought before the EEA Joint Committee, the parties ‘may’ agree to request the CJEU to give a ruling on interpretation of relevant points of EU law (Article 111(3) of the EEA Agreement).

In sum, the degree of influence of the EU Court over the UK’s judiciary will to a large extent depend on how much EU law will be let into the domestic system: the deeper the relationship, the bigger the role for the EU Court. A full stop to the jurisdiction of the CJEU would be a reality in case of a ‘no deal’ Brexit, and even in this situation the Withdrawal Act makes clear that the British courts may still take account of the case law of the Court of Justice because given the volume of EU law which is incorporated into UK law, the case law of the Court will have influence for decades to come.

Barnard & Peers: chapter 27

Photo credit: YouTube

Dispute settlement and the ECJ in the draft withdrawal agreement

Professor Steve Peers, University of Essex*

One of the most contentious issues in EU/UK relations after Brexit is going to be the extent to which there is still some residual connection between the UK and the EU’s Court of Justice. At first, that issue will arise in the withdrawal agreement which is being negotiated, a draft of which was tabled by the EU Commission last week. It will eventually arise to some extent also in the future relationship between the two sides, but let’s focus on the withdrawal agreement for now.

In this blog post, I analyse the main issues, annotate part of the proposed withdrawal agreement, and propose a number of amendments to the text. Note that some issues raised are particularly relevant to the acquired rights of EU27 and UK citizens – which will be the subject of my next annotation and analysis. (I have previously annotated and analysed the proposed text on the transition (implementation) period, and the Irish border).

Structure of the withdrawal agreement

The main provisions on dispute settlement appear in the “Final Provisions” in Part Six of the draft withdrawal agreement (Articles 151-168).

Within Part Six, there are four titles:

-          Title I on “Consistent Interpretation and Application” (Articles 151-156), which covers some aspects of ECJ jurisdiction, plus also a national authority in the UK to defend EU27 citizens’ rights, and other provisions;

-          Title II on “Institutional Provisions” (Articles 157-159), which sets up the Joint Committee to monitor and apply the Agreement;

-          Title III on “Dispute Settlement” (Articles 160-165), which contains provisions on the ECJ as well as unilateral sanctions; and

-          Title IV on “Final Provisions” (Articles 166-168).

However, for a full understanding of the issues, it’s also necessary to mention some aspects of the other Parts of the draft agreement, which comprises: the “Common Provisions” in Part One (Articles 1-7); Part Two on citizens’ rights (Articles 8-35); the “separation provisions” (Part Three: Articles 36-120); the transition (or implementation) period (Part Four: Articles 121-126); the financial settlement (Part Five: Articles 127-150); the “Final Provisions” in Part Six (Articles 151-168); and the Protocols on Ireland and UK bases on Cyprus (the latter Protocol is blank so far).

Broader context

As a Member State, the UK is covered by the ordinary jurisdiction of the ECJ, which comprises, among other things, references from national courts on the interpretation or validity of EU law (Article 267 TFEU), direct challenges to acts of the EU institutions or other bodies (Article 263 TFEU), and infringement actions against Member States which have allegedly violated EU law, usually brought by the EU Commission (Articles 258-260 TFEU).

However, it is unusual for non-EU states to be subject to the ECJ’s jurisdiction. It only has a role when international treaties which the EU has signed make reference to EU law. This is hard to avoid from the EU’s perspective because according to the ECJ’s case law, it breaches EU law for non-EU bodies to give an interpretation of EU law which binds the EU (see Opinion 1/92 and Opinion 1/00).

Dispute settlement, ECJ and the withdrawal agreement: an overview

The first rule in the draft withdrawal agreement relevant to the ECJ appears in Article 4(4), which requires references to EU law in the agreement to be interpreted in accordance with ECJ case law prior to the end of the transition/implementation period. Article 4(5) requires subsequent ECJ case law to be taken into account. EU law is defined broadly in Article 2, and Article 5 states that it includes amendments to EU law going up to the end of the transition/implementation period. Article 4(1) to (3) require that the withdrawal agreement has the same legal effect and rules of interpretation as when the UK was a Member State, and that it be incorporated into primary legislation in the UK. In particular EU27 citizens must be able to invoke directly in UK courts the rules on their acquired rights set out in Part Two of the Agreement.

During the transition/implementation period, the ECJ has its ordinary jurisdiction as regards the UK (Article 126). When that period ends (the Commission proposes the end of 2020: see Article 121), Part Three of the Withdrawal Agreement, on separation provisions, contains a number of special rules on the ECJ’s jurisdiction. Articles 82-87 specify that the Court will retain jurisdiction for any cases pending at the end of the transition/implementation period, and indeed for many cases which relate to events before that date which might be sent to the Court afterward (Article 83). There’s a special rule if the UK does not comply with an administrative decision of an EU body before the end of the transition/implementation period (Article 91).

If the proposed “fallback” rules on the Irish border apply, the ECJ have its ordinary jurisdiction as regards the rules in the Protocol on Ireland indefinitely (Article 11 of the Protocol), and there will be an indefinite requirement to interpret the EU law rules in that Protocol consistently with ECJ case law (Article 12(2) of the Protocol).

As for the core rules on the ECJ and dispute settlement, Part Six opens with special jurisdiction for the CJEU to rule on citizens’ rights issues following requests from courts in the UK for eight years after the end of the transition/implementation period (Article 151). The UK must set up an independent authority to help EU27 citizens enforce those rights (Article 152). Also, the CJEU retains jurisdiction to rule on the separation provisions and EU law aspects of the financial settlement after the end of the transition/implementation period (Article 153).

There will be a Joint Committee set up to monitor and implement the agreement (Articles 157-159); that’s not contentious as such. But the difficult issue will be its role in dispute settlement between the EU and the UK. (Disputes brought by individuals and companies will be thrashed out in the national courts, with possible references to the ECJ in light of its broad proposed jurisdiction).

After the end of the transition/implementation period, a dispute about interpretation between the parties to the agreement would first be discussed in the Joint Committee, which could decide to ask the ECJ to decide it, if both parties agree. After three months, if the dispute was not settled, either party could unilaterally invoke the ECJ’s jurisdiction (Article 162). If the Court’s ruling in that case was allegedly not complied with, the Court could be asked to rule again on the non-compliance, this time imposing a fine (Article 163(1) and (2)). Alongside this there would be the possibility of either side imposing sanctions on the other (Article 163(3)).

Finally, during the transition/implementation period, if the EU side believes that the UK had not complied with an ECJ ruling, it could suspend some internal market benefits for the UK. There is no corresponding power for the UK.

So far the UK has agreed to only parts of these proposals, mainly the points concerning citizens’ rights and the transition/implementation period, along with some aspects of the separation provisions. (See the joint report of the EU and UK from December, discussed here as regards citizens’ rights and here as regards other issues, along with my annotation of the proposals on the transition/implementation period.) It has, in particular, not agreed to the provisions on dispute settlement. 

Comments

Are the Commission’s proposals justified as a matter of law and policy – or are the UK’s objections to them convincing? First of all, the provisions on EU27 citizens’ rights simply elaborate on a previous compromise agreed between the UK and the Commission, concerning special ECJ jurisdiction for eight years and an independent authority in the UK. On the latter point, the Commission’s proposals could be strengthened a great deal, plus there is no justification for delaying the creation of the independent authority until the end of the transition/implementation period, as EU27 citizens will likely need assistance before then. So I have suggested amendments to Articles 152 and 168 of the proposal.

Secondly, the agreed ECJ jurisdiction during the transition/implementation period simply reflects the overall position that EU law and the EU institutions will apply as usual regarding the UK during this period (apart from the absence of UK presence on the institutions). It would have been preferable to “dock” the UK in to the EFTA Court during this period instead, where it would have its own judge, possibly also applying the EEA Treaty for at least some period so that is has greater input into EU law (but applies less of it). But the UK government seems uninterested in this idea.

This brings us to the parts which have not been agreed, and are likely to be controversial. In my view, it is entirely understandable for the UK to aim to limit the jurisdiction of the ECJ post-Brexit as much as possible, on the grounds that it is not a Member State any longer and the ECJ’s jurisdiction over non-EU countries is traditionally limited. Having said that, it’s impossible to avoid the ECJ’s own “red lines” in its case law noted above: it breaches EU law for non-EU bodies to give an interpretation of EU law which binds the EU. The obvious difficulty here for the UK, given its “red line” of avoiding future ECJ jurisdiction, is that the withdrawal agreement inevitably makes a number of references to EU law. There might be less difficulty avoiding the ECJ as regards the future UK/EU relationship – but that depends upon the contested question as to how much EU law the UK will still apply after Brexit.

Seen in that light, the Court’s continuing jurisdiction over separation issues (which detail how various EU laws will cease to apply to the UK) and EU law rules in the financial settlement provisions would be nearly impossible to avoid. Any disputes between the UK and the EU in these provisions could only be settled by the ECJ, due to the ECJ red line. So the jurisdiction on those issues in Article 153 probably has to stay.

It’s a different question as regards non-judicial sanctions, however. First of all, the prospect of unilateral sanctions by the EU against the UK for failure to comply with a judgment during the transition/implementation period is both unnecessary and simply obnoxious.  Unnecessary because – at the EU’s own insistence – the usual jurisdiction of the ECJ will apply during that period, including the remedy of the ECJ imposing fines for lack of compliance with its prior rulings. There’s no time limit problem here, since – again under the Commission’s own proposals – cases against the UK pending at the end of the transition/implementation period won’t simply lapse, but will be decided afterward.  Obnoxious because this remedy would apply to the EU side only (as if no EU27 Member state has ever breached EU law!), it would hypocritically treat the UK as both a Member State and a non-Member State at the same time, and it eschews any attempt at resolving the dispute politically (as well as circumventing the usual requirement for the party alleging the breach to discharge the burden of proof of proving its claim in the ECJ). It’s not even explicit that the EU’s decision could be judicially reviewed – although it would breach the EU principle of the rule of law if it could not be.

Secondly, after the end of the transition/implementation period, it’s more complicated: there would be an attempt at political dispute settlement, followed by a possible jurisdiction for the ECJ, followed (if an ECJ ruling was allegedly not complied with) by a request for the ECJ to apply sanctions. There’s also a random provision allowing for more sanctions, which should be booted into legal orbit forthwith due to its poor legal drafting. 

Here there’s confusion between treating the UK as a Member State (compulsory ECJ jurisdiction) and as a non-Member State (sanctions). The better course would be to accept that it will be a non-Member State – focussing, like the EEA treaty with other non-Member States, on a potential sanction (which either side could apply) if an attempt at dispute settlement fails. The possibility of asking the ECJ to rule could remain as an option, limiting its jurisdiction to the interpretation of EU law.   

All these comments – and some more technical points – are spelled out in more detail in the annotated text of Part Six attached, which also makes a number of suggestions for amendments of the proposed text.

Barnard & Peers: chapter 10, chapter 27

Photo credit: Irish Times

* This blog post was supported by an ESRC Priority Brexit Grant on 'Brexit and UK and EU Immigration Policy'

Annex – proposed text of withdrawal agreement, Part Six, annotated. My comments in italics; proposed amendments in italics and underline.

PART SIX

INSTITUTIONAL AND FINAL PROVISIONS

TITLE I

CONSISTENT INTERPRETATION AND APPLICATION

Article 151

References to the Court of Justice of the European Union concerning Part Two

Where, in a case which has commenced at first instance within eight years from the end of the transition period before a court or tribunal in the United Kingdom, a question is raised concerning the interpretation of Part Two of this Agreement, and where a court or tribunal in the United Kingdom seized with that case considers that a decision on that question is necessary to enable it to give judgment in that case, it may request the Court of Justice of the European Union to give a preliminary ruling on that question. The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings on such requests. The legal effects in the United Kingdom of such preliminary rulings shall be the same as the legal effects of preliminary rulings given pursuant to Article 267 TFEU in the Union and its Member States. 

Background: This reflects part of para 38 of the joint report. It sets the eight-year time limit starting from the end of the transition/implementation period, whereas that starting point was not definitively decided in the joint report, as it noted that discussions on the transition had yet to take place. It specifies that the CJEU’s powers concern the whole of Part Two, not just the vaguer “interpretation of those rights” in the joint report. As agreed, this differs from Article 267 TFEU in that final courts in the UK are not obliged as a rule to refer cases. However, the legal effects of such rulings are the same as under Article 267. That issue was not mentioned in the joint report, but the CJEU has ruled that its judgments (where its jurisdiction exists) must always be binding, even as regards non-EU states (see Opinion 1/91, para 38). It is implicit that the Court’s other jurisdiction (notably on infringement proceedings) will not apply.

According to Article 168, this provision – and the whole of Title I of Part Six (Articles 151 to 156) will only apply from the end of the transition/implementation period. That temporal limitation appears in the text of Article 151, but not Articles 152 to 156.

Comments: It is not clear what will happen to cases pending at the end of this eight-year period. To address such issues, I have a suggested amendment, to add this sentence: After the end of this eight-year period, Articles 82(2) and (3), 83(2) and 85(1) and (2) shall apply mutatis mutandis. This would mean that the CJEU still has jurisdiction for cases pending before it and courts in the UK at the end of that date, and confirm that its judgments after that date will remain binding on the UK. This is perhaps evident anyway from the final sentence and the words “commenced at first instance within eight years” (and from “litigation brought within 8 years” in the joint report), but it is better to confirm it explicitly.

If the transition period were extended, that would in principle have knock-on effects on this Article. It should be noted that there is no time limit on the CJEU’s jurisdiction to rule on the application of this agreement as regards UK citizens in the EU27. Nor is there any other limit on its jurisdiction relating to them (ie final courts will in principle have to send cases concerning them to the CJEU; infringement proceedings can apply).

Article 152

Monitoring of the implementation and application of Part Two

The United Kingdom shall set up an independent Authority to monitor the implementation and application of Part Two. That Authority shall have the power to receive and investigate complaints from Union citizens and their family members, and to conduct inquiries on its own initiative, concerning alleged breaches by administrative authorities of the United Kingdom of their obligations under Part Two. The Authority may make its findings public. Where it considers that the administrative authority concerned has not acted appropriately on its findings, and without prejudice to any remedies available to the Union citizens or family members concerned, the Authority shall have the right to bring a legal action before a competent court or tribunal in the United Kingdom in an appropriate judicial procedure with a view to seeking adequate redress. The Authority shall inform the European Commission of any such legal actions brought before courts or tribunals in the United Kingdom. It may also consult the European Commission before bringing such legal actions and the European Commission may suggest to the Authority to bring such legal actions.

Background: This is based on part of para 40 of the joint report, which provides as follows:

The implementation and application of the citizens' rights Part will be monitored in the Union by the Commission acting in conformity with the Union Treaties. In the UK, this role will be fulfilled by an independent national authority; its scope and functions, including its role in acting on citizens' complaints, will be discussed between the parties in the next phase of the negotiations and reflected in the Withdrawal Agreement. There should be regular exchange of information between the UK Government and the Commission.

Comments: The “scope and functions” of this body, in the proposal, would be: a) “to receive and investigate complaints from Union citizens and their family members”; b) “to conduct inquiries on its own initiative, concerning alleged breaches” of the rules by UK “administrative authorities”; and c) to “bring a legal action before a competent court or tribunal in the United Kingdom in an appropriate judicial procedure with a view to seeking adequate redress”, if it believes that the administration does not react appropriately, “without prejudice to” remedies the EU citizens and their family members have. Implicitly it will not be able to make its own binding decisions on complaints brought to it. As for procedural rules: the authority “may make its findings public”; it “shall inform” the Commission on legal actions and “may consult” it beforehand; the Commission may also suggest that the authority brings such actions.

This clause raises certain questions. In light of the recent botched attempt to appoint Toby Young to a university regulator, without following a proper process, there might be some doubts about the integrity of the appointment process. The authority might lack sufficient staff and funding. At the very least, the UK should make a declaration attached to the agreement, specifying more detail on these points. Although the power for the authority to make its own decisions (which the government would have to challenge) would be useful, the proposed powers (broadly comparable to the Commission’s, although there are no details of the process as compared to Article 258-260 TFEU on infringement proceedings) are an essential minimum, and hopefully the UK government will not seek to weaken them. 

The question arises what happens if the authority gives a disappointing reply to a complaint, or fails to reply within a reasonable time. Is there a remedy against the authority in that case? Must its decisions be reasoned? The Commission may be reluctant to push this issue because there are no effective remedies against its infringement decisions following individual complaints – and it likes it that way. There are also questions of whether there will be time limits upon bringing complaints, or upon the authority bringing legal proceedings. The authority does not appear to have the power to bring proceedings as regards general changes to the law, or to comment on them. It seems to have the discretion whether to make its proceedings public. It is not clear that the authority’s power to bring proceedings can lead to a remedy for the complainant; and it would be useful if the authority could submit observations in cases which it didn’t bring itself, in accordance with with Articles 154 and 155.

Substantively, the definition of “family members” logically entails an implied cross-reference to the definition in Article 8, in light of the reference to Part Two. “Union citizens” are defined in Article 2, which applies to the entire agreement.

Note that according to Article 168, this provision will only apply from the end of the transition/implementation period.  This seems highly objectionable, since the UK will be rolling out a “settled status” scheme well before that time, and EU27 nationals may need the assistance this body will offer as soon as possible after Brexit day. I have therefore suggested an amendment to Article 168. In comparison, the Commission’s powers to apply its infringement proceedings powers are unlimited in time.

To ensure that the powers of this authority are effective, I suggest an amendment based on the powers of data protection authorities. It would apply equally to the Commission, although it might be questioned whether such extra powers alter the “essential elements” of its powers pursuant to ECJ case law. I would argue not, since the Commission’s independence from Member States remains intact.

Suggested amendment: The United Kingdom shall set up an Authority to monitor the implementation and application of Part Two. That Authority shall act with complete independence in performing its tasks and exercising its powers in accordance with this agreement. The United Kingdom shall ensure that the Authority has the human, technical and financial resources, premises and infrastructure necessary for the effective performance of its tasks and exercise of its powers.

The Authority shall have the power to receive and investigate complaints from Union citizens and their family members, and to conduct inquiries on its own initiative, concerning alleged breaches by administrative authorities of the United Kingdom of their obligations under Part Two. It shall inform the complainant of the progress and the outcome of the investigation within a reasonable period. [It shall have the power to order the administrative authorities to ensure compliance with this Agreement.] It shall give reasons for its decisions, which shall be subject to effective judicial review.

The Authority shall make its findings public, with the consent of the complainant. Where it considers that the administrative authority concerned has not acted appropriately on its findings, and without prejudice to any remedies available to the Union citizens or family members concerned, the Authority shall have the right to bring a legal action before a competent court or tribunal in the United Kingdom in an appropriate judicial procedure with a view to seeking adequate redress for the benefit of the individual(s) concerned. In other pending cases, the Authority may submit written observations to the courts or the tribunals in the United Kingdom. With the permission of the court or tribunal in question, it may also make oral observations.

The Authority shall inform the European Commission of any such legal actions brought before courts or tribunals in the United Kingdom. It may also consult the European Commission before bringing such legal actions and the European Commission may suggest to the Authority to bring such legal actions. The authority may also suggest to the Commission to commence an infringement procedure in accordance with the Treaties, and may submit observations in accordance with Article 154.

This Article shall apply mutatis mutandis to the Commission.

Article 153

Jurisdiction of the Court of Justice of the European Union concerning Parts Three and Five

Without prejudice to Article 83 of this Agreement, Articles 258, 260, and 267 TFEU shall apply in respect of the interpretation and application of Part Three of this Agreement and of applicable Union law referred to in Article 129 and Article 131(1) or (2) of this Agreement. To this effect, any reference made in Articles 258, 260, and 267 TFEU to a Member State shall be read as including the United Kingdom.

Comment: This gives the CJEU its jurisdiction as regards infringement actions and preliminary rulings over cases concerning the separation provisions (Part Three) and the references to EU financial law in Part Five (financial settlement), which will still apply after the end of the transition/implementation period to the extent that payments are made after that date.

According to Article 168, this provision will only apply from the end of the transition/implementation period. The Court’s ordinary jurisdiction will apply up until to the end of that period.

The cross-reference to Article 83 covers cases brought before the end of the transitional/implementation period, which the CJEU will still have jurisdiction to decide afterwards.

Article 154

Submission of statements of case or written observations

Where a court or tribunal of a Member State refers a question concerning the interpretation of this Agreement to the Court of Justice of the European Union for a preliminary ruling, the decision of the national court or tribunal containing that question shall be notified to the United Kingdom. The United Kingdom shall be entitled to submit statements of case or written observations to the Court of Justice of the European Union within two months of such notification.

Background: This Article partly reflects the second sentence of para 39 of the joint report: “In the same vein, it is envisaged to give the UK Government and the European Commission the right to intervene in relevant cases before the CJEU and before UK courts and tribunals respectively.” The text of this Article defines what “relevant cases” are. Note that the Article applies to the entire withdrawal agreement, not just the citizens’ rights provisions. According to Article 168, this provision will only apply from the end of the transition/implementation period, although unlike Article 151 there is no final date when it expires.

Comment: A right of intervention like this is not unusual. For instance EFTA EEA states can (and sometimes do) state their view in CJEU cases which are relevant to the EEA treaty. However, it is a  very narrow interpretation of the concept of “relevant cases”. Surely a case is relevant not only where it concerns the withdrawal agreement as such, but where it concerns an EU law issue which could impact the UK in accordance with Article 4(5), which requires the UK’s administrative and judicial authorities to have due regard to relevant CJEU case law decided after the end of the transition/implementation period. Also it seems appropriate to allow the Authority set up by Article 152 to intervene where there are issues relevant to EU27 or UK citizens, since the UK government may be reluctant to defend their rights.

I therefore suggest two amendments. The first sentence should read: “Where a court or tribunal of a Member State refers a question concerning the interpretation of this Agreement, or a provision of Union law within the scope of Article 4(5) of this Agreement…” A new sentence at the end should read: “Where the case concerns Part Two of this Agreement, this Article shall also apply mutatis mutandis to the Authority referred to in Article 152.”

Article 155

Participation of the European Commission in cases pending in the United Kingdom

Where the consistent interpretation and application of Part Two of this Agreement so requires, the European Commission may submit written observations to the courts or the tribunals in the United Kingdom in pending cases where the interpretation of the Agreement is concerned. The European Commission may, with the permission of the court or tribunal in question, also make oral observations. The European Commission shall inform the United Kingdom of its intention to submit observations before formally doing so.

Background: This Article partly reflects the second sentence of para 39 of the joint report: “In the same vein, it is envisaged to give the UK Government and the European Commission the right to intervene in relevant cases before the CJEU and before UK courts and tribunals respectively.” The text of this Article defines what “relevant cases” are. Unlike Article 154, this Article does not apply to the entire withdrawal agreement, but only to the citizens’ rights provisions. According to Article 168, this provision will only apply from the end of the transition/implementation period. However, unlike Article 151, it will not expire after eight years.

Comment: As far as I know this explicit power to intervene in a national court proceeding is novel, although it could be compared to the Commission’s power to make observations in EFTA Court proceedings. It overlaps with the Authority’s power to bring cases, and (for a number of years) with the UK courts’ ability to ask the CJEU questions about the citizens’ rights in Part Two.

Article 156

Regular dialogue and exchange of information

In order to facilitate the consistent interpretation of this Agreement and in full deference to the independence of courts, the Court of Justice of the European Union and the United Kingdom's highest courts shall engage in a regular dialogue, analogous to the one which the Court of Justice of the European Union pursues with the highest courts of the Member States.

Background: This Article partly reflects para 39 of the Joint Report, which states: “Consistent interpretation of the citizens' rights Part should further be supported and facilitated by an exchange of case law between the courts and regular judicial dialogue.” However, Article 156 is not limited in scope to citizens’ rights, and makes no express reference to exchange of case law (or any other “information” referred to in the title of the Article). According to Article 168, this provision will only apply from the end of the transition/implementation period.

Comments: It seems odd that there is no exchange of information or case law provided for, especially as the EU has other treaties with non-EU states which provide for such exchanges. I suggest an amendment, to add a new sentence at the end of this Article: The Joint Committee shall establish a mechanism to ensure regular mutual transmission of case law and other information relevant to this Agreement.

TITLE II

INSTITUTIONAL PROVISIONS

Article 157

Joint Committee

1.  A Joint Committee is hereby established, comprising representatives of the Union and of the United Kingdom. The Joint Committee shall be co-chaired by the Union and the United Kingdom.

2.  The Joint Committee shall meet at least once a year or at the request of the Union or the United Kingdom. The Joint Committee shall set its meeting schedule and its agenda by mutual consent.

3.  The Joint Committee shall be responsible for the implementation and application of this Agreement. The Union or the United Kingdom may refer to the Joint Committee any issue relating to the implementation, application and interpretation of this Agreement.

4.  The Joint Committee shall:

(a)  supervise and facilitate the implementation and application of this Agreement;

(b)  decide on the tasks of the specialised committees and supervise their work;

(c)  seek appropriate ways and methods of preventing problems that might arise in areas covered by this Agreement or of resolving disputes that may arise regarding the interpretation and application of this Agreement;

(d)  adopt its own rules of procedure, as well as rules of procedure of the specialised committees;

(e)  consider any matter of interest relating to an area covered by this Agreement;

(f)  adopt decisions and make recommendations as set out in Article 159; 

(g)  adopt amendments to this Agreement in the cases provided for in this Agreement.

5.  The Joint Committee may:

(a)  delegate responsibilities to the specialised committees, except those referred to in points (b), (d), (f) and (g) of paragraph 4; 

(b)  establish other specialised committees than those established by Article 158 in order to assist it in the performance of its tasks; 

(c)  change the tasks assigned to the specialised committees or dissolve any of those committees; and

(d)  take such other action in the exercise of its functions as decided by the Union and the United Kingdom.

6.  The Joint Committee shall issue an annual report on the functioning of this Agreement.

Comment: The Joint Committee has a number of functions under the Agreement, not just in relation to citizens’ rights. Its main explicit role in that area will be updating the social security annex and (potentially) being a forum for dispute settlement – see Articles 162 to 165 below.

Article 158

Specialised committees

1. The following specialised committees are hereby established: 

(a) the Committee on citizens' rights;

(b) the Committee on the other separation provisions;

(c) the Committee on issues related to the island of Ireland;

(d) the Committee on Sovereign Base Areas related issues;

(e) the Committee on the financial provisions.

2. Unless otherwise provided in this Agreement, or unless the co-chairs decide otherwise, the specialised committees shall meet at least once a year. Additional meetings may be held at the request of the Union, the United Kingdom, or of the Joint Committee. They shall be co-chaired by representatives of the Union and of the United Kingdom. The specialised committees shall set their meeting schedule and agenda by mutual consent. The specialised committees may draw up draft decisions and recommendations and refer them for adoption by the Joint Committee.

3. The Union and the United Kingdom shall ensure that their respective representatives on the specialised committees have the appropriate expertise with respect to the issues under discussion.

4. The specialised committees shall inform the Joint Committee of their meeting schedules and agenda sufficiently in advance of their meetings and shall report to the Joint Committee on results and conclusions from each of their meetings. The creation or existence of a specialised committee shall not prevent the Union or the United Kingdom from bringing any matter directly to the Joint Committee.

Comment: Note that one of the specialised committees concerns citizens’ rights. It is likely to meet for some time into the future, given the long time frame of the application of Part Two of the Agreement.   

Article 159

Decisions and recommendations

1.  The Joint Committee shall, for the purposes of this Agreement, have the power to adopt decisions in respect of all matters for which this Agreement so provides and make appropriate recommendations to the Union and the United Kingdom.

2.  The decisions adopted by the Joint Committee shall be binding on the Union and the United Kingdom, and the Union and the United Kingdom shall implement them. They shall have the same legal effect as this Agreement. 

3.  The Joint Committee shall adopt its decisions and make its recommendations by mutual consent. 

Comment: the only power to adopt decisions which the Joint Committee has in the area of citizens’ rights is to adopt new social security rules pursuant to Article 31, although its dispute settlement powers (discussed below) might be relevant. So might its recommendations, although there is no explicit reference to them in the citizens’ rights part.

TITLE III

DISPUTE SETTLEMENT

Article 160

Cooperation

The Union and the United Kingdom shall, at all times, endeavor to agree on the interpretation and application of this Agreement, and shall make every attempt through cooperation and consultations to arrive at a mutually satisfactory resolution of any matter that might affect its operation.

Comment: This is a “best endeavours” Article that points toward trying to find political solutions to disputes. It does not include any specific legal obligations but could nevertheless be relevant in practice, given that disputes under the EU’s free trade agreements are usually settled diplomatically.

Article 161

Exclusivity

For any dispute between the Union and the United Kingdom arising under this Agreement, the Union and the United Kingdom shall only have recourse to the procedures provided for in this Agreement.

Comment: This Article prevents using other means besides those in the Agreement to settle disputes, unless the Agreement itself is amended.

Article 162

Settlement of disputes

1. Without prejudice to Article 153, the Union or the United Kingdom may bring any dispute which concerns the interpretation or application of this Agreement before the Joint Committee.

2. The Joint Committee may settle the dispute through a recommendation. It shall be provided with all information which might be of use in making possible an in-depth examination of the situation, with a view to finding an acceptable solution. To this end, the Joint Committee shall examine all possibilities to maintain the good functioning of the Agreement. 

3. The Joint Committee may, at any point, decide to submit the dispute brought before it to the Court of Justice of the European Union for a ruling. The Court of Justice of the European Union shall have jurisdiction over such cases and its rulings shall be binding on the Union and the United Kingdom.

4. If the dispute has not been settled within three months after it was brought before the Joint Committee and has not been submitted to the Court of Justice of the European Union by the Joint Committee pursuant to paragraph 3, the dispute may be submitted to the Court of Justice of the European Union for a ruling at the request of either the Union or the United Kingdom. The Court of Justice of the European Union shall have jurisdiction over such cases and its rulings shall be binding on the Union and the United Kingdom.

Comments: According to Article 168, this provision will only apply from the end of the transition/implementation period. The dispute settlement clause applies to the entire Agreement, not only the citizens’ rights rules. This text has clearly been adapted from Article 111 of the EEA treaty. Para 1 is identical (except for the names of the parties, obviously). Para 2 is identical except for the addition of the words “through a recommendation”. Paras 3 and 4 differ, however: under the EEA Treaty, the EEA Joint Committee can agree to ask the CJEU about a treaty rule which is identical to EU law after three months’ discussion (not at any time); and if the dispute is not resolved or sent to the CJEU after six months’ discussion, then one party can take a form of safeguard measure or disapply a part of the EEA rules due to divergence with the other party. It’s also specified that the CJEU rules are binding, although that simply restates the ruling of the CJEU in Opinion 1/91 that its rulings must always be binding. It will be necessary to decide which EU institution decides to bring proceedings on behalf of the EU.

In comparison then, the version of the Withdrawal Agreement places far more reliance on the CJEU: allowing earlier recourse if both sides agree; unilateral recourse after three months; jurisdiction over all the agreement, not just the EU law aspects (although admittedly much of the agreement refers to EU law); and eliminating the possibility of settling a dispute by means of a safeguard or divergence decision instead – although Article 165 provides for a sanction by the EU side only during the transition/implementation period, and there is an odd disconnected sanctions clause in Article 163(3). This provision overlaps with the jurisdiction of the Court over citizens’ rights that will apply for eight years after the end of the transition/implementation period. The CJEU jurisdiction in this Article would be subject to the rules of procedure to be set out in an Annex (see Article 164).

This proposal is problematic because it is one-sided, diverging from the solution in the EEA which the EU found legally and politically acceptable. (Suggesting a rather different approach to a similar issue could reasonably be seen as a form of “cherry-picking”).  While it would be a breach of EU law to set up a system which lets arbitrators et al make the final decision on interpretation of EU law for the EU (see Opinion 1/92), the EEA system was found compatible with EU law in that judgment and the obvious question is why not follow that route here – which would mean a form of sanction by either side instead of recourse to the ECJ? Also, why give the ECJ jurisdiction to rule on issues in the withdrawal agreement which are not EU law issues – given that there is no EU law requirement to give it such jurisdiction even where the EU would be bound by an interpretation of such rules?   

I suggest the following amendments, which would bring the text in line with the EEA model and be consistent with the limits set out by the ECJ in Opinion 1/92.

2. The Joint Committee may settle the dispute through a recommendation, which shall not affect the case law of the Court of Justice of the European Union….

3. If the dispute concerns the interpretation of Union law, the Joint Committee may, at any point….

4. If the dispute has not been settled within three months after it was brought before the Joint Committee and has not been submitted to the Court of Justice of the European Union by the Joint Committee pursuant to paragraph 3, either party may take a safeguard measure. Such safeguard measures shall be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation.  Priority shall be given to such measures as will least disturb the functioning of this Agreement.

If there is a dispute concerning the scope or duration of safeguard measures, either party may refer the dispute to arbitration under the procedures laid down in Protocol [xx].  No question of interpretation of the provisions of this Agreement concerning Union law may be dealt with in such procedures.  The arbitration award shall be binding on the parties to the dispute.

Article 163

Non-compliance

1. Where the Union or the United Kingdom consider that the other has not taken the necessary measures to comply with the judgment of the Court of Justice of the European Union resulting from proceedings referred to in Article 162, either the Union or the United Kingdom may bring the case before the Court of Justice of the European Union. The Court of Justice of the European Union shall have jurisdiction over such cases and its rulings shall be binding on the Union and the United Kingdom.

2. If the Court of Justice of the European Union finds, in proceedings brought before it pursuant to paragraph 1, that the Union or the United Kingdom, as the case may be, has not complied with its judgement, it may impose a lump sum or penalty payment on it.

3. The Union or the United Kingdom may decide to suspend:

(a) parts of this Agreement other than Part Two; or

(b)  parts of any other agreement between the Union and the United Kingdom, under the conditions set out in such agreement. 

Any suspension under this paragraph shall be proportionate to the breach of obligation concerned, taking into account the gravity of the breach and the rights in question. It shall be subject to judicial review by the Court of Justice of the European Union. 

Comments: According to Article 168, this provision will only apply from the end of the transition/implementation period. The CJEU jurisdiction in this Article would be subject to the rules of procedure to be set out in an Annex (see Article 164).

Paragraphs 1 and 2 are similar to Article 260(2) TFEU, which provide for the Commission to sue a Member State if it has allegedly not implemented a prior ruling in an infringement case. The text here differs in that: the prior judgment would not be an infringement case, but a dispute settlement ruling pursuant to Article 162 of the Agreement; the EU as such or the UK would bring the case, rather than the Commission; there is no reference to the obligation in Article 260 TFEU to giving the defending party “the opportunity to submit its observations” before the case is brought; and the plaintiff does not have to specify the lump sum or penalty which it wants the Court to impose.

For eight years, this provision would overlap with the Court’s special jurisdiction over citizens’ rights in Article 151 of this Agreement. 

Paragraph 3 is quite different from Article 260 TFEU, and the legal drafting here is….unimpressive. Is this an alternative remedy instead of applying for a lump sum or penalty payment? Or an additional one after, before or alongside a court challenge? Implicitly (but not very clearly) the grounds for applying this rule would be a “breach of obligation” – what obligation though? There is no explicit reference to paragraphs 1 or 2.

In the absence of a cross-reference to Article 162, there’s no explicit obligation to consult and try to reach a solution before enforcing this penalty. It would overlap with Article 151 (citizens’ rights) and  Articles 162 and 163(1) and (2). The one clear point is that it can’t be used to suspend the citizens’ rights provisions; although presumably a breach of those provisions could be used to trigger it. Remarkably, it could be used to suspend “any other agreement between” the EU and the UK, although this overreach is immediately rendered pointless by the proviso that this only applies “under the conditions set out in such agreement”.

Needless to say, I propose an amendment to delete this diabolical paragraph. In fact, my proposed amendment to Article 162 would mean that the rest of the Article would be superfluous too.

Article 164

Procedural rules and powers

Proceedings brought to the Court of Justice of the European Union pursuant to Article 162 or 163 shall be governed by the Rules of Procedure set out in [Annex y+3] to this Agreement.

Comment: This annex has not yet been filled in. According to Article 168, this provision will only apply from the end of the transition/implementation period.

Article 165

Suspension of benefits during the transition period

1.  Notwithstanding Article 126 of this Agreement, if during the transition period the Union considers that the United Kingdom has not fulfilled, during the transition period, an obligation under Union law as found in a judgment rendered pursuant to Article 126 of this Agreement in accordance with Article 258 TFEU, or that the United Kingdom does not respect an order rendered pursuant to Article 126 of this Agreement in accordance with Article 279 TFEU, and where the functioning of the internal market, of the customs union, or the financial stability of the Union or its Member States would be jeopardised as a result, the Union may suspend certain benefits deriving for the United Kingdom from participation in the internal market.

2.  When applying paragraph 1, the Union shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons. Any suspension under paragraph 1 shall be proportionate to the breach of obligation concerned, taking into account the gravity of the breach and the rights in question, and shall not exceed three months. It may, however, be renewed.

3.  The Union shall inform the United Kingdom of its intention to apply paragraph 1 and allow the United Kingdom, within 20 days, to remedy the situation. Any suspension shall take effect no earlier than 20 days after its notification to the United Kingdom.  

Background: The possibility of this clause was mooted when the Commission proposed Articles on the transition/implementation period. It is now limited to cases where the ECJ has already ruled in an infringement proceeding.  

Comments: For the reasons set out in the main comments in this blog post, I suggest the simple amendment of deleting this Article. For convenience, in summary those arguments are: a) it’s unnecessary because the usual jurisdiction of the ECJ will apply, including the remedy of the ECJ imposing fines for lack of compliance with its prior rulings; b) there’s no time limit problem here, since cases against the UK pending at the end of the transition/implementation period will be decided afterward; c) the proposal assumes that only the UK could breach EU law, not the EU27; d) it would treat the UK as both a Member State and a non-Member State at the same time; e) there is no proviso for attempting to resolve the dispute politically; f) it circumvents the usual requirement for the party alleging the breach to discharge the burden of proof of proving its claim in the ECJ; and g) there’s no provision for judicial review or arbitration concerning the decision.

TITLE IV

FINAL PROVISIONS

Article 166

Annexes

Protocols [1 to N] and Annexes [y to y+x] shall form an integral part of this Agreement.

Comment: Only the Protocol on Ireland and a few Annexes have been filled in.

Article 167

Authentic texts

This Agreement, drawn up in a single original in the Bulgarian, Croatian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish languages, the texts in each of these languages being equally authentic, shall be deposited in the archives of the Council, which shall transmit a certified copy to the United Kingdom.

Comment: Provisions on authentic language versions are standard clause in treaties. Bilateral treaties between the EU and non-EU countries are always valid in the languages of all Member States and the non-Member State too. In case of conflict between language versions, the ECJ looks at a number of them to determine the overall intention of the drafters, including (where relevant) the non-EU language version.

Article 168

Entry into force and application

This Agreement shall enter into force on 30 March 2019. 

Parts Two and Three, with the exception of Articles 30(1) and 40, as well as Title I of Part Six and Articles 162, 163 and 164, shall apply as from the end of the transition period. 

The Protocol on Ireland/Northern Ireland, with the exception of Article 10 thereof, shall apply as from the end of the transition period.

The Protocol relating to the Sovereign Base Areas in Cyprus shall apply as from the end of the transition period.

Comment: Although the Agreement will enter into force on Brexit day, many parts of it would only apply from the end of the transition/implementation period: Part Two on citizens’ rights (except a provision on participation in social security discussions), Part Three on separation provisions (except a provision on transferring files to authorise pharmaceuticals etc), the Protocols on Ireland and Cyprus bases (except the specialised committee on Ireland would be set up from Brexit day); the Part Six provisions on the ECJ and most dispute settlement clauses.

As noted above, it is objectionable that Article 152 (which sets up the Authority designed to help with applying EU27 citizens’ rights in the UK) will only apply from the end of the transition/implementation period, because EU27 citizens may need its assistance before then. I therefore propose an amendment, so that the second paragraph reads “…as well as Title I of Part Six (with the exception of Article 152) and…”

Conversely, although not mentioned here, some parts of the agreement will expire at the end of the transition/implementation period: for instance, Part Four (which concerns that period), and Article 165 (sanctions during the transitional period).

Done on [dd/mm/yyyy].