Professor Steve Peers, University of Essex
Yesterday, the EU Commission for
the first time proposed
the text of part of the Brexit withdrawal agreement. From the legal point
of view, ultimately the withdrawal agreement (if it is successfully negotiated
and comes into force) will be the key legal text governing the Brexit process
as such (there will be post-Brexit treaties governing the future relationship
between the EU and the UK).
Due to its importance, I will
provide what the UK’s Prime Minister once disdainfully referred to as a
‘running commentary’ on the draft text of the agreement as it develops. Several
caveats apply, however. First of all, this is a partial text, comprising the
part of the treaty on the transitional period (which the UK government would
prefer to call the ‘implementation period’) and some (probably not all) of the
part on common provisions. So this is the first of perhaps many instalments of
the commentary: there’s a lot of running ahead. The Articles in the final
withdrawal agreement will be numbered properly, but I have used the
Commission’s provisional numbering (where it suggested numbers) for now.
Secondly, this text has yet to be
agreed with the other party to the talks (the UK), which has indicated its
disagreement with at least some parts of this proposal.
Thirdly, to some extent this text
is not even the EU27’s position, because only part of it reflects the EU27 negotiation
directives on the transition period recently adopted by Member States in the EU
Council, which I annotated here.
I have indicated whether an issue in the proposed text was referred to in the
negotiation directives or not. If it was not referred to in those directives,
then the Commission is on a ‘frolic of its own’ on those points, and its
suggestions may not necessarily represent the view of Member States. Some of
these points will be more controversial with the Member States than others: I
expect it’s unlikely that Member States will argue with the Commission’s
proposal here on European Schools, for instance. But as I suggest below, one of
the Commission’s suggestions is arguably a highly inappropriate breach of its
position as EU negotiator.
Conversely, where the text does represent the view of Member
States, the Commission’s negotiation position should not simply be dismissed
(as some in the UK do) as its own institutional preference. Put simply, it
might be harder for the UK to convince EU27 Member States to change their own negotiation
position, than it would be for the UK to convince those States not to follow
the Commission’s institutional preferences.
In addition to the parts of the
withdrawal agreement on the transition period and common provisions proposed
yesterday, there will be parts dealing with ‘governance and dispute settlement’ (referred to in a footnote in
yesterday’s text) and the ‘financial
settlement’ (referred to in the introductory section of yesterday’s
text). There will necessarily also be a
part dealing with the rights of EU27 and
UK citizens who moved before Brexit day: I recently made detailed
suggestions as to what that text should include. I assume there will also be parts on the Irish border and on ‘winding up’ the UK’s involvement with
EU law, such as what happens to pending ECJ cases or pending European Arrest
Warrants, although the proposal on the transitional period would in practice
delay the application of such rules.
On the financial settlement in
particular, yesterday’s proposal says:
It should be
noted that the detailed provisions relating to the financial settlement aspects
of the transition will be covered under the Financial Provisions of the
Withdrawal Agreement. In addition to the elements contained in the Joint report
of 8 December 2017, the Financial Provisions of the Withdrawal Agreement should
also cover the financing, during the transition period, of the relevant Common
Foreign and Security Policy and Common Security and Defence Policy agencies or
operations on the basis of the same contribution key as before the withdrawal
date.
There is, however, no reference
in yesterday’s proposal to the EU27 position that acquired rights for EU27
citizens who moved to the UK, and for UK citizens who moved to the EU27, will
still be obtained for those who move during the transition period. The UK
government has contested this suggestion.
One can speculate why the
Commission has begun to draw up legal texts as part of the negotiation process.
In any event, the December joint
report on ‘sufficient progress’ in the Brexit talks referred implicitly to
the intention to draw up draft texts related to the partly agreed parts of the
withdrawal agreement, so we might expect more of the draft soon.
On the judicial front, the
practical effect of drawing up legal texts of the withdrawal agreement is that
as the final shape of the agreement becomes clearer, it becomes possible to ask
the EU’s Court of Justice to clarify any disputed legal issues relating to the
withdrawal agreement in advance. (The Court will not give an advance ruling on
a proposed international treaty if the intended text of the proposed treaty is
too uncertain: see
Opinion 2/94 where the Court
ruled it could only clarify some aspects of the EC’s proposed accession to the
ECHR). Time is running out to give this opinion before Brexit day if the Court
were asked, although it could fast-track a case if need be (Opinion
1/94 on accession to the WTO was decided in seven months).
Barnard & Peers: chapter 27
Photo credit: Financial Tribune
Commentary on the draft
Withdrawal Agreement
Version of 8 February 2018
PART [X] [of the Withdrawal Agreement]
COMMON PROVISIONS
[Article x
Definitions]
[1. ‘Union law’ shall mean:]
(i) the Treaty on European Union
("TEU"), the Treaty on the Functioning of the European Union
("TFEU") and the Treaty establishing the European Atomic Energy
Community ("Euratom Treaty"), together referred to as “the Treaties”,
as amended or supplemented, as well as the successive Treaties of Accession;
(ii) the general principles of
Union law;
(iii) the acts adopted by the
institutions, bodies, offices or agencies of the Union;
(iv) the international agreements
to which the Union and/or Euratom is party;
(v) the agreements between Member
States entered into in their capacity as Member States of the Union and/or of
Euratom;
(vi) decisions and agreements of
the Representatives of the Governments of the Member States meeting within the
European Council or the Council.
The text here is taken from footnote 1 to the proposal, which reads:
“The Withdrawal Agreement will contain, in its Part on Common Provisions, an
article defining Union law as meaning:…” I have suggested a title for the
Article. Presumably there will be other definitions in the withdrawal agreement
too. If not, this Article might simply
be titled ‘Definition of Union law’.
This text reflects (and fleshes out) the first sentence of para 13 of
the negotiation directives, which say that the transition rules should cover “the
whole of the Union acquis, including Euratom matters”. It could be compared a
contrario to the text of an accession
treaty to the EU.
Oddly, there is no explicit mention here of the EU Charter of Rights -
although it is referred to in the Treaties and legislation, it is a separate
legal text.
[Article X + 1
Interpretation]
1. The
provisions of this Agreement referring to concepts or provisions of Union law
in their implementation and application are interpreted in conformity with the
relevant decisions of the Court of Justice of the European Union given before
the end of the transition period.
2. Where
a provision of Union law is amended, supplemented or replaced during the
transition period, the reference to this provision of Union law is to be read
as referring to the amended, supplemented or successor provision, provided that
the change takes effect before the end of the transition period.
The text here is also taken from footnote 1 to the proposal, which
reads: “The Part on Common Provisions will also contain an article to the
effect that…” the text of paragraph 1, and “Furthermore, a specific article of
the Part on Common Provisions will clarify that…” the text of paragraph 2. I
have added a suggested heading for the title of the Article. It is possible
that these will end up as separate Articles. There might be other rules added
on interpreting the withdrawal agreement.
Since they will appear in the Common Provisions of the agreement, these
cross-references to the development of case law or legislation during the
transition period will presumably also apply to the citizens’ rights and
financial settlement provisions of the agreement.
The UK government is particularly concerned about being bound by EU
legislation adopted during the transition period without its involvement,
although note that this rule only applies where existing law is amended and
where that amendment "takes effect" before the end of the transition
period. Possibly point (iii) in the previous Article is meant to cover cases of
brand new legislation, but this is unimpressive drafting. Also, the term “takes
effect” is unclear: Directives enter into force immediately, but only have full
legal impact after the deadline to transpose them, which is usually two years
later.
In any event, the proposals do not reflect para 59 of the December joint
report on progress in the Brexit talks, which states that future changes to
the basic EU funding and spending laws which affect the UK will not apply to
it, which would for instance prevent any changes being made to the UK rebate
after it loses its power to veto such changes. However, as noted above, the
Commission states that issues relating to the financial settlement will be in a
separate part of the withdrawal agreement, so this issue might be covered there.
[Article NN
References to Member States]
For the purposes of this
Agreement, all references to Member States and competent authorities of Member
States in provisions of Union law made applicable by this Agreement shall be
read as including the United Kingdom and its competent authorities, except as
regards:
(a) the nomination, appointment
or election of members of the institutions, bodies, offices and agencies of the
Union, as well as the participation in the decision-making of the institutions;
(b) the attendance in the
meetings of the committees referred to in Article 3(2) of Regulation (EU) No
182/2011 of the European Parliament and of the Council, of Commission expert
groups or of other similar entities, or in the meetings of expert groups or similar
entities of bodies, offices and agencies of the Union, unless otherwise
provided in this Agreement;
(c) the participation in the
decision-making and governance of the bodies, offices and agencies of the
Union; […].
The text here is taken from footnote 2 to the proposal, which reads: “The
Withdrawal Agreement will contain, in its Part on Common Provisions, the
following:” I have suggested a title for
the Article. I refer to this as ‘Article NN’ because the proposed Article
X+2(1), which refers to it, does so (see below). There will likely be other
Articles in the ‘Common Provisions’ part of the agreement. It is not clear why
there are deleted words in point (c). Note that the proposed Article X+2(4)
includes a derogation from this Article, allowing some limited participation of
the UK in EU bodies as an exception.
This text reflects the second sentence of para 13 of the negotiation
directives, which states that “the Union acquis should apply to and in the
United Kingdom as if it were a Member State”, as well as the final sentence of
para 18 and the first sentence of para 19 on the exclusions from a UK role in
the institutions.
While the Treaties only refer to Member States as having a full
decision-making role within EU institutions, there is nothing to rule out
consultation with non-Member States. Indeed, the Schengen association agreement
with Norway and Iceland gives them consultation rights at ministerial level.
The notion that the UK is expected to apply new EU law (see the previous
Article) without even being informally consulted on the relevant proposals
therefore has a vindictive tinge to it. In any event, the proposals do not
reflect para 30 of the December joint
report on progress in the Brexit talks, which states that there should be a
system to decide jointly on the incorporation of future amendments to the
social security rules in the withdrawal agreement.
PART [X] [of the Withdrawal Agreement]
TRANSITION PERIOD
Article X
Transition period
There shall be a transition
period, which shall start on the date of entry into force of this Agreement and
end on 31 December 2020.
This text reflects para 22 of the negotiation directives. The end date
is convenient for the EU27 side as it corresponds with the end of the current
multi-annual EU budget cycle. For its part, the UK has referred to a transition
period of “around two years”.
As the text stands, the transition period could not be extended unless another
clause is added in the withdrawal agreement to allow for this. If no such
clause is added, extending the transition period after Brexit day would need a
new treaty adopted on a different legal basis than Article 50 (which only
applies to the withdrawal process) which would need to be adopted by unanimity
and possibly also ratification by national parliaments (although some or all of
the treaty could apply provisionally while national ratification was taking
place).
Note that Article X+1(2), discussed below, provides conversely for part
of the transition period to be curtailed as regards foreign policy issues.
Article X + 1
Scope of the transition
1. Unless otherwise provided in
this Part, Union law shall be binding upon and applicable in the United Kingdom
during the transition period.
However, the following provisions
of the Treaties and acts adopted by the institutions, bodies, offices or
agencies of the Union shall not be applicable to and in the United Kingdom
during the transition period:
(a) provisions of the Treaties
and acts which, pursuant to Protocol (No 15) on certain provisions relating to
the United Kingdom of Great Britain and Northern Ireland, Protocol (No 19) on
the Schengen acquis integrated into the framework of the European Union or Protocol
(No 21) on the position of the United Kingdom an Ireland [sic] in respect of the area of freedom, security and justice, or
pursuant to the provisions of the Treaties on enhanced cooperation, were not
binding upon and applicable in the United Kingdom before the date of entry into
force of this Agreement as well as acts amending such acts;
(b) Article 11(4) TEU, Articles
20(2)(b), 22 and the first paragraph of Article 24 TFEU and paragraph of
Article 24 TFEU and acts adopted on the basis of those provisions;
There are rules about what is included in the scope of UK obligations,
and what is excluded from the scope of those obligations. The rule about
inclusion appears as a proposed Article in a footnote to this paragraph in the
Commission proposal; I have adapted it and inserted it as the text of the
‘Common Provisions’ above.
As for exclusions, sub-paragraph 1(a) keeps the UK’s existing opt outs
from the single currency, Schengen, Justice and Home Affairs (JHA) law and
enhanced cooperation (a system where some Member States go ahead and adopt EU
law without the others), except where the UK opted in to EU laws in these areas
before Brexit day. The JHA exclusion reflects the final sentence of para 13 of
the negotiation directives; the other exclusions are not mentioned in those
directives.
There is no opt-out from Treaty amendments, although no such amendment
is planned at present. It is odd that the text does not exclude the UK from
‘permanent structured cooperation’ in the area of defence, given that the UK
decided to opt out when most Member States decided to trigger
that process recently.
Sub-paragraph 1(a) excludes the Treaty rules and legislation related to
the European citizens’ initiative (on that process, see the case law discussed here)
and also voting and standing for office in the European Parliament and local government.
There is a need for a transitional clause to deal with the situation of those EU27
citizens who were elected to local government in the UK (and vice versa) before
Brexit day.
Conversely other EU citizenship provisions will logically still apply.
This includes the “Ruiz Zambrano” case law on UK citizen children with non-EU
parents, which I discussed here.
2. Should an agreement between
the Union and the United Kingdom governing their future relationship in the
area of the Common Foreign and Security Policy and the Common Security and
Defence Policy become applicable during the transition period, Chapter 2 of
Title V of the TEU and the acts adopted on the basis of those provisions shall
cease to apply to the United Kingdom from the date of entry into force of that
agreement.
This is the one field where the proposal contemplates an early end to
the transitional period. By contrast, the UK Prime Minister’s Florence speech
referred to the possibility of ending the transitional (or ‘implementation’)
period early for a number of issues at different times. An early end to the
transition period in this field would avoid the awkward situation where the UK
becomes bound by foreign policy measures which it could have vetoed if it were
a Member State. It would also end a possibility for linking defence issues to
trade issues, although the policy in the Florence speech was not to insist upon
such a link.
This proposed clause is partly consistent with a statement
adopted by the Council when it adopted the negotiation directives. However,
that statement also referred to the “fight against terrorism and international
crime”, which are JHA issues. Legally it is questionable whether the UK and EU
would actually be constrained by the withdrawal agreement if they wanted to
sign a treaty replacing these rules in other fields of EU law during the
transition period.
3. During the transition period,
the Union law applicable pursuant to paragraph 1 shall deploy in respect of and
in the United Kingdom the same legal effects as those which it deploys within
the Union and shall be interpreted and applied in accordance with the same
methods and general principles as those applicable within the Union.
This proposed para transposes para 14 of the Council negotiation
directives, which refer explicitly to the direct effect and supremacy of EU law.
4. The United Kingdom shall not
participate in any enhanced cooperation:
(a) in relation to which
authorisation has been granted on or after the date of entry into force of this
Agreement; or
(b) within the framework of which
no acts have been adopted before the date of entry into force of this
Agreement.
This paragraph is not reflected in the Council negotiation directives.
It is particularly relevant to the proposal on the financial transaction tax,
which is subject to the enhanced cooperation process (without UK participation)
but where there is no agreement yet (see more on the background to the tax
proposal here).
If this para is agreed, the suggestion that the UK might somehow become bound
as such by the tax during the transition period is therefore, as things stand,
frankly scaremongering. There is a risk that the tax would have some
extraterritorial effect upon the City of London, but that risk would equally
exist if the UK were still a Member State, since it could not veto an enhanced
cooperation measure that it was not participating in.
5. In relation to acts adopted
pursuant to Title V of Part III of the TFEU by which the United Kingdom is
bound before the date of entry into force of this Agreement, Article 5 of
Protocol (No 19) on the Schengen acquis integrated into the framework of the
European Union and Article 4a of Protocol (No 21) on the position of the United
Kingdom and Ireland in respect of the area of freedom, security and justice
shall continue to apply during the transition period. The United Kingdom shall,
however, not have the right of opt-in provided for in those Protocols to
measures other than those referred to in Article 4a of Protocol No 21.
This paragraph is reflected in the fourth sentence of para 13 of the Council
negotiation directives. It means that the UK can opt in to new JHA laws
amending JHA laws which it is already bound by. Note that the UK has already
opted out of the ‘Dublin IV’ proposal on allocation of asylum seekers, so the
suggestion that it could be bound by that law during the transitional period is
pure scaremongering.
6. Unless otherwise provided in
this Part, during the transition period, any reference to Member States in the
Union law applicable pursuant to paragraph 1 shall be understood as including
the United Kingdom.
However, where acts of the Union
provide for the participation of Member States, nationals of Member States or
natural or legal person residing or established in a Member State in an
information exchange, procedure or programme and where such participation would
grant access to sensitive information that a third country or natural or legal
person residing or established in a third country is not to have knowledge of,
these references to Member States shall be understood as not including the
United Kingdom.
The first sub-paragraph reflects the second sentence of para 13 of the Council
negotiation directives. However, the second sub-paragraph does not reflect
those directives. It seems that the Commission is concerned that the UK might
hand information over to non-EU countries without authorisation.
Article X+2
Institutional arrangements
1. Notwithstanding Article X+1,
during the transition period [points (a), (b) and (c) of Article NN from the
Common Provisions] shall apply.
See the text of ‘Article NN’, discussed above. As a reminder, this
Article removes the UK from the EU institutions and other bodies.
2. For the purposes of the
Treaties, during the transition period, the parliament of the United Kingdom
shall not be considered to be a national parliament.
This sub-paragraph does not explicitly reflect anything in the Council
negotiation directives. However, it arguably is implicit that if the UK is not
part of the EU institutions, there is no requirement to consult the UK’s
national parliament on proposed EU measures. But even if there is no longer a
legal obligation to do so, it is hard to see what harm would be caused by
consulting the UK parliament, or what legal rule would prevent the EU agreeing
to do so outside the context of the formal role for national parliaments of
Member States set out in the Treaties.
3. For the purposes of Articles
282 and 283 TFEU and of Protocol (No 4) on the Statute of the European system
of central banks and of the European Central Bank, during the transition
period, the Bank of England shall not be considered to be a national central
bank.
This sub-paragraph does not explicitly reflect anything in the Council
negotiation directives. However, it arguably is implicit that if the UK is not
part of the EU institutions, it follows that the Bank of England does not have
the status of a national central bank in its relations with the ECB.
4. By way of derogation from paragraph
1, during the transition period, representatives or experts of the United
Kingdom, or experts designated by the United Kingdom, may, upon invitation and
on an case-by-case basis, exceptionally attend meetings or parts of meetings of
the committees referred to in Article 3(2) of Regulation (EU) No 182/2011 of
the European Parliament and of the Council, of Commission expert groups, of
other similar entities, or of bodies, offices or agencies where and when
representatives or experts of the Member States or experts designated by Member
States take part, provided that one the following conditions is fulfilled:
(a) the discussion concerns
individual acts to be addressed during the transition period to the United
Kingdom or to natural or legal persons residing or established in the United
Kingdom;
(b) the presence of the United
Kingdom is necessary and in the interest of the Union, in particular for the
effective implementation of Union law during the transition period.
During such meetings or parts of meetings,
the representatives or experts of the United Kingdom or experts designated by
it shall have no voting rights and their presence shall be limited to the
specific agenda points that fulfil the conditions set out in point (a) or (b).
In the invitation to be sent to representatives or experts of the United
Kingdom or to experts appointed or designated by it, the chair of the meeting
concerned shall clearly identify the agenda points for which their attendance
is allowed.
The first half of this sub-paragraph reflects para 19 of the Council
negotiation directives, and the second half elaborates upon that rule. Note
that a statement
by the Commission commits itself to issue a guidance document on how to apply
this rule consistently in practice.
A footnote refers to the official publication of Regulation
182/2011, which sets out general rules for Member States’ participation in
committees which govern the Commission’s use of implementing powers.
As in the rest of this Article and Article NN, it is questionable
whether it is really necessary to limit the UK’s purely consultative role to
this extent. Certainly there is only a weak argument that it is legally
required.
5. During the transition period,
the United Kingdom shall not act as leading authority for risk assessments,
examinations, approvals and authorisation procedures provided for in Union law.
This sub-paragraph does not explicitly reflect anything in the Council
negotiation directives. It is not so obviously implicit that the UK’s exclusion
from the EU institutions means that it cannot have a role as lead authority in
risk assessment et al. Put another way, this is arguably an issue of EU
substantive law – where the UK will in effect remain a Member State during the
transition period – rather than EU institutional law, where it will not.
Article X+3
Specific arrangements relating to the Union's external action
1. Without prejudice to Article
X+1(2), during the transition period, the United Kingdom shall be bound by the
obligations stemming from the international agreements concluded by the Union,
or by Member States acting on its behalf, or by the Union and its Member States
acting jointly.
2. During the transition period,
representatives of the United Kingdom shall not participate in the work of any
bodies set up by international agreements concluded by the Union, or by Member
States acting on its behalf, or by the Union and its Member States acting
jointly.
These two paragraphs transpose para 17 of the Council negotiation
directives. They entail the UK still being bound to the EU as regards
treaties with non-EU states. Logically this applies vice versa and it would be
preferable to spell that out directly. It should follow that individuals can
still invoke the direct effect of such treaties (where it exists) in the UK
during the transition period (for instance, Turkish citizens with rights under
the EU/Turkey association agreement framework).
However, the UK is not bound to non-EU countries to apply such
treaties; neither can non-EU countries directly invoke such treaties against
the UK. Since this could in particular
affect UK exports, it makes sense for the UK to focus on replicating such
treaties: see para 4 below.
3. In accordance with the
principle of sincere cooperation, the United Kingdom shall abstain, during the
transition period, from any action or initiative which is likely to be
prejudicial to the Union's interests in the framework of any international
organisation, agency, conference or forum of which the United Kingdom is a
party in its own right.
This paragraph is not reflected in the Council negotiation directives.
It explicitly sets out the obligation that would anyway arguably still apply
implicitly, since other EU Treaty provisions on sincere cooperation would still
be applicable to the UK. Note that the UK would presumably have more freedom to
act once any early post-Brexit treaty on EU/UK security and defence cooperation
came into force (see Article X+1(2) above).
4. During the transition period,
the United Kingdom may not become bound by international agreements entered
into in its own capacity in the areas of exclusive competence of the Union,
unless authorised to do so by the Union.
This para transposes the wording of the final sentence of para 16 of
the Council’s negotiation directives, with the important change that it only
applies to ‘exclusive’ competence of the EU. This change narrows the limits on
the UK’s external action. Note that the exact extent of exclusivity of EU
competence is often disputed and even litigated.
Some discussion of the transition period suggests that the UK would be
banned from signing treaties, but this is false: rather the UK could do so, but
only with authorisation, and that limit would only apply within the area of
exclusive EU competence. Also, note that the restriction is on the UK becoming
‘bound by’ international treaties during the transition period, not upon
negotiation or signing such treaties. However, it might be argued that such
negotiations would breach para 3 of this Article, although the obvious
counter-argument from the UK would be that a treaty which does not apply until after
the transition period could not affect the Union’s interests given that the UK
will no longer be bound by EU law as such after that point.
There is no mention of the process of approval of the UK becoming bound
by treaties. Note that one of the statements
attached to the Council negotiation Directives says that the Council will
approve the UK becoming bound by such treaties, in accordance with the usual
Treaty rules.
5. Without prejudice to Article
X+1(2), whenever there is a requirement for coordination, including on
sanctions policy, or representation in international organisations or
conferences, the United Kingdom may be consulted by the Commission or the High
Representative of the Union for Foreign Affairs and Security Policy, as the
case may be, on a case-by-case basis.
This para is not reflected in the Council’s negotiation directives. It
takes account of the UK’s significant foreign policy rule, in particular
regarding sanctions. It’s conceivable, due to the loss of the UK veto over EU
foreign policy during the transition period, that the UK could be legally bound
to use (or not to use) its Security Council veto during the transition period. As with para 3, in the foreign policy
context the UK would presumably have more freedom to act once any early
post-Brexit treaty on EU/UK security and defence cooperation came into force
(see Article X+1(2) above).
6 During the transition period,
the United Kingdom shall not provide commanders of civilian operations, heads
of mission, operation commanders or force commanders for missions or operations
conducted under Articles 42 to 44 TEU, nor shall it provide the operational
headquarters for such missions or operations. During the transition period, the
United Kingdom shall not provide the head of any operational actions under
Article 28 TEU.
This para is not reflected in the Council’s negotiation directives,
although it is consistent with the overall thrust of removing the UK from roles
in EU bodies.
Article X+4
Specific arrangements relating to Fisheries Policy
As regards the fixing of fishing
opportunities within the meaning of Article 43 TFEU for any period prior to the
end of the transition period, the United Kingdom shall be consulted by the
Commission during the decision-making process within the Council and during
international negotiations in respect of the fishing opportunities related to
the United Kingdom.
This reflects para 21 of the
Council negotiation Directives, which states that “Specific consultations
should also be foreseen with regard to the fixing of fishing opportunities
(total allowable catches) during the transition period, in full respect of the
Union acquis.”. If the transition period ends as proposed at the end of 2020,
this would only be relevant for one year.
Article X+5
Supervision and enforcement
During the transition period, the
institutions, bodies, offices and agencies of the Union shall have the powers
conferred upon them by Union law also in relation to the United Kingdom and
natural and legal persons residing or established in the United Kingdom. In
particular, the Court of Justice of the European Union shall have jurisdiction
as provided for in the Treaties.
This reflects the first sentence of para 18 of the Council negotiation Directives, but leaves out the second sentence,
which reads: “In particular, Union institutions, bodies and agencies should
conduct all supervision and control proceedings foreseen by Union law.”
That brings us to the most controversial part of this proposal: there
is a footnote 4 here which states as follows: “In addition, the Governance and
Dispute Settlement Part of the Withdrawal Agreement should provide for a
mechanism allowing the Union to suspend certain benefits deriving for the
United Kingdom from participation in the internal market where it considers
that referring the matter to the Court of Justice of the European Union would
not bring in appropriate time the necessary remedies.” Since there is no suggested text of this clause, I have not inserted
this point separately into this proposed draft of the agreement.
While sanctions in general are common remedies for breaches of treaties
in international law, and the disapplication of some provisions of an agreement
is common in EU treaties with non-EU states in particular, this specific
suggestion in the context of the withdrawal agreement negotiations is highly
legally and politically problematic.
As a matter of principle, this approach is contradictory: the
Commission thinks that the UK should be a Member State fully covered by the
Treaties, plus a special rule ought to apply which is similar to those
in international treaties in which non-EU countries have a more distant
relationship with the EU. On the contrary: substantive status quo membership
should mean substantive status quo membership.
Moreover, this issue is not referred to in the Council negotiation
directives; in fact, creating such a special rule contradicts the position
in those directives that the EU institutions shall have their normal
enforcement role. Arguably it also interferes with the ‘essential nature’ of
the jurisdiction of the ECJ, contradicting the rule in ECJ case law on its
jurisdiction in treaties with non-EU countries. The argument about timing of
ECJ action is unconvincing, since the Commission can ask for interim measures
in ECJ proceedings, and the deadlines to apply many of the laws concerned would
fall after the end of the transition period. While the UK could presumably
challenge the legality of any sanctions decision in the EU courts, as this
proposal does not limit the UK’s standing to sue EU institutions during the
transition period, the issue is whether such a power should exist in the first
place.
Furthermore, the footnote makes no reference to the dispute settlement
process that would usually precede such a sanction, or to the limits on the
proportionality of such measures found in treaties such as the EEA. The
suggestion ignores the careful balance found in the EEA, where partial disapplication
of the Treaty could only follow a decision by Norway et al not to apply a new
law within the scope of the EEA; but there is no such potential power to refuse
to apply a new EU law foreseen for the UK. It is not clear whether the proposed sanction
would only apply to breaches of the transitional rules (and if so, which), or
to other parts of the withdrawal agreement too.
The proposal is then not only legally and politically questionable, but
poorly thought out and justified, not only breaching the Commission’s
obligations as EU negotiator but also spreading ill will in the negotiations. The
phrase “frolic of the Commission’s own” scarcely does justice to the
problematic nature of this proposal.
Article X+6
European Schools
The United Kingdom shall be bound
by the Convention defining the Statute of the European Schools until the end of
the school year that is ongoing at the end of the transition period.
There is a footnote referring to the text
of the Convention. This issue was not referred to in the Council negotiation
Directives.
