More majority voting on EU social policy? Assessing the Commission proposal

Ane Aranguiz, PhD Candidate, University of Antwerp

On 16 April 2019 the Commission launched the discussion on how to render decision-making process at EU level more efficient in the social field by activating the passerelle clauses and moving from unanimity to qualified majority voting (QMV) and from special to ordinary legislative procedure without undergoing an unwieldly process of Treaty reforms – although a unanimous vote of Member States is still necessary to approve this change.

The passerelle clauses are part of a number of ‘flexibility mechanisms’ introduced by the Lisbon Treaty that allow to simplify the decision-making process thereby enabling a more efficient exercise of EU competences where special legislative procedure and unanimity are maintained. The Lisbon Treaty provides for a general passerelle clause enshrined in Article 48(7) TEU that is applicable to all policy areas -with the exception of military or defence-related decisions-, as well as specific passerelle clauses that apply only in certain policy areas, namely, Article 32(3) TEU on Common Foreign and Security Policy, Article 82(3) TFEU on judicial cooperation in civil matters, Article 153(2) TFEU on social policy,  Article 192(2) TFEU on environmental policy and Article 312(2) TFEU on the Multiannual Financial Framework.

Background

This Communication is the last of a series of four aiming at reviewing the passerelle clauses provided for the EU Treaties as envisioned by President Juncker in his 2018 State of the Union address. In September 2018, the Commission presented the first proposal on common foreign and security policy, followed by a communication in January 2019 on taxation. In April 2019, the Commission presented the last two proposals first on energy and climate and later on social policy. (None of these proposals has been followed up by the Member States yet).

In social policy, most areas where the EU has competence to act are already subject to QMV and ordinary legislative procedure, which has allowed for an expansion of the social acquis at the EU level over the years. Yet, a reduced but significant number of areas of social policy still require unanimity among EU Member States and a special legislative procedure. These areas include measures relating to the protection against dismissal, social representation and defence of workers’ and employer’s interests, conditions of employment for third-country legal residents, non-discrimination (based on gender, racial or ethnic origin, religion or belief, disability, age, and sexual orientation) and social security and social protection for workers outside cross-border situations.

The specific passerelle clause under Article 153(2) would allow for the transition of the first three areas, whereas the general passerelle could further be applied to the latter two. Differences remain between the general and specific passerelle clauses regarding the procedural requirements for their activation. In order to activate the general clause, the European Council has to take the initiative and indicate the precise envisaged change in the decision-making procedure and notify national parliaments, which have up to six months to object to the proposal. After that, the European Council may, by unanimity and once consent by the European Parliament has been obtained, adopt the decision authorising the Council to act by QMV or enabling the adoption of the corresponding measures by ordinary legislative procedure. This procedure allows also for the half-way activation of the clause where they move from unanimity to QMV while maintaining the special legislative procedure. The activation of the specific passerelle clause, differently, is ‘only’ subject to unanimous agreement in the Council on the basis of a proposal by the Commission and after consultation with the Parliament.

According to the Commission, other than the fact that these policy areas might have major implications on the financial equilibrium of the national welfare systems, a limitation specifically provided for in Article 153(4)TFEU, there is seemingly no logical reasons that explain why these fields remain subject to unanimity and special legislative procedure. Consequently, in December 2018 the Commission presented its roadmap for the proposal for more efficient law-making in social policy and opened the feedback period that collected 27 opinions from different stakeholders.

The Communication

The Communication opens the debate on the enhanced use of QMV and ordinary legislative procedure with the aim of rendering the decision-making process more timely, flexible and efficient.

The Communication emphasizes that while the activation of the passerelle clause would change the decision-making method, it would not alter the overall EU legal framework and earmarked that EU measures are still subject to the principles of subsidiarity and proportionality, the limitations under the social policy title Article 153 TFEU regarding, inter alia, defining fundamental principles of social security or the specifically excluded areas of the right to association, the right to strike and the right to impose lockouts.

Further in the Communication, the Commission discusses the possibility of activating the passerelle clause in the five areas where unanimity and special legislative procedure is still required. Yet, the Commission concludes that only in two out of the five areas the activation of the would passerelle clause have an added value. Firstly, the Commission argues in favour of the use of the passerelle clause in the field of non-discrimination to facilitate equal protection against discrimination that guarantees an effective redress mechanism for all. Particularly, the Commission states that while there is certain level of protection for gender and racial discrimination in employment, equal treatment on the grounds of belief, disability, age and sexual orientation remains protected only in employment and occupation. The Commission considers necessary to address the inconsistent and incoherent EU legal framework where some individuals are better protected than others. (Note that a Commission proposal in this field from 2008 has not yet been agreed).

The Commission also sees suitable to activate the general passerelle clause with regard to social security and social protection of workers for the adoption of recommendations in the near future. The Commission here recalls the recently politically agreed recommendation on access to social protection for workers and the self-employed which is still pending for final adoption, and considers that a more effective decision-making process is desired to support the process of modernisation and convergence of national social protection systems.

Nevertheless, as for the other three fields where unanimity and special legislative procedure is required, namely, protection against dismissals, employment conditions of third-country nationals and the representation and collective defence of the interests of workers and employers, the Commission does not see fit to activate the passerelle clause due to either the limitations envisioned in the Treaty, the sufficiency of the existing legislation or the strong links and diversity between national social protection systems.

Commentary

The proposal put forward by the Commission should be given a cautious welcome. From a positive standpoint, the fact that most of social policy fields where the EU has competence require QMV and unanimity is required only in few domains leads to an uneven a fragmented development of the social acquis. Moving from unanimity to QMV in those limited areas allows for a swiftly and effective policy response in all areas of EU law and prevents one single Member State from vetoing social initiatives while still requiring a high degree of consensus. Secondly, transitioning to an ordinary legislative procedure allows for highlighting the role of the European Parliaments as a co-decision making. While the special legislative procedure relegates the role of the European Parliament to the subordinated position of a mere consultant, in ordinary legislative procedures the European Parliament becomes an equal to the Council and allows for a more democratic decision-making process where the direct beneficiaries are being represented. The activation of passerelle clauses in the social field would therefore not only avoid blockage by a single Member State, but also give the European Parliament a real co-legislator role. Considering the obstacles faced in the adoption of social policy legal instruments due to the lack of consensus in the Council, an active involvement of the usually more socially progressive European Parliament, is likely to free the decision-making process in social matters to a certain extent.

Yet, there are a number of points of concern. To begin with, the activation of the passerelle clause is only envisioned for two out of the five social policy areas that still require unanimity and the special legislative procedure. Moreover, these are the exact same two that cannot rely on the special passerelle clause under Article 153(2) but must be based on the general provision under Article 48(7) which, in turn, requires a much stricter procedural formula. On top of this, one of the two fields, namely social security and social protection of workers, is only contemplated with regard to the adoption of recommendations, thus disregarding the possibility to adopt binding instruments. This is particularly striking when considering the challenges faced recently by the Commission in the formulation of a measure for access to social protection of workers and self-employed, where the Commission inclined for a proposal for a recommendation due to the lack of political support to adopt a binding instrument by Member States.

The activation of the passerelle clause is clearly a positive development, yet, the fact that this is such a limited activation is highly regrettable. Continued fragmentation on social policy may moreover lead to the use of enhanced cooperation, where Member States might separately agree on social policy instruments for higher protection of their citizens. Yet, this will unquestionably result in a two-speed Europe between those Members within and out the enhanced cooperation framework.

The dynamism of the Commission in the context of the European Pillar of Social Rights provides the perfect platform to keep adapting, updating and adopting new social legislation at the EU level thus aligning EU law with the social priorities identified by Juncker’s Commission. If, and this is a big if, the discussion opened by the Commission leads to activating the passerelle clause (even if only limitedly), it will in all likelihood lead to new proposals by the Commission tackling non-discrimination in a more comprehensive manner that could be adopted in a more efficient manner. However, this will fundamentally depend on whether or not the next Commission resumes the enthusiastic social activism of the Juncker delegation.

Yet, if the Pillar is indeed the last chance for social Europe that many have claimed, this initiative represents a missed opportunity to render effectiveness in the decision-making process in social policy by closing the door to facilitating measures tackling clear gaps on the current EU legislation, most clearly with regard to protection against dismissals. It is equally regrettable the choice to limit the use of the passerelle clause to adopt a binding unified response to the inadequacies of our current social protection systems. In times of increased Euroscepticism and rising non-standard forms of employment, providing a response to concrete needs of citizens remains an imperative for future-proving the EU, therefore, it is in the best interest of the same to remove any obstructions of the use of Union competences that allow to move closer to an actual social market economy. At the very least, this initiative embodies the intention to partially unclog the ‘way’ when there is certain degree of ‘will’.

Barnard & Peers: chapter 20

Photo credit: The Independent

The European Labour Authority: a Brand New EU Agency in Bratislava

Bartłomiej Bednarowicz, PhD Researcher at the Faculty of Law of the University of Antwerp

Background

On Thursday, the Council decided that Bratislava will host the headquarters of a brand new EU agency: the European Labour Authority (ELA). The idea for the ELA was spelt out by President Juncker already in September 2017 in his annual State of the Union address. Juncker viewed ELA’s main mission to ensure EU labour mobility in a simple and effective manner and to strengthen fairness and trust in the internal market. Interestingly, the proposal to establish the ELA rolled out of the European Pillar of Social Rights (EPSR) and was presented as a part of the Social Fairness Package, together with a proposal for a Directive on transparent and predictable working conditions in the EU (adopted by the Council on the very same day as the Regulation establishing the ELA; see discussion of the Directive here), a proposal for a Council Recommendation for access to social protection for workers and the self-employed and a Commission Communication on the monitoring on the implementation of the EPSR.

In a speedy manner, in March 2018 the Commission put forward a legislative proposal to establish the European Labour Agency and on Valentine’s Day in 2019, the Commission, the European Parliament and the Council reached a provisional agreement and changed the name from Agency to Authority. Finally, in June 2019, the Council adopted the proposal for a Regulation and selected Slovakia to host the Authority. The ELA is to start its operations in October 2019 already in Brussels and is expected to reach its full operational capacity in Bratislava by 2024. [Update: the Regulation was published in the EU Official Journal in July 2019]

Competences

Pursuant to the Regulation establishing the ELA, the main objective of the Authority is to assist the Member States and the Commission in their effective application and enforcement of EU law related to labour mobility across the EU and the coordination of social security systems. The ELA has the mandate to act only within the scope of selected EU acts in the framework of: posting of workers, free movement of workers, social security coordination, social aspects of road transport and cooperation between the Member States to tackle undeclared work. This catalogue remains closed but can be extended on a basis of any future acts that confer tasks on the Authority. More importantly, to maintain its mandate, the ELA is to neither affect any rights or obligations of individuals or employers that are granted by either EU or national laws, nor the mandate of national authorities responsible for enforcement in these fields.

Furthermore, in order to attain its primary objective, the ELA has been fitted with some additional tasks. Firstly, it is to facilitate access to information on rights and obligations regarding labour mobility across the EU as well as to relevant services. Secondly, it is to promote and enhance cooperation between the Member States in the enforcement of relevant EU law across the Union, including facilitating concerted and joint inspections. Thirdly, it is to mediate and help to look for a solution in cases of cross-border disputes between the Member States. Finally, it is to support cooperation in tackling undeclared work.

Organisation and the seat selection

The European Labour Authority will have a permanent structure comprising of a Management Board (including representatives of the Member States, Commission, European Parliament and social partners), an Executive Director and a Stakeholder Group with purely advisory functions (including representatives of the Commission and social partners). On top of that, the Authority aims at being made up of around 140 staff members, some of them seconded from the Member States. In addition, there will be one national liaison officer seconded from each Member State who will facilitate the cooperation and exchange of information between the Authority and her Member State. The Executive Director, on the other hand, will be appointed for a five-year term by the Management Board from a list of candidates proposed by the Commission, following an open and transparent selection procedure including a hearing before the European Parliament. Finally, the Commission is willing to secure approximately €50 million for the Authority’s annual budget.

As for its seat, 4 Member States competed in the selection process: Slovakia, Cyprus, Bulgaria and Latvia. The Council, in a rather transparent way, steered the selection process and published on its website all the offers prepared by the governments. Then, the European Commission assessed the offers based on the geographical balance, accessibility of the location, availability of the proposed premises and overall city’s readiness to accommodate the needs of international staff. At the Council meeting convoked on 13 June 2019, 23 Member States voted in favour of the Regulation establishing the Authority with its seat in Bratislava, 3 voted against (Austria, Hungary and Sweden) and 2 abstained (Czechia and Poland). Admittedly, it will be the very first EU agency to be located in Slovakia that advertised itself with a rather dull slogan ‘ELA in Slovakia, a good idea’. At least, the ELA’s staff will enjoy the state-of-the-art L12 building at the ‘Eurovea City’ in Bratislava and a stunning view on the Danube river.

Comments

An idea for a (pan)-European labour inspectorate has been considered for a long time as simply ‘the wishful thinking’ of some social partners, especially workers organisations. It also has never really attracted a lot of attention, as the Commission feared scoring an own goal due to a lack of the Member States’ support to set up such an agency in the first place. However, the Juncker Commission has finally put the social rights back at the EU agenda and proposed a rather breakthrough initiative in a dazzling form of the European Pillar of Social Rights. The Commission has already delivered quite plenty on the Pillar and mainstreamed many fruitful debates surrounding the social aspects of employment that under the years of austerity and flexicurity have been put aside. The Authority indeed emanates from the EPSR and aligns well with the accompanying proposals presented by the Commission within a broad framework of European Union cross-border employment and the Social Fairness Package.

The potential of the Authority cannot be surely underestimated. Its main advantages can be summarised in three aspects. Firstly, in the field of legal issues of international employment, it will provide the national authorities with some valid operational and technical support, mostly to exchange information, develop some best practices, carry out inspections and also to settle any disputes. Bridging the information and cooperation gap between the Member States is indeed a noble objective and quite a desired one as well. In practice, it is often the case that national authorities are unable to facilitate dialogue with each other and exchange information due to the complex and lengthy internal procedures and the language barrier. Having national liaison officers from all Member States designated to be at the ELA’s disposal will definitely plug that gap and speed things up. Moreover, some national authorities might not have even dreamed of an ability of concerted and joint inspections, which is now a powerful tool in the ELA’s arsenal, subject however, to reaching an agreement between the Authority and the concerned Member State(s).

Secondly, what the enforcement of EU employment and social security law often lacked at national level, were synergies with the already existing EU agencies that would allow to rely on their expertise in areas such as health and safety at work, the management of an undertaking that is being restructured, skills forecasting or tackling undeclared work. Therefore, it is the ELA’s task to facilitate it all to untap the available potential and to strengthen the enforcement levels.

Finally, the Authority will simplify cooperation by integrating a number of existing committees and networks amongst the Member States which will hopefully lead to eliminating fragmentation in that area.

On the other hand, the Authority will definitely not serve as a panacea for all the flaws in the system. The role it will play mostly depends on how active the ELA with its Executive Director decides to be. There is a considerable room to be claimed by the Authority with some space for manoeuvre, but there are some open-ended questions as well. Sceptics and pragmatics may wonder how willing some of the national authorities will be to cooperate within the ELA’s network and agree to, for example, conduct inspections on their territory, which can expose the flaws of their own systems on an EU scale. It is also unsure whether the Member States known for a rather lenient approach towards social security laws will deem it in their best interest to assist ELA with the fight against fraud and abuse on their territories, as no such obligation arises. For them, it could mean the end of their competitive advantage of providing a legal framework for cheaper labour through foxy constructions such as letterbox companies.

Examples from the field of social security coordination and the experience with the Administrative Commission, a body comprising of government representatives, capable of reviewing cases of social fraud between the Member States, do not necessarily instil optimism. The number of successful outcomes of such cases is rather scarce and some national authorities are giving up on the Administrative Commission and often try to take matters in their own hands. Essentially, they reach out on their behalf to the institutions in the other Member States mostly without any tangible end-effects. Moreover, the Authority’s tasks might overlap with those of the Administrative Commission, which was a major point of discussion during the negotiations about the ELA. The exact tasks division, despite indicated as ‘without prejudice’, might prove to be more problematic to delineate and can lead to duplication and competence battles. It is also doubtful how effective the Authority can really be and police the EU labour mobility market consisting of approximately 17 million EU-movers with rather modest resources of 140 staff.

To conclude, as for now, the Authority has baby teeth. It will be up to its adopted strategy, action plans and frankly, leadership to make sure that it will eventually get real teeth. The ELA has definitely promising potential but it remains to be seen how it will be utilised and how big of a dossier can it claim and handle. The expectations are high so we should all give the European Labour Authority a big leap of faith and wait for its very first results.

Barnard & Peers: chapter 20

Photo credit: www.landererova12.sk

CJEU case law on EU citizenship: normatively consistent? Unlikely! - A response to Davies’ ‘Has the Court changed, or have the cases?’

Alexander Hoogenboom, PhD, MSc. LL.M. Senior Policy Officer at the Dutch Healthcare Authority and associate researcher at the Institute for Transnational and Euregional cross border cooperation and Mobility, Faculty of law, Maastricht University. The position taken in this paper solely reflects the views of the author.

Introduction

Recent case law of the Court of Justice on EU citizens’ access to benefits has been seen by some as a restrictive turn compared to prior case law, in response to a rise in populism. However, the article by Davies in a recent special issue of the Journal of European Public Policy is to be commended for its original take on this alleged ‘turn to restrictiveness’. The goal of his article is, as I see it, questioning whether the Court has indeed recently become stricter (in the sense of more State-friendly, less Union citizen-friendly) in response to the populist turn in the European political landscape. In that vein, Davies submits, contrary to what he sees is the main thrust in the scholarship, that the court has been ‘normatively consistent’ (see also this research paper he authored) and that the perceived difference in recent litigation outcomes from the golden years of Union citizenship are due to the litigants being less ‘deserving’ of access to benefits provided by the host Member State: ‘what goes in will provide an overwhelmingly plausible explanation of the outcomes on its own’.

This argument is supported by relying on a methodology for measuring the ‘deservedness’ of the litigants based on a set of indicators: the ‘good behaviour’ of the applicant, the possibility for exceptional harm should the benefit be denied, the possible cost to society resulting from the grant of a benefit (e.g. because it is long-term or applies to a large category of persons), whether granting the benefit would mandate a particular positive outcome and whether the State was somehow at fault for the specific conundrum that the litigant finds him or herself in.  The more ‘deserving’ (high contribution to society, low cost), the greater the likelihood of a litigant-positive result.

Applying these criteria to a selection of case law, Davies proceeds to show that indeed, the Dano’s (never worked, never integrated, lacked resources for self-support) of the world seem to be less deserving of benefits than the Sala’s (long-term legal resident, child benefit denied due to a technicality by an inconsistent state). (On the Dano case – the first judgment showing the perceived turn toward a stricter approach – see the discussion here).

There are, however, a few issues one could take with this approach. In part, it is questionable whether the facts as available to scholars of EU law decisions allow one to accurately apply the proposed test – especially given that the publication of the Reports for the Hearing was abolished since 2012 (see also para 119 of the AG opinion in Breyer). This is exacerbated, as Davies admits, by the fact that a negative outcome throws its shadow forwards: one then tends to present the facts in such a way as to support the later conclusion.

In part, it is questionable whether deservedness is objectively verifiable: after all, one could also argue that the rise of populism or say an economic crisis – the ‘times we live in’ – simply provide a different kind of lens through which to view the migratory Union citizen. The same fresh-faced youth enrolling in higher education in a Member State different from the one of his nationality can be cast as a self-improving, future productive member of that society (compare to Gravier, para 24) or as a welfare-abusing, locust-like creature eating his or her fill and subsequently returning from whence he or she came (see the main arguments by Belgium and Austria in the the judgment in Bressol).

However, the main challenge I would like to level is that the methodology suggested is applied to an incomplete ‘data set’ (the cases), in part due to selection bias (the focus in the article on the cases ‘most discussed’).

Grzelczyk by another name: The curious case of Förster

The case of Grzelczyk is among those used by Davies to support his thesis: his particular circumstances ‘paint a sympathetic picture’. A hard-working young Frenchman, resident in Belgium for some time and whose claim to financial support finish his last few months of study would seem altogether reasonable. Indeed, the Court, while leaving it to the national court to make the final decision, seemed to suggest he should be so entitled.

Nonetheless, the Court was not so generous in Förster. Jacqueline Förster was a German national who grew up in a town not far from the Dutch border. She moved to and resided in the Netherlands from March 2000 onwards – partly to be with her Dutch boyfriend. There, she enrolled into a teacher training programme and later in a course on educational theory at the Hogeschool van Amsterdam. In the period 2000-2002 she undertook various part-time jobs, until she engaged in full-time paid practical training at a Dutch school providing secondary education for children with special needs (October 2002 – June 2003). After her practical training she did not engage in gainful employment until July 2004. She graduated from her course that summer.

At stake was the intermezzo period: the Dutch Student Benefit Authority (then called IB-Groep) assessed in 2005 that she had not been eligible for study maintenance assistance in the second half of 2003 and ordered her to repay the amounts received.

It would seem to me that Ms. Förster ticked practically the same as mr. Grzelczyk. Measuring her ‘deservedness’ according to the matrix suggested by Davies we find:

-       Good behaviour: self-support initially (three years), enrolled in studies and contributing to Dutch society even during her studies in her practical training period. Advocate-General Mazàk moreover made the explicit point that she did not seem to have moved with the goal of claiming benefits.

-       Exceptional harm: Although the withdrawal of the benefit was retroactive, when assessing her right to access the benefit as matters stood in 2003 one could plausibly maintain that, as with Grzelczyk, non-access to the benefit would have made the completion of the degree much more difficult.

-       The support requested covered only a limited time: at issue was a six-month period only.

-       Limited cost of the support: As with Grzelczyk, this aspect is hard to estimate.

-       Positive outcomes: the completion of the degree would enable her to contribute to Dutch society and economy as a teacher.

-       State at fault: One could make the argument that given the fact that they had initially granted her the benefit and only much later (some one and a half years) took the final decision to recover the amount, should count against the Dutch state.

Finally, in addition to these elements from Davies’ deservedness matrix, the applicant had a relationship with a Dutch national and given her work, presumably, spoke fluent Dutch – both elements that the Court in other cases has found relevant when assessing eligibility to benefits (see Prinz and Seeberger, for instance).

All in all, one would assume, from the methodology applied that this applicant should be successful, or that should have led to a ‘discretionary-result-with-a-hint-in-favour-of-the applicant’. Yet, she categorically lost her case, notwithstanding the suggestion by the Advocate-General to consider the circumstances of the case along the lines suggested above. Yes, the conclusion was (partly) mandated by the EU citizens’ Directive 2004/38, but the Court certainly did not ‘bend over backwards to find exceptions to [this] restriction’ as his matrix would predict.

The big turnaround: Commission v Austria and Commission v the Netherlands

The cases of Commission v Austria and Commission v the Netherlands are perhaps even more glaring. The issue concerned a travel benefit aimed at students attending higher education. In the Austrian case, decided in 2012, Austria argued that it could refuse access to the benefit where the Union citizen in question had not yet obtained a right to permanent residence (a five-year prior residence requirement in practice). In contrast, the Court found that all persons enrolled in higher education should have automatic access.

The case is somewhat hard to fit into the matrix, but intuitively one could argue that the Court was not swayed by the hypothetical good behaviour of potential beneficiaries (no prior residence requirements, no integration), nor was the benefit for a limited time (it could last the entire study period), all persons enrolled in higher education persons were eligible (no ‘limited costs’) and it is hard to imagine an ‘exceptional harm’ had the benefit been denied to the hypothetical applicant. Notwithstanding this apparent lack of deservedness, however, a positive outcome for the hypothetical beneficiaries.

In 2016, in Commission v the Netherlands, the Court reached the opposite conclusion. The benefit at issue was in all respects the same as at stake in Commission v Austria (Table taken from A. Hoogenboom, Balancing Student Mobility Rights and National Higher Education Autonomy in the European Union (BRILL, 2017)):

	Austria	The Netherlands
Nature of the benefit	Fee reduction for the use of public transport (grant)	Free use of public transport on some days of the week; reduced fees on the other days (conditional grant)
Apparent purpose	To facilitate access to education	To facilitate access to education
Provision	Commercial public transport operators	Commercial public transport operators
Financing	The individual governments of several Länder	Central Dutch government
Recipient	Student	Student
Eligibility	Enrolment higher education Parents in receipt of Austrian family allowances	Enrolment in higher education. Student in receipt of Dutch studiefinanciering

Here the Court decided that the Netherlands could restrict the benefit along the terms suggested by Austria in the earlier case. It stretched the limits of consistency by trying to distinguish the latter case with a bizarre reference to the difference in national classification of the benefit, despite it being settled case law that such classifications are irrelevant - a point the Court itself made in Commission v Austria.

So here we initially have a judgment against the State and in favour of the Union citizen, whereas the matrix would likely predict a judgment in favour of the State. Four years later the Court came, on largely the same facts, to the opposite conclusion. This should not be seen as a (late) vindication of the matrix however, since the Court formally distinguished the latter case from the former, meaning that both cases continue to be good law.

Conclusion

Whereas the line of inquiry presented in Davies’ paper is an interesting one, it cannot account adequately account for the existence of Förster and the Commission v Austria/Netherlands saga. Apparently deserving applicants get rejected, and the same benefit with a similar hypothetical user base gets a different legal treatment in the space of a few years. Two possible explanations suggest themselves:

-       The Court is not consistent. This would mean that Davies’ hypothesis is disproven.

-       The matrix presented, by which the court supposedly measures deservedness, is flawed. This goes to the methodology used and means that we simply haven’t found calculus that the Court uses.

It would seem to me that the existence of both Commission v Austria and Commission v the Netherlands as ‘good law’ seems to hint at the former. In any case, however, to argue that the Court of Justice is normatively consistent, on the basis of the analysis carried out by Davies, is a bridge too far.

Barnard & Peers: chapter 13

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EU27 and UK citizens’ acquired rights in the Brexit withdrawal agreement: detailed analysis and annotation

Professor Steve Peers, University of Essex*   

The issue of the acquired rights of EU27 and UK citizens has long been a focus of this blog. The latest development in this field is the proposed rules in the Brexit withdrawal agreement on this issue, as recently tabled by the Commission. This follows on from the partial agreement on this issue in the joint report agreed by the UK and EU27 in December, which I analysed here. (Note that the health law implications of this part of the agreement were already discussed here by Professor Tamara Hervey, who proposed some additional amendments).

It remains to be seen whether the UK agrees to the Commission proposal on these issues; although a large part of the proposal reflects the December agreement in general terms, some points were left open and inevitably a legal text fleshes out points of detail which might not have been fully agreed in the previous, more political, text.

Even if the UK and EU27 side do agree on all the content of these proposals, there is a risk that this agreement is torpedoed because of failure to agree on (or ratify, if agreed) the rest of the withdrawal agreement. For that reason I have argued that the agreement on these issues ought to be ring-fenced, ideally as soon as possible but certainly if the main talks fail. I have also suggested the text of a ring-fenced treaty on citizens’ rights, simply extracting the relevant text of the Commission proposal.  

While the Commission proposals go a long way to guarantee the acquired rights of all concerned, there are still many possible omissions and uncertainties. I have pointed to all those I could discover, in particular as regards: EU27 citizens or UK citizens who return to their state of nationality; the non-EU parents of UK children; carers and others who have not had “comprehensive sickness insurance” as defined (rather questionably) by the UK, and did not realise they needed it; other aspects of the “settled status” proposal; data protection rights; dual citizens of the UK and another Member State; and the loss of free movement rights by UK citizens in the EU27.

On all of these issues – and more – I have proposed amendments. I hope the blog post is particularly useful to those negotiating the withdrawal agreement, and those campaigning for amendments (see also the detailed proposals of British in Europe, for instance).

But in parallel to this detailed analysis it’s fair to say that we sometimes lose sight of the day-to-day human impact of immigration law. I’ll return to this point shortly with a rather more personal post about what the issues I discuss in detail here mean in practice.

Structure of the withdrawal agreement

Part Two of the withdrawal agreement (Articles 8-35) deals with citizens’ rights, and is the main focus of this blogpost. But I also annotate here the closely connected Part One, setting out the “Common Provisions”. The remaining titles concern “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); and the “Final Provisions” in Part Six (Articles 151-168). There will also be Protocols on the Irish border and Cyprus.

I have previously annotated the proposals on: the transition (or implementation) period, the final provisions of Part Six (mainly focussing on dispute settlement and the role of the CJEU); and the Irish border. Those provisions have some cross-overs with the citizens’ rights rules, as discussed in detail below. In particular, it should be noted that the UK government recently tabled a counter-proposal on the rights of EU27 citizens who arrive during the transition/implementation period.

Within Part Two, there are four titles:

-          Title I on General Provisions (Articles 8-11), which covers definitions, personal scope, continuity of residence, and non-discrimination;

-          Title II on Rights and Obligations (Articles 12-27), with Chapter 1 on residence rights and documents (Articles 12-21), covering entry and exit rights, residence rights, status, the application process, safeguards and appeal rights, related rights and equal treatment;  Chapter 2 on the rights of workers and self-employed persons (Articles 22-24), Chapter 3 on professional qualifications (Articles 25-27);

-          Title III on Social Security (Articles 28-31); and

-          Title IV on Other Rights (Articles 32-36).

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

Barnard & Peers: chapter 27, chapter 13

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Annex – proposed text of withdrawal agreement, Parts One and Two, annotated

PREAMBLE

THE EUROPEAN UNION AND THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND,

[…]

HAVE AGREED AS FOLLOWS:

  

PART ONE

COMMON PROVISIONS

Article 1

Objective

This Agreement sets out the arrangements for the withdrawal of the United Kingdom of Great Britain and Northern Ireland ("United Kingdom") from the European Union (“Union”) and from the European Atomic Energy Community (“Euratom”).

Comment: Note the withdrawal from Euratom as well as the EU. This is hard, if not impossible, to avoid, for the reasons I discuss here.

Article 2

Definitions

For the purposes of this Agreement, the following definitions shall apply:

(a)  "Union law" means:

(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"), as amended or supplemented, as well as the Treaties of Accession and the Charter of Fundamental Rights of the European Union, together referred to as “the Treaties”;

(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 or Euratom is party and the international agreements concluded by the Member States acting on behalf of the Union or Euratom; 

(v) the agreements between Member States entered into in their capacity as Member States of the Union or of Euratom; and

(vi) acts of the Representatives of the Governments of the Member States meeting within the European Council or the Council of the European Union ("Council");

(vii) the declarations made in the context of intergovernmental conferences which adopted the Treaties.

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

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

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

(e) “transition period” means the period provided in Article 121.

Background: Point (a) comes from the Commission’s earlier proposal for the transition/implementation period clauses, which I annotated here. Compared to the previous draft, the Commission has added a reference to the Charter of Fundamental Rights (an omission which I raised in my annotation of the earlier proposal), added the words “and the international agreements concluded by the Member States acting on behalf of the Union or Euratom” to point (iv), and added the whole of point (vii). As discussed below, the UK government has proposed a different wording.

Points (b) to (e) are all added.

Comments: The definition of “Union law” in Article 2(a) is clarified further in Article 5. It is particularly relevant for Article 4(4), which requires that CJEU case law on Union law before the end of the transition/implementation period must be applicable.

The definition of “Member States” in (b) is straightforward, although Articles 6, 123 and 153 then go on to define the UK as a Member State for many purposes. Note that the definition is “frozen” by reference to the current EU27 countries; the UK would thus not be bound to protect the rights of citizens of countries that join the EU in future (logically enough, since they do not have EU law rights to protect at the time of the UK’s withdrawal). Conversely, the UK would be bound to keep protecting the rights of citizens of any other countries that might leave the EU.

Since the withdrawal agreement does not cover the position of citizens of non-EU countries whose migration status may derive from EU law, besides family members of EU27/UK citizens, their position depends upon the “rolling over” of any such treaties so that they continue to apply to the UK during the transition/implementation period, and then separately after that date.

Point (c) confirms the orthodox view that UK citizens lose their EU citizenship upon Brexit day, since the Treaties state that only nationals of Member States are citizens of the EU. However, it should be noted that this interpretation is being challenged.

Point (d) refers to UK declarations on the exact scope of its citizenship. The CJEU has ruled on this issue in the Kaur case, accepting the UK’s decision to define various groups of people as not actually UK citizens.

As for point (e), Article 121 states that the transition/implementation period ends at the end of 2020. The UK government has queried this; but that raises questions about how the period would be extended, whether this would go beyond the legal base of the withdrawal agreement, or how the period might be extended by a separate treaty after Brexit day. 

UK position: The UK proposes that this text appears in the Withdrawal Agreement section of the agreement, instead of the section on Common Provisions. Substantively, the UK takes a partly different approach from the Commission, suggesting definitions for “acts”, “Treaties”, “bilateral international agreement” and “Union law”.  “Acts” are defined by reference to various EU measures; “Treaties” only includes Treaty amendments before Brexit day; “bilateral international agreement” means those treaties which the EU entered into as a bloc; it’s clarified that Treaty Annexes, Protocols etc are covered; and acts adopted during the transition/implementation period are explicitly covered.

Article 3

Territorial scope

1.  Unless otherwise provided in this Agreement or in Union law made applicable by this Agreement, any reference in this Agreement to the United Kingdom or its territory, shall be understood as referring to:

(a)  the United Kingdom;

(b)  the Channel Islands, the Isle of Man, Gibraltar and the Sovereign Base Areas of Akrotiri and Dhekelia in Cyprus to the extent that Union law was applicable to them before the date of entry into force of this Agreement;

(c)  the overseas countries and territories listed in Annex II to the TFEU having special relations with the United Kingdom, where the provisions of this Agreement relate to the special arrangements for the association of the overseas countries and territories with the Union.

2.  Unless otherwise provided in this Agreement or in Union law made applicable by this Agreement, any reference in this Agreement to Member States, or their territory, shall be understood as covering the territories of the Member States to which the Treaties apply as provided in Article 355 TFEU.

Comment: Article 355 TFEU refers to the territorial scope of the Treaties. Alongside the UK in point (1)(a), point (1)(b) includes cross-references to accession treaties as regards the status of the Channel Islands, Isle of Man, Cyprus bases and Gibraltar. The withdrawal agreement will have (if agreed) a separate protocol on the Cyprus bases, but it is not filled in yet. The proposal is that they will be affected by the withdrawal agreement to the extent they are covered by EU law already, which they are in part in different ways. For instance, see the recent CJEU judgment in Buhagiar, the latest ruling on which EU law applies in Gibraltar.

As for the overseas countries and territories in (1)(c), the draft agreement mentions them in Article 145(3) as regards financial issues, and in a footnote to Annex y+2, which concerns customs issues outstanding at the end of the transition/implementation period. According to Annex II to the EU Treaties, for the UK those countries and territories are: Anguilla; the Cayman Islands; the Falkland Islands; South Georgia and the South Sandwich Islands; Montserrat; Pitcairn; Saint Helena and dependencies; British Antarctic Territory; British Indian Ocean Territory; Turks and Caicos Islands; British Virgin Islands; and Bermuda.

Article 4

Methods and principles relating to the effect, the implementation and the application of this Agreement

1. Where this Agreement provides for the application of Union law in the United Kingdom, it shall produce in respect of and in the United Kingdom the same legal effects as those which it produces within the Union and its Member States.

In particular, Union citizens and United Kingdom nationals shall be able to rely directly on the provisions contained or referred to in Part Two. Any provisions inconsistent or incompatible with that Part shall be disapplied. 

2. The United Kingdom shall ensure compliance with paragraph 1, including as regards the required powers of its judicial and administrative authorities, through domestic primary legislation.

3. The provisions of this Agreement referring to concepts or provisions of Union law shall be interpreted and applied in accordance with the same methods and general principles as those applicable within the Union.

4. The provisions of this Agreement referring to Union law or concepts or provisions thereof shall in their implementation and application be interpreted in conformity with the relevant case law of the Court of Justice of the European Union handed down before the end of the transition period.

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

Background: Article 4(1) partly reflects paras 34 and 35 of the joint report, which specified that “Both Parties agree that the Withdrawal Agreement should provide for the legal effects of the citizens' rights Part both in the UK and in the Union” and “The provision in the Agreement should enable citizens to rely directly on their rights as set out in the citizens' rights Part of the Agreement and should specify that inconsistent or incompatible rules and provisions will be disapplied.”

However, the first sub-paragraph goes beyond the joint report, since it refers to the entire agreement, and furthermore refers to the “same legal effect”, which was not expressly stated in the joint report. (Note that Articles 2(a) and 5 define “Union law” for the purposes of the Agreement). By comparison, the second sub-paragraph reflects the joint report precisely.

Article 4(2) partly reflects paras 34 and 36 of the joint report, which specified that “UK domestic legislation should also be enacted to this effect” (referring to citizens’ rights) and “The UK Government will bring forward a Bill, the Withdrawal Agreement & Implementation Bill, specifically to implement the Agreement. This Bill will make express reference to the Agreement and will fully incorporate the citizens' rights Part into UK law. Once this Bill has been adopted, the provisions of the citizens' rights Part will have effect in primary legislation and will prevail over inconsistent or incompatible legislation, unless Parliament expressly repeals this Act in future.” So the proposal partly reflects what the UK agreed to in December, but partly goes beyond it, to the extent that Article 4(1) covers the agreement as a whole, not just the citizens’ rights part.

Article 4(3) is a general provision, supplemented by the following two paras, on the interpretation of the entire agreement in conformity with EU law principles. This does not reflect any prior agreement by the UK. (Again, note that Articles 2(a) and 5 define “Union law” for the purposes of the Agreement).

Article 4(4) means that CJEU case law up until the end of the transition/implementation period will be binding. The text is taken from the Commission’s earlier proposal for text on the transition/implementation period, and reflects also para 9 of the joint report. The UK government has not objected to it in in principle in its response to the Commission proposals. This proposal needs to be read alongside Article 2(a), which defines “Union law” for the purposes of the agreement; Article 5 clarifies this issue further.

Article 4(5) reflects part of para 38 of the joint report, which states that, as regards citizens’ rights, “In the context of the application or interpretation of those rights, UK courts shall therefore have due regard to relevant decisions of the CJEU after the specified date.” However, the Commission’s proposal extends the “due regard” obligation to the entire text of the withdrawal agreement, not just citizens’ rights. It also applies the rule to UK administrative authorities. There is no clarity as to what “relevant case law” may mean here. This para is linked to Article 155, which gives the UK rights of intervention in CJEU cases, but with narrower scope than the wording of Article 4(5).  

Note that Article 12 of the Protocol on Ireland applies some provisions of Article 4 to that Protocol, but has different rules for others.

Article 5

References to Union law

1. With the exception of Parts Four and Five, unless otherwise provided in this Agreement all references in this Agreement to Union law shall be understood as references to Union law as applicable on the last day of the transition period, including as amended or replaced.

2. Where in this Agreement reference is made to Union acts or provisions thereof, such reference shall, where relevant, be understood to include a reference to Union acts or provisions thereof that, although repealed by the act referred to, continue to apply in accordance with that act.

3. For the purposes of this Agreement, references to provisions of Union law made applicable by this Agreement shall be understood to include references to the relevant Union acts supplementing or implementing those provisions.

Background: This provision is an amended version of an Article the Commission proposed in its suggestion for Articles on the transition/implementation period, which read: “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.”

Comments: Notice that “take effect” has been replaced by “as applicable”; but this is still unclear what this means by comparison to the definition of EU legislative acts in Article 288 TFEU. Also the limitation to acts which were amended or replaced in the earlier version has been replaced by a reference to EU law more broadly. I raised both these points in my comments on the earlier draft.

The underlying point here is whether the UK has to comply with EU legal acts whose deadline for implementation falls after the end of the transition/implementation period. There seems little point requiring it to do so, but this raises the awkward question of extending that period. I suggest an amendment to read: “…including as amended or replaced, to the extent that Member States must implement that Union law by that date.”

Effectively Article 5 supplements the definition of “Union law” in article 2(a), and the two provisions should be read together. It is also very relevant to the interpretation rules in Article 4. The exception in Article 5(1) for Parts Four and Five of the agreement refers to the transition/implementation period and the financial settlements rules; the exception “unless otherwise provided in this Agreement” refers to changes such as the amendments to social security rules, referred to in Part Two on citizens’ rights, and the Protocol on Ireland, Article 12(3) of which has a different rule than Article 5(1) – although Article 12(1) of the Protocol applies Article 5(2) and (3) to that Protocol.

UK government position: The UK government is particularly concerned about being bound by EU legislation adopted during the transition period without its involvement. The government’s approach in its proposed definitions clause is simpler and clearer. The UK also wants a “good faith” clause to deal with new EU legislation it disagrees with, but has not publicly proposed a text for this.

As regards citizens’ rights, the following provisions of Union law are referred to: Article 2(2), Directive 2004/38 (Articles 8(a) and 9(1)(e)); Articles 45 and 49 TFEU (Article 8(b)); Article 2(9), Regulation 2201/2003 (Article 8(e)); Articles 12, 13, 16(2), 17 and 18, Directive 2004/38 (Article 9(1)(f)); Article 3(2), Directive 2004/38 (Article 9(2) and (3)); Article 18 TFEU (Article 11); Articles 21, 45 or 49 TFEU and in Article 6(1), Article 7(1)(a), (b) or (c), Article 7(3), Article 14, Article 16(1) or Article 17(1) of Directive 2004/38/EC (Article 12(1)); Article 21 TFEU and in Article 6(1), Article 7(1)(d), Article 12(1) or (3), Article 13(1), Article 14, Article 16(1) or Article 17(3) and (4) of Directive 2004/38/EC (Article 12(2)); Articles 4(1) and 5 (1), Directive 2004/38/EC (Article 13(1)); Articles 16, 17 and 18, Directive 2004/38/EC (Article 14(1)); Articles 16(3) and 21, Directive 2004/38/EC (Article 14(2)); Article 7, Directive 2004/38/EC (Article 15); Articles 2(2)(c) or (d), 3(2), 7(1)(a), (b) and (c) and (2), 8(3), (4) and (5), 10(2), 19, 20 and 27(3), Directive 2004/38/EC (Article 17); Chapter VI and Articles 31 and 35, Directive 2004/38/EC (Article 18); Article 15 and Chapter VI of Directive 2004/38/EC (Article 19); Article 23 of Directive 2004/38/EC (Article 20); Article 24 of Directive 2004/38/EC (Article 21(1)); Articles 6 and 14(4)(b) of Directive 2004/38/EC (Article 21(2)); Article 45 TFEU and Regulation 492/2011 (Article 22); Article 49 TFEU (Article 23(1)); Directives 2005/36, 98/5, 2006/43 and 74/556 (Articles 25 and 26); Regulations 1231/2010 and 859/2003 (Article 28); Regulations 883/2004 and 987/2009 (Articles 28, 29 and 31);

Article 6

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 and the attendance in the meetings of the institutions;

(b)  the participation in the decision-making and governance of the bodies, offices and agencies of the Union;

(c)  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. 

Background: This is effectively the same text which the Commission proposed as part of its suggested Articles on the transition/implementation period. The UK accepts it in principle.

This text reflects the second sentence of para 13 of the EU27 negotiation directives on the transition/implementation period, which state 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.

Comment: While the definition of “Member States” in Article 2(b) excludes the UK, Article 6 then qualifies that significantly by effectively making the UK a Member State for the purposes of the substantive law of the EU, but not the institutional law of the EU, for the purposes of the withdrawal agreement.

Article 123(1) applies Article 6 during the transition/implementation period, as a derogation from the rule in Article 122 that EU law will still apply to the UK during that period. Article 123(5) then sets out a derogation from Article 6, giving the UK limited access to decision-making until the end of that period. There is also a derogation from Article 6 in Articles 129(3)(d) and 131(3), as regards some financial settlement issues; while Article 12 of the Protocol on Ireland applies some provisions of Article 6 to that Protocol, but has different rules for others.

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 Article 5) without even being informally consulted on the relevant proposals therefore has a vindictive tinge to it.

Article 7

Access to network and information systems and data bases

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

Comment: This ends the UK’s access to databases and information systems – particularly relevant to justice and home affairs issues – at the end of the transition/implementation period. It would be possible to continue access on the basis of a future security treaty, as discussed here.

There are derogations from this Article in: Article 30(2) on social security; Article 49, where “strictly necessary” to comply with the separation provisions on VAT and excise tax in Articles 47-49; and Article 92(2), winding up UK involvement with the EU greenhouse gas trading system. Implicitly Article 7 is not applicable to the Protocol on Ireland, since Article 12 of that Protocol does not apply it. 

PART TWO

CITIZENS’ RIGHTS

TITLE I

GENERAL PROVISIONS

Article 8

Definitions

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

(a) "family members" means family members of Union citizens or United Kingdom nationals as defined in point (2) of Article 2 of Directive 2004/38/EC of the European Parliament and of the Council, irrespective of their nationality and who fall within the personal scope provided for in Article 9 of this Agreement; 

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

(c) "host State" means:

(i)  in respect of Union citizens, the United Kingdom if they exercised there their right of residence in accordance with Union law before the end of the transition period and continue to reside there thereafter; 

(ii)  in respect of United Kingdom nationals, the Member State in which they exercised their right of residence in accordance with Union law before the end of the transition period and continue to reside there thereafter;

(d) "State of work" means:

(i) in respect of Union citizens, the United Kingdom, if they pursued an economic activity as frontier workers there before the end of the transition period and continue to do so thereafter;

(ii) in respect of United Kingdom nationals, a Member State where they pursued an economic activity as frontier workers before the end of the transition period and continue to do so thereafter;

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

Background: This reflects para 10 of the joint report. I have added a hyperlink, in place of a footnote, to the EU citizens’ Directive and the “Brussels II” Regulation on family law respectively. 

Comments: The reference to special rules in Ttile III reflects Article 28(2) of the agreement, which includes a derogation from Article 8(a) since EU social security law has its own definition of family members.

To interpret Article 8(a) of the agreement, note that Article 2(2) of the citizens’ Directive, referred to here, defines core family members as follows:

(a) the spouse;

(b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;

(c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);

(d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b).

The interpretation of the EU law definition of “family member” must follow CJEU case law: see Articles 4 and 5. The relevant case law includes the pending Coman case on whether same-sex spouses are covered by the definition of “spouse”, and the case law on the definition of “dependence” (see discussion of the most recent case law here).

Two important issues arise from Article 8(a). First of all, the CJEU recently ruled in Lounes (discussed here) that dual citizens of two Member States can claim rights in one of those Member States if they have moved between them.

Secondly, in a line of case law starting in Zambrano (discussed here), the EU ruled that where children live in the Member State of their nationality but have a non-EU parent with caring obligations for the child, the non-EU parent cannot be removed (except on public security etc grounds) as it would infringe the child’s EU citizenship rights.

In order to continue this case law in force, I suggest an amendment as follows:

(a) "family members" means family members of Union citizens or United Kingdom nationals as defined in point (2) of Article 2 of Directive 2004/38/EC of the European Parliament and of the Council, or whose status derives from Articles 20 or 21 TFEU…

(Note that a third line of case law – covering family members of EU27 or UK citizens who return to their state of nationality – would be protected by an amendment to Articles 8(c) and 9 which I propose below. A fourth line of case law – on the children of workers and their carers – is addressed by Article 22 of the proposed Agreement).

The definitions of “frontier worker” and “rights of custody” in Article 8(b) and (e) are also EU law concepts, where the CJEU case law must be applied in accordance with Articles 4 and 5. As for the latter rule, Article 2(9) of the Brussels IIa Regulation states that “the term "rights of custody" shall include rights and duties relating to the care of the person of a child, and in particular the right to determine the child's place of residence.”

Note that these definitions are only applicable to the citizens’ rights rules in part Two; other definitions applicable to the entire agreement (including the citizens’ rights Part) appear in Article 2. The proviso that the definitions are “without prejudice” to Title III on social security (Articles 28-31) presumably refers to the derogation from Article 8(a) in Article 28(2), which instead applies the different definition of “family member” in EU law on social security coordination to social security issues.

In Article 8(c), the words “and continue to reside there thereafter” – not reflected in the joint report – limit the scope of the agreement to a single state, so that it does not cover EU27 or UK citizens who return to their state of nationality (relevant to the position of their family members or recognition of qualifications: on family members see the Surinder Singh and Eind case law, discussed here), or UK citizens who move to another member State (see Article 32). This would significantly and unjustifiably impede the future lives of many people, so I suggest an amendment to delete the words “and continue to reside there thereafter” from Article 8(c).

An important issue dividing the EU27 and UK is the exact status of those who move during the transition/implementation period. The EU27 proposal would treat them just the same as those who were there beforehand, but the UK proposal would treat them differently. In the UK’s view, there will still be free movement in both directions, to be set out in the withdrawal agreement (point 4). There will be a registration system in the UK, in accordance with Article 8 of the citizens’ Directive (point 5: for further discussion of that point, see here). This will not apply to Irish citizens, since the agreement will not apply to them (point 6: this statement is false, since Ireland is listed as one of the “Member States” in Article 2(b), and Irish citizens are therefore covered by Article 2(c) as EU citizens). Such persons can stay after the end of the transition/implementation period and still obtain permanent status in future, but will be subject to the family reunion rules applicable to UK citizens (point 10: contradicting the proposal for Article 9). It will be up to EU27 Member States to determine what happens to UK citizens who arrive during this period (point 11), again contradicting the proposal, which would give them a route to permanent residence in future. 

Article 9

Personal scope

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

(a)  Union citizens who exercised their right to reside in the United Kingdom in accordance with Union law before the end of the transition period and continue to reside there thereafter; 

(b)  United Kingdom nationals who exercised their right to reside in a Member State in accordance with Union law before the end of the transition period and continue to reside there thereafter; 

(c)  Union citizens who exercised their right as frontier workers in the United Kingdom in accordance with Union law before the end of the transition period and continue to do so thereafter; 

(d)  United Kingdom nationals who exercised their right as frontier workers in one or more Member States in accordance with Union law before the end of the transition period and continue to do so thereafter; 

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

(i) they resided in the host State in accordance with Union law before the end of the transition period and continue to reside there thereafter;

(ii) they resided outside the host State before the end of the transition period, provided that they fulfil the conditions set out in point (2) of Article 2 of Directive 2004/38/EC at the time they seek residence under this Part in order to join the person referred to in points (a) to (d) of this paragraph;*

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

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

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

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

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

2. Without prejudice to any right to residence which the persons concerned may have in their own right, the host State shall, in accordance with its national legislation, facilitate entry and residence for persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC who resided in the host State in accordance with Union law before the end of the transition period and continue to reside there thereafter.

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

4. In the cases referred to in paragraphs 2 and 3, the host State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to such persons.

Background: This Article reflects paras 12 and 13 of the joint report.

Comment: The reference to Title III as a lex specialis can be explained by the different personal scope of social security law, as set out in Article 28(2) of the agreement.

Article 9(1) reflects, like Article 8(c), a limitation on the scope of the agreement by means of the words “and continue to reside there thereafter”. For the reasons discussed already, I suggest an amendment to delete the words “and continue to reside there thereafter” from Article 9. While the UK government reportedly intends to protect family members of UK citizens covered by the Surinder Singh case law in national law, that does not adequately protect their rights, since they will be subject to the whims of a government devoted to a low net migration target and the creation of a “hostile environment” to that end.

The most controversial issue here is Article 9(1)(e), regarding core family members. Point (i) covers those already resident before the end of the transition/implementation period on the basis of EU law, which as broadly defined by Article 2, covers also EU immigration and asylum law. Point (ii) covers those who resided outside the host State before that date, who can still seek entry on the basis of Article 2(2) of the Directive. This contradicts the agreement between the UK and the EU27 in the joint agreement, since the Commission seeks to keep the right of family life intact for all the persons concerned. Point (iii) covers children born to or adopted by EU27 or UK citizens or their family members after that date, regardless of where they were born, as long as they are under 21 or dependent as defined by EU law. This includes cases where one parent is an EU27/UK citizen and the other is a UK national, and where one parent is covered by the Agreement and has sole or joint rights of custody (which was defined in Article 8). 

Note also that Article 9(1)(f) protects family members who were present as permanent residents or pursuant to the family breakdown rules before the end of transition/implementation period. Moreover, Article 22 covers a group of children and carers who will in some cases fall outside the scope of this Article.  

Article 9(2), (3) and (4) set out rules for extended family members, as defined by reference to Article 3(2) of the citizens Directive. The persons concerned are: (a) “any other family members, irrespective of their nationality, not falling under the definition” in Article 2(2) who, “in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen”; and (b) “the partner with whom the Union citizen has a durable relationship, duly attested”.

It is sometimes falsely suggested that the list of extended family members in EU free movement law is unlimited, and that there is an obligation to admit them. Neither claim is true, as the obligation to “facilitate entry and residence” is not a right of admission as such, as confirmed by the CJEU in its judgment in Rahman. (An Advocate-General’s opinion in the second case on Article 3(2), Banger, is due shortly).

In any event, the agreement will curtail the limited rights of extended family members significantly. Article 9(2) only continues the “facilitation” obligation if the family members concerned “resided in the host State in accordance with Union law before the end of the transition period and continue to reside there thereafter”. (Note that “Union law”, as defined broadly in Article 2 of the agreement, could include EU law on immigration or asylum for non-EU citizens). Article 9(3) allows slightly more protection for duly attested partners, but the facilitation obligation for them still applies only where “the relationship was durable before the end of the transition period and continues at the time the partner seeks residence under this Part.” If the couple concerned chooses to marry (if that option is possible) then they would fall within the scope of Article 9(1).

Article 10

Continuity of residence

Continuity of residence for the purposes of Articles 8 and 9 shall not be affected by absences as referred to in Article 14(2) and (3).

Background: This Article partly does not specifically reflect any para of the joint report.

Comment: This applies the usual rules on continuity of residence, which are usually applied to acquisition of permanent residence as in Article 14 of the agreement, to any issues of continuity of residence which may arise from Articles 8 or 9.

Article 11

Non-discrimination

Within the scope of this Agreement and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality within the meaning of the first subparagraph of Article 18 TFEU shall be prohibited in the host State and the State of work in respect of the persons referred to in Article 9 of this Agreement.

Background: This Article partly reflects para 31 of the joint report.

Comment: This Article copies the wording of Article 18 TFEU, first subparagraph, and refers to it also, so the relevant CJEU case law will apply. Note that other non-discrimination clauses appear in Articles 21 and 22 of this agreement.

TITLE II

RIGHTS AND OBLIGATIONS

CHAPTER 1

Rights related to residence, residence documents

Article 12

Residence rights

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

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

3. Family members who are neither Union citizens nor United Kingdom nationals shall have the right to reside in the host State as set out in Article 6(2), Article 7(2), Article 12(2) or (3), Article 13(2), Article 14, Article 16(2), Article 17(3) or (4) or Article 18 of Directive 2004/38/EC.

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

Background: This reflects paras 20 and 21 of the joint report.

Comments: This Article sets out the core right to stay on the territory for EU27/UK citizens and their family members. It is not absolute, since it is subject to the process of confirming status after Brexit (Article 17) and removal in the event of criminality (Article 18); and the persons concerned must meet the conditions for residence in the first place. These conditions are generous, but not unlimited; in particular there is no right to stay solely on the basis of receiving social benefits from the outset. 

More precisely, Article 12(1) refers to the EU law rules on citizenship and free movement (Article 21 TFEU), free movement of workers (Article 45 TFEU), free movement of self-employed people (Article 49 TFEU), initial stays (Article 6(1), citizens’ Directive), stays after three months (Article 7(1)(a) to (c), citizens’ Directive), stays as a former worker (Article 7(3)); stays looking for work (Article 14, citizens’ Directive), and permanent residence (Article 16(1) or Article 17(1), citizens’ Directive). On former workers, note that the EU law applies to those who take a break for maternity, even if they switch employers at that time under certain conditions (see discussion here); it also covers the self-employed (see the Pusa judgment), but not those who become unemployed shortly after arriving and run out of time to find replacement work (see discussion here). While non-economic migrants need “sufficient resources” to stay, the case law makes clear that this can be provided by others, for instance a spouse or partner.

Article 12(2) of the agreement sets out the corresponding rules for family members who are EU or UK citizens, while Article 12(3) of the agreement sets out the corresponding rules for family members who are not EU or UK citizens. Note that Articles 12 and Article 13 of the citizens’ Directive, referred to here, concern stays after family breakdown, while Article 18 grants permanent residence rights to those who stayed on the basis of those provisions. (On the most recent CJEU judgment on the family breakdown rules, see the discussion here).

All these references to EU law are subject to the interpretation rules in Articles 4 and 5. Article 12(4) removes any state discretion over “obtaining, maintaining or losing residence rights” besides the possibilities set out in this Title (Articles 12-27 of the Agreement, not all of which deal with residence rights).    

Article 13

Right of exit and of entry

1. Union citizens, United Kingdom nationals, and their respective family members, shall have the right to leave the host State and the right to enter it with a valid passport or national identity card for Union citizens and United Kingdom nationals, and a valid passport for their respective family members who are not Union citizens or United Kingdom nationals as set out in Articles 4(1) and 5(1) of Directive 2004/38/EC. No exit or entry visa or equivalent formality shall be required for holders of a valid residence document issued in accordance with Article 17 or 24 of this Agreement.

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

Background: There is no parallel provision in the joint report.

Comments: The first sentence of Article 13(1) matches – and cross-refers to – Article 4(1) and the first sub-paragraph of 5(1) of the citizens’ Directive. However, the second sentence of Article 13(1) is not the same as Article 4(2) or the second sub-paragraph of Article 5(1) of that Directive, since it limits the exemption from an entry visa or similar document only for those who hold a new residence document on the basis of Article 17 (the “settled status” clause) or Article 24 (document for frontier workers) of the agreement.

Article 13(2) can be compared to Article 5(2) of the Directive, which also provides for exemption of the visa requirement if the person has a residence card, and covers short-term visits (see the 2014 McCarthy judgment, discussed here).

There is no equivalent to Article 4(3) and (4) of the Directive, concerning the issue of passports or identity cards to nationals. Nor is there any equivalent to: Article 5(3), banning entry or exit stamps in passports of those non-EU family members holding a residence card; Article 5(4), giving people the opportunity to obtain travel documents or visas; or Article 5(5), an option to require reporting presence, which can be made subject to proportionate and non-discriminatory sanctions.    

Article 14

Right of permanent residence

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

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

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

Background: This Article reflects paras 21 and 25 of the joint report.

Comment: Article 14(1) incorporates the main rule on acquiring permanent residence in Article 16 of the citizens’ Directive, as well as the subsidiary rules in Articles 17 and 18 of that law. The second sentence confirms that times of employment both before and after the end of the transition/implementation period will count.

An important point here is that Article 14(1) refers to time present on the basis of EU law, as defined broadly by Article 2(a), not only to time spent on the basis of the Directive. This is broader than the case law of the ECJ, which says that only time spent on the basis of the Directive counts (see the Alarape and Tijani judgment). (There are other forms of legal stay under EU law: see Article 22 of this agreement, for instance. And “EU law” could also, for non-EU family members, refer to residence on the basis of EU immigration or asylum law applicable to non-EU citizens).  However, Article 15 of this Agreement, confusingly, refers only to time spent on the basis of the Directive, reflecting the wording of the case law again.

Note that Article 16(1) of the Directive goes on to say that: “This right shall not be subject to the conditions provided for in Chapter III”, ie the rules on the initial five-year stay. This is implicitIy incorporated into Article 14(1) of the agreement by the cross-reference to Article 16. Indeed the cross-reference to EU law incorporates all the relevant case law, except arguably the Alarape and Tijani case due to the different wording.

The cross-reference in Article 14(1) of the agreement also includes Article 16(2) of the Directive, which grants permanent residence to non-EU family members who “have legally resided with the Union citizen in the host Member State for a continuous period of five years”; Article 17 of the Directive, which grants permanent residence after a shorter period in the event of retirement, death or accident at work; and Article 18 of the Directive, which gives permanent residence to non-EU family members in the event of family breakdown referred to in Articles 12 and 13 of the Directive (see Article 12 of this agreement).

Article 14(2) of the agreement, concerning continuity of residence, incorporates Article 16(3) of the Directive, which provides:

Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absences of a longer duration for compulsory military service, or by one absence of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.

It also incorporates Article 21 of the Directive, which provides:

…continuity of residence may be attested by any means of proof in use in the host Member State.  Continuity of residence is broken by any expulsion decision duly enforced against the person concerned.

Article 14(3) of the agreement, on loss of the status, is identical to Article 16(4) of the citizens’ Directive, except that the relevant period is five years, not two as in the Directive. Nevertheless, the persons concerned still have lesser protection overall, since under the Directive they could always exercise free movement rights from scratch if they met the criteria in Article 7 of the Directive. Post-Brexit they cannot.

Article 15

Accumulation of periods

Union citizens, United Kingdom nationals, and their respective family members, who before the end of the transition period resided legally in the host State under the conditions of Article 7 of Directive 2004/38/EC for a period of less than five years, shall have the right to acquire the right of permanent residence set out in Article 14 of this Agreement once they have completed the necessary periods of residence. Periods of legal residence or work before and after the end of the transition period shall be included in the calculation of the qualifying period necessary for acquisition of the right of permanent residence.

Background: This Article reflects para 21 of the joint report.

Comment: It is hard to see how to distinguish this Article from Article 14(1) of this agreement, which it differs from only by referring explicitly to residence on the basis of the citizens’ Directive, rather than EU law more generally. While Article 15 only covers those who do not yet qualify for permanent residence at the end of the transition/implementation period, Article 14(1) must cover them too, since it also refers to periods of residence after that date.

Article 16

Status and changes

1.  The right of Union citizens, United Kingdom nationals, and their respective family members to rely directly on this Title shall not be affected when they change status, for example from student to worker, from worker to being economically inactive, or from being economically inactive to student.

2.  The rights provided for in this Title for the family members, who are dependent on Union citizens or United Kingdom nationals before the end of the transition period, shall be maintained even after they cease to be dependent as a result of taking up employment or self-employment in the host State.

Background: This Article reflects para 20 of the joint report.

Comment: The right of EU citizens or their family members to change the basis of their stay (provided that they still comply with the criteria for residence under EU law) is not explicitly referred to in the citizens’ Directive, but has always been protected in practice under the CJEU case law.

Article 17

Issuance of residence documents

1.  The host State may require Union citizens or United Kingdom nationals and their respective family members, residing in its territory in accordance with the conditions set out in this Title, to apply for a new residence document as a condition for the enjoyment of the rights under this Title, subject to the following conditions:

Background: this is the “settled status” clause. It reflects para 16 of the joint report. Note that it would be optional for the UK or EU27 Member State to apply it. Obviously the UK at least intends to do so.

Comment: Note that holding the document as a condition enjoying rights diverges from Article 25 of the citizens’ directive, which states that holding forms cannot be a precondition for having any form of status under the Directive. The pledges of “no less favourable status” and “automatic indefinite leave to remain” for EU27 citizens in the UK have therefore been breached.

(a) the purpose of the application procedure shall be to verify whether the applicant falls within the personal scope provided for in Article 9 and is entitled to the residence rights set out in this Title. Where that is the case, the applicant shall have a right to be granted the residence document;

Comment: There is no overall discretion to refuse the document if the applicant can prove their entitlement to status, as Article 12(4) states.

(b) the deadline for submitting the residence document application shall not be less than two years from the end of the transition period or from the date of arrival in the host State, whichever is later; a certificate of application for the residence document shall be issued immediately;

Comment: This resembles Article 8(2) of the citizens’ Directive, which has a three-month minimum deadline. It goes on to state that the certificate of application must state “the name and address of the person registering and the date of the registration” and that “[f]ailure to comply with the registration requirement may render the person concerned liable to proportionate and non-discriminatory sanctions”.

(c) the deadline for submitting the residence document application referred to in point (b) shall be extended automatically by one year where the Union or the United Kingdom has notified the United Kingdom or the Union, respectively, that technical problems prevent the host State either from registering the application or from issuing the certificate of application referred to in point (b). The host State shall publish that notification and shall provide appropriate public information for the citizens or nationals concerned in good time;

Comment: This is new compared to the citizens’ Directive. A one-year extension may prove to be useful in practice.

(d) where the deadline for submitting the residence document application referred to in point (b) is not respected by the persons concerned, the competent authorities shall assess all the circumstances and reasons for not respecting the deadline and allow those persons to submit an application within a reasonable further period of time, unless such an application is manifestly abusive;

Comment: The “try again” clause is new compared to the citizens’ Directive. It could be useful in practice but is not clearly drafted as a right of the person concerned. Presumably point (r) grants a right of redress in the event of refusal here.

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

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

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

Comment: The cost clause resembles Article 25(2) of the citizens’ Directive. Note the exemption in (h) however.

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

Comment: Those who already hold documentation of permanent residence are required to apply again. There is an exemption from costs and there are limited grounds to refuse; but this remains an unjustifiable imposition and also an extra cost for the UK. I suggest an amendment as follows (two alternatives; the first is preferable):

(h) persons who, before the end of the transition period, are holders of a valid permanent residence document issued under Article 19 or 20 of Directive 2004/38/EC or a valid domestic immigration document conferring a permanent right to reside in the host State, shall [be exempt from the provisions of this Article] [shall automatically be issued with a new residence document, upon application, free of charge]

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

Comment: this partly reflects the wording of Article 8(3) of the citizens Directive. Note the requirement to return passports or identity cards.

(j) supporting documents other than identity documents, such as civil status documents, may be submitted in copy;

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

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

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

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

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

Comment: This copies – and cross-refers to – the criteria and process in the citizens’ Directive. The underlying problem here is the UK’s insistence that NHS cover does not count as “comprehensive sickness insurance”. While the UK has promised to waive this requirement, this is in principle not an enforceable right and there is a risk that the Agreement could be interpreted as meaning that the persons concerned are not covered by it at all.  

Suggested amendment: “…of comprehensive sickness insurance cover, which shall be satisfied for European Union citizens in the United Kingdom by proof of registration with the National Health Service…”

(l) the host State may only require family members who fall under Articles 9(1)(e)(i) or 9(2) of this Agreement and who reside in the host State in accordance with Article 7(1)(d) or 7(2) of Directive 2004/38/EC to present, in addition to the identity documents referred to in point (i) of this paragraph, the following supporting documents as referred to in Articles 8(5) or 10(2) of Directive 2004/38/EC:

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

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

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

(iv) for the persons referred to in Article 9(2) of this Agreement, a document issued by the relevant authority in the host State in accordance with Article 3(2) of Directive 2004/38/EC.

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

Comment: This copies – and cross-refers to – the criteria and process in the citizens’ Directive.

(m) the host State may only require family members who fall under Articles 9(1)(e)(ii) or 9(3) of this Agreement, in addition to the identity documents referred to in point (i) of this paragraph, the following supporting documents as referred to in Articles 8(5) and 10(2) of Directive 2004/38/EC:

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

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

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

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

(v) for the persons referred to in Article 9(3) of this Agreement, proof that a durable relationship with Union citizens or United Kingdom nationals existed before the end of the transition period and continues to exist thereafter;

Comment: This copies – and cross-refers to – the criteria and process in the citizens’ Directive.

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

Comment: This presumably refers to those covered by Article 22 – children of workers and their carers.

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

Comment: This would be a useful procedural protection in practice.

(p) criminality and security checks may be carried out systematically on applicants with the exclusive aim of verifying whether restrictions set out in Article 18 of this Agreement may be applicable. For that purpose, applicants may be required to declare past criminal convictions which appear in their criminal record in accordance with the law of the State of conviction at the time of the application. The host State may, should it consider this essential, apply the procedure set out in Article 27(3) of Directive 2004/38/EC on enquiries to other States regarding previous criminal records;

Comment: This diverges from Article 27(3) of the citizens’ Directive, which states that such checks will not be made “as a matter of routine”.

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

(r) the applicant shall have access to judicial and, where appropriate, administrative redress procedures in the host State against any decision refusing to grant the residence document. The redress procedures shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed decision is based. They shall ensure that the decision is proportionate.

Comment: the second sentence reflects Article 31(3) of the citizens’ Directive, although there is no cross-reference to it, and the reference to the high threshold for expulsion in Article 28 of that Directive has been dropped.

2.  During the two-year period referred to in point (b) of paragraph 1 of this Article and its possible one-year extension under point (c) of paragraph 1 of this Article, all rights provided for in this Part shall be deemed to apply to Union citizens or United Kingdom nationals and their respective family members, residing in the host State in accordance with the conditions set out in this Title.

Comment: A useful ban on the Home Office “jumping the gun”.

3. Pending a final decision by the competent authorities on any application referred to in paragraph 1, as well as a final judgment handed down in case of judicial redress sought against any rejection of such application by the competent administrative authorities, all rights provided for in this Part shall be deemed to apply to the applicant, including Article 19 on safeguards and right of appeal.

4. Where a host State has chosen not to require Union citizens or United Kingdom nationals, and their respective family members, to apply for the new residence document referred to in paragraph 1 as a condition for legal residence, those Union citizens, United Kingdom nationals and their respective family members eligible for residence rights shall have the right to receive a residence document that includes a statement that it has been issued in accordance with this Agreement.

Article 18

Restrictions of the right of residence

1.  Conduct of Union citizens or United Kingdom nationals or their respective family members, that occurred before the end of the transition period shall be considered in accordance with Chapter VI of Directive 2004/38/EC.

2.  Conduct of Union citizens or United Kingdom nationals, or their respective family members, that occurred after the end of the transition period may constitute grounds for restricting the right of residence by the host State in accordance with national legislation.

3. The host State may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Title in the case of abuse of those rights or fraud as set out in Article 35 of Directive 2004/38/EC. Such measures shall be subject to the procedural safeguards provided for in Article 19 of this Agreement.

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

Background: This Article broadly reflects the second sentence of para 18 of the joint report, as well as paras 26 and 27.

Comment: Due to the cross-reference, the case law on these provisions of the citizens’ Directive will apply. Chapter VI of that law contains substantive rules limiting expulsion on grounds of public policy, public security and public health, particularly in Articles 27-29; there is substantial case law on these rules and on the predecessor law. It will be necessary to establish when conduct took place before the end of the transition/implementation period (Article 18(1)) and when it took place afterward, so national law applies (Article 18(2)).

As for Article 18(3), the case law on Article 35 of the Directive interprets that rule narrowly (see Metock and the 2014 McCarthy judgment, discussed here). The reference to procedural protection in such cases is then undermined by Article 18(4), which refers to expulsion before a final judgment, referring to Article 31 of the Directive. But Article 31 only allows removal from the territory, if the person concerned has applied for an interim order, in a limited number of cases: an expulsion decision based on a prior judicial decision; if there was prior access to judicial review; or where the expulsion is based on “imperative grounds of public security” as defined in the Directive. None of these cases correspond to Article 35 of the Directive.

Possibly the drafting intends to confirm that a person who is being excluded on the basis of Article 35 can have fewer procedural rights only where that person also falls within the scope of the exclusions in Article 31. I suggest an amendment to Article 18(4) to make that more clear:  “The host State may remove applicants who submitted fraudulent or abusive applications from its territory to the extent permitted by Directive 2004/38/EC, in particular Articles 31 and 35 thereof…”

Article 19

Safeguards and right of appeal

The safeguards set out in Article 15 and Chapter VI of Directive 2004/38/EC shall apply in respect of any decision of the host State that restricts residence rights of the persons referred to in Article 9 of this Agreement.

Background: This broadly reflects the first sentence of para 31 of the joint report.

Comment: Due to the cross-reference, the case law on these provisions of the citizens’ Directive will apply. Chapter VI of that law contains rules on notification of decisions (Article 30), stay on the territory (Article 31), entry bans (Article 32) and reconsideration of decisions (Article 33). There is a seeming contradiction with the apparent limit on procedural rights set out in Article 18(4) of this agreement.

Article 15(1) of that Directive extends Articles 30 and 31 also to cases where restrictions on free movement are applied not on grounds of public policy, public security or public health, ie cases where the person might face expulsion due to being reliant upon benefits. Article 15(3) rules out applying an entry ban in such cases, and Article 15(2) states that “[e]xpiry of the identity card or passport on the basis of which the person concerned entered the host Member State and was issued with a registration certificate or residence card shall not constitute a ground for expulsion from the host Member State”.

Article 20

Related rights

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

Background: This does not reflect any specific para in the joint report explicitly.

Comment: This clause essentially copies Article 23 of the citizens’ Directive. Due to the cross-reference, the case law on that Article will apply. This will be an important provision in practice for families where a non-EU citizen spouse or partner earns the sole or higher income.

Article 21

Equal treatment

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

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

Background: This reflects part of para 31 of the joint report, which refers to securing equal treatment within the limits of the citizens’ Directive. There are specific rules on equal treatment of workers, which are set out in Article 22 of the agreement.

Comment: The reference to EU law means that the case law on Articles 6, 14(4)(b) and 24 of the citizens’ Directive will apply (see discussion of that case law here). Para 1 is very similar to Article 24(1) of the Directive, which is referred to directly anyway, except that it refers to the “specific provisions of” and “scope of” this agreement, rather than of the TFEU.

The limits on access to benefits in para 2 are substantively identical to those in Article 24(2) of the citizens Directive: no social assistance during the first three months of residence or for an initial job-seeker, and no student benefits for non-economic migrants until they attain permanent residence. 

CHAPTER 2

Rights of workers and self-employed persons

Article 22

Rights of workers

1.  Workers in the host State and frontier workers in the State or States of work shall enjoy the following rights:

(a) subject to the limitations set out in Article 45(3) and 45(4) TFEU:

(i) the right, in accordance with Article 45(2) TFEU, not to be discriminated against on grounds of nationality as regards employment, remuneration and other conditions of work and employment;

(ii) the rights referred to in Article 45(3) TFEU;

(b) the rights set out in Regulation (EU) No 492/2011 of the European Parliament and of the Council, including:

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

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

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

(iv) the right to tax and social advantages;

(v) collective rights;

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

(vii) the right for their children to be admitted to the general educational, apprenticeship and vocational training courses under the same conditions as the nationals of the host State or the State of work.

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

3. Employed frontier workers shall retain the rights they enjoyed as workers in the State or States of work, and the right to enter and exit that State in accordance with Article 13.

Background: This Article elaborates upon para 31 of the joint report, which said (among other things) that equal treatment would be guaranteed for workers on the basis of Regulation 492/2011.

Comments: Article 22 is a précis of the specific rights of free movement of workers in EU law, as set out in Article 45 TFEU and Regulation 492/2011, which replaced the previous Regulation 1612/68. Article 4 of the agreement therefore requires relevant CJEU case law to apply, or for the UK courts to have due regard to it. Note that the CJEU case law has confirmed that the concept of “worker” has a wide scope, applying for instance to part-time workers and trainees, as long as they are doing “genuine and effective” work.

On Article 22(1)(a): Article 45(3) TFEU limits free movement of workers on grounds of public policy, public security and public health, although the case law on the relevant parts of the citizens’ Directive (and its predecessor legislation) referred to in Article 19 of this agreement, and the case law interpreting it, are also relevant. Article 45(4) TFEU limits free movement of workers by providing that “The provisions of this article shall not apply to employment in the public service”. CJEU case law interprets this exception narrowly.

Article 22(1)(a)(i) simply restates Article 45(2) TFEU, which has been the subject of CJEU case law. The reference to Article 45(3) TFEU in Article 22(1)(a)(ii) entails a reference to: “accept offers of employment actually made”; “move freely within the territory of Member States for this purpose”; “stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action”; and “to remain in the territory of a Member State after having been employed in that State”. The rules on the last of those issues now appear in Article 17 of the citizens’ Directive, and are incorporated in other provisions of this agreement.

Article 22(1)(b) effectively refers in turn to Regulation 492/2011: Article 1(1) (point Article 22(1)(b)(i)); Article 5 (point Article 22(1)(b)(ii)); Article 7(1) (point Article 22(1)(b)(iii)); Article 7(2) (point Article 22(1)(b)(iv)); Article 8 (point Article 22(1)(b)(v)); Article 9 (point Article 22(1)(b)(vi)); and Article 10 (point Article 22(1)(b)(vii)). But this is a non-exhaustive list (“the rights set out in Regulation 492/2011, including…”), so the rest of the Regulation is covered too. 

Article 22(2) reflects the case law on Article 10 of Regulation 492/2011 and its predecessor, Article 12 of Regulation 1612/68, which gave residence rights to children in education and their carers as a corollary of access to education. The residence right of the child of a worker (or former worker) is protected by Article 22(1)(b)(vii), since it must be interpreted in accordance with prior CJEU case law (according to Article 4(4) of the agreement). See most recently the Alarape and Tijani case, discussed above as regards Article 14.

Article 22(3) does not reflect any specific provision of the citizens’ Directive or Regulation 492/2011.

Article 23

Rights of self-employed persons

1.  Self-employed persons in the host State and self-employed frontier workers in the State or States of work shall have the following rights:

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

(b) the rights as set out in Article 22 of this Agreement.

2.  Self-employed frontier workers shall have the same rights as employed frontier workers, without prejudice to Article 32 concerning the scope of rights.

Background: The equal treatment right in para 1(b) reflects part of para 31 of the joint report.

Comment: The wording of para 1(a) reflects the text of Article 49 TFEU, on the rights of self-employed persons. The extension of the provision on workers’ equality in Article 22 to self-employed persons (see para 1(b)) is significant, since Regulation 492/2011 does not apply as such to self-employed workers; rather their equal treatment rights are based on the Treaties. Para 2 does not reflect any specific legislative rule, but it should be noted that it reaffirms the limit on UK citizens exercising free movement rights in other Member States, set out in Article 32.

Article 24

Issuance of a document identifying frontier workers' rights

Union citizens and United Kingdom nationals who have rights as frontier workers under this Title shall have the right, in the State of work, to receive a document certifying that they have such rights under this Agreement.

Background: This does not reflect any specific provision in the joint report.

Comment: This does not reflect any specific provision of the citizens’ Directive or Regulation 492/2011.

CHAPTER 3

Professional qualifications

Article 25

Recognised professional qualifications

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

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

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

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

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

2.  Recognitions of professional qualifications in accordance with Title III of Directive 2005/36/EC referred to in point (a) of paragraph 1 of this Article shall include:

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

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

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

Background: This reflects the first sentence of para 32 of the joint report. Directive 74/556 has been added. Article 25(2) is a clarification that is not expressly set out in the joint report. I have replaced the footnotes with hyperlinks to the legislation.

Comments: This clause ‘grandfathers’ recognition of professional qualifications awarded before the end of the transition/implementation period, but does not cover recognition of UK qualifications for EU27 citizens who move after the end of that period to the Member State of nationality, or another Member State. Equally it would not cover recognition in the UK of an EU27 qualification after Brexit day, even if the qualification was obtained beforehand. As such this wording acts as a kind of retroactive obstacle to the prior exercise of free movement. See comments on Articles 8 and 9 above, with suggested amendments there. The references to EU legislation mean that articles 4 and 5 of this agreement apply to interpretation.

It should be noted, however, that the EU draft guidelines on the future relationship refer to possible negotiation on recognition of qualifications, which would cover the gaps just identified – if such negotiations are comprehensive and successful.

Article 26

Ongoing procedures on the recognition of professional qualifications

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

Background: This reflects the second sentence of para 32 of the joint report. Directive 75/442 has been added. I have replaced the footnotes with hyperlinks to the legislation.

Comments: This clause ‘grandfathers’ recognition of professional qualifications which were not awarded before the end of the transition/implementation period, but where an application was made for recognition before that date. Like Article 25, this Article does not cover subsequent recognition in another State of a prior qualification applied for before the end of that period, although this issue might be addressed by a “future relationship” treaty. 

Article 27

Administrative cooperation on recognition of professional qualifications

With regard to the pending applications referred to in Article 26, the United Kingdom and the Member States shall cooperate in order to facilitate the application of Article 26. Cooperation may include the exchange of information, including on disciplinary action or criminal sanctions taken or any other serious and specific circumstances which are likely to have consequences for the pursuit of the activities falling under the Directives referred to in Article 26.  

Background: This does not reflect any specific para in the joint report. It resembles part of Article 56 of Directive 2005/36, but without any cross-reference to that provision (hence Articles 4 and 5 of this Agreement do not apply) or some of the extra detail in that Article.

Comments: This clause could address concern sometimes expressed in the UK about occasional cases in which EU27 professionals have faced some sort of prior professional sanction and so should arguably not have their professional qualification recognised. Note that the clause only applies to qualification applications pending at the end of the transition/implementation period (Article 26), not those qualifications recognised beforehand (Article 25).

Title III

Coordination of social security systems

Article 28

Persons covered

1.  This Title shall apply to the following persons:

(a) Union citizens who are or have been subject to the legislation of the United Kingdom, as well as their family members and their survivors;

(b) United Kingdom nationals who are or have been subject to the legislation of a Member State, as well as their family members and their survivors;

(c) Union citizens who resided in the United Kingdom before the end of the transition period and continue to do so thereafter, and are subject to the legislation of a Member State, as well as their family members and their survivors;

(d) United Kingdom nationals who resided in a Member State before the end of the transition period and continue to do so thereafter, and are subject to the legislation of the United Kingdom, as well as their family members and their survivors;

(e) Union citizens and United Kingdom nationals who pursued an activity as employed or self-employed person both in the United Kingdom and in one or more Member States before the end of the transition period and continue to do so thereafter, as well as their family members and their survivors;

(f) stateless persons and refugees, residing in a Member State or in the United Kingdom, who are or have been subject to the legislation of the United Kingdom or a Member State, respectively, as well as their family members and their survivors;

(g) nationals of third countries who are not Union citizens or United Kingdom nationals, as well as members of their families and their survivors, provided that they fulfil the conditions of Regulation (EU) No 1231/2010 of the European Parliament and of the Council or Council Regulation (EC) No 859/2003.

2. By way of derogation from point (a) of Article 8 of this Agreement, for the purposes of this Title, "family member" means member of the family as defined in point (i) of Article 1 of Regulation (EC) No 883/2004 of the European Parliament and of the Council.

3. For the purposes of this Title, "legislation" means legislation as defined in point (l) of Article 1 of Regulation (EC) No 883/2004.

4. Union citizens or United Kingdom nationals, as well as nationals of third countries referred to in point (g) of paragraph 1, having worked or resided in a Member State or in the United Kingdom before the end of the transition period shall, for the purposes of aggregation of periods of social                                                           security insurance, including rights flowing from such periods, in accordance with Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 of the European Parliament and of the Council, be covered by this Title.

Background: This Article is based on the second and third sentences of para 28 of the joint report, although that para only referred to UK or EU citizens.  

Comments: Regulation 883/2004 is the main EU law text on social security coordination for those who exercise free movement rights. It’s the latest version of legislation going back to 1958, when the EEC was first founded. Note that para 1(a) and (b) do not require that the person concerned still remains in the relevant EU27 Member State or the UK; this is an implied derogation from Article 9 of the Agreement. Regulation 987/2009 sets out detailed rules to implement Regulation 883/2004.

The inclusion of stateless persons and refugees in para 1(f) follows Regulation 883/2004 (and prior EU legislation on this issue), although note that the CJEU ruled in Khalil and Addou that like EU citizens, they only derive rights from the rules if they have moved between Member States.

Para 1(g) refers to separate legislation extending the EU coordination rules to other non-EU citizens who moved within the EU. The UK opted into the 2003 legislation, but not the 2010 legislation; so presumably the reference to the 2010 legislation covers non-EU citizens who derived rights from it in other Member States (every other Member State except Denmark is covered by both of the two laws).

There are EU treaties with non-EU countries setting out rules on social security coordination or equal treatment; they will apply as regards the UK during the transition/implementation period subject to the special rules in the Agreement on that period. After that point their continued application will depend upon whether the UK has “rolled over” the relevant treaty with the country concerned.

It is not clear if the wording captures those within the scope of Article 2(2) of Regulation 883/2004: survivors of non-EU citizens, where the survivors are EU citizens or refugees or stateless persons. To clarify this I suggest an amendment to add an Article 28(1)(fa) as follows: the survivors of persons who have been subject to the legislation of one or more Member States, irrespective of the nationality of such persons, where their survivors are nationals of a Member State or the United Kingdom or stateless persons or refugees residing in one of the Member States or the United Kingdom.

The cross-references to EU law in Paras 1(g) and (2) to (4) mean that Articles 4 and 5 apply to the interpretation of these rules.

Article 29

Social security coordination rules

1. For the purposes of ensuring the rights referred to in Articles 21, 45 and 49 TFEU, the rights and principles set out in Article 48 TFEU, Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009, as well as the Decisions and Recommendations of the Administrative Commission for the Coordination of Social Security Systems attached to the European Commission, set up under Regulation (EC) No 883/2004 ("Administrative Commission") listed in [Part I of the Annex y+5 to] this Agreement, shall apply to the matters covered by those Regulations as set out in Article 3 of Regulation (EC) No 883/2004, notably the branches of social security referred to therein, including in respect of:

(a) the general principles of social security coordination, and in particular equal treatment, assimilation of facts and benefits, aggregation of periods, export of benefits and the prevention of overlapping benefits set out in Articles 4 to 10 of Regulation (EC) No 883/2004;

(b) the determination of the applicable legislation based on Title II of Regulation (EC) No 883/2004;

(c) administrative cooperation set out in Title V of Regulation (EC) No 883/2004.

2. Contributions both before and after the end of the transition period shall be taken into account for the purposes of aggregation of periods of social security insurance, including rights flowing from such periods, in accordance with Regulation (EC) No 883/2004 and shall be covered by this Title.

3.  Where a person referred to in Article 28 of this Agreement has undertaken a course of planned health care treatment before the end of the transition period in a Member State or in the United Kingdom, while that State was not the competent State as determined in accordance with Title II of Regulation (EC) No 883/2004, that person shall have the right to continue the treatment until its end.

4. If, following the grant of a benefit based on the periods of insurance, employment, self employment or residence in accordance with Article 28(3) of this Agreement, the United Kingdom becomes competent for the healthcare cover of a Union citizen, or a Union Member State becomes competent for the health care cover of a United Kingdom national, that Union citizen or United Kingdom national shall be entitled to healthcare cover as set out in Articles 24 to 30 of Regulation (EC) No 883/2004 and the corresponding reimbursement procedures shall apply between the United Kingdom and the Member State.

Background: The text of paras 1 and 2 reflects the first sentence of para 28 of the joint report: “Social security coordination rules set out in Regulations (EC) No 883/2004 and (EC) No 987/2009 will apply.” The text of paras 3 and 4 reflects para 29 of the joint report; these provisions were discussed in detail by Professor Tammy Hervey (who also proposed amendments).

Comments: The cross-references to EU law in every para mean that Articles 4 and 5 of the agreement apply to the interpretation of these rules. There is a technical question as to whether the wording covers uprating of pensions, which is an issue because the UK often does not uprate pensions for its citizens (or non-citizens who qualify for a UK pension) living abroad. That’s because the EU Regulation uses different wording for “pensions” and “old-age benefits”; pensions are subject to uprating (Article 2(w)) but are not listed as one of the branches of social security in Article 3 of the Regulation (“old-age benefits” are). To avoid any doubt, I suggest an amendment on this issue to para 1, which should read: “notably the branches of social security referred to therein and pensions as defined in Article 1(w) of that Regulation…”

Note that the temporal scope of para 2 covers contributions made after the end of the transitional period; so the agreement covers not only pensioners but those who would become eligible for a pension (or another type of social security benefit) in the future, as long as they are in any event covered by the personal scope of this Title as set out in Article 28.

Article 30

Administrative cooperation

1. By way of derogation from Articles 6 and 123(1), and as of the date of entry into force of this Agreement, the United Kingdom shall have the status of observer in the Administrative Commission. It may, where the items on the agenda concern the United Kingdom, send a representative, to be present in an advisory capacity, to the meetings of the Administrative Commission and to the meetings of the Technical Commission for data processing and of the Audit Board, both attached to the Administrative Commission where such items are discussed.

2.  By way of derogation from Article 7, the United Kingdom shall take part in the Electronic Exchange of Social Security Information (EESSI) and bear the related costs.

Comment: Articles 6 and 7 were annotated above. Note that, as confirmed by Article 168, this provision applies from Brexit day, rather than the end of the transition/implementation period.

Article 31

Development of law and adaptations of Union acts

1. Where Regulations (EC) No 883/2004 and (EC) No 987/2009 are referred to in this Agreement and where those Regulations are amended or replaced after the end of the transition period, the reference to those Regulations shall be read as referring to them as amended or replaced, in accordance with the acts listed in [Part II of the Annex] to this Agreement.

The Joint Committee shall revise [Part II of the Annex] to this Agreement and align it to any act amending or replacing Regulations (EC) No 883/2004 and (EC) No 987/2009 as soon as such an act is adopted by the Union. To that end, the Union shall, as soon as possible after adoption, inform the United Kingdom within the Joint Committee of any act amending or replacing those Regulations.

2. Regulations (EC) No 883/2004 and (EC) No 987/2009 shall, for the purposes of this Agreement, be understood as comprising the adaptations listed in [Part III of the Annex] to this Agreement. The United Kingdom shall, as soon as possible after adoption, inform the Union of any changes in domestic provisions of relevance to [Part III of the Annex] to this Agreement within the Joint Committee.

Provided that Regulations (EC) No 883/2004 and (EC) No 987/2009 are respected, the Joint Committee shall revise [Part III of the Annex] on a proposal from the Union or the United Kingdom. 

3. The Joint Committee shall amend [Part I of the Annex] to reflect any new Decision or Recommendation adopted by the Administrative Commission. To that end, the Union shall, as soon as possible after adoption, inform the United Kingdom thereof within the Joint Committee.

The Decisions and Recommendations of the Administrative Commission shall, for the purposes of this Agreement, be understood as comprising the adaptations set out in [Part I of the Annex]. Such adaptations shall, provided that Regulations (EC) No 883/2004 and (EC) No 987/2009 as well as the relevant Decisions or Recommendations adopted by the Administrative Commission are respected, be made by the Joint Committee on a proposal of the Union or the United Kingdom. 

Background: this Article reflects para 30 of the joint report, which reads:

For rights and obligations set out in Regulations (EC) No 883/2004 and (EC) No 987/2009 on the coordination of social security systems, a mechanism will be established to decide jointly on the incorporation of future amendments to those Regulations in the Withdrawal Agreement;

Comments: The Joint Committee is established by Article 157, discussed below. The measures concerned may in practice be filtered through the specialised sub-committee on citizens’ rights, referred to in Article 158. Joint Committee decisions are binding and have the same legal effect as the main Agreement, as set out in Article 159. This is the only area where the Joint Committee has decision-making powers as regards citizens’ rights.

The obligation for the Joint Committee to match amendments to EU law does not correspond to the wording of the joint report, which refers to deciding jointly on this issue. Nor does it give the UK consultation rights when the proposal is being discussed. I suggest therefore an amendment, which would read:

The Joint Committee shall endeavour to revise [Part II of the Annex] to this Agreement and align it to any act amending or replacing Regulations (EC) No 883/2004 and (EC) No 987/2009 as soon as such an act is adopted by the Union. To that end, the Union shall, as soon as possible after adoption, inform the United Kingdom within the Joint Committee of any proposed or adopted act amending or replacing those Regulations. The United Kingdom may request consultations on a proposed act within the Joint Committee.

TITLE IV

OTHER PROVISIONS

Article 32

Scope of rights

In respect of United Kingdom nationals and their family members, the rights provided for by this Part shall not include further free movement to the territory of another Member State, the right of establishment in the territory of another Member State, or the right to provide services on the territory of another Member State or to persons established in other Member States.

Comment: This text fails to enshrine the acquired rights to free movement for UK citizens in the EU27 states. Since it profoundly violates the principle of ensuring acquired rights as much as possible, it should be redrafted from scratch.

Suggested amendment: United Kingdom nationals and their family members covered by this Part shall retain their rights to free movement to the territory of another Member State, including the right of establishment in the territory of another Member State, andr the right to provide services on the territory of another Member State or to persons established in other Member States. The European Union shall adopt legislation to set out the modalities of exercising this right by the end of the [transition] [implementation] period.

Article 33

Publicity

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

Background: There is no corresponding provision in the joint report.

Comment: This text is identical to Article 34 of the citizens’ Directive, adapted to the specific circumstances of this Agreement. The reference to the media is sadly ironic in light of shrieking and misleading reporting about EU27 citizens often found in some UK newspapers.  

Article 34

More favourable provisions

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

2.  Article 11 and Article 21(1) shall be without prejudice to the Common Travel Area arrangements between the United Kingdom and Ireland as regards more favourable treatment which may result from these arrangements for the persons concerned. 

Background: Para 1 reflects para 22 of the joint report, which reads: “The UK and EU27 Member States can apply more favourable national provisions in accordance with Article 37 of” the citizens’ Directive. Para 2 does not reflect the citizens’ rights provisions of the joint report, but the common travel area is referred to in the Irish border section of the report (para 54). The CTA is not referred to in the citizens’ Directive, but it is referred to in a Protocol attached to the Treaties and in the Irish border Protocol attached to the withdrawal agreement.

Comment: Para 1 is effectively identical to Article 37 of the citizens’ Directive, but does not refer to it expressly. Therefore Articles 4 and 5 of this Agreement on interpretation will not apply. There is an important substantive issue here: in Ziolkowski, the CJEU said that more favourable rules applied by Member States were not incorporated into the system set up by the citizens’ Directive. That raises the question of whether the UK’s discretion to waive the comprehensive sickness insurance requirement (see discussion on Article 17), or or deal with Surinder Singh cases (see discussion on Article 8) will bring the persons concerned within the scope of the rights in the Withdrawal Agreement, or whether their position will remain solely based on national law. In the absence of a cross-reference to EU law, that will not necessarily be the correct interpretation of this clause, but it is a risk. For that reason the proposed amendments to Articles 8, 9 and 17 should be adopted.

Note that para 1 does not apply to Title III, which deals with social security (Articles 28-31). This reflects the reference to the citizens’ Directive only in the joint report.

Article 35

Life-long protection

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

Background: This is based on para 12 of the joint report, which refers to family reunion for the life time of the right holder. The scope of this Article is, however, wider than that.

Article 35A

Data protection

Regulation 2016/979 shall fully apply to the processing of personal data based upon this Part.

Comment: This new clause is necessary in order to ensure full protection of EU27 citizens’ data protection rights in the UK, which appear to be jeopardised by a Bill before the UK Parliament. There would be reciprocal protection for UK citizens in the EU27.