Data protection and smart meters: the GDPR and the ‘winter package’ of EU clean energy law

Alessandra Fratini and Giulia Pizza, FratiniVergano, European Lawyers - a Brussels-based law firm specialising in European and international law

Introduction

On 30 November 2016, the Commission launched the “Clean Energy for All Europeans” legislative package, aimed at modernizing the European electricity market and facilitating the transition to more decentralized, clean energy solutions. “Decentralization” is seen as a driver for innovation and the key factor for rebalancing energy actions in favour of a demand-driven policy, where consumers are equipped with the right tools to actively participate in this paradigm shift. Smart metering systems are one of the “right tools” for consumer empowerment, as they allow users to make decisions about their energy consumption by reacting to real-time tariffs.

The proper functioning of smart meters requires that a significant amount of sensing data be collected and processed by eligible parties and made available to entitled stakeholders. That generates data protection challenges and creates new risks for the data subjects with a potential impact in areas (e.g. price discrimination, profiling, household security) previously absent in the energy sector. While the General Data Protection Regulation (GDPR) provides the general legal framework for ensuring privacy and data protection of final consumers in the context of the smart meters’ roll-out, the Commission’s proposal for a recast of the Electricity Directive (which is part of the “Clean Energy for All Europeans” package and specifically regulates smart meters’ deployment) includes detailed provisions to ensure that data protection issues are properly tackled. It is understood that, once adopted, the latter would act as lex specialis with reference to the generally applicable GDPR provisions.

After an overview of the evolution of smart meters in EU law, this article reviews the challenges that smart metering systems pose to the protection of personal data and how these can be addressed under the GDPR provisions, read in conjunction with the specific requirements on data protection foreseen in the recast Electricity Directive.

Smart Metering Systems in EU law

Smart meters are electronic devices that record real-time production and consumption of electricity and communicate that information to the utility operator for monitoring and billing. Smart meters allow consumers to adapt their consumption – in time and volume - to real-time energy prices, thereby helping them to manage their usage more effectively and, conceivably, save money.

The deployment of smart meters is expected to improve customer service, with more accurate billing, easier and quicker switching between payment methods. It will also increase the opportunities for consumers who produce their own energy to respond to prices and sell excess to the grid.

The idea of equipping consumers with intelligent systems allowing them to manage their energy consumption was developed in the 2006 Energy Service Directive (ESD) and later taken up in the (still in force) 2009 Third Energy Package, which marked a turning point in the energy market integration process within the EU. With the third package, in fact, the focus shifted to the development of an effective retail market, with specific measures being designed to grant energy consumers a number of rights, such as the right to switch energy providers and receive clear energy bills. It is exactly from the perspective of consumer empowerment that the 2009 Electricity Directive strongly promotes the use of intelligent metering systems for the long-term benefit of consumers.

In line with the same spirit, the 2012 Energy Efficiency Directive (EED) includes a comprehensive set of measures on metering and billing with a view to extending the scope and further clarifying the provisions foreseen in the Third Package and in the ESD. In addition, for the first time, the EED touches upon data privacy and security in the installation of smart meters and foresees, among the obligations imposed on Member States, compliance with relevant Union data protection and privacy legislation.

Finally, the 2016 Clean Energy Package, also known as the “Winter Package”, further fits into this picture. The Commission acknowledged that it was time to update the existing framework to make it compatible with the higher levels of flexibility and decentralisation of today’s energy sector, and to create the enabling environment to facilitate the “paradigm shift” to a more competitive and consumer-centred market structure.

In particular, the proposal for a recast of the Electricity Directive introduces new rights to empower and better protect end users, such as the right to clearer billing information and certified comparisons tools, the entitlement to a dynamic price contract, the possibility to engage in demand-response and in self-generation of electricity. Smart meters are the essential tools to allow for an effective exercise of these rights. In this context, the recast Directive provides specific definitions for smart metering systems and interoperability and devotes a specific section (Articles 19-24) to smart meters’ functionalities, deployment, and data management issues.

Article 20 of the proposal sets out seven principles to be applied when rolling out smart meters. Out of those seven principles, four relate to the protection of personal data, including consumers-data subjects’ rights. In particular, points b) and c) state that security of data communication and data protection of final consumers shall be ensured in compliance with relevant Union security and data protection legislation. On data subjects’ rights, point e) stipulates that energy consumers are entitled to access metering data on their electricity input and off-take in an easily understandable format, while point f) requires Member States to ensure that consumers are duly informed at the time of installation of smart meters of the collection and processing of their personal data. 

Besides the abovementioned principles, a more specific set of provisions (Articles 23 -24 and Annex III) focuses on energy data access and management and reiterates the need to ensure the highest level of cyber-security and data protection by applying the best available techniques in the field.

Key data protection issues in smart metering systems under the GDPR and the Winter Package

A smart meter is supported by a communications network that collects and processes an increasingly high quantity of personal data and makes it available to entitled stakeholders and systems. These data are collected everywhere in the smart electricity system, including consumers’ homes and, possibly, electric vehicles. In this respect, final consumers’ trust and confidence are crucial: without proper guarantees on data protection, consumers are likely to be reluctant to take risks and might possibly dismiss innovation in favour of conventional meters.

Being the development of standards for data protection and security key to realising the full potential of smart metering in the EU, an express reference to the recently adopted GDPR is included in the section on smart meters (Article 23) of the recast Electricity Directive. Investments in smart metering technology also depend on consumer’s trust in the utilities and network operators. The draft Directive aims at stimulating consumer involvement with attractive incentives, while at the same time creating an indissoluble bond between smart meters’ technical implementation and compliance with EU data privacy and security standards.

The specificities of smart meters raise some key specific issues in relation to the application of the GDPR and the (future) recast Electricity Directive, such as the qualification of “energy data”, the allocation of responsibilities in energy data management and the rights of the data subjects.

 Qualification of “Energy data”

Smart metering systems process huge amounts of data as part of their routine technical operations. The first issue that arises is thus whether all of those data shall be regarded as personal data.

Nulla questio for registration data provided by the data subject when entering a contract for the roll-out of a smart meter, i.e. name, address and information on consumer’s billing data and payment methods, which are unquestionably “personal data”. The conclusion is less undisputable when it comes to consumer’s “energy data”, which are identified by the recast Electricity Directive as metering and consumption data, and data required for consumer switching. While these data, at first sight, might be considered as technical data and, as such, deemed to fall outside the scope of the GDPR, they are actually – and inextricably - linked with the natural person who is responsible for the metering account via a unique identifier, such as a meter identification number. These data are therefore to be regarded as personal data because they are associated with an identified or identifiable user and disclose information on his/her energy usage, thereby providing insights on the daily life of the data subject. When the data subject is a “prosumer”, i.e. a small or medium-sized agent which both consumes and produces electricity, the “energy data” refer to the amount of energy and power injected into the grid, which in turn provide information on the amount of available energy resources of the data subject.

The above reading of “energy data” as personal data would be in accordance with the GDPR, whose definition of personal data includes information revealing the economic situation of the data subject. That is all the more true, if one considers that energy data may be more or less detailed based on the consumer’s needs, as they can be designed and tailored accordingly. “Energy data” represent therefore an increasingly valuable asset not only for final consumers, who can adjust their behaviour to variable tariffs to reduce their energy expenditure, but also and especially for policy makers who have a precious instrument (consumers’ real-time feedback) at their disposal to effectively target, monitor and evaluate measures and actions in the field.

However, data gathered from smart meters can also be used for other purposes. Energy data allow for a better understanding of customer segmentation, customer behaviour and how pricing influences usage. As such, those data might be used for specific profiling exercises, e.g. to gather sensitive information on the end-user’s energy-based footprint in his/her private environment, his/her behavioural habits and preferences by analysing the information collected through the meters. Smart meters will likely have an impact on the competitive pressure within energy supply markets, as the provision of accurate and reliable data flows by the smart metering infrastructure will enable easier and quicker switching between suppliers. Accessing consumers’ data on energy preferences will therefore constitute a significant advantage for energy utilities. That is why adequate levels of protection shall be ensured during both the transmission and the processing phase, to avoid unauthorised consumer profiling based on the detailed meter readings and other possible “further” uses of those data.

In addition, the potential risks associated with the collection of detailed consumption data are likely to increase in the context of the so called “internet of things”, where energy data can be combined with data from other sources, such as geo-location data, data available through tracking and profiling on the internet, video surveillance systems and radio frequency identification (RFID) systems. The critical issue is in fact that smart meters could constitute the entrance gate to get a privileged access to the digital domain of a household.

Data management and allocation of responsibilities

As clearly established by Article 23 of the recast Electricity Directive on data exchange and management in the context of smart meters’ roll-out, any issues relating to energy data handling are to be tackled at national level. It follows that Member States, or the competent authorities, “shall organise the management of data in order to ensure efficient data access and exchange” including specifying the eligible parties which may have access to data of the final customer, provided that explicit consent is given in accordance with GDPR provisions. Eligible parties shall include at least customers, suppliers, Transmission system operators (TSOs) and Distribution system operators (DSOs), aggregators, energy service companies, and other parties which provide energy or other services to customers. This list is understood to be purely indicative and non-exhaustive, considering the highly dynamic environment of the energy sector.

The GDPR identifies characteristics and responsibilities of data controllers, processors and third parties authorised by controllers and processors to collect and process personal data. The controller is the sole responsible, alone or jointly with others, for determining the purposes and means of the processing of personal data while the processor performs the processing of personal data on behalf of the controller. The third party processes personal data under the direct authority of the controller or processor and solely if authorised to do so by those. Finally, recipient is the party to which the personal data are disclosed, whether a third party or not.

As the implementation of smart meters involves a number of actors in the processing of personal data, it is crucial to identify who, in that context, should be regarded as data controller, processor or simply an authorised third party. The allocation of roles and responsibilities might not be straightforward, since the arrangements for smart metering deployment - and consequently the data management model - are a matter to be addressed at Member States’ level and no clear guidance exists at EU level. Given the number and complexity of relationships, it is likely that there will be difficulties in applying the relevant definitions.

Nevertheless, based on the GDPR, the following set of roles and responsibilities can be identified. The controller could be defined as the “metered data responsible”, who handles metered, contractual and network data. Its responsibilities are collecting, validating, analysing and archiving historical data as well as ensuring that customers have at their disposal their consumption data and giving, by explicit agreement and free of charge, any registered supply undertaking access to its metering data. The role of the processor can be associated with that of the “metered data collector” or of the “metered data aggregator”, who are respectively responsible for meter reading and quality control of the reading and for the establishment and qualification of metered data from the metered data responsible or controller. The recast Electricity Directive proposes that the parties which are managing data be authorised and certified by the national competent authorities in order to ensure compliance with the data protection requirements. This is in line with the GDPR, which encourages Member States to establish certification mechanisms and codes of conduct to demonstrate the existence of appropriate safeguards provided by controllers or processor.

In most Member States, the DSO is the metering operator and, as such, it is the data controller in the first phase of the metering data process. The DSO´s process ends with creating a bill for network usage; in a second step, the metering data are passed on to the electricity supplier, who is responsible for billing and serving consumers, thus acting as the data controller in this final phase of the processing operation. As a matter of fact, DSOs are already involved in the processing of personal data because they have detailed information on the status of network components, generators connected to the network and energy flows throughout the network. In some cases, the DSO outsources parts of its metering business to a metering operator (MO), an entity which offers services to install, maintain and operate metering equipment related to supply. This role might be further split into two entities, one responsible for managing the meter and another responsible for managing the metering data. In this case, the MO performs the role of the processor based on a contractual arrangement with the DSO. However, in the majority of Member States the metering sector is considered part of the distribution business, with the DSO being both the owner and the responsible party for smart meters’ roll-out and granting accessing to metering data.

Notwithstanding the leading role of DSOs in smart meters’ data management, some Member States have opted for a separate entity (central communication hub), which shall provide third parties access to metering data, decoupling the processing of data from the physical meter. In such a system, consumers’ data are stored on the smart meter installed at their premises and the central hub entity is responsible for routing (but does not store) data, gathering those from the equipment in the consumer’s premises and delivering the same to energy suppliers, DSOs and other third parties. Such a transmission can occur, pursuant to the GDPR, further to consent appropriately expressed by the data subject.

A similar allocation could apply in those Member States, who have instead adopted a communication structure based on a middleware (the “data concentrator”, or “data aggregator”), located at medium voltage/low voltage substations, which works as a communication gateway between the data management system and the smart meters. The data concentrator collects information and data, often from multiple meters, in a particular geographical area before communicating the data to a central database for billing, troubleshooting and analysing. Concentrators are heavily used in densely-populated areas.

Rights of the Data Subject

The GDPR includes a wide range of rights for data subjects, some brand new, some existing already under the Data Protection Directive but enhanced by the reform.

Amongst the existing rights, the right to be informed when personal data are being collected and processed, the right of access as well as the right to object to certain processing activities (including profiling) and to automated individual decision-making are relevant in the smart metering systems’ context. Amongst the new rights, the right to data portability is also likely to be of relevance when smart meters are fully operational.

Article 20 (1) f) of the recast Electricity Directive reflects Article 14 of the GDPR listing the information to be provided by the data controller where personal data are collected from the data subject. In particular, appropriate information on the energy consumption and on the collection and processing of personal data shall be given at the time of installation of the smart meter. As regards the minimum details of the information notice, the provision explicitly refers to applicable Union data protection legislation.

Article 20 (1) e) of the Directive establishes the right for the customer to access his/her metering data on electricity input and off-take, while Article 23 (4) specifies that such access should be free of charge for final customers. Article 20 describes the minimum principles to be observed when smart metering systems are designed and implemented. Data protection measures enabling provision of information and availability of metering data constitute therefore a set of minimum functionalities to be integrated in all smart metering systems. That is a clear reference to the “data protection by design” principle under the GDPR.

However, the right of access to consumer’s data shall be also guaranteed to all eligible third parties under the Directive, in a non-discriminatory manner and simultaneously, so as to ensure that the system works properly. Eligible parties’ access finds its legal basis in Article 23 (2), which stipulates that, independently of the data management model chosen by the Member State, the party or parties responsible for data management shall provide any eligible party access to the data of the final customer, subject to the latter’s explicit consent. Access to consumers’ data by eligible parties may not be free of charge according to paragraph 4. Nevertheless, the Directive places an obligation on Member States to set the relevant access costs in order to ensure that regulated entities that provide data services do not profit from that activity.

Finally, Article 20 (1) GDPR defines the right of data portability as “the right to receive the personal data, which the data subject has provided to a controller, in a structured, commonly used and machine-readable format and to transmit those data to another controller without hindrance from the controller to which the data have been provided”. Accordingly, data portability is the right of the data subject to receive a subset of the personal data processed by a data controller concerning him/her, and to store those data for further personal use. In addition, that right allows data subjects to transmit personal data from one data controller to another “without hindrance”. As regards the type of personal data concerned, the first condition for the exercise of this right is that the data pertain to the data subject, while the second condition is that the data have been provided by the data subject to the data controller.

The Article 29 Data Protection Working Party (WP29) has clarified in its Guidelines that data that fall within the definition of data “provided by” the data subject are not only the “data actively and knowingly provided by the data subject” but include also those personal data that are observed from the activities of users such as raw data processed by smart meters. In the smart meters’ context, the data subject is therefore entitled to exercise his/her right to data portability only with respect to his/her usage data regularly generated by the metering system and simply collected by the data controller, without being processed or manipulated by the latter. As a result, data that are created by the data controller using the data observed or directly provided as input, such as a user profile designed by analysis of the raw smart metering data collected, do not appear to fall within the definition of data “provided by” the data subject.

The GDPR places some requirements on data controllers for the format to be used in data transfers to other data controllers when the data subject exercises his/her right of portability. More specifically, personal data must be provided “in a structured, commonly used and machine-readable format”. The terms “structured”, “commonly used” and “machine-readable” are a set of minimal requirements that should facilitate the interoperability of the data format provided by the data controller. Given the wide range of data types that might be processed and the specificities of each sector, the GDPR does not provide specific recommendations as to the data format, thus leaving it to each industry to develop the common set of interoperable standards and patterns to deliver the minimum requirements of the right to data portability.

Welcoming the industry-focus approach, the recast Electricity Directive outlines the minimum features the format for metering data transmission should have. Article 20 (1) e) stipulates that “metering data on electricity input and off-take shall be made available via a local standardised interface and/or remote access in an easily understandable format, allowing customers to compare deals on a like-for-like basis”. Here the primary aim of data portability seems to be price comparability, to facilitate service switching and enhance competition between services. This provision closely mirrors Article 24 of that Directive, which requires Member States to develop a common data format and a transparent procedure for eligible parties to have access to the consumers’ data. Here too, competition is the driver since the data format is conceived to ensure that energy utilities active on the retail market get simultaneous and non-discriminatory access to final costumers’ data. However, the Directive does not establish a minimum set of specifications for eligible parties’ access data format. That shall be defined by the Member States and then by the Commission, who is explicitly called on to determine a common European Data format that will replace the ones adopted at national level.

DPIA in Smart Meters’ roll-out

The Data Protection Impact Assessment (DPIA) is a tool designed to describe the envisaged processing operations carried out by an organisation during its activities in order to evaluate the origin, nature, particularity and severity of risks of these operations to the rights and freedoms of the data subjects. The outcome of the assessment helps to determine the appropriate measures to be taken to mitigate the risks and demonstrate that the processing of personal data complies with data protection requirements.

In its first Recommendation on the roll-out of smart metering systems issued in 2012, the Commission called on Member States to adopt and apply a template for DPIA that should be developed by the Commission and submitted to the WP29 for its opinion. In 2013, the Commission submitted to the WP29 the first version of the DPIA template prepared by a dedicated expert group under the Smart Grid Task Force. In its opinion, the WP29 welcomed the objectives identified by the template but expressed concerns on various parts and invited the Commission to revise it. A new version of the template was subsequently submitted to the WP29. The WP29’s final opinion issued in December 2013 recognized the improvements with respect to the previous version and recommended to organise a test case with some real cases. After having taken into account these final comments of the WP29, the Commission issued a Recommendation to promote the adoption of the template.

While having been issued before the formal adoption of the GDPR, both the Commission Recommendation and the Opinion of the WP29 are fully in line with it. However, no obligation to ensure that a DPIA is carried out is imposed on the Member States, given that the Data Protection Directive established the discretional nature of performing a smart meter’s DPIA. On the contrary, the GDPR renders the DPIA mandatory under certain conditions and calls on competent supervisory authorities to impose fines in case of failure to carry out a DPIA when required. According to the GDPR, a DPIA is only required when the processing is “likely to result in a high risk to the rights and freedoms of natural persons”. In order to ensure a consistent interpretation of the circumstances in which a DPIA is mandatory, the WP29 Guidelines, adopted in April 2017 and further revised in October 2017, clarify this notion and provide criteria for the development of a common EU list of processing operations for which a DPIA is obligatory.

The more criteria the processing meet, the more likely it is to present a high risk to data subjects and therefore to require a DPIA. Of the nine criteria identified by the 2017 Guidelines in this respect, at least three seem applicable to the operation of smart meters. In particular, the evaluation or scoring criterion, including profiling and predicting, is fully applicable to smart meters insofar metering data help utility companies building behavioural or marketing profiles based on consumers’ energy usage. Data processed on a large-scale criterion is also likely to be relevant in the smart meters’ context. Smart meters register consumption data at short, regular intervals and ensure their timely transmission to the data controllers or concentrators which, in turn, organise the huge volume of data received from users in a specific geographical area in aggregated forms for the efficient maintenance of the grid and for allowing energy utilities to adjust their energy production accordingly. Finally, the innovative use/application of new technological or organisational solutions criterion is undoubtedly of relevance in the deployment of smart metering systems, to the extent that this can involve novel forms of data collection and usage that have unknown, significant impacts on individuals’ daily lives, depending on the data management model adopted at national level.   

In addition, still in the context of the new technology product criterion, another privacy concern that might trigger the need to carry out a DPIA may be the case of a piece of hardware or software, where this is likely to be used by different data controllers to carry out various processing operations. The data controller remains certainly obliged to carry out its own DPIA with regard to the specific implementation of the new product, but this can be informed by a DPIA prepared by the product provider. In smart meters, the above applies to the relationship between manufacturers of smart meters and DSOs or utility companies. Each product provider or processor should share useful information with neither compromising secrets nor leading to security risks by disclosing vulnerabilities.

Once the assessment of the criteria has been completed and the existence of an obligation to carry out a DPIA has been ascertained, the process can be initiated, possibly according to the procedure identified in the DPIA template developed by the Smart Grid Task Force. The generic iterative process consists of several procedural steps going from the identification of necessary resources and constitution of the DPIA team, to the description of the smart grid/metering systems and the identification and assessment of relevant and residual risks to be concluded with the drafting of the DPIA report and the development of measures for reviewing and maintenance.

Conclusions

Smart metering systems are becoming one of the primary tools to promote participatory processes and decentralization which are at the heart of the energy transition and the development of new energy services. A massive deployment of smart meters is expected in the near future, after the Third Energy Package made the roll-out compulsory, should the economic assessment be positive, and the Winter Package put it at the centre of its reform as a key instrument to empower energy consumers. The potential privacy risks posed by their implementation need to be tackled with highest priority. It is in fact essential that consumers have access to trusted mechanisms to manage their energy data and create value with it, while being in complete control of their private environment and behavioural habits.

For years, there was no specific binding legislation devoted to data protection in smart metering systems, while a number of soft-law instruments were adopted to balance energy policy goals with data protection concerns. In recent years, the EU legislator has started paying special attention to personal data protection in smart meters’ deployment, and some important progress has been made as a result, starting with the development of the DPIA template.

Today, the development of standards and safeguards for data protection and security in smart meters’ roll-out is a major objective in the EU. Against the background of the recently adopted GDPR, a specific data protection and security framework for smart meters has been proposed in the recast Electricity Directive. The aim is to embed relevant GDPR provisions in the new text and tailor those to the needs and specificities of smart meters’ implementation and functioning. It follows that a new, comprehensive legal framework to ensure high level of personal data protection in smart metering systems is being shaped, which is expected to lead to greater trust and confidence of energy consumers and, in turn, to their increased participation in the decentralisation process.

Photo credit: Utility Week

Citizens’ Rights after Brexit: A Personal Perspective

Professor Steve Peers, University of Essex

I rarely say anything very personal on this blog – or indeed, in any other context. But I think it’s important to discuss immigration more often from a personal perspective, not just in the abstract. Of course economic statistics are useful when discussing economic impact, and I hope my detailed legal analysis of the citizens’ rights provisions of the draft Brexit withdrawal agreement is useful for activists and negotiators. Yet since migrants are often compared to pestilence or floods, I think it’s necessary to point out how they are actually individuals and families living day-to-day lives – and how changes in immigration rules will affect them as people, not as insects or natural disasters.

I’m not directly affected by Brexit immigration issues as such. But I did migrate to Canada as a child, and as I’ll explain, I think my story is relevant by analogy to explain the problems that EU27 and UK citizens who have moved may face after Brexit, and why many of them are concerned and annoyed. Some other people’s stories will have been more challenging than mine; but my case here isn’t for sympathy for me, but for empathy for others.

I moved to Canada aged 8 with my parents. My dad had been recruited for a factory job, and my mum hoped to continue her teaching career. But my mum found that, contrary to what she was told, she couldn’t continue teaching without retraining from scratch, starting with a four-year degree. This wasn’t feasible, so she took a series of other, less well-paid jobs instead. And my dad soon found that he had merely swapped one troubled industrial city in Britain for another troubled industrial city in Canada. The job he’d been recruited for vanished, and he had spells of unemployment and time off work due to illness. Eventually, he returned to England on his own.

Every unhappy family is unhappy in its own way; but any unhappy family can have its life made even worse by the workings of immigration law. Yet despite my parents’ employment problems and my dad’s eventual departure, this didn’t happen to us. No surprise knocks on the door. No sickness in our stomachs as we opened an official letter. No concern that answering the phone would be the first step in our removal from the country.  No need to face a “hostile environment” when we opened a bank account, rented a flat, or went to school or work, at the behest of a failed political advisor who had built a cult around an absurd net migration target.

Why not? Because, when we first landed at the airport in Canada, we had a meeting with immigration officials that lasted about three days – at least, as 8-year-olds measure time. (In adult time, it was probably a couple of hours). As a result of that meeting, when we stepped out of the airport, my classic black British passport had stapled inside it a precious pink form – granting me, along with my parents, permanent residence status already.

Let’s map this on to what EU27 citizens who are in the UK already will face after Brexit. Those who are already here will have to apply for “settled status” – even if they already have permanent residence. In principle this status will be granted unless they have a serious criminal conviction, but the Home Office is renowned for its high error rate. Also, there are gaps in the agreement – for instance, for those returning to the UK with a non-EU family, or for those who were staying at home full-time for family reasons.  

Compared to my own situation, having to meet the permanent residence criteria could have been a problem. My parents’ gaps in employment, and my father’s departure, would have counted against us (my mother wasn’t a citizen of Canada or the UK, so by analogy wouldn’t have had a free movement right in her own name). The Brexit withdrawal agreement continues a special rule in EU free movement law which protects children of a former worker who are in school, and their parent carer. That would have applied to me and my mum; but the case law says that it’s not a route to permanent residence, and the exact employment and benefits rights of the parent aren’t clear. Moreover, the withdrawal agreement has limits on the recognition of qualifications; limits like that when we moved had destroyed my mum’s teaching career.   

The withdrawal agreement stores up problems for other families in future, too. The UK government fought relentlessly to limit admission of family members of EU27 citizens after Brexit Day, not caring that this would equally limit family reunion for UK citizens in the EU27 too. In the text tabled yesterday, it was clear that the UK government had “won”: future spouses and other close relatives will be subject to more restrictive national law after the end of the post-Brexit transition period. Note that this won’t just apply to non-EU family members of EU27 citizens, but to EU27 citizens’ EU27 family members too; and the effect of Brexit will also be to limit family reunion for UK citizens who have an EU27 family member. (There’s an exception to these rules for children of EU27 citizens, but only if they have custody of the children; so that exception may not matter much if the spouse who has custody can’t be admitted). A whole category of vulnerable families – kids who are British citizens, with a non-EU parent who might face expulsion – are simply left out of the withdrawal agreement altogether.

So future families will have fewer rights under the withdrawal agreement; everyone has to reapply for lesser rights than they have now; and some people are left out of the agreement entirely. While the UK government has promised to protect some of the latter (returning UK citizens, and carers) unilaterally, can it be trusted?  And can the Home Office be trusted to make every decision correctly, in light of its history of administrative problems?  

Let’s hope so; but I can see why some EU27 citizens who came to this land with such hope now regard its government with such fury. Recall that UK citizens living in the EU27 states were promised (in a Daily Telegraph article by Leave campaigners widely disseminated during the referendum) that international law would automatically guarantee their full acquired rights, including free movement within the EU27 states (which is not protected by the draft withdrawal agreement). Similarly, the official Leave campaign likewise promised to guarantee “no less favourable rights” for EU27 citizens in the UK, with “no change” to their position; and they would be “automatically granted indefinite leave to remain”.

I’ve even experienced this ethical gap first hand, when I worked with a number of people to suggest a model for giving EU27 citizens a unilateral guarantee of their rights in the UK. Two Leave-supporting MPs – Gisela Stuart and Suella Fernandes (now a minister in the Brexit department) supported the idea, but then voted against such guarantees in Parliament.  All this, before we even consider statements made on buses or about Turkey.  As Brexiters’ unlikely hero might have said: never in the course of British political history have so many been lied to so much by so few.  

Photo: author’s passport, age 8

Barnard & Peers: chapter 27

The implications of the Revised European Commission Draft Withdrawal Agreement text for health, part 1: patients and reciprocal healthcare (Updated 18 March 2018)

Tamara K Hervey, Jean Monnet Professor of EU Law, University of Sheffield

So it would seem that my early analysis of the implications of the European Commission’s 28 February draft legal text on the Withdrawal Agreement for some of the people-related aspects of health was too early. The European Commission issued a revised version of the text on 15 March 2018.  Here are my views on the revised text as it applies to patients, and in particular reciprocal healthcare between the UK and the EU-27 post-Brexit. There are two key issues here:

·         The position of UK pensioners who have retired to another EU country, or will do so in the future;

·         The EHIC for emergency care when visiting another EU country, or when people from EU-27 countries visit the UK.

As I said in the original blog, the text is complex, and like all legal texts, its full implications will take time to emerge. So this is only a first take, and I may well have got things wrong: if you spot anything I’ve missed or misunderstood, please get in touch.

I recognise, of course, that the process of the UK leaving the EU is a negotiation, that this text is yet to be adopted by the EU-27 Council, much less agreed between the EU and the UK, and that ‘nothing is agreed until everything is agreed’. It remains prudent, therefore, also to plan for a ‘no-deal’ Brexit, where we leave without any Withdrawal Agreement.

Finally, by way of introduction, I should say that I would love to be able to compare this analysis with the UK’s preferred legal text. Sadly none is currently available. And the Prime Minister’s speech, on 2 March 2018, does not cover reciprocal healthcare explicitly at all.

The timeline:

The text proposes three periods of time, each of which involves different legal rights and obligations:

·         now (while the UK is a Member State of the EU);

·         a transition period (which the UK government calls an ‘implementation’ period), which starts when the WA enters into force on 30 March 2019 (Article 168) and ends on 31 December 2020 (Article 121); and

·         thereafter. 

Whether the precise dates survive the negotiation or not, we are talking about at least three different timeframes, with the associated legal complexity.

It is not going to be easy for people to understand what their rights are, how to enforce them, or what obligations governments (the UK, and those of the EU-27) are under.

I want to suggest in what follows that, implicit in the text of the WA as proposed, is a fourth period of time – some way into the future – where no further rights and obligations apply.

Where we are now (this repeats my earlier blog for ease of reference):

To grossly oversimplify, patients currently enjoy rights to cross-border healthcare in the EU under four types of EU arrangements: S1 for residents in another EU country; S2 and the Patients Rights Directive for planned care; and EHIC for visitors.  Because access to the UK NHS works on the basis of residence, rather than having paid tax or social security into the UK system per se, EU-27/EEA nationals who meet the NHS ‘ordinary residence’ test in the UK de facto have a set of rights in domestic law too. (NB, the hyperlink is to the rules for England: they are different in Scotland, Wales and Northern Ireland.)

The EU law entitlements essentially work on the basis of coordination of the very different social security systems across the EU. They are part of EU law on free movement of people and EU citizenship, but they do not depend on harmonisation (or ‘regulatory alignment’) of national rules. Indeed the EU Treaties (in Article 168(7) TFEU) rule out such harmonisation, referring to Member States’ responsibilities for “the definition of their health policy and for the organisation and delivery of health services and medical care”, including “the management of health services and medical care and the allocation of the resources assigned to them.” Instead, the EU coordination rules operate to smooth the way for people who cross the EU’s internal borders – to work, to study, to retire, to visit. They protect people from the difficulties that would otherwise arise from the differences in the organisation of social security, and access to benefits, including access to healthcare within national health systems.

One way to think about it is to imagine an EU citizen, and her family, moving around the EU, working and paying into the social security system in each state. As she moves, she accrues a kind of ‘backpack’ full of the benefits they have earned, which she and her family can then put together and call upon if they need them, for instance, when they retire, or if they become too unwell to work, or otherwise unemployed. (That’s called the principle of ‘portability’ and of ‘aggregation’). Another way to think about it is to realise that when an EU citizen is in a different Member State from their ‘home’ Member State (who is responsible for protecting them from the life events that social security systems are there to help with), they are treated as if they were a national of the Member State they are in. (That’s called the principle of non-discrimination.)

Finally, to make sure that people are neither able to ‘double count’ benefits, nor fall through the gaps, for each person there is a single ‘competent state’, which is responsible for paying. That responsibility is irrespective of the country which provides the benefit, or in the case of healthcare, medical treatment. (That’s called the ‘single state rule’.)

So, the British pensioners who have retired to the south of Spain are able to access the Spanish health care system on the basis of the rights they have earned when they worked in the UK. The UK pays for that healthcare; it’s provided by Spain, and it’s provided on the same basis as for Spanish nationals.

All of this is supported – as you might imagine – by a complex set of administrative arrangements, supported by the EU. An Administrative Commission for the Coordination of Social Security Systems is made up of one representative of each of the Member States, plus the European Commission. It deals with administration and interpretation of the rules, and promoting collaboration (Regulation 883/2004, Articles 71 and 72).  In practice, it relies on a network of national competent authorities, which share information so that they can effectively coordinate their activities. There is an Electronic System which supports exchange of social security information. EU data protection law applies here.

Coordination of social security is also an area where there is a great deal of litigation: the rules are complex, and the CJEU is regularly called on to interpret what they mean.

What the 15 March Commission text proposes: who is covered?

Just to get this out of the way first. There is – rightly – a huge amount of attention being paid to the scope of the proposed provisions on citizens rights under Title I of Part Two of the draft WA. But what matters for this blog is that who is covered by those citizens’ rights provisions is explicitly ‘without prejudice to Title III’ of the citizens’ rights Part of the WA, which is on social security systems.

So, if the WA is agreed as proposed, there will be one group of people who have rights to reside (Articles 12-20), to be employed or self-employed (Articles 22-27), and to be treated equally (with some significant exceptions) to nationals (Article 21). There will be a different group of people who have rights under the coordination of social security provisions. One human being might be in both groups.

Again, this will be complex, and it won’t necessarily be easy for people to know what their rights are.

Who will be covered? This is set out in Article 28 of the draft WA. The text echoes the text of the key EU Regulation (883/2004), Article 2, but less so in the 15 March version than before. The starting point is to include people who ‘are subject to the legislation of’ either the UK or an EU-27 Member State ‘at the end of the transition period’.

‘Subject to’ is not a term that is defined either in the WA or in Regulation 883/2004. The nearest we have to a definition is in recital 7 of the Regulation, which simply says that, because there are major differences between Member States in the scope rules for social security schemes, ‘it is preferable to lay down the principle that this Regulation is to apply to nationals of a Member State, stateless persons and refugees resident in the territory of a Member State who are or have been subject to the social security legislation of one or more Member States, as well as to the members of their families and to their survivors’. 

In what follows, I am taking the view that ‘subject to’ means ‘entitled to benefits under’. That entitlement arises because of social insurance, employment, self-employment or residence (the main types of access rules found in the Member States for various benefits). However, it would be possible to argue that ‘subject to’ has a broader meaning, and that someone who is excluded from entitlement to benefits under the relevant legislation is nevertheless ‘subject to’ that legislation.  In the abstract, that argument seems very far-fetched. But where, for instance, access to a benefit is legally contested, for instance by someone resident in a state where benefit access is at least in part based on residence, the litigation could be argued to be ‘subject to’ that legislation.

‘The legislation’ here is the social security legislation covered by Regulation 883/2004. That much is clear, as Article 29 (2) provides that ‘definitions in Article 1 of Regulation 883/2004 shall apply’.  Regulation 883/2004, Article 1 (l) defines ‘legislation’ as ‘laws [etc] relating to the social security branches covered by Article 3 (1)’. Those include ‘(a) sickness benefits (ie healthcare); maternity and equivalent paternity benefits; invalidity benefits; old age benefits (ie pensions) … unemployment benefits, and family benefits’. From the point of view of health, the key things that matter are that healthcare is covered, and also that pensions are covered.

Regulation 883/2004 covers EU citizens, stateless persons and refugees, members of their families, and survivors. It also covers nationals of other countries who are not already covered by the Regulation solely because of their nationality. What is important for cross-border health care is that you do not have to be or have been resident in another Member State to your home country to fall within the scope of the Regulation. It is enough that you are ‘subject to the legislation’ of any Member State. Everyone who meets the UK ordinary residence test for access to the NHS, for instance, is ‘subject to the legislation’ of the UK on this matter. Everyone across the EU, including in the UK, who is entitled to an EHIC card is ‘subject to the legislation’. When you visit another Member State, on holiday or for business, the EHIC card entitles you to emergency care in the country you are visiting.

Unlike the general WA provisions on EU citizenship, which only give rights to those who have exercised their rights to free movement (for instance, by residing in a Member State of which they are not a national), Article 28 (1), read alone, gives rights to everyone who is subject to social security legislation in either the EU27 or the UK.

But – critically in the 15 March draft – people enjoy rights under Title III only ‘for as long as they continue to be in a situation involving both a Member State and the United Kingdom at the same time’ (Article 28 (2)).  It’s difficult to be sure what is intended by this text, but it seems most likely that this is intended to significantly reduce the scope of application of the Title from the original text.  Regulation 883/2004 works by determining everyone who is covered by social security legislation, and then making provision for what happens when someone moves around the EU. The draft text of the Withdrawal Agreement, by contrast, draws its scope on the basis that some people will be ‘in a situation involving both a Member State and the United Kingdom’ at the same time. It is only those people who are intended to be in the scope of the Withdrawal Agreement.

This is an extraordinarily loose piece of drafting. Some people are obviously in such a situation: frontier workers would be an example. Someone who resides in an EU-27 Member State but receives a UK pension, or other benefit, would be another. But what about someone who resides in an EU-27 Member State, receives a UK benefit, and visits another EU-27 Member State? Does the text mean that ‘a Member State’ can only be one Member State (plus the UK); or can it be more than one Member State (plus the UK)? What about someone who resides in an EU27 Member State and regularly visits the UK (or vice versa)? What about someone who intends to do so, even if they don’t regularly do so? All of those people were within the scope of Regulation 883/2004: the text implies that not all will be within the scope of Title III of the WA.  This is further elaborated in Article 29a, which modifies the scope rules in Article 28.

What it might mean for healthcare entitlements is elaborated below.

What the Commission text proposes: what are their rights?

Article 29 no longer talks about ‘rights’ or ‘principles’ applying. Instead, it says that ‘the rules’ set out in Regulation 883/2004, and its implementing legislation Regulation 987/2009, ‘shall apply’. These rules are encapsulated in the principles of portability, aggregation, non-discrimination, and prevention of overlapping benefits/single state rule.  But those principles are no longer explicitly included in the text. An interpretation that suggests that everyone now within the system of EU coordination of social security would continue to be within it under the WA is now not consistent with the WA text. The new Article 29 text ties the application of the rules of the Regulation explicitly to those within the (now more narrowly drawn) scope rules of the Withdrawal Agreement.

And, further, there is a new Article 29a (‘special situations covered’) which derogates from Article 28. It’s unclear whether this derogation is intended to extend the scope of the rules in Article 28, or to narrow them.  In one regard, it extends the scope of the rules, by including some EU-27 nationals/UK nationals who are not ‘subject to’ UK/EU-27 legislation at the end of the transition period, but have been subject to it.  The ‘are or have been’ text of the earlier draft has been moved from Article 28 to Article 29a.

Paragraph 1 (a) of Article 29a derogates from Article 28 (the scope rules) ‘to the extent set out below’, ie in the rest of Article 29a. It extends the scope of the WA to EU citizens who have been subject to UK social security legislation before the end of the transition period, but are no longer subject to that legislation, and vice versa for UK citizens subject to EU-27 social security legislation. Those people fall within the scope of Title III of the citizens’ rights part of the WA, for the purposes of relying on and aggregating periods of insurance, employment, self-employment or residence. This covers an EU-27 citizen who has worked some of her life in the UK, but is now ‘subject to’ the legislation of another EU Member State (either that of which she is citizen, or another one), because she now works there, or resides there. Under the WA, she can rely on the period of time aggregated through the period of employment or residence in the UK for the purposes of receiving benefits (such as healthcare) that are based on aggregated periods of time.  Likewise, a UK citizen who is no longer subject to the legislation of an EU-27 Member State can also rely on the WA to aggregate social security entitlements earned during the time that she was subject the legislation of that Member State.

Article 29a includes a revised and clarified provision on planned healthcare.  It provides that the rules of Regulation 883/2204 (Articles 20 and 27) continue to apply to someone who ‘who has begun a course of planned health care treatment before the end of the transition period in a Member State or in the UK, while that State was not the competent State, until the end of the treatment’ (Article 29a (1) (b)). Reimbursement procedures apply even after the treatment ends. ‘Until the end of the treatment’ is presumably intended to include all phases of treatment, including follow up care. The text does not refer to planned healthcare under the Patients’ Rights Directive; only under Regulation 883/2004. Future access to planned healthcare is not included, unless someone who seeks to access planned healthcare that begins after the end of the transition period can be said to be ‘in a situation involving both a Member State and the United Kingdom’ at the end of the transition period. This might be the case, for instance, if someone’s cross border planned healthcare is part of a clinical trial to which the person is recruited in the run up to the end of December 2020. (Note that some Member States, including the UK, do not authorize experimental treatments under S2.) But otherwise, UK patients seeking planned crossborder healthcare in the EU-27 (and vice versa) after the end of transition will not be within the scope of the Withdrawal Agreement.

The previous text had nothing explicit in the text on EHIC healthcare. This is now covered in Article 29a (1) (c). It provides that the rules on EHIC healthcare apply to ‘a person, covered by Regulation 883/2004, who is staying at the end of the transition period in a Member State or the United Kingdom, until the end of the stay’. This text excludes future application of EHIC rights. As with the provision on planned crossborder health care, its implication is that ‘a situation involving both a Member State and the United Kingdom at the same time’ in Article 28 (2) is not intended to include a future intention to rely on accrued EHIC rights after the end of the transition period.

The provision on healthcare for pensioners has been tidied up (the puzzling word ‘becomes’ has been removed). It’s now in Article 29a (2):

“If, following the grant of a pension or a benefit based on periods of insurance, employment, self-employment or residence in accordance with point (a) of paragraph 1 of this Article,

(a)                the United Kingdom is competent for the sickness benefits of a person residing in a Member State, or

(b)               a Member State is competent for the sickness benefits of a person residing in the United Kingdom,

that person, as well as his or her family members and survivors, shall be entitled to sickness benefits as set out in Articles 22 to 30, 33 and 34 of Regulation (EC) No 883/2004 (in the case of a pensioner or a pension claimant), or Articles 17 to 21, 33 and 34 of Regulation (EC) No 883/2004 (in the case of a person receiving a benefit other than pension). The corresponding reimbursement procedures shall apply.

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

‘Sickness benefits as set out in Articles 22 to 30, 33 and 34 of Regulation (EC) No 883/2004 (in the case of a pensioner or a pension claimant)’ is healthcare cover for pensioners. Essentially the rules are that if someone is entitled to a pension from at least one Member State, they are entitled to receive healthcare in another Member State in which they reside, on the same basis as the residents of that Member State. The costs of the healthcare are borne by the Member State responsible for the pension. This is the basis of the S1 scheme. They are also entitled to EHIC health care, or, with authorization, planned care under the S2 scheme, in a Member State which they visit.

As originally drafted the provision didn’t explicitly deal with the UK pensioners who have worked all their life in the UK, and then retired to Spain (or another EU country): the biggest group of recipients of cross-border health care who are concerned about the effects of Brexit. It still doesn’t do so explicitly. But they fall within the scope of the Withdrawal Agreement (Article 28) because they are ‘subject to’ the social security legislation under Regulation 883/2004, and are in a ‘situation involving both a Member State and the UK at the same time’ at the end of the transition period. They will be able to continue to rely on their rights under the WA, until they cease to meet those conditions. This is good news, not only for those pensioners, but also for the NHS which will not have to plan for their mass return.

What the Commission text proposes: the time frame

Most of the provisions in the WA have a tight temporal limitation: they cease at the end of the transition/implementation period. In this draft, unlike the earlier one, a similar temporal limitation has been added to Title III on social security coordination. The general rule is that it continues as long as someone continues to be in a situation involving both a Member State and the UK at the same time.  For UK pensioners accessing healthcare in Spain, that will potentially be the rest of their lives (Article 35), unless they return to the UK.  But Article 29a precludes an interpretation of the general rule to include post-transition planned healthcare or emergency healthcare under EHIC. 

Conclusion and implications

Continued access to the EHIC scheme is something that both Jeremy Hunt and David Davis have said that the UK would seek to negotiate. Indeed, Jeremy Hunt described it as ‘perfectly possible’ in January 2017; and Davis said in Parliament that it had been ‘agreed’ in August 2017. Presumably it could be negotiated as part of the future EU-UK relationship(s), and that would cover people not within the scope of the Withdrawal Agreement (for instance, because they are yet to be born). However, as I suggested in my previous blog, it would be better if it were included in the Withdrawal Agreement too.

Barnard & Peers: chapter 27

Photo credit: Sutter Healthcare

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.