Analysis 1 of the Revised Brexit Withdrawal Agreement: Overview

Professor Steve Peers, University of Essex

Introduction

It’s not certain, at time of writing, whether the Brexit withdrawal agreement will be approved or not. But the UK Parliament is about to vote again on the issue, following the recent agreement on a new version of the agreement – with a revised Protocol on the Irish border (for a full text of the revised withdrawal agreement following this change, see here) and a revised political declaration on the future relationship.  (There was already a minor amendment to the text agreed in April, after UK membership was extended for several months: the text of the agreement as it stood after that is here.) So this is an opportune time to update my previous overview of the first version of the withdrawal agreement. 

This blog post is a summary and explanation of the text for non-lawyers. It outlines the structure of the agreement and the main content of each part of it in turn. It does not aim to be exhaustive, but only to give a broad indication of what the revised agreement entails. I have also updated my blog posts on the transition period, dispute settlement, citizens’rights and the related politicaldeclaration.

Throughout the blog post, I’ve scattered the answers to ‘key questions’ which have been raised about what the revised withdrawal agreement does. Let’s start with this question, in light of the imminent vote on the withdrawal agreement:

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

If Parliament this week votes against ratifying the withdrawal agreement, and also votes against leaving the EU with no deal, then the provisions of the ‘Benn Act’ kick in, requiring the Prime Minister to request a three-month extension of EU membership. I discussed the workings of that Act in detail here. It’s possible that the EU refuses to extend membership, in which case the UK leaves with no deal on October 31, unless it decides to revoke its notification to leave the EU, which is possible unilaterally (as confirmed by the CJEU, and discussed here). There’s also a legal challenge to ratification at this point.

It’s also possible that parliament votes in favour of the withdrawal agreement, but runs out of time or votes against the bill to give effect to the withdrawal agreement. In that scenario there may be a fresh attempt at securing an extension of membership. If that fails, the UK again leaves with no deal on October 31, unless it decides to revoke the notification to leave. Note that there’s a proposed amendment to the government’s motion to approve the withdrawal agreement, which aims expressly to trigger the Benn Act to give more time to consider it.

   

The EU Commission has issued preparedness notices setting out its view on what would happen if the UK leaves the EU without a withdrawal agreement. The UK government has also issued its own no deal notices.

In order to address the possibility of a no deal outcome, the EU has also adopted legislation (a few amendments to this legislation will likely be adopted before October 31). This includes a law waiving visa requirements for short-term visits by UK citizens to the EU (for 90/180 days), which I discussed here. This will not address residence for longer periods, which will be subject to EU and national laws on non-EU citizens, which are more restrictive than EU free movement rules. (For more details of the law applicable to UK citizens visiting or staying in the EU after Brexit, see my discussion here. For more details of the position of UK citizens in the EU27 who might be able to claim long-term residence status, see discussion here; this point may be relevant even if the withdrawal agreement is ratified).

Another key issue is what exactly the imminent vote is about. It’s often claimed that a vote to approve the withdrawal agreement (or to leave with no deal) would ‘get Brexit done’, but is that the case?

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

Other than the provisions related to Northern Ireland (discussed further below), the withdrawal agreement governs only the details of leaving the EU, not the long-term relationship between the UK and EU. On that issue, alongside the text of the agreement, there was also a political declaration on the future UK/EU relationship (discussed here), which has now been revised as part of the new overall ‘deal’. This is the basis for negotiations that would take place after Brexit day. There would also be an issue of whether to extend the transition period due to expire at the end of 2020, as discussed below. So there will certainly be lots of Brexit discussion in future, even if the revised withdrawal agreement is approved.

Structure of the withdrawal agreement

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

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

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

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

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

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

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

Part One: Common Provisions

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

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

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

Part Two: Citizens’ rights

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

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

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

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

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

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

Yes, free movement between the UK and EU (remember this applies both ways) stops at the end of the transition period, unless the UK and EU decide to sign a separate treaty as part of the future relationship extending free movement in the future. Currently the UK government opposes this idea. The protocol on Northern Ireland does not include free movement of people, but only the continuation of the UK/Ireland common travel area, which is more limited.

The withdrawal agreement also ends free movement between Member States for UK citizens already in the EU27, unless (again) a separate treaty as part of the future relationship addresses this issue. UK citizens in the EU27 might, however, be able to qualify for a status (long-term resident of the EU) allowing movement between Member States on a more restrictive basis, as discussed here.

Part Three: Separation provisions

This part tells out exactly how EU law ceases to apply at the end of the transition period, for a list of different issues. The biggest difficulties during negotiations were over geographical indications (ie, protection for those who call their product ‘Parma ham’) and what happens to cases pending before the CJEU on Brexit day.

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

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

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

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

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

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

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

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

Part Four: transition period 

This is a short part of the withdrawal agreement, yet it has the biggest effect: it keeps most substantive EU law in place in the UK until at least the end of 2020, with a possible extension.

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

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

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

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

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

The EU laws which are not covered by the transition period are those about the European citizens’ initiative (on that process, see the case law discussed here) and also voting and standing for office in the European Parliament and local government. The UK (or its devolved legislatures) can, if it chooses, unilaterally continue to let EU27 citizens vote in local elections, and EU27 countries can choose to do the same for UK citizens. Also, as noted above, EU foreign and defence policy might not fully apply to the UK for the whole of the transition period.

This brings us to the potential extension of the transition period. It’s possible for the Joint Committee set up by the withdrawal agreement – which works by the mutual consent of the EU and UK – to decide by July 2020 if the transition period will be extended, for a single extension of up to one or two years.

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

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

No. First of all, any extension of the transition period has to be agreed jointly, as noted already. So the UK could veto it. Secondly, any extension won’t be indefinite, since the withdrawal agreement sets a maximum extension time limit of two years.

On the other hand, the UK might theoretically end up applying the rules relating to Northern Ireland (discussed further below) indefinitely. However, these rules are more limited in scope than the transition period, as they concern only some EU laws (on equality law, external trade, customs, goods regulation, electricity, and State aids), and they only apply to Northern Ireland. In particular, the backstop does not concern the free movement of people or services, or contribution to the EU budget.

Part Five: financial settlement 

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

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

No. First of all, some of that money has already been contributed during the period of extension of EU membership. Secondly, this begs the question: the EU regards the financial settlement as money which is payable in any event regardless of any future relationship, and took the view that the future relationship could not be formally negotiated before Brexit day anyway. Even on its own terms, the argument that ‘£39 billion is paid for nothing’ is wrong, since about half of of the money relates to the UK still applying substantive EU law during the transition period (see the OBR report), during which the UK still has its current access to EU goods and services markets (and vice versa).

Part Six: Institutional and Final Provisions

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

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

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

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

As noted above, the CJEU has jurisdiction over part of the Protocol on Northern Ireland, as well as the Protocol on bases in Cyprus.

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

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

Note that this part of the agreement differs a lot from the dispute settlement clauses as the Commission proposed them in March 2018 (see discussion here) – which included powers (tilted toward the EU) for both sides to impose sanctions on each other. The final version looks a lot more like traditional international dispute settlement, and is presumably a concession by the EU to the UK.

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

Protocol on Irish border issues

The changes to the Northern Ireland Protocol, as compared to the previous version of this Protocol, have been tracked here. Article 1 specifies that it does not affect the UK’s territorial integrity. But the provisions emphasising that the Protocol is meant to be temporary have been dropped, as have a link back to the possible extension of the transition period and a review clause. However, the possibility of replacing the Protocol by future UK/EU trade arrangements is maintained.

Next, Article 2 and 3 of the Protocol, which are unamended, refer to equality rights and the common travel area between the UK and Ireland (these issues were never controversial).

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

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

The revised Protocol then drops the previous UK-wide customs union backstop. This text had linked to Annexes on: a) trade in goods between EU/UK/non-EU states; b) customs cooperation; and c) a ‘level playing field’, which meant some degree of continued harmonisation of law relating to tax, the environment, labour law, state aid, competition, and public companies/monopolies.

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

In place of the UK/EU customs union backstop, in the revised Protocol a new Article 4 first specifies that Northern Ireland is part of the UK’s customs territory for international trade purposes. A new Article 5 then, first of all, regulates trade between Great Britain and Northern Ireland. No customs duties are charged on goods moved from Great Britain to Northern Ireland, unless there is a risk that the goods may be sold in the EU. The further definition of what that means must be worked out by the Joint Committee by the end of the transition period. There is an exemption for personal property. As before, an Annex applies a long list of EU laws on customs, trade and goods regulation to Northern Ireland – although in the previous version some of these laws would have applied to the whole UK.  It’s now specified explicitly that customs duties charged for goods entering Northern Ireland are kept by the UK, not given to the EU.

The Protocol also retains provisions on the UK internal market, as well as lists of specific EU laws that apply in Northern Ireland: product regulation, VAT and excise tax, a single electricity market, and State aids. However, an Annex on agriculture and the environment has been dropped, and the VAT provisions have been amended to clarify that the UK keeps the revenue, can reduce VAT rates for Northern Ireland, and to give the Joint Committee powers to amend these rules. The vague reference to other North/South cooperation is retained.

The institutional provisions of the Protocol are retained, including the proviso that EU bodies, including the CJEU, have competence to apply or interpret the provisions of the Protocol that are specific to Northern Ireland.  Finally, a new provision on ‘consent’ specifies that the Northern Ireland Assembly can, under certain conditions, terminate the customs and other economic provisions of the Protocol. There’s also a unilateral UK declaration related to this. (The absence of a power to end the previous backstop unilaterally had been controversial).

Protocol on UK bases in Cyprus

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

Protocol on Gibraltar

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

Assessment

The only changes in the revised withdrawal agreement as compared to the previous version relate to the ‘backstop’ (I’ll come back to changes to the political declaration in a further blog post). These changes replace the UK/EU customs union, with associated ‘level playing field’ rules on tax, the environment and labour law, which was theoretically temporary, with permanent provisions which relate to Northern Ireland only, moreover dropping the bulk of ‘level playing field’ rules. This entails new provisions on trade between Great Britain and Northern Ireland, as well as on the related Northern Ireland political process.

While the potential continued application of some EU laws to the UK as a whole has been dropped, most of the EU laws that would have continued to apply specifically to Northern Ireland have been retained, and the agreement now regulates aspects of internal trade and the internal political process. In short, the quid pro quo for limiting the ongoing relationship between the UK as a whole with the EU as compared to the previous withdrawal agreement is retaining, and even strengthening, the ongoing relationship between Northern Ireland and the EU.

The absence of a UK-wide backstop means that the end of the transition period will create a new ‘no deal’ cliff edge for the UK/EU relationship as regards trade – as there would no longer be a guarantee that the backstop provisions on trade in goods would apply in the event of any failure to agree a new broad trade relationship.  ‘Level playing field’ rules will not kick in either in this scenario. It’s therefore possible that the whole drama of a potential no deal outcome will simply be replayed at some point in the near future (except as regards Northern Ireland – unless the Assembly there wants to terminate the key provisions of the relevant Protocol, probably at a separate date).

The greater divergence from the UK and the EU provided for in this revised agreement also therefore has a cost of a potentially larger drop in reciprocal market access at the end of the transition period, which would be accompanied by a greater possibility for the UK to deregulate as regards tax, labour and environmental standards.

Those MPs who opposed the previous withdrawal agreement formed part of different groups, who opposed that agreement for various conflicting reasons: to obtain a ‘harder’ Brexit (fewer ties to the EU, more capacity to deregulate); a ‘softer’ Brexit (stronger ties to the EU, less capacity to deregulate); and to increase the chances of preventing Brexit completely. These three aims were necessarily in conflict: only one of the three groups could achieve its intended objective, and the other two groups would have gambled and lost, putting themselves further away than before from their ideal outcome.  As things stand, if the revised withdrawal agreement is approved, it’s the hard Brexiters who won their gamble, and the soft Brexiters and Remainers who made a serious tactical mistake.   

Barnard & Peers: chapter 27

Photo credit: Sky News

Staring into the Abyss: Citizens’ Rights after a No Deal Brexit

Professor Steve Peers, University of Essex*

Having resisted unilateral guarantees for EU27 citizens in the UK for over two years, and having promised to protect EU27 citizens unilaterally after all back in September, the UK government finally produced a paper today on what happens to EU27 citizens in the UK – and UK citizens in the EU27 – in the event of a ‘no deal’ Brexit outcome. The Commission’s recent communication on a ‘no deal’ Brexit included its view on the same issue from the EU side. With the vote on the withdrawal agreement looming in the UK Parliament (see my overview of the whole agreement here), it’s an opportune moment to examine what would happen to these five million people if there’s no agreement.

EU27 citizens in the UK

The starting point is that the ‘settled status’ scheme for EU27 citizens in the UK would work in the same way as under the withdrawal agreement (which I discussed the details of here), including a five year period to leave and then return. However, this would not be an international law obligation, so the UK government would be free to change the details at some later date. For instance, it could have stricter rules on what happens when workers become unemployed, or otherwise regarding the definition of ‘worker’, or as regards qualification for permanent residence. But for now, the government does not intend to do so, stating that the ‘basis for qualifying will remain the same’ as under the planned scheme.

There are some differences with the planned settled status scheme, however. There would not be a transition period to the end of 2020 (extendable to 2022), because the withdrawal agreement creating it would not exist (on that transition period, see discussion here). So EU27 citizens arriving after Brexit Day would not be able to qualify under the new scheme. The deadline for registration for settled status would end earlier, at the end of 2020.  The lower threshold for expulsion under UK law would apply for crimes committed after Brexit Day, rather than crimes committed after the end of the transition period.

For family reunion, there would be two cut off dates for applying the more generous rules on EU free movement law. First, there could be family reunion under the EU rules if the family link was created by Brexit Day. Such family reunion could take place within the following three years. Secondly, EU citizens with settled status could invoke the EU rules for family links created after Brexit Day if the family reunion took place before the end of 2020. After then, stricter UK rules would apply. This is stricter than under the withdrawal agreement, which would apply the EU family reunion rules without a time limit as long as the family link was created by the end of the transition period.

In institutional terms, there would be no jurisdiction for the CJEU as regards EU27 citizens in the UK (it would have residual jurisdiction for eight years after the end of the transition period, under the withdrawal agreement, to interpret the citizens’ rights part of that treaty). It is not clear if the independent monitoring authority for the rights of EU27 citizens in the UK, which would be set up under the withdrawal agreement, will still be set up in a no deal scenario. There would not be a right of appeal for EU27 citizens, but rather just administrative review and judicial review.

There would be equal treatment for access to benefits, education "broadly on the same terms as now”. The apparent qualification is not further explained. There is no reference to the export of benefits, ie to children of Polish workers in the UK who are still living in Poland. Qualifications recognised if an application to that effect is made before Brexit Day, or if they were already recognised by then.

UK citizens in the EU27

As it admits, the UK government cannot alter the position of UK citizens in the EU27. It can make decisions on some issues, however. The government commits itself to uprate pensions for UK citizens in the EU27, subject to reciprocity. It makes no comment on EU27 citizens who have paid into a UK state pension and then returned to the EU27. It will give UK citizens equal access to the NHS if they return to the UK.

There is an alarmingly vague statement about non-UK family members of UK citizens who return to the UK (this would apply to those with both EU and non-EU family). Surely in the interests of equality with EU27 in the UK, as well as protection of family life, it would make sense to maintain the government’s prior commitment to apply EU free movement rules to UK citizens who return with their families before the end of 2020.

Cumulation of social security contributions (ie combining contributions made in the UK and France) will be up to negotiations. The UK commits to voting rights for EU27 citizens in English local elections in May 2019 local elections (there is no mention of afterwards, and voting in Scotland and Wales is up to devolved governments to decide upon). The government is seeking reciprocity for voting rights of UK citizens in the EU27. (Note that because the issue relates to EU citizenship, voting rights are not covered by the citizens’ rights rules in the withdrawal agreement, and expressly excluded from the transition period rules).

For its sake, the recent Commission paper on the no deal scenario stated that UK citizens could apply for long-term residence status as non-EU citizens on the basis of the relevant EU law. But it made no reference to the position of those UK citizens who would not qualify, for instance due to spending less than five years in the country.

EFTA States

Even if there’s no deal with the EU, the UK would still seek a deal with EFTA States (Norway, Iceland, Switzerland and Liechtenstein), so EFTA States citizens in UK and UK citizens in EFTA States would have rights "broadly as now". There are no further details of what this might mean.

Comments

The UK government has now made clear that EU27 citizens in the UK would be mostly, but not entirely, in the same position as they would otherwise be if the withdrawal agreement is ratified. They would not, however, obtain rights if they entered during the transition period or have access to the CJEU. From Brexit Day, it would be easier to expel them and their family reunion rights would be curtailed. There might not be a monitoring body helping to enforce their rights. Along with EU citizens, there might be problems cumulating social security rights.

UK citizens in the EU face the utter indifference of the Commission, and so in practice their position would largely be up to national law. There is therefore a risk that, depending on their circumstances and the actions of the Member State where they reside, they would be far worse off than under the withdrawal agreement, despite its flaws (most notably, it fails to secure their continued right of free movement within the EU27).

The UK government could, of course, have announced unilateral guarantees two and a half years ago, sparing many EU27 citizens sleepless nights. For its part, the Commission could have proposed unilateral guarantees for UK citizens months ago. UK and EU27 citizens who have moved are caught between the Scylla of the UK government's cynicism, on the one hand, and the Charybdis of the Commission's indifference, on the other. 

Alternative approaches are possible: either a treaty ring-fencing rights on both sides (as I suggested here), or a unilateral measure by the EU as a whole protecting UK citizens’ rights (as I suggested here). To achieve either objective, the European Parliament needs to get pushier with the Commission, making UK citizens’ acquired rights a genuine priority and exerting whatever pressure it can to shake the other institution out of its torpor. If that means cutting off the supply of cognac to the Berlaymont, so be it.

Barnard & Peers: chapter 13, chapter 27

Photo credit: Business Insider

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

How to protect the rights of UK citizens in the EU27 after Brexit? Analysis of the Shindler judgment

Professor Steve Peers, University of Essex*

Introduction

The EU General Court today gave its judgment in the case of Shindler and others, on the legality of the EU Council decision giving the EU Commission a mandate to negotiate the Brexit withdrawal agreement with the UK. In the Court’s view, the case, which was brought by a group of UK citizens living in the other EU Member States, was inadmissible. Although this necessarily meant that the Court did not rule on the merits of the legal challenge, the judgment nevertheless touched on a number of interesting issues regarding the process and consequences of the UK’s withdrawal from the EU.

Today’s judgment could still be appealed to the full Court of Justice, and indeed the applicants’ lawyer has announced an intention to appeal. However, it might be difficult for the Court to give a ruling on the appeal before Brexit day. The judgment also arguably leaves the door open to potential legal challenges against further steps in the Brexit process.

Furthermore, it should be noted that today’s judgment does not have any direct implications for other cases raising Brexit legal issues, which I summarised here, including the Wightman case on whether the UK’s notification of withdrawal from the EU can be unilaterally revoked (on the background to Wightman in the Scottish courts, see here; on the legal arguments on unilaterally revocability, see here). To add to that, a parallel case in the Dutch courts on the legal status of UK citizens in the EU (see discussion here) has been stalled until Brexit day, and the CJEU has ruled already that the UK remains fully part of EU law until that date (as discussed here).

The judgment

While the applicants presumably disagree with the UK’s decision to trigger the Brexit process, the EU General Court only has jurisdiction over acts of the EU institutions or other bodies, not acts of the Member States. The applicants therefore challenged the Council’s response to the UK’s notification of withdrawal from the EU under Article 50 TEU. (Note that the act being challenged in this case – namely the Council’s decision to give the Commission a negotiating mandate for the withdrawal agreement – is different from the European Council’s adoption of negotiating guidelines for the agreement, although a legal challenge brought against those guidelines would surely have had the same result as this case). The Commission planned to intervene in support of the Council, although ultimately its application to do so was irrelevant. No Member States intervened.

When individuals (natural or legal persons) seek the annulment of acts adopted by the EU institutions directly before the EU General Court, they are subject to restrictive conditions on standing set out in Article 263 TFEU. In order to sue, they must either be: a) addressees of the act; b) directly and individually concerned by it; or c) directly concerned by it, if it is a regulatory act which does not entail implementing measures.

 

Shindler and others are not addressees of the Council’s negotiating mandate, and they were likely covered by point c), since the EU courts have ruled (see the Inuit judgment, and the discussion here) that point c) applies whenever the EU act is not adopted by an EU legislative process, which the negotiating mandate was not. However, the General Court never really got to that stage of legal analysis, since it ruled that they lacked standing anyway, because they did not meet the requirement that ‘the binding legal effects of the measure being challenged must be capable of affecting the interests of the applicant, by bringing about a distinct change in his legal position’.

In the Court’s view, the decision on the negotiating mandate was binding. However, while, following previous CJEU case law (the cases referred to were discussed here and here), a negotiation mandate produces legal effects between the EU and Member States, and between EU institutions, it ‘does not directly affect the legal situation of the applicants’.

On that point, the decision on the negotiating mandate was legally distinct from the UK decision to withdraw from the EU (which was not defined by the Court), and from the notification of the UK’s intention to withdraw from the EU sent by the Prime Minister. The latter notification, not the former decision to withdraw, started the two-year time limit set out under Article 50, after which the Treaties cease to apply to the UK in the absence of a withdrawal agreement, unless there is an agreement to extend the period. (Today’s judgment does not address the question at issue in Wightman – ie whether the notification can be revoked).

Nor does the decision on the negotiating mandate ‘alter the legal situation of UK citizens resident in one of the European Union’s other 27 Member States’, as regards either their situation when that decision was adopted or their situation on Brexit day. The negotiating mandate ‘merely constitutes a preparatory act for any final agreement’, which would have to be approved by the Council with the consent of the European Parliament. Annulling it would not change the position of UK citizens, because the notification would still be valid and the two-year time limit would still apply. Although the UK citizens’ status, ‘particularly as regards their status as EU citizens, is likely to be affected’ from Brexit day, whether or not there is a withdrawal agreement, that change would not result from the decision to adopt the negotiating mandate.

The Court then rejected a number of counter-arguments of the applicants against this finding. First, they had argued that the Council’s decision was ‘an implicit act by which the Council accepted the notification of intention to withdraw’. In the Court’s view, although the decision produced effects within the EU and between the EU and Member States, it did not produce legal effects for the applicants: for them it ‘must be considered to be a preparatory act’ without ‘direct legal effects’.

Nor did it implicitly accept the UK’s notification to withdraw, as it was distinct from the decision to withdraw or the notification of that decision. Also, withdrawal from the EU ‘is based on a unilateral decision’ by a Member State ‘pursuant to its own constitutional requirements’. Article 50 refers twice to a decision by a Member State – and then to notifying its intention to withdraw, not to making a ‘request’ to withdraw. Article 50(3) TEU, setting out the two-year deadline and the possibility of a no deal outcome, ‘confirms that the possibility for a Member State to withdraw from the EU is not subject to authorisation from the EU institutions’.

So there is no process of accepting the notification from the EU institutions, in which they check if the UK has met its own constitutional requirements: ‘[s]uch a decision of acceptance by the Council or by any other EU institution is not needed and is not provided for by Article 50 TEU.’ Anyway, the notification was sent to the European Council, not the Council; and the Council’s reference to the Brexit process in its negotiating mandate only observed the legal situation, not created it.

Next, the applicants had argued that the Council's negotiating mandate ‘does not include an objective to ensure that UK citizens who obtained the status of EU citizen before 29 March 2019 maintain that status’, therefore failing to protect them fully or provide for legal certainty. The Court rejected this argument for several reasons: the negotiating mandate was (unsurprisingly) simply a negotiating mandate, not a final position; there would not necessarily be an agreement; the position of UK citizens will not be determined unilaterally by the EU but also depend on the UK’s position; and the final agreement will need consent of the European Parliament. So the mandate, being addressed to the Commission, did not itself determine the position of UK citizens after Brexit.

Also, the absence of any provision in the mandate on EU citizenship and voting rights ‘does not directly affect [UK citizens’] legal situation’, because the negotiating mandate ‘is merely a preparatory act which cannot prejudge the content of any final agreement, particularly as regards the personal scope of any provisions on the protection of the status and rights of UK citizens in the EU 27’. Furthermore, the mandate could not establish the rights of UK citizens in the EU27 in the absence of an agreement, and so an argument based on the Council’s failure to address this scenario was unfounded.

Thirdly, the applicants had argued that ‘the Council should have refused or stayed the opening of negotiations’, because the withdrawal process is ‘void’ due to ‘the absence of definite constitutional authorisation based on the votes of all UK citizens, who are also EU citizens’. More precisely, the applicants object to being denied the vote in the 2016 referendum and the 2017 UK general election, because UK citizens who have been living outside the UK for more than 15 years lose the right to vote. Also, they argued that the European Union (Notification of Withdrawal) Act 2017 does not require the UK to notify its withdrawal but only authorises the Prime Minister to do so, and that:

legal proceedings are currently underway before a UK court, that the Council and the United Kingdom should have sought judicial review of the constitutionality of the notification of the intention to withdraw pursuant to the principle of sincere cooperation provided for in Article 4(3) TEU, and that the Council also should have requested the opinion of the Court as to the compatibility with the Treaties of depriving expatriate UK citizens of the right to vote and their indirect representation by MPs, pursuant to Article 218(11) TFEU. They add that to dismiss the present action for inadmissibility would infringe the principle of democracy, in so far as removing EU citizenship in March 2019 will occur in circumstances that are illegal, where EU citizens have been deprived of the right to vote.

In the Court's view, these are substantive arguments that do not impact the admissibility of the case, because they do not impact the Court’s finding that the negotiating mandate ‘does not directly affect the legal situation of the applicants’. So ‘[e]ven if the Council should have refused to open the negotiations or should have verified that the decision by which the United Kingdom decided to leave the European Union had been taken in accordance with its own constitutional requirements’, the negotiating mandate only authorised the start of talks and set the negotiation objectives of the EU. Equally, even if the Council ‘was wrong’ not to check the compatibility of the withdrawal agreement with EU law (ie, the process in Article 218(11) TFEU which the applicants refer to), which the Court noted is optional, or ‘infringed the principle of sincere cooperation’, that would not alter the admissibility criteria either.

As for the alleged infringement of the principle of democracy, this did not change the criteria for admissibility either, as it would in effect amount to the tail wagging the dog: ‘tantamount to inferring the admissibility of an action for annulment under Article 263 TFEU from the possible unlawfulness of the contested decision’. Just because the EU institution allegedly seriously breached EU law or had a major adverse impact on the applicant, it does not follow that the challenge is admissible. Anyway, again the negotiating mandate ‘does not, of itself, restrict the applicants’ rights’.

Next, the Court rejected the argument that this was the applicants' only legal remedy before they lose EU citizenship. But the Court repeated that the Council decision was not the cause of the UK leaving the EU, and added that protection of EU law rights can also be secured by national courts. In this case, the Court noted that the voting franchise ‘and, indeed, the notification of intention to withdraw, were open to challenge before the UK courts, which may, where appropriate, refer questions to the Court for a preliminary ruling on the interpretation of the Treaties, pursuant to Article 267 TFEU.’ More precisely, the Court observed that the High Court had already rejected a case brought by Mr Shindler concerning the franchise, as well as the Webster challenge to ‘the alleged lack of a decision to withdraw taken in accordance with the United Kingdom’s constitutional requirements’.

Finally, the applicants argued that no such route through the UK courts would be possible after Brexit day, as the UK might not consider itself bound by an EU court decision. However, the Court ruled that it could not alter the rules on admissibility of legal actions in light of this scenario.

Comments

It’s striking that the General Court has chosen a less obvious route to find that this case is inadmissible – the lack of direct impact on the applicants – rather than the more obvious route of finding that there is no ‘direct concern’, or that the negotiating mandate calls for further implementing measures (ie negotiations with the UK). The implication of the Court’s judgment is that that the withdrawal agreement – if it is ratified in some form – would have a direct impact on the applicants, and that they could try afresh to challenge it then. But then they would have to face the hurdle of showing direct concern and the absence of implementing measures – which could be a difficult hurdle to surmount given that the withdrawal agreement will be implemented by national bodies in the EU27 and the UK.

As for alternative routes to challenge the Council’s negotiating mandate, it is hard to see exactly what could be attacked via the national courts (which can ask the CJEU whether an EU act is invalid: direct challenges like today’s case are only one means of challenging the legality of EU acts). Again, though, the Council’s decision to conclude a final withdrawal agreement could be attacked via the EU27 national courts, even if a direct action would face different standing challenges; recent case law of the CJEU (see discussion here) has confirmed that the EU’s conclusion of international treaties can indeed be challenged by this route.

Another route to challenging the validity of EU acts is by claiming damages liability of the EU, which is not subject to the same standing rules. According to the CJEU case law, the EU incurs damages liability when it acts unlawfully, its unlawful acts cause damage to individuals, and it commits a sufficient serious breach of a legal rule conferring rights on individuals. But it’s hard to see how damages liability could be incurred by the negotiating mandate, since the logic of the Shindler ruling is that the mandate could not cause damage to individuals, as it did not directly affect their legal position. On the other hand, an argument about damages liability could be made if there is a withdrawal agreement, although note that the threshold to succeed in a damages claim is quite high: see, for instance, the Ledra Advertising case on losses of Cypriot bank depositors, discussed here.

In the case of no withdrawal agreement (or replacement treaty ring-fencing rights), there would be nothing which could be the subject of legal challenge at EU level, although UK citizens could still try to argue in the national courts of the remaining Member States that there is a principle of acquired rights which EU law recognises (see again the Dutch case discussed here, which is on hold), or at least that EU legislation on the position of non-EU citizens (which has partly harmonised national law) applies to them. Equally there would be no EU act to claim resulted in damages, although UK citizens (and others) might try to argue that the EU’s conduct of the negotiations could be the subject of a damages claim.

Moving to the core of the Court’s reasoning, it is a persuasive argument that the decision to establish a negotiating mandate did not directly impact upon the applicants’ rights. The process was indeed triggered by the UK, with the negotiating mandate at most taking note of that decision; and any later impact on individual rights will flow from the final agreement (if ratified) or the absence of a deal.  While the Court seemed to assume that UK citizens lose EU citizenship as a result of Brexit, it did not expressly say as much.

The Court was also right to stress that withdrawal is the responsibility of the UK in accordance with its own constitutional requirements, meaning that the Council could not in some sense review whether the UK had met those requirements when it submitted its notification to withdraw. It’s particularly unclear how exactly the Council should have sought judicial review of the UK’s notification, or how the Article 218 process of assessing draft international treaties for their compatibility with EU law could extend to an examination of the franchise in the UK referendum and general elections. The general assertion that the circumstances are ‘illegal’ due to the limited franchise in the referendum rather overlooked the legal process in the UK, which had already (as the Court noted) rejected a claim challenging the legality of the franchise restrictions. Having said that, the Court later indicated that national court disputes over the Article 50 process in the UK could be sent to the CJEU – although it did not as such suggest that this would, after all, entail a review of those national constitutional requirements in light of EU law.

Similarly the Court rightly rejected the arguments about the negotiation mandate being insufficient because it depends upon the final agreement (if ratified) what the rights of individuals are, and applies its usual case law refusing to rethink the strict rules on standing in light of the applicants’ particular circumstances. 

It’s useful to examine briefly what the Court would have ruled on if it had examined the merits of the claim, which are summarised here. The first argument was that withdrawal from the Euratom treaty had to be a separate legal process; I have a different view, as set out here. (Note that winning on this point would not have helped with the key legal objective of preserving UK citizens’ rights).

The second argument was that the negotiating mandate wrongly claims that the EU alone was competent to conclude the withdrawal agreement, and that it should be jointly ratified with EU Member States. Leaving aside the merits of this argument, with respect it is hard to see how it helps the applicants if they had won on this point, because it would have seriously increased the risk of a no deal scenario – which would, as I recently pointed out, leave UK citizens in the EU27 in particular much worse off than under the withdrawal agreement.

The third and fifth arguments have been addressed in an indirect way by the judgment, despite the finding of inadmissibility: the limited franchise is a matter to be addressed in accordance with the UK’s own constitutional requirements, and the lack of certainty regarding the final outcome is simply unavoidable at the point when the Council adopts a negotiating mandate. Finally, the fourth argument – concerning the lack of a vote for UK citizens living in overseas countries and territories – is another form of franchise argument, which again should be left to the UK’s constitutional requirements to address.

Finally, on the overall context of the case: while in my view, protection of the rights of UK citizens in the EU27 (and the parallel rights of the EU27 in the UK) is absolutely fundamental, the focus should be on securing those rights in future – either by reversing Brexit, or failing that by at least avoiding a no deal outcome – rather than re-litigating the franchise of the referendum, by trying to induce the EU courts to rule on an issue (national constitutional requirements) which should be wholly outside their remit.  In the event of a no deal outcome, despite the apparent indifference of the Commission to the fate of UK citizens in the EU27, the focus has to be on securing a ring-fenced treaty on securing the rights of citizens on both sides; failing that, EU-wide legislation on the acquired rights of UK citizens (hopefully matching parallel action by the UK for EU27 citizens); and failing that, litigation to argue that the EU and/or its Member States have an obligation to preserve their rights as much as possible.

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

Barnard & Peers: chapter 10, chapter 27

Photo credit: European Sanctions Blog