NEW 27 PAGE LEAK OF A BRIEFING BY THE HOUSE OF COMMONS EU LEGISLATION TEAM

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EU Legislation Team
 
26 November 2018
 
—Legal note–not for general distribution—
 
The Withdrawal Agreement: Legal and Governance Aspects
Part One: Overview
The Withdrawal Agreement (WA) can only come into force if it is concluded (ratified) by the EU and ratified by the UK before 29 March 2019. EU ratification requires the agreement of a super qualified majority in the Council and the consent of the European Parliament. No individual Member State has a veto.
However, Member States are very likely to have a veto over any Future Arrangements Agreement (FAA), creating the possibility that a Member State disgruntled at the WA could decide, in the future, to veto the FAA.
 
Agreement of the WA on the EU side can be challenged by a Member State or an EU institution that considers that its terms are incompatible with the EUTreaties.

The WA comprises six Parts and three Protocols.
 
● Part One: Common Provisions including the territorial scope, a requirement that the WA be given the same “direct effect” and “supremacy” in the UK as applicable to EU law in Member States, and provides some definitions used throughout;
 
● Part Two: Citizens’ Rights. This essentially enables EU citizens resident in the UK and UK citizens resident in a Member State at the end to the transitional or implementing period (TIP) to continue to enjoy the bulk of the rights they presently enjoy. There are some exceptions.
A notable omission is that UK citizens to whom these
rights apply will not enjoy free movement rights to other Member States;
 
● Part Three: Separation Issues, disentangling situations straddling Brexit;
 
●Part Four: Creating a transitional or implementing period (TIP) up to 31 December 2020 during which EU law essentially applies to the UK (to the extent it did) but the UK does not participate in the making of that law, nor in the agencies and bodies of the EU, and cannot participate in any new JHA/Schengen regime. The TIP is extendable by a mutually agreed decision of the Joint Committee, which must be made by 1 July 2020, for one further fixed period of either one year or
two years. Such extension will entail a further decision of the Joint Committee on the financial arrangements applicable, and also entail (a) treating the UK as an ordinary third country in respect of EU programmes during any extension, and (b) capping UK agricultural support;
 
● Part Five: The Financial Settlement;
 
● Part Six: Institutional and Final Provisions, including requirements for interpretation of the agreement, the institutional structure of a Joint Committee and dispute resolution by arbitration. The governance provisions envisaged in the Political Declaration setting out the Framework for the Future Relationship between the EU and the UK are based on those found in this Part (the Political Declaration).
 
● The Protocol on Ireland/Northern Ireland which includes the
“backstop” provisions intended to prevent a hard border.
Again the Political Declaration cites these provisions as inspiration for a long-term tariff free area underpinned by “ambitious customs arrangements”;

● The Protocol Relating to the Sovereign Base Areas of the UK in Cyprus, making these parts of the customs territory of the Union, applying certain EU law (and CJEU jurisdiction) to them and specifying the checks to be made on persons crossing their external borders (other than with Cyprus);
See Part Three, Section C. Paragraph 22.

● The Protocol on Gibraltar covering preparation for the application of the Citizens’ Rights part of the WA, permitting EU law to be applied to Gibraltar Airport if the UK and Spain reach agreement, establishing cooperation between Spain and the UK on fiscal matters, environmental protection and fishing, and police and customs matters.
 
This note now focuses on the provisions of the WA which raise points of legal significance and the provisions which concern its governance (including dispute resolution). This note does not focus in detail on the Political Declaration.
 
Part Two: Summary of Key Legal and Governance Issues
A Relationship between the WA and the Future Arrangements Agreement (FAA)
 
The performance of obligations under the WA is not conditional upon the agreement of an FAA. Parties must use their “best endeavours” to reach and ratify in good time such Agreement - on the basis of the Political Declaration which sets out a programme to facilitate reaching agreement by the end of 2020.

B Continued application of EU law
 
● EU law will apply during the TIP, but essentially without formal UK participation in its making;
 
● EU law will apply after the TIP to protect the rights of EU citizens in the UK. This could extend for some considerable period.
 
● EU law also will apply after the TIP in relation to the Separation Issues and the Financial Settlement. Again, this could extend for a considerable period.
 
● EU law will apply extensively, particularly in Northern Ireland, under the “Backstop” found in the Ireland/Northern Ireland Protocol..........

To read more of this exclusive publication by BrexitCentral use the link below:
27 page leak on legal advice to parliament

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