Wednesday 28 February 2018

Brexit - Draft Withdrawal Agreement (No.2) - Transition

The text of the DRAFT Withdrawal Agreement has been published by the EU Commission - see European Commission Draft Withdrawal Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community.

The previous post looked at Part 1 of the Draft.  This post considers Part 4 Transition.  Part 4 comprises  Articles 121 to 126.

Article 121 simply states that – “There shall be a transition period, which shall start on the date of entry into force of this Agreement and end on 31 December 2020.

Article 122 provides that – Unless otherwise provided in this Agreement, Union law shall be applicable to and in the UK during the transition period.   The article then lists some provisions of the Treaties that will not apply to the UK during transition – e.g. those provisions that do not apply to the UK at present – e.g. Schengen.   Article 122 goes on to require the Union law which is applicable in the UK  to have the same legal effects within the UK as those which it produces in the EU.

Article 122 excludes the UK from “enhanced cooperation” – a process by which a minimum of 9 EU countries are allowed to establish advanced integration or cooperation in an area within EU structures but without the other EU countries being involved – see HERE.  

Article 122 paragraph 5 is concerned with EU measures which “amend, build upon or replace” existing measures adopted in the area of Judicial Co-operation in Civil Matters – (Title V of Part 3 TFEU).  In relation to such new measures TEU Protocol 19 Article 5 and TEU Protocol 21 Article 4a will continue to apply mutatis mutandis. 

Finally, Article 122 provides that, unless otherwise provided in the Agreement, during the transition period, any reference to “Member States” in that Union law which is applicable to the UK is to be read as including the UK.  However. Paragraph 7 sets out some exceptions to that.

Article 123 Institutional Arrangements – provides that, during the transition period, the UK Parliament will not be considered to be a national Parliament of a Member State.  Article 123 goes on to exclude the Uk from being able to submit proposals etc during transition and the Bank of England will not be considered to be a national central bank of a member State.  Paragraph 5 enables, on a case-by-case basis and by invitation, representatives or experts of the UK to attend certain meetings but they will have no voting rights.  

Article 124 deals with specific arrangements relating to the Union’s external action.   Amongst other things, this prevents the UK becoming bound in its own capacity in the areas of exclusive competence of the EU unless authorised to do so by the EU.

Article 124 para 6 prevents, during the transition period, the UK providing commanders of civilian operations, heads of mission, operation commanders or force commanders for missions or operations conducted under Article 42, 43 and 44 of the TEU. Also, the UK may not provide the head of any operational actions under Article 28 TEU.  Articles 32, 43 and 44 are part of the EU’s Common Security and Defence Policy which provides the EU with an operational capacity drawing upon civilian and military assets.

After Brexit (29th March 2019), given the UK’s stance with regard to the development of a European Union military capacity, it is hard to see why the UK would wish to, for example, commit British Forces to an EU operation.  Nevertheless, if it does so then the UK could not provide a force commander and might – the point is unclear – have limited ability to influence the course of events. 

Article 125 Specific arrangements relating to fishing opportunities – This will be a matter of great concern to the British fishing industry.  Art 125 states – “As regards the fixing of fishing opportunities for any period prior to the end of the transition period, the UK shall be consulted by the European Commission in respect of the fishing opportunities related to the UK, including in the context of the preparation of relevant international consultations.”  Consultation is of course exactly that and does not include participation in decision-making.

Article 126 Supervision and Enforcement – During transition, the EU institutions (including the Court of Justice) will continue to have their jurisdiction in relation to the UK.

On any view, a transition period on these terms is not going to be a happy period.  The phrase “vassal State” has been used by some politicians - e.g. here.  The extent to which the transition period under these terms will be acceptable to the UK government and Parliament remains to be seen.  Nevertheless, the 21 months of the transition at least allows some time for business to adjust and for arrangements to be put in place for post-transition.  It should also be noted that the UK could have produced its own draft agreement.  As far as I am aware it did not do so.

Joint Report December 2017:

The draft agreement follows on from the Joint Report of 8th December 2017 which was considered in posts of  9th December (Citizens' Rights), 9th December (Ireland and Northern Ireland), 10th December (The Money!), and 10th December (Euratom and other points).   The Joint Report recorded the progress made in Phase 1 of the Brexit negotiations and recorded the three areas where agreement had been reached in principle - Citizens' Rights; Northern Ireland and The Financial Settlement.

EU Commission materials:

Questions and Answers


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