Friday, 2 March 2018

Brexit - Draft Withdrawal Agreement (No. 4) - Other aspects

On 28th February, the text of the DRAFT Withdrawal Agreement was 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.

This previous post looked at Part 1 of the Draft and Part 4 Transition was considered here.  A further post (here) looked at the protocol put forward for Ireland / Northern Ireland.  Part 6 Institutional and Final Provisions is the subject of this post together with a brief "overview" of Parts 2 (Citizens' Rights), 3 (Separation Provisions) and 5 (Financial).


Part Six Institutional and Final Provisions:

Title I (arts. 151 to 156)

Article 151 - References to the Court of Justice of the EU (CJEU) concerning Part 2 - this article is concerned with cases arising within 8 years from the end of the transition period when the case raises a point concerning the interpretation of Part 2 (Citizens' Rights).  The UK court will be able to seek a "preliminary ruling" from the CJEU.

Article 152 - Monitoring the implementation and application of Part 2 - The UK will set up an independent authority to monitor the implementation and application of Part 2 (Citizens' Rights).  This authority will be able to receive and investigate complaints and to conduct inquiries on its own initiative.  The Authority will have power to bring cases to the courts.  The European Commission has to be informed of such cases and the Commission may also suggest to the authority that actions be brought.

Article 153 - gives the CJEU jurisdiction in relation to Part 3 of the Agreement (Separation Provisions).  The CJEU will have the jurisdiction given to it by the Treaty on the Functioning of the EU (TFEU) Articles 258, 260 and 267.  Articles 258 and 260 are concerned with Member States fulfilling their obligations under the Treaties.  Article 267 is the Preliminary Reference process. 
It seems most unlikely that the hardline Brexit supporters will be happy with this on-going involvement of the CJEU.

Article 154 - the UK will be notified of preliminary rulings requested by courts of EU Member States and the UK will have the right to "submit statements of case or written observations" to the CJEU within 2 months of such notification.

Article 155 - gives the EU Commission a right to submit written observations to the courts and tribunals of the UK in pending cases where the interpretation of the Agreement is concerned. The EU Commission may also, with the UK court's permission, make oral observations.  This latter procedure appears to be similar to the use of "interveners" which already occurs in some cases.

Article 156 - reguires "regular dialogue" between the CJEU and the UK's highest courts. 

Title II (arts. 157 - 159)

A JOINT COMMITTEE is to be established to be responsible for the implementation and application of the agreement.  The Joint Committee shall, for the purposes of the Agreement, have the power to adopt decisions and make appropriate recommendations to the EU and the UK.  The decisions adopted by the Joint Committee shall be binding on the EU and the UK and the EU and the UK will be bound to implement them.  Such decisions shall have the "same legal effect as this Agreement."

The Joint Committee will clearly be very powerful given its power to bind the EU and the UK.  There appears to be no provision here for the involvement of the UK Parliament or, for that matter, the European Parliament.  Politicians would do well to pay particular attention to this.

Title II also creates a number of Specialised Committees (Article 158) - e.g. the Committee on Citizens' Rights.  The Specialised Committees will report to the Joint Committee.

Title III Dispute Settlement - arts. 160 - 165

Article 160 - is a provision requiring cooperation between the EU and the UK on the interpretation and application of the Agreement.

Article 161 - the procedures for dispute settlement are the only ones to be used for disputes between the UK and the EU.

Article 162 - Disputes may be brought to the Joint Committee  which may settle the dispute through a recommendation.  Art 162 provides for the Joint Committee to submit the dispute to the CJEU.  Also either the EU or the UK may refer disputes to the CJEU in the event that the Joint Committee has not settled it within 3 months.  Furthermore, under Art 163, enforcement action is possible before the CJEU for non-compliance with CJEU rulings under Art 162.

Article 164 is concerned with procedural rules for proceedings in the CJEU under Articles 162 or 163.

Article 165 Suspension of benefits during the transition period - This provides, in specified situations, for the EU to suspend the UK from certain benefits of the internal market.  Art 165 will only apply during the transition period.

Overview of Parts 2 (Citizens' Rights), 3 (Separation Provisions) and 5 (Financial):

Parts 2, 3 and 5 are the detailed provisions within the Agreement and a full analysis is well outside the scope of this blog.  A vast number of areas are addressed:

Part 2 (Citizens' Rights) - Rights related to residence, residence documents, rights of workers and self-employed persons, professional qualifications, coordination  of social security systems.

Part 3 (Separation Provisions) - Goods placed on the Market, Ongoing Customs Procedures, Ongoing VAT and Excise Duty Matters, Intellectual Property, Ongoing Police and Judicial Cooperation in Criminal Matters, Ongoing Judicial Cooperation in Civil and Commercial Matters, Data and Information processed or obtained before the end of the transition period or on the basis of this Agreement, Ongoing Public Procurement and Similar Procedures, Euratom related issues, Union Judicial and Administrative Procedures, Administrative Cooperation Procedures, Privileges and Immunities, Other Issues relating to the functioning of Union Institutions etc.

Part 5 Financial - General provisions, UK contribution and participation for years 2019 and 2020, European Central Bavk, European Investment Bank, European Development Fund, Trust funds and facilities for refugees in Turkey, Agencies of the Council and Common Security and Defence Policy operations.

Cyprus and Gibraltar:

A short Protocol to the Agreement relates to the UK's Sovereign Bases in Cyprus.  "Since the arrangements applicable to relations between the Union and the Sovereign Base Areas in Cyprus will continue to be defined within the context of the Republic of Cyprus’ membership of the Union, appropriate arrangements have been determined to achieve, after the withdrawal of the United Kingdom from the Union, the objectives set out in Protocol 3 to the Act of Accession of the Republic o f Cyprus to the Union."

The Agreement says almost nothing about Gibraltar which voted Remain in the 2016 referendum.  This article is worth reading - Independent 1st March

Media:

Guardian 28th February - EU Exit plan: why does the draft fall short?

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:



Treaties:

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