Friday, 16 November 2018

Draft Withdrawal Agreement - November 2018 - No.3 - Transition

This post is an overview of Part Four (Transition) of the Draft Withdrawal Agreement.

Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, as agreed at negotiators' level on 14 November 2018

Transition is addressed in Article 126 to 132 of the draft - at pages 196-209.


Article 126 states that - "There shall be a transition or implementation period (TP), which shall start on the date of entry into force of this Agreement and end on 31 December 2020.  The purpose of the TP is of course to enable negotiations to take place on the detailed future relationship arrangements.

It is hoped that there will be agreement on the future relationship and that this will be in place by the end of the TP.  If that is achievable then the Ireland / Northern Ireland "backstop" arrangements would not be necessary because the arrangements in the future on-going relationship would apply.

Article 127 continues Union law in the UK during the TP.  There are exceptions to this. 

In the event that the EU and UK reach agreement about future relations in Common Foreign and Security Policy and the Common Security and Defence Policy and if that agreement comes into force during the TP then Chapter 2 of Title V of the Treaty on European Union will cease to apply to the UK from the date of the agreement.

During the transition period, the Union law applicable to the UK 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, and shall be interpreted and applied in accordance with the same methods and general principles as those applicable within the Union.

An important exception to the continuation of EU law in the UK during the TP appears in Article 127.  The UK will no longer send members to the European Parliament after 29 March 2019.  Article 127 removes the rights of citizens to vote in European elections etc.  There will therefore be no representation in the European Parliament even thouygh, during the TP, the EU may continue to enact legislation applicable to the UK.

The following provisions will no longer apply to UK:


: Withdrawal Agreement – Article 127 - Provisions not applicable to UK after 29 March 2019 :

Treaty on European Union – Article 11(4)

Not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the European Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties.

Treaty on the Functioning of the EU – Article 20(2)(b)

2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:
(a) the right to move and reside freely within the territory of the Member States;
(b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State;

TEU Article 22

1. Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.
2. Without prejudice to Article 223(1) and to the provisions adopted for its implementation, every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.

Article 24 first para

The European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall adopt the provisions for the procedures and conditions required for a citizens' initiative within the meaning of Article 11 of the Treaty on European Union, including the minimum number of Member States from which such citizens must come.

Charter of Fundamental Rights - Article 39

Right to vote and to stand as a candidate at elections to the European Parliament
1.   Every citizen of the Union has the right to vote and to stand as a candidate at elections to the European Parliament in the Member State in which he or she resides, under the same conditions as nationals of that State.
2.   Members of the European Parliament shall be elected by direct universal suffrage in a free and secret ballot.

Charter of Fundamental Rights - Article 40
Right to vote and to stand as a candidate at municipal elections
Every citizen of the Union has the right to vote and to stand as a candidate at municipal elections in the Member State in which he or she resides under the same conditions as nationals of that State.
 
Article 127 contains some further provisions not considered here - see Article 127 paragraphs 4 to 7 inclusive.

Article 128 - Institutional Arrangements -  During the TP we see a reducing involvement of the UK in the various EU institutions.  The detail is in  Article 128.

Article 129 - Specific arrangements relating to the Union's external actions.  Among the various paragraphs of this article is a clear statement that the United Kingdom may negotiate, sign and ratify international agreements entered into in its own capacity in the areas of exclusive competence of the Union, provided those agreements do not enter into force or apply during the transition period, unless so authorised by the Union.  The UK could therefore negotiate trade arrangements but they cannot come into force during the TP.

Article 130 -Specific arrangement s relating to fishing opportunities.  This is not examined further here.

Article 131 - Supervision and Enforcement -

Here we see the continuing role of the Court of Justice of the EU (and other EU Institutions) during the TP.

"During the transition period, the institutions, bodies, offices and agencies of the Union shall have the powers conferred upon them by Union law in relation to the United Kingdom and to natural and legal persons residing or established in the United Kingdom. In particular, the Court of Justice of the European Union shall have jurisdiction as provided for in the Treaties.

The first paragraph shall also apply during the transition period as regards the interpretation and application of this Agreement."

Article 132 - Extension of the Transition Period

The Joint Committee - established by Article 164 - may, before 1 July 2020, adopt a single decision extending the transition period up to 31 December 20(XX).  There is no stated "end stop" so, in theory, any date could be selected.  Nevertheless, we can envisage that the power to extend the TP would be carefully used.  A possible use would be to permit a reasonable period of additional time to conclude the future relationship arrangements should that prove to be necessary.  Note also Article 184 regarding best endeavours in seeking to conclude the future relationship -



It might have been possible to specify further requirements relating to when an extension was to be permitted but the negotiators possibly considered that to be unwise given the obvious difficulty of forecasting every possible situation that could arise before 1 July 2020.

If the TP is so extended then the UK will be considered as a third country for the purposes of the implementation of the Union programmes and activities committed under the multiannual financial framework applying as from the year 2021.  A number of other changes will apply if the TP is extended.  The UK will be required to contribute to the Union budget for the extended TP and Article 132 provides for how this will be determined.

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