Transition Period Duration
The EU and UK have agreed that they wish to negotiate a transition (or implementation) period of around two years after 29 March 2019 (may also apply to new exit date on 31 December 2020) – David Davis has now conceded that 21 months is acceptable for the UK – and have broadly agreed that the majority of the existing EU acquis will continue to apply to the UK until the end of that transition period.
However, there are disagreements as to the full extent of the application of EU law to the UK, and on various other aspects of a transition period. There are still a number of areas in which disagreement remained. In Michel Barnier’s words, those were the request from the UK to opt into new parts of the JHA acquis; the limitations on free movement rights for EU nationals and their family members proposed during transition, the UK’s institutional participation, and particularly the UK request to have a say on proposed EU legislation during the transition period.
The 19 March version of Part 4 the draft WA, however, makes clear that there is now an agreement between the parties on transition matters. Compromises have been reached on all these points, in the following ways:
Article 121 confirms that the “transition or implementation period” will not last beyond 31 December 2020.
EU Laws Apply During Transition
December 2020. The entire EU acquis (body of laws) will be applicable to the UK, with the exception of areas of enhanced cooperation; this is set out in Article 122. In terms of opt-ins on JHA matters, Article 122(5) states that the UK may be invited to cooperate with new Justice and Home Affairs laws as a ‘non-EU country’.
Applicability of Free Movement of Persons Law: during the transition, there are no exceptions to EU free movement of persons law applying to the UK. The limitations on family reunification and CJEU oversight suggested by the Home Office and DExEU in February 2018 are not reflected in this agreed draft.
Applicability of the CU and the CCP: Article 124(4) now states that the UK may “negotiate, sign and ratify”international agreements in areas of exclusive EU competence, “provided those agreements do not entire into force or apply during the transition period”.
Applicability of EU foreign policy and participation in EU foreign policy: the text now agrees to an option for the UK to not apply EU decisions on foreign policy if, “for vital and stated reasons of national policy” this is needed, in Article 124(6). In terms of participation, Article 124(b) includes additional UK consultation mechanisms when EU foreign policy decisions are taken to what was in earlier drafts.
On ‘rolling over’ third country FTAs: a footnote to Article 124(1) now states that the EU will tell non-EU trading partners that the UK is to be treated as a Member State during the transition.
It should be stressed, however, that this is at best a request, and the third country trading partners do not have to agree to it.
CJEU enforcement during the transition: the parties have agreed to CJEU jurisdiction on all matters during the transition period in Article 122(3); all provisions on alternative enforcement mechanisms are to commence only following the transition period.
UK Participation in EU in Period
UK participation in EU agencies/bodies/institutions: various provisions of the 19 March text have enhanced the UK’s ability to participate in EU decision-making, though not to the extent that it would be able to participate as a Member State. Article 123 thus makes it possible for the UK to be consulted on EU legislative proposals during the transition, although it is not clear whether this includes all proposals for secondary legislation.
Article 124(2)(b) makes clear that UK representatives may be invited to attend meetings of EU bodies/agencies/institutions if participation by the non-EU Member States is permitted by the agreements applicable to those bodies/agencies/institutions.
Article 168 continues to set out that Member States can object to surrendering their citizens to the UK on the basis of a European Arrest Warrant during the transition period if they raise issues related to the “fundamental structures” of the Withdrawal Agreement. However, the provision is now reciprocal, in that the UK can also stop surrendering its nationals to that Member State if it gives notification of this decision within one month of the Member State’s objection. The UK could be invited to cooperate with the new defence policy “permanent structured cooperation” (which it opted out of) as a non-EU country.
Article 125 reflects the concession already made by the EU in the 15 March draft, where the UK will be consulted on the allocation of fishing quotas during the transition period, whether at the EU level or in international fora.
Defence and Security Cooperation: there are no amendments to the 15 March text that set out possibilities for further cooperation between the EU and the UK in the area of defence and security.
Commencement of Withdrawal Agreement
The draft WA sets out a firm start date, agreeing implicitly with the UK choice of exit day as 29 March 2019 (may also apply to new exit date on 31 December 2020). As stated in Article 168: “This Agreement shall enter into force on 30 March 2019”.
As the WA will cover both a transition period and an exit from the EU, Article 168 goes on to further specify that different parts of the agreement will start applying at different times. The following parts of the draft WA will not commence until the end of the transition period:
- The majority of the provisions on citizens’ rights in Part II;
- The ‘separation provisions’ in Part III;
- Title I of Part 6, which sets out CJEU jurisdiction and UK participation in CJEU cases on Parts II and III following the transition, so as to ensure ‘consistent interpretation’;
- CJEU oversight of the WA as set out in Articles 162-164;
- The Protocols on Ireland/Northern Ireland 81 and the Sovereign Base Areas in Cyprus.
European Courts’ Jurisdiction
Other provisions spell out the shift from a transition period to a period ‘after’ transition in more detail; they address specific scenarios that will take place in both periods, and consequently do not have a clean ‘start’ and ‘end’ date. A number of these relate to CJEU jurisdiction:
Article 82 confirms that jurisdiction of the CJEU will extend to the UK and all cases involving the UK during the transition. It clarifies that UK courts will continue to have a right to request preliminary references (or an obligation to request these, in the case of the Supreme Court) until the end of the transition period. As long as documentation relating to a case has been ‘registered’ before the end of 2020, the case will fall within the CJEU’s jurisdiction; when the case concludes, in other words, is not relevant for the agreement.
Article 83 states that the jurisdiction of the CJEU in terms of enforcing EU law also continues to apply to the UK during the transition period –
both Member States and the European Commission can commence proceedings if they believe the UK has not complied with any aspect of the EU acquis during the transition period. Article 83(2) notes that the relevant point in time regarding preliminary references is when the facts of a given case occurred: as long as this falls within the transition period, the case will be referable to the CJEU.
This condition is presumably included to account for the possible duration of judicial proceedings, and the fact that it may be an appeal court wishing to refer a question of EU law rather than a court of the first instance.
Article 85 makes clear that any cases over which the CJEU has jurisdiction per Articles 82 and 83 will have a binding effect on and in the UK ‘in their entirety’. In other words, where CJEU proceedings do not conclude until after the transition period ends, but were commenced in line with Articles 82 and 83, the outcome of such cases will be binding on/in the UK. Where there is non-compliance with those judgments, he pecuniary penalties set out in the Treaties may be applied to the UK.
Article 86 indicates that the UK may intervene in and submit written observations to all CJEU cases, as long as there are cases that involve the UK that remain ‘in progress’ at the end of the transition period.
Only when all the UK’s CJEU proceedings have been resolved does the right to intervene in other CJEU proceedings end. Article 87 makes clear that those qualified in the UK and involved in CJEU proceedings that commenced before the end of the transition period, or any enforcement procedure that involves the UK, may continue to represent or assist the Member State (or the UK) for the duration of those proceedings, according to Article 87. This is a stopgap to cover for the fact that general mutual recognition of qualifications is a matter for the future relationship.
Article 126 sets out that the CJEU will have the jurisdiction it has under the Treaties in respect of the UK and its inhabitants “as regards the interpretation and application of this Agreement”.
In its report published on 20 March, ‘EU Withdrawal: Transitional provisions and dispute resolution’, the European Scrutiny Committee (ESC) questioned whether CJEU jurisdiction “should extend to any other parts of the Withdrawal Agreement” – i.e. beyond the continuation of existing EU legislation – and asked the Government to “clarify what the practical effect might be of the proposed stipulation in Article 126 […] that it should also extend to the interpretation and application of other provisions of the Withdrawal Agreement”. The ESC thought that “[f]ar from incorporating a safeguard mechanism to protect UK interests”, “the EU has proposed mechanisms to sanction the UK if it does not follow the rulings of the CJEU during the implementation period. These include suspending the benefits of participation in the internal market”.
This Article draws on BRIEFING PAPER Number 8269, 23 March 2018 Brexit: the draft withdrawal agreement. UK public sector information is reproduced pursuant to the Open Government Licence The Legal Materials contain UK public sector information licensed under the Open Government Licence v3.0. The Licence is available at http://www.nationalarchives.gov.uk/doc/open-government-licence/version/3/ (the UK Licence).