Brexit: UK Government Publishes Draft Withdrawal Agreement In Full Legal Text

The government has published the
draft Withdrawal Agreement^[1],
reflecting the in principle agreement between the UK and EU
negotiating teams on the full legal text.

Following a special European Council meeting on 25 November, the
government will then lay a final version of the agreement before
parliament.

The government has also published an outline of
the Political Declaration^[2] on
the future relationship, setting out progress on the scope of the
framework for the future relationship. Negotiations are ongoing to
finalise this Declaration.

A summary of the salient points in the draft Withdrawal
Agreement (WA) is below:

Transition period (including the extension
clause)

• Article 126 sets out the transition period, which will last
  until 31 December 2020. During this period the EU will treat the UK
  as if it were a member state, with the exception of the UK’s
  participation in the EU institutions and governance structures. One
  exception to the latter rule is that UK experts can attend working
  group meetings when the discussion concerns acts applying to the UK
  during the transition period and/or where the UK’s presence is
  ‘necessary and in the interest’ of the EU. These experts will not
  have voting rights.
• Article 129 states that the UK will be bound by obligations
  stemming from the EU’s international agreements during
  transition.
• Article 129 goes on to state that, during the transition
  period, the UK cannegotiate, sign and ratify
  international agreements in the areas of EU exclusive competence
  provided those agreements do not enter into force during the
  transition period.
• Furthermore, Article 129 states that the CJEU retains
  jurisdiction over the UK during the transition period.
• The Joint Committee (ie UK and EU representatives deciding
  jointly) can agree to extend the transition period at any time
  before 1 July 2020 (ie 6 months before the end of the transition
  period) according to Article 129.

Mutual recognition of professional
qualifications

• Article 27 states that the text relating to MRPQs is unchanged
  and is identical to that set out in the draft WA.
• Article 27 also includes specific mention to the Lawyers
  Directives in the context of professional qualifications.
  Qualifications that have been recognised by the end of the
  transition period will continue to have effect after the end of the
  period.
• For ongoing procedures in recognising qualifications, Article
  28 provides for applications introduced before the end of the
  transition period.

Ongoing judicial co-operation in civil judicial
cooperation (title VI)

• The Rome I and II Regulations on the law governing contractual
  and non-contractual obligations will apply to contracts concluded
  (or events occurring in the case of Rome II) before
  the end of the transition period(Article 66).
• The Brussels Regulation and other rules on jurisdiction will
  apply to proceedings taken before the end of the
  transition period (Article 67).
• On the recognition and enforcement of judgments, Brussels
  Regulation applies to proceedings taken before the end of the
  transition period. It also applies to decisions /
  instruments/settlements that are approved or
  concluded before the end of the transition
  period. The same applies to Brussels IIa, the Maintenance
  Regulation, and to European Enforcement Orders (provided that the
  certification as a European Enforcement Order was applied for
  before the end of the transition – Article 67).
• For ongoing judicial procedures (article 68), the Service of
  Documents Regulation and the Regulation on the taking of evidence
  will apply to judicial documents received / requests received
  before the end of the transition period.

Provisions on ongoing cases

• The CJEU has jurisdiction in all cases brought by or against
  the UK before the end of the transition period. This also applies
  to appeals before the ECJ and cases before the General Court when
  the case is referred back to the General Court (GC) by the ECJ
  (Article 86).
• The CJEU can decide on preliminary rulings referred to it
  before the end of transition (Article 86).
• The Commission can take proceedings against the UK if it has
  not fulfilled its obligations under the treaties or implemented an
  EU decision during the transition period up to four
  years after the end of the transition period (Article
  87).
• Article 90 sets out the UK’s rights to intervene in a case of
  concern to it in the CJEU.

Representation of lawyers at EU courts

• Article 91 states that UK lawyers have the right to continue to
  represent a party in proceedings before the CJEU in all stages of
  proceedings, in relation to the proceedings mentioned above.

Ongoing intellectual property rights

• Article 54 provides for the automatic transfer of an EU IP
  right into an equivalent UK right where the right was granted /
  registered before the end of transition.
• Geographical indications granted in the EU before the end of
  the transition period will be protected in the UK at the end of the
  transition, without need for re-examination (also Article 54).
• Registration of IPRs in the UK will be free for rights holders
  and will be carried out by the UK authorities using data from the
  EU IPO (Article 55).
• Where a right is exhausted in the EU before the end of the
  transition period, exhaustion will apply also in the UK (Article
  61).

The dispute resolution mechanism and institutional
arrangements

The Joint Committee will oversee everything and is a forum for
both the UK and EU to settle disputes at the political level. If
there’s a disagreement, the dispute goes to international
arbitration. There are specific provisions for citizens, where a
joint authority in the UK will temporarily monitor the section on
their rights. They can take cases against the government in UK
courts if the agreement is breached.

If an individual or business wants to challenge the
application of the Treaty

During transition:

• The EU will treat the UK as if it were a member state, with the
  exception of the UK’s participation in the EU institutions and
  governance structures. This includes all levels of governance
  structures, with one exception: UK experts can attend working group
  meetings when the discussion concerns acts applying to the UK
  during the transition period and/or where the UK’s presence is
  ‘necessary and in the interest’ of the EU. These experts will not
  have voting rights.
• The Commission and CJEU retains jurisdiction over the UK during
  the transition period.
• Article 91 states that UK lawyers have the right to continue to
  represent a party in proceedings before the CJEU in all stages of
  proceedings, in relation to the proceedings mentioned above. This
  right under Article 91 applies only where the case has been brought
  to the CJEU before the end of the transition period.

Citizens’ rights:

• An independent authority in the UK will monitor the application
  of the provisions on citizens’ rights in the UK. It will have
  powers similar to those of the Commission at present in this area.
  The authority can bring legal actions to UK courts where it
  receives complaints from EU citizens on the basis of the provisions
  of the WA. The specialised committee on citizens’ rights (under the
  Joint Committee) will review the Commission and Authority’s work on
  a yearly basis. After eight years, the Joint Committee can assess
  the Authority’s work and can at that point abolish it.
• Furthermore, the UK courts can refer cases to the CJEU for
  eight years after the end of the transition (Article 158). However,
  this part does not contain any provision on the right for the UK
  lawyers to represent clients in front of the Court.
• The Joint Committee ultimately oversees the authority’s
  work.

Northern Ireland

• On Northern Ireland there will be specific institutional
  structures created, also under the umbrella of the Joint Committee,
  to give effect to the EU rules needed to maintain a frictionless
  border.

If the dispute is between the UK and the EU on
interpretation of the Treaty:

• Article 164 – A Joint Committee will be created with
  representatives from the UK and EU. It will meet at least once per
  year and is responsible for the implementation, application and
  interpretation of the WA. Both the UK and the EU can refer any
  issues arising to the Committee. It will issue an annual report on
  the functioning of the WA and oversees all of the new UK-EU
  institutional structures created by this Agreement.
• Specialised committees will work on specific areas and their
  work will be overseen by the Joint Committee. The Joint Committee
  can create new specialised committees if necessary. There will at
  least be committees working on (a) citizens’ rights, (b) other
  separation provisions, (c) Northern Ireland, (d) Cyprus, (e)
  Gibraltar and (f) on financial provisions. The committees will be
  made up of both UK and EU representatives.
• The Joint Committee has the power to adopt decisions and to
  make recommendations both to the UK and EU. Its decisions are
  binding. Decisions will be made by mutual consent.
• Article 170 sets out an arbitration where the Joint Committee
  cannot resolve a dispute within three months. An arbitration panel
  will then be created through the International bureau of the
  Permanent Court of Arbitration. By the end of the transition
  period, the Joint Committee must have identified 25 people to serve
  on the panel (10 each proposed by the UK and EU and five to act as
  chairperson). These individuals must be independent and will sit in
  panels of five.
• Further provisions detail the rules involved in selecting
  members of a given panel and how to move forward if the parties
  cannot decide on a chairperson.
• The panel has 12 months to deliver its ruling. If the case is
  urgent, an expedited procedure applies and a decision can be
  delivered within six months.
• Importantly, where a dispute concerns the interpretation of a
  concept of EU law, the panel cannot decide on that question.
  Instead the CJEU should deliver a ruling, which is binding on the
  panel.
• The ruling of the arbitration panel is binding on the UK and
  EU. The panel can apply temporary remedies for non-compliance
  including a lump sum/penalty payment. Ultimately, parts of the
  Agreement can be suspended in the case of continued
  non-compliance.
• Protocol on Ireland/Northern Ireland: The
  UK is responsible for implementing and applying all provisions of
  EU law required under the so-called backstop in Northern Ireland.
  EU representatives can monitor the work of the UK on this. The
  Joint Committee can decide how this cooperation will work in
  practice. The CJEU retains jurisdiction over these areas of law. UK
  lawyers have the right to plead before the EU Courts in this
  respect and the UK can intervene in cases taken in these cases. For
  new EU acts falling within the scope of the Protocol, the EU will
  inform the UK of this via the Joint Committee. A joint consultative
  working group will be established to work under the Specialised
  Committee on Northern Ireland to allow for the exchange of
  information.

Culled from lawsociety.org.uk

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