The draft Withdrawal Agreement: are we there yet?

UK and EU negotiators agreed on a draft Agreement on the withdrawal of the UK from the EU and Euratom. The EU member states and the UK still have to approve the agreement. If the agreement is not approved, then there is a risk that the UK will leave the EU on 29 March 2019 without a deal (the “hard Brexit”). The fallout of such hard Brexit was discussed in previous articles on our website.

The draft provides for a new transition period (officially called the ‘transition and implementation’ period) until 31 December 2020 .

As of 29 March 2019, the UK will no longer be a member state of the EU. Hence, as of that date, there will be no more UK representatives in the EU institutions, bodies, offices and agencies.

During the transition period, the UK will be out of the EU, but Union law will still apply in the UK.

The Joint Committee, set up under the draft Agreement, can decide to extend the transition period before 1 July 2020. There can be only one extension, however no end date for this extension period has been set forth in the Draft Agreement.

During this period, the same rules will largely apply as during the initial transition period.

The draft Agreement does not cover the future relationship between the UK and the EU. It only contains a provision that the EU and the UK will use their best efforts to negotiate these agreements “expeditiously”. To the extent possible, these agreements should apply as from the end of the transition period.

The general outline of this future relationship is set out in the draft political declaration agreed upon by negotiators of the UK and the EU on 22 November 2018.

Rules for situations with origins prior to the expiry of the transition period

The draft Agreement sets out a detailed set of rules for situations that have their origins before the end of the transition period but that continue to have consequences after that date.

The EU institutions remain competent for administrative procedures initiated before the end of the transition period. Decisions taken by EU institutions before the end of the transition period (or adopted in pending procedures at that date) addressed to the UK or to natural and legal persons residing or established in the UK, will be binding on and in the UK.

 Citizens’ rights

There are extensive clauses on citizens’ rights in Articles 9 up to 39 of the draft Agreement.

These rights apply mostly to Union citizens residing in the UK at the end of the transition period and who continue to do so thereafter, as well as to UK nationals residing in the EU at the end of the transition period and who continue to do so thereafter. The same applies to frontier works in these situations (Art. 10).

The draft Agreement provides for the residence rights Union citizens (and their family members) residing in the UK at the end of the transition period and who continue to do so thereafter, as well as to UK nationals (and their family members) residing in the EU at the end of the transition period and who continue to do so thereafter and also for a right of exit and entry. Union citizens and UK nationals (and their family members) who have resided legally in the host State in accordance with Union law for a continuous period of 5 years (or for the period specified in Article 17 of Directive 2004/38/EC) will have the right to reside permanently in the host State.

The recognition, before the end of the transition period, of professional qualifications of Union citizens or UK nationals (and their family members), by their host State or their State of work will maintain its effects in the respective State.

The persons covered by this Part of the draft Agreement will enjoy a lifelong protection of the rights provided for in the draft Agreement, unless they cease to meet the conditions set out therein.

Goods and Intellectual property

Any good that was lawfully placed on the market in the Union or the UK before the end of the transition period may be made further available on the market of the Union or of the UK and circulate between these two markets until it reaches its end-user.

IP rights existing on the last day of the transition period under Union law must be given the same level of protection after such date under UK law.

Conclusion

The Withdrawal Agreement and the rules set out for the transition period are an important next step in the evolution of Brexit. It certainly buys more time for the negotiators to negotiate every step of the post-Brexit landscape. So, are we there yet? Not quite.

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