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European Commission Releases Draft Brexit Withdrawal Agreement

As we draw closer to the one year mark before the UK’s withdrawal from the European Union, all eyes shift to the negotiations happening between the two entities in anticipation of further developments. On 28 February 2018, the European Commission cast some clarity on the progress of these negotiations, as the Commission released the draft of the Withdrawal Agreement to the general public, as per the commitment to transparency.

Time is ticking away for Brexit negotiations, which is why the European Commission, the Union’s negotiator, published the draft with over a year until 30 March 2019, the UK’s set departure date from the EU. Negotiating is a slow process, so by releasing the draft now, the European Commission allows as much time as possible to the EU and UK negotiators to reach a deal in terms of the UK’s orderly withdrawal from the EU.


So, what exactly is this draft Withdrawal Agreement? The draft translates into legal terms the Joint Report from the negotiators of the European Union and the United Kingdom Government which was published on 8 December 2017, detailing the progress achieved during phase 1 of the negotiations. In addition, the draft also integrates the supplementary negotiating directives adopted by the European Council (Article 50-Council, only EU27) on 29 January 2018 into the text on the transition period. Overall, the draft consists of six parts - introducers provisions, citizens' rights, separation issues such as goods placed on the market before the withdrawal date, the financial settlement, transitional arrangements, institutional provisions - as well as a protocol on Ireland / Northern Ireland.

The Joint Report of 8 December 2017 on the rights of EU27 and UK citizens post-Brexit, as well as the EU-UK Joint Technical note, both served in providing the guidelines for the current draft Withdrawal Agreement, but how does this draft differ from the agreements reached back in December?

Citizens’ Rights Clarification

One key difference is the specification and extreme precision in the section concerning citizens’ rights. The new text expands in detail on the safeguards put in place to protect persons when national authorities are not able to accept application due to technical problems. It also translates into legal terms the position that future spouses and civil partners should be covered post Brexit transition.

The draft also provided clarification on citizens’ rights within the transition period following the withdrawal of the UK. As the whole of the EU acquis and EU free movement law apply during the transition period, all EU citizens arriving in the host State during this period of transition will maintain the same rights as an EU citizen as those who arrived previous to the UK’s withdrawal, as well as those EU and UK citizens who arrive in a Member State following the withdrawal but still within the transition period.

Another point of the draft covered in terms of the transition period was the rights of professionals. According to the Withdrawal Agreement, a professional will continue to be recognized as such for the purpose of carrying out professional activities as per their professional qualifications in the country - either EU27 Member State or UK - where they either reside or work in. When it comes to the transition period specifically, the application for recognition of professional qualifications will be processed domestically in accordance with the applicable EU rules, as long as the professional filed for such application before the end of the transition period.

Single Market Development

Citizens’ rights are of course a prevalent topic in the minds of the negotiators, as these rights are a main point of concern for professionals and families alike. However, Brexit is not just a matter of civil rights, it can also be viewed as a business deal, as the UK must prepare to leave the EU Single Market and Customs Union. The UK requested to continue to benefit from the Single Market for up to two years following the withdrawal, as a term for the transitional period. The Withdrawal Agreement allows the UK to continue its participation in the Single Market until 31 December 2020, on the condition that the UK continues bound by the obligations as laid out by all bilateral and multilateral EU-only agreements as before. This means that the UK must maintain current market access with third countries and cannot enter into a new trade agreement on its own in areas of Union competence, unless authorized by the EU. If the UK does not respect these conditions, the Court of Justice of the European Union will have full jurisdiction over the UK in regard to all matters covered by the Withdrawal Agreement, as in accordance to Article 126 of the draft agreement. The UK will risk infringement procedures, as defined by Article 258 of the TFEU, if they so choose to disregard the terms of the transition period from the Single Market.

Next Steps

It is important to note that although the draft Withdrawal Agreement clearly defined the transition period for post Brexit, provisions are still to be made and fully ratified by the EU and the UK, only after which full certainty of this transition period can be obtained. This draft is by no means the final draft, as it must still pass through the European Parliament and the Council, as well as the UK in accordance to its own constitutional arrangements.

The draft Withdrawal Agreement has now been passed to the Council to be discussed, as so prescribed by Article 50, with the Brexit Steering Group of the European Parliament. After these discussions are concluded, the draft will be transmitted to the UK for further negotiations. The Council has already requested that the UK provide further clarity as to its proposed framework for the future UK/EU relationship, and plans to meet on 22 and 23 March 2018 to adopt additional guidelines of such framework.

The final version of the Withdrawal Agreement is expected to be agreed upon by October 2018, so as to provide a timely ratification by all parties involved.

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