Briefing: The European Commission's Draft Withdrawal Agreement

Overview

The European Commission today published its draft of the withdrawal agreement. This text, which can be found here, sets out in legal terms how the European Commission intends to implement the Brexit withdrawal agreement reached between the UK and the EU27 in December 2017. This text will now need to be agreed by all EU27 member states and will ultimately serve as the negotiating document from the EU’s side on the withdrawal aspects of the Brexit negotiations. 

Crucially, the document contradicts what the Government has been saying in the following areas: 

  • Northern Ireland: On the Irish border, the document calls for a common regulatory area between the EU and the UK and for Northern Ireland to remain in the EU’s Single Market and Customs Union. To avoid a hard border in the Irish Sea, the Government should keep the entire UK in both the Single Market and Customs Union, as open Britain has been calling for. 
  • European Court of Justice: The document is clear that the jurisdiction of the ECJ will continue until the end of the transition phase, making a mockery of Theresa May’s previous claim that its jurisdiction would be brought to an end with Brexit. Indeed, it goes further and outlines an ongoing role for the ECJ even after the end of the transition period.
  • Transition period: The EU’s view is that the transition period will be time-limited, ending on 31 December 2020. In a leaked document last week, the UK Government suggested the transition period should be open ended.[1]
  • New free trade deals: As regards to signing up to new trade agreements, the document makes clear that the UK will not be able to enter into any agreements during transition. This is despite previous claims by Ministers that new trade agreements would be lined up post-Brexit.
  • EU budget payments: The document underlines that the UK should continue making payments into the EU budget until end of the transition period, despite previous Government claims that payments into the EU budget would end after Brexit.

 

In Detail

 

Northern Ireland:

 

What the Government has said in the past:

  • In the joint UK-EU report on progress on the first phase of the negotiations from 8 December 2017, the UK Government committed to avoiding a hard border between the UK and Republic of Ireland and also to avoiding a hard border between Great Britain and Northern Ireland.[2]
  • In the very same text, the UK Government also committed, absent any agreed solutions to “full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all island economy and the protection of the 1998 Agreement.”[3]


Reality:

  • Absent any concrete proposals so far by the UK Government, today’s text notes that there will be a Common Regulatory Area between the EU and UK in respect of Northern Ireland to ensure North-South co-operation.[4] The text also notes that “the territory of Northern Ireland, excluding the territorial waters of the United Kingdom (the "territory of Northern Ireland"), shall be considered to be part of the customs territory of the Union.”[5]
  • The Government needs to address this issue seriously. If only Northern Ireland were in the Customs Union then there would have to be customs checks between Great Britain and Northern Ireland. Such checks can be avoided by keeping the whole of the UK in the Customs Union.

 

Jurisdiction of the European Court of Justice:

What the Government has said in the past:

  • In her Lancaster House speech, Theresa May stated that that “we will take back control of our laws and bring an end to the jurisdiction of the European Court of Justice in Britain.”[6]
  • This is a point which the Foreign Secretary has also underlined in the past noting that “the UK must refuse to accept new EU or ECJ rulings during transition…the UK must not agree to shadow EU rules to gain access to the market.”[7]

 

Reality:

  • Today’s text clearly underlines that the European Court of Justice will continue to have jurisdiction in the UK during the transition period.[8]
  • Moreover, the implementation of the withdrawal agreement will be monitored by a Joint EU-UK Committee, where any dispute which cannot be resolved ultimately being submitted to the European Court of Justice. Any ruling by the court will be both applicable to both the UK and to the EU [9] Neither of these points is in any way consistent with the Prime Minister’s ridiculous red line on ending the jurisdiction of the ECJ.


Transition phase:

 

What the Government has said in the past:

  • Theresa May stated in her Florence speech that a transition phase should last “around two years.”[10]
  • In a text released by the Government only last week on transition, the Government even called for the “the period’s duration [to] be determined simply by how long it will take to prepare and implement the new processes and new systems that will underpin the future partnership”.[11]

Reality:

  • Today’s text underlines previous EU positions on transition, that it should last no longer than 31 December 2020 and during this period, the UK will have to uphold and accept existing EU rules.[12]
  • All this transition will do is to turn the UK from a rule maker into a rule taker and does nothing to address the fact that it pushes the “cliff-edge” from March 2019 to December 2020.


Entering into new trade agreements:

 

What the Government has said in the past:

  • Liam Fox has claimed the UK would have 40 trade deals ready to sign “the second after” Brexit.[13]
  • David Davis promised in July 2016 that “So within two years, before the negotiation with the EU is likely to be complete…we can negotiate a free trade area massively larger than the EU.”[14]

Reality:

  • Today’s text makes very clear that during any transition phase, the UK would not be able to “become bound by international agreements entered into in its own capacity in the areas of exclusive competence of the Union.”[15] This makes clear that there will be no new trade agreements waiting for the UK after Brexit and makes a mockery of Ministers’ previous statements on this issue.

 

UK contributions to the EU budget:

 

What the Government have said in the past:

  • In her Lancaster House Speech, the Prime Minister stated that due to Brexit, the UK would cease to pay “vast sums into the EU budget.”[16]
  • Boris Johnson said “We would not expect to pay for access to their markets any more than they would expect to pay for access to ours.”[17]

 

Reality:

  • Today’s document makes very clear that for the years 2019 and 2020 (the transition phase), that the UK will continue to make payments into the EU budget.[18]

 

[1] https://assets.bwbx.io/documents/users/iqjWHBFdfxIU/rQVCUXtdp4QM/v0

[2] https://ec.europa.eu/commission/sites/beta-political/files/joint_report.pdf

[3] ibid

[4] https://ec.europa.eu/commission/sites/beta-political/files/draft_withdrawal_agreement.pdf

[5] Ibid

[6] https://www.gov.uk/government/speeches/pms-florence-speech-a-new-era-of-cooperation-and-partnership-between-the-uk-and-the-eu

[7] https://www.thesun.co.uk/news/4580334/boris-johnson-pm-brexit-red-lines/

[8] https://ec.europa.eu/commission/sites/beta-political/files/draft_withdrawal_agreement.pdf

[9] https://ec.europa.eu/commission/sites/beta-political/files/draft_withdrawal_agreement.pdf

[10] https://www.gov.uk/government/speeches/pms-florence-speech-a-new-era-of-cooperation-and-partnership-between-the-uk-and-the-eu

[11] https://assets.bwbx.io/documents/users/iqjWHBFdfxIU/rQVCUXtdp4QM/v0

[12] https://ec.europa.eu/commission/sites/beta-political/files/draft_withdrawal_agreement.pdf

[13] http://uk.businessinsider.com/liam-fox-promises-to-sign-40-free-trade-deals-the-second-after-brexit-2017-10

[14] https://www.conservativehome.com/platform/2016/07/david-davis-trade-deals-tax-cuts-and-taking-time-before-triggering-article-50-a-brexit-economic-strategy-for-britain.html

[15] Ibid

[16] https://www.gov.uk/government/speeches/the-governments-negotiating-objectives-for-exiting-the-eu-pm-speech

[17] http://www.telegraph.co.uk/news/2017/09/15/boris-johnsons-10-point-plan-successful-brexit/

[18] https://ec.europa.eu/commission/sites/beta-political/files/draft_withdrawal_agreement.pdf