The Withdrawal Agreement – how does it work?

On 27 March 2018, the EU accepted the amendments to the European Commission’s revised draft of the withdrawal agreement negotiated with the UK so far.  The withdrawal agreement is expected to form the basis of a treaty that will govern both the withdrawal of the UK from the European Union and the transition period following that withdrawal.

How does the Agreement work?

The draft agreement contains six parts and has two protocols attached to it. The protocols “form an integral part” of the agreement and will have the same binding legal value as the main parts of the agreement.

Part 1 deals with the definitions to be used in the remainder of the agreement.  While there may be further negotiations on the phrasing of some of the articles in Part 1, they are unlikely to be controversial.

Part 2 contains the acquired rights of EU citizens living, working or spending time in the UK or current UK citizens living, working or spending time in Europe. The text has been approved by both parties but there are several more legal questions to address.

Part 3 relates to ‘separation provisions’. They cover withdrawal matters on market access for goods, ongoing customs, VAT and excise matters, intellectual property, ongoing police and judicial cooperation in both criminal and civil/commercial matters, the protection of data obtained before the end of transition, ongoing public procurement procedures, Euratom issues, ongoing EU judicial/administrative processes, privileges and immunities, and a few provisions relating to the functioning of the EU institutions. The text is not finalised.

Part 4 is about the Commission’s proposals for a transition period and is still under discussion.

Part 5 is a detailed annotation of the financial settlement, which was in principle agreed back in December 2017, but which has been slightly expanded since December. While likely to remain controversial in the UK, commentators consider that the wording reflects what has been agreed on the financial settlement.

Part 6 contains institutional provisions as envisaged by the Commission. These provisions are likely to be contentious in the UK because they cross one of the red lines for the UK Government by preserving a role for the Court of Justice of the EU during the transition and on matters addressed by the withdrawal agreement.

The protocols attached to the agreement deal with sovereign base areas in Cyprus and Ireland.