Today, at 1 o’clock Brussels time, the European Commission published a draft Withdrawal Brexit Agreement.

It is a draft 168-article, 118-page long treaty to embody the key principles from the Joint Report of 8 December 2017 of the Commission and the UK on the first three elements of the Brexit negotiations (i.e., People, Ireland and Money - the "PIM" Phase).

The draft Agreement sets out a roadmap for the EU's vision of the withdrawal process.

This is a negotiating move by the EU - it is not an agreed draft. It is a move by the EU in the Brexit chess match.

Some of what was tabled today will not survive into any final document but much of it will remain in place at the end. There will be controversy over aspects of it for a few days (particularly, relating to Northern Ireland and a continued role for the Court of Justice of the European Union) but the EU is using the old negotiator's trick of "table a draft and you are framing the negotiations".

The draft deserves careful study and we will update our commentary later but some key points for business – the draft

  • appears to bring little or no specificity or detail to those in sectors such as financial services, transport or business generally
  • retains a role for the Court of Justice of the European Union which is certainly going to antagonise many on the Brexit side
  • covers citizens' rights post-Brexit (Part Two of the draft Treaty) which is important for: (a) UK citizens in the remaining-EU; as well as for (b) Irish/EU citizens in the UK
  • deals with aspects of the rights of workers (Art.22) and self-employed persons (Art.23) as well as professional qualifications (Art.25)
  • considers the position of goods from the EU or the UK placed on each other's market at the time of separation (Part Three)
  • examines aspects of intellectual property in Title IV (Arts.50-57)
  • describes some arrangements relating to ongoing police and judicial cooperation in criminal matters (Title V)
  • examines ongoing judicial cooperation in civil and commercial matters (Title VI)
  • describes the rules relating to data and information processed or obtained before the end of the transition period, or on the basis of the agreement (Title VII)
  • reviews the situation relating to ongoing procurement at the time of separation (Title VIII)
  • states that, unless otherwise agreed, EU law would be applicable in the UK during the transitional period (Art.122)
  • prescribes that disputes would be discussed by a joint committee but the Court of Justice of the European Union would have a role (Arts.160-165).

Importantly from an Irish perspective, there is a 16-article "Protocol on Ireland/Northern Ireland". A protocol is usually as legally binding as the rest of a treaty. A protocol is also the normal place for dealing with issues relating to one specific issue, topic or region. The draft is quite permissive in some respects (e.g., allowing Ireland and the UK to have Common Travel Area and separate arrangements of their own).

It seeks to:

  • protect the rights of individuals (particularly under the "1998 Agreement" (i.e., the Belfast/Good Friday Agreement) (Art 1)
  • facilitate the free movement of goods but it is short on detail (Art.2)
  • establish a common regulatory area (Art.3)
  • allow the free movement of goods (Art.4)
  • regulate agriculture and fisheries (Art.5)
  • provide for the single electricity area (Art.6)
  • regulate environmental issues and particularly the transport of goods (Art.7)
  • recognise areas of north-south cooperation (Art.8)
  • provide for the application of some of the State aid rules in respect of Northern Ireland (Art.9)
  • establish a Specialised Committee on issues relating to the island of Ireland (Art.10)
  • provide for supervision and enforcement (Art.11) as well as general and final provisions (Arts.12-16)

The draft document already appears, on first blush, to be a subtle document. The Commission is probably trying to bring matters to a head so as to force progress and frame the discussions.

The text of the EU's version of a Draft Withdrawal Agreement is available here.

We will update our commentary later with further information.