REUTERS | Kacper Pempel

Brexit: February 2018 round-up

The most significant development in February came right at the end of the month when the European Commission published a draft text of the UK-EU withdrawal agreement.

Draft UK-EU withdrawal agreement

The European Commission published a draft text of the UK-EU withdrawal agreement, which sets out the arrangements for the UK’s withdrawal from the EU and from the European Atomic Energy Community (Euratom), on 28 February 2018. Much of the draft text is based on the agreement in principle reached by UK and the EU on 8 December 2017.

As agreed with the UK, the date of entry into force of the withdrawal agreement is set at 30 March 2019. However, some provisions will only apply as from the end of the transition period, such as the citizens’ rights part, the separation provisions (which address what will happen when procedures are ongoing at the end of the transition period), and the protocol on Ireland/Northern Ireland.

The European Commission’s draft text is addressed to the EU27. The European Commission will send the text to the Council and the European Parliament’s Brexit steering group for discussion.

Brexit negotiations: 6-9 February 2018

The most recent round of Article 50 negotiations between the UK and the EU were held over four days from 6-9 February 2018.  It took place following a decision of the Council of the European Union on 29 January 2018 that gave the European Commission its mandate to start negotiations with the UK on the transitional arrangements that could govern the UK-EU relationship for a time-limited period after the UK’s withdrawal from the EU.

David Davis had previously expressed confidence about reaching “political agreement” on transitional arrangements at the European Council meeting scheduled for 22-23 March 2018. However, following this round of negotiations, Michel Barnier highlighted several areas of disagreement and emphasised that time was very short.

Transitional arrangements in the withdrawal agreement

On 7 February 2018, the European Commission Article 50 Taskforce published a position paper on transitional arrangements in the withdrawal agreement, containing draft articles that could be included in the withdrawal agreement, subject to negotiation with the UK. The draft articles largely follow the supplementary negotiating directives, but also raise several additional interesting points, including a proposal that if the EU considers that referring a matter to the Court of Justice of the EU would not bring the necessary remedies in appropriate time, the EU would be able to suspend some of the UK’s Single Market benefits.

Two weeks later, the UK government published a policy paper setting out the UK’s suggested drafting for the part of the UK-EU withdrawal agreement dealing with post-Brexit transitional arrangements. The UK draft text is based on the equivalent European Commission’s draft text, but proposes various amendments. The EU envisages the UK complying with all the obligations of an EU member state during the transition period, but without representation in EU institutions and agencies (other than in exceptional circumstances), as the UK will be treated as a “third country”. In contrast, the UK draft text includes amendments that would:

  • Give the UK rights to participate in EU meetings on the same basis as EU member states.
  • Oblige the EU to submit copies of proposals for new EU acts to the UK.
  • Establish a joint committee that could decide on whether new acts are within the scope of the agreed transition terms and whether any further adaptations to those new acts are necessary.
  • Require the EU to consult the UK on sanctions policy and obtain the UK’s agreement to relevant common fisheries policy matters.

Earlier in the month, the UK government had published a technical note giving further information about the UK’s approach to international agreements during the transition period following the UK’s withdrawal from the EU. The note presents the UK and the EU as adopting the same position towards EU law during the transition period, which will apply to the UK as if it were an EU member state (the note makes no mention of direct effect or the supremacy of EU law). The note suggests a similar approach to the other parties to international agreements, with those other parties confirming that they will treat the UK in the same way as EU member states for the purposes of those agreements during the transition period.

On 23 February 2018,  the House of Commons Library published a briefing paper summarising UK and EU views on post-Brexit transition period. At the end of February, the House of Commons Treasury Committee published the government’s response to the Committee’s report on transitional arrangements for Brexit. The Committee noted that the overall framework for transitional arrangements recommended in the report has been largely accepted by government.

Sanctions and Anti-Money Laundering Bill

In Mid-February, the House of Commons Library published a Briefing Paper on the Sanctions and Anti-Money Laundering Bill. The Bill aims to establish a national sanctions legal framework, and will also provide for updating the national anti-money laundering regime.

Practical Law In-house Robert Clay

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