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EU Draft Withdrawal Agreement 28th February 2018

The EU has produced a Draft Withdrawal Agreement. Its stated aim is to set out in a legal context, the arrangements for the withdrawal of the UK from the European Union and from the European Atomic Energy Community. It specifically concentrates on what it believes was finally agreed last December about the rules that will govern the “transition period.”

The draft was published on Wednesday 28th February 2018. The document is not the final proposal but has been made available for discussion within the Council of Europe and the Brexit Steering Group of the European Parliament over the coming weeks. The final agreed document will then be submitted to the UK as the common EU negotiating document. Agree with the EU or not at least the EU has put some proposals in writing for everyone to peruse.

The Draft Agreement covers various matters including citizens’ rights, goods placed on the market before the end of the transition period, on-going customs procedures for movement of goods where the movement started before the end of the transition period, VAT and excise matters during the transition period, intellectual property rights, on going policing and judicial cooperation in criminal matters, ongoing judicial cooperation  in civil and commercial matters, data information, Euratom related issues, ongoing jurisdiction of the ECJ during the transition period, Financial Provisions relating to the UK’s contribution for the years 2019 and 2020 and of course Ireland/Northern Ireland which is covered as a separate Protocol at pages 98 – 106 of the draft agreement.

Of course, it is the last matter that is now exercising the minds of some politicians and the press in the UK at the moment. It is not hard to see why. The conundrum of how to resolve the practical matters of avoiding the return of a hard border between Northern Ireland and Ireland whilst ensuring EU integrity to protect an EU external land border with a non-EU/EEA state was always going to prove the most problematic to resolve.

In its Draft Agreement the EU decided to cut to the chase and submit its preferred option whist specifically stating other options could be proposed and pursued in parallel. This option is based on maintaining full alignment in the island of Ireland with the rules of the EU’s internal market and the customs union in order to protect the all-island economy and the protection of the 1998 (Good Friday) Agreement.

Whilst first of all recognising the right of the UK and Ireland to make arrangements relating to the historic Common Travel Area between the two countries and continuing to state this must not affect the obligations of Ireland under EU law, it goes on at proposed Article 3 of the Protocol to state the EU’s favoured position to deal with the border issue. It is worth quoting in full.

Article 3

Establishment of a common regulatory area

A common regulatory area comprising the Union and the United Kingdom in respect of Northern Ireland is hereby established. The common regulatory area shall constitute an area without internal borders in which the free movement of goods is ensured and North-South cooperation protected in accordance with this Chapter. 

Article 5 meanwhile specifically deals with one of the main reasons that the EU need to protect its outside borders with non-EU/EEA sates.

Article 5

Agriculture and fisheries

  1. The provisions of Union law on sanitary and phytosanitary rules listed in Annex 2.5 to this Protocol shall apply to and in the United Kingdom in respect of Northern Ireland.
  2. The provisions of Union law on the production and marketing of agricultural and fisheries products listed in Annex 2.6 to this Protocol shall apply to and in the United Kingdom in respect of Northern Ireland.

This is taking us back to some very early blogs in this series where it was recognised that the Ireland/ Northern Ireland border was always going to be one of the main sticking points. (Link to the Humble Brexit Spud and Thoughts to Ponder)

Of course, this EU suggestion will cause ructions in some quarters. The DUP among others just will not countenance, a regulatory divergence between Britain and Northern Ireland but there is a dearth of alternative practical suggestions.

When (I really should not say if) the question of the island of Ireland is resolved then next of all watch out for Gibraltar!

Brexit Research

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

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