To Boldly Go? Analysis and annotation of the EU/UK Future Relationship declaration


Professor Steve Peers, University of Essex
The UK after Brexit won’t be a
Mad Max dystopia, according
to
a former Brexit Secretary. Or will it? The reality is likely to fall
somewhere in between the unicorn-powered ‘sunlit uplands’ fantasised by
Brexit’s staunchest supporters, and the zombie-infested unlit wastelands feared
by its strongest critics. The initial
impact of Brexit (if it goes ahead) would be determined strongly by the withdrawal
agreement
, a binding formal treaty winding up the UK’s membership of the EU,
or rather on whether such form of withdrawal agreement is ratified at all.
But the longer-term impact of
Brexit will be governed largely by the agenda set out in the second part of the
so-called ‘Brexit deal’ between the UK and the EU: the
political declaration
, a non-binding text on the future relationship
between the two. Political discussion and public debate has confused the two
somewhat, and some of the criticism of the ‘deal’ has actually concerned the
political declaration, rather than the withdrawal agreement.
While the UK Parliament will be
voting on both the agreement and the declaration next week, and a framework for
future relations with the departing Member State is required by Article
50 TEU
, the political declaration is inherently less critical at this
point, given that the future relationship will ultimately be governed by
further treaties to be negotiated between the EU and UK after Brexit Day. But
it does give some indication of where the relationship is going, and it might
prove easier to renegotiate than the withdrawal agreement itself if both
parties were willing (and if the UK can agree within the government – perhaps
taking account of the opposition’s views – on what that relationship should
be).  
The very non-binding and
imprecise nature of the political declaration has led to criticism. But given
the EU’s consistent position that legally it could not formally start
to negotiate treaties with the UK until after Brexit Day, no UK negotiator –
from any political party – could have secured a binding text from the EU at
this stage. Those who said a trade agreement would be negotiated by March 2019
were selling carbolic unicorn smoke balls. (The EU’s legal position could
perhaps have been challenged in the EU courts, but it’s too late for that now).
On the other hand, it is conceivable that another negotiator could have secured
a more precise text than this one –
or that a renegotiation could secure a more precise in future.
In that light, I have annotated the text of the entire
political declaration here, explaining it in light of the broader context of EU
membership and EU relations with other non-EU countries. (I make no claim to be
exhaustive, though). I have not changed the text (all my annotations are
indented), but I have added a few hyperlinks to other things which the
political declaration refers to.
In parts, I have also added
suggestions for possible amendments
that would make the text more precise and strengthen the level of political
commitment. (It’s odd, for instance, that the text uses ‘will’ in some places
but not others). Before the annotation itself, I have also summarised the structure of the political declaration,
and compiled a list of deadlines
that it refers to.
I have also made some comparisons
of how the future relationship (coupled with the withdrawal agreement, where
relevant) would compare to a no deal
scenario
between the UK and EU. This takes account of the EU
Commission’s recent communication
on how the EU would act in a no deal situation, providing for a limited number
of unilateral measures rather than negotiation of a fully-fledged future
relationship (or even an oxymoronic ‘managed no deal’) if the UK does not
ratify a withdrawal agreement.
Of course, it’s possible that the
EU is bluffing here; but it’s worth recalling that those calling for a Brexit
scenario which relies upon the EU performing radical U-turns on its stated
position have now been making wildly inaccurate predictions about what the EU
will do for two and a half years. You never know: the negotiations might have
gone completely differently for the UK if its negotiators had made more
frequent references to how the UK ‘single-handedly’ won World War II. But that
seems…unlikely.
This is the second in a series of
blog posts on the withdrawal agreement. The first
post
was an overview of the agreement, while I hope to write two further
posts on the Irish border backstop and the rule of the EU courts in the
withdrawal agreement.
Structure of the political declaration
The first five paragraphs are an Introduction. Following that,
Part I (paras 6-15) sets out Initial
Provisions
, including sections on the ‘basis for cooperation’ (core
values and rights, data protection) and ‘areas of shared interest’
(participation in EU programmes, dialogues).
Part II is the Economic Partnership (paras 16-79).
It has 14 sections, starting with ‘objectives and principles’, followed by
‘goods’ (objectives and principles, tariffs, regulation, customs, checks and
controls), ‘services’ (objectives and principles, market access, regulation),
‘financial services’, ‘digital’, ‘capital movements and payments’,
‘intellectual property’, ‘public procurement’, ‘mobility’, ‘transport’
(aviation, road transport, rail transport), ‘energy’ (electricity and gas,
civil nuclear). ‘fishing opportunities’, ‘global cooperation’ and ‘level
playing field’.    
Part III, the Security Partnership (paras 80-119)
has four sections, starting with ‘objectives and principles’, followed by ‘law
enforcement and judicial cooperation in criminal matters’ (including data
exchange, operational cooperation, anti-money laundering and counter-terrorism
financing) ‘foreign policy, security and defence’ (including consultation and
cooperation, sanctions, operations and missions, defence capabilities
development, intelligence exchanges, space, development cooperation), and
‘thematic cooperation’ (cyber-security, civil protection, health security,
illegal migration, counter-terrorism and violent extremism, classified
information).
Part IV covers Institutional and Horizontal
Arrangements
(paras 120-137), and has sections on ‘structure’,
‘governance’ (‘strategic direction and dialogue’, ‘management, administration
and supervision’, ‘interpretation’ and ‘dispute settlement’) and ‘exceptions
and safeguards’.
Finally, Part V covers Forward Process (paras 138-147),
and has sections on what happens ‘before withdrawal’, ‘after withdrawal’ and
‘review points’.
List of dates in the Political Declaration
Pre-Brexit Day: preparatory work
for negotiations (paras 141-143)
Immediately after Brexit Day:
work programme of talks agreed (para 145)
As soon as possible after Brexit
Day: Commission starts assessments on adequacy of UK data protection law (para
9)
1 July 2020: target for
concluding and ratifying new fisheries agreement (para 76), so that it can
apply from the first year after the transition period
End of 2020: target date for
future relationship agreements to come into force (para 138), for Commission
decision on adequacy of UK data protection law (para 9), and for completing
assessment of financial services equivalence (para 38)
Every six months (at least): high
level conference to review and progress negotiations (para 147)
Barnard & Peers: chapter 27
Photo credit: AllPosters.com
Annex: Annotation of the Political Declaration
POLITICAL DECLARATION SETTING OUT
THE FRAMEWORK FOR THE FUTURE RELATIONSHIP BETWEEN THE EUROPEAN UNION AND THE
UNITED KINGDOM
1. The European Union, hereafter
referred to as “the Union”, and the United Kingdom of Great Britain and
Northern Ireland, hereafter referred to as “the United Kingdom”, (“the
Parties”) have agreed this political declaration on their future relationship,
on the basis that Article 50(2) of the Treaty on European Union (TEU) provides
for the negotiation of an agreement setting out the arrangements for the
withdrawal of a departing Member State, taking account of the framework for its
future relationship with the Union. In that context, this declaration
accompanies the Withdrawal Agreement that has been endorsed by the Parties,
subject to ratification.
2. The Union and United Kingdom
are determined to work together to safeguard the rules-based international
order, the rule of law and promotion of democracy, and high standards of free
and fair trade and workers’ rights, consumer and environmental protection, and
cooperation against internal and external threats to their values and
interests.
3. In that spirit, this
declaration establishes the parameters of an ambitious, broad, deep and
flexible partnership across trade and economic cooperation, law enforcement and
criminal justice, foreign policy, security and defence and wider areas of
cooperation. Where the Parties consider it to be in their mutual interest
during the negotiations, the future relationship may encompass areas of
cooperation beyond those described in this political declaration. This
relationship will be rooted in the values and interests that the Union and the
United Kingdom share. These arise from their geography, history and ideals
anchored in their common European heritage. The Union and the United Kingdom
agree that prosperity and security are enhanced by embracing free and fair
trade, defending individual rights and the rule of law, protecting workers,
consumers and the environment, and standing together against threats to rights
and values from without or within.
4. The future relationship will
be based on a balance of rights and obligations, taking into account the principles
of each Party. This balance must ensure the autonomy of the Union’s decision
making and be consistent with the Union’s principles, in particular with
respect to the integrity of the Single Market and the Customs Union and the
indivisibility of the four freedoms. It must also ensure the sovereignty of the
United Kingdom and the protection of its internal market, while respecting the
result of the 2016 referendum including with regard to the development of its
independent trade policy and the ending of free movement of people between the
Union and the United Kingdom.
Comment: a mutual restatement of
‘red lines’ here: note that the UK government chose to refer to sovereignty,
the UK internal market, trade policy, and the end of free movement of people,
which is referred to again later on.
5. The period of the United
Kingdom’s membership of the Union has resulted in a high level of integration
between the Union’s and the United Kingdom’s economies, and an interwoven past
and future of the Union’s and the United Kingdom’s people and priorities. The
future relationship will inevitably need to take account of this unique
context. While it cannot amount to the rights or obligations of membership, the
Parties are agreed that the future relationship should be approached with high
ambition with regard to its scope and depth, and recognise that this might
evolve over time. Above all, it should be a relationship that will work in the
interests of citizens of the Union and the United Kingdom, now and in the future.
Comment: the parties agree that
the UK’s prior membership of the EU is a ‘unique context’ for their
relationship, yet there are still parts of this text where the EU treats the UK
like any other non-Member State: as regards the single market (para 4) as well
as security.
PART I: INITIAL PROVISIONS
A. Core values and rights
6. The Parties agree that the
future relationship should be underpinned by shared values such as the respect
for and safeguarding of human rights and fundamental freedoms, democratic
principles, the rule of law and support for non-proliferation. The Parties
agree that these values are an essential prerequisite for the cooperation
envisaged in this framework. The Parties also reaffirm their commitment to promoting
effective multilateralism.
7. The future relationship should
incorporate the United Kingdom’s continued commitment to respect the framework
of the European Convention on Human Rights (ECHR), while the Union and its
Member States will remain bound by the Charter of Fundamental Rights of the
European Union, which reaffirms the rights as they result in particular from
the ECHR.
Comment: It is not clear how
exactly the UK’s commitment to the ECHR would be expressed in legal terms.
There is no explicit reference here to a legal commitment for the UK to remain
a signatory to the ECHR. However, there is stronger wording in para 83.
8. In view of the importance of
data flows and exchanges across the future relationship, the Parties are committed
to ensuring a high level of personal data protection to facilitate such flows
between them.
9. The Union’s data protection
rules provide for a framework allowing the European Commission to recognise a
third country’s data protection standards as providing an adequate level of
protection, thereby facilitating transfers of personal data to that third
country. On the basis of this framework, the European Commission will start the
assessments with respect to the United Kingdom as soon as possible after the
United Kingdom’s withdrawal, endeavouring to adopt decisions by the end of
2020, if the applicable conditions are met. Noting that the United Kingdom will
be establishing its own international transfer regime, the United Kingdom will
in the same timeframe take steps to ensure the comparable facilitation of
transfers of personal data to the Union, if the applicable conditions are met.
The future relationship will not affect the Parties’ autonomy over their
respective personal data protection rules.
Comment: the EU rules on data
protection law provide for the possibility of ‘adequacy decisions’ on the
transfer of personal data with non-EU countries. Without an adequacy decision
the transfer of personal data is harder, but not impossible. This point is relevant
not only to commercial transfers, but to security-related transfers. There’s a
limit on how much the EU can waive its standards, due to CJEU case law
enforcing the right to data protection in the EU Charter of Fundamental Rights,
and the likelihood that privacy activists will litigate if they believe that
standards have been compromised. I’ve discussed this issue in more detail here.
No deal comparison: The
Commission communication says that in the event of no deal, it will not
consider drawing up an adequacy decision regarding the UK. This will complicate
the transfer of data for both commercial and security-related reasons.
10. In this context, the Parties
should also make arrangements for appropriate cooperation between regulators.
Comment: the possibility of
international cooperation on data protection is provided for in Article 50 of
the GDPR (the EU’s General Data
Protection Regulation).
II. AREAS OF SHARED INTEREST
A. Participation in Union
programmes
11. Noting the intended breadth
and depth of the future relationship and the close bond between their citizens,
the Parties will establish general principles, terms and conditions for the
United Kingdom’s participation in Union programmes, subject to the conditions
set out in the corresponding Union instruments, in areas such as science and
innovation, youth, culture and education, overseas development and external
action, defence capabilities, civil protection and space. These should include
a fair and appropriate financial contribution, provisions allowing for sound
financial management by both Parties, fair treatment of participants, and
management and consultation appropriate to the nature of the cooperation
between the Parties.
Comment: The UK will participate
in current EU programmes until the end of the current EU budget cycle
(end-2020) under the transition period clauses in the withdrawal agreement (if
ratified). The EU’s financial programmes for the next EU budget cycle (2021-27)
are currently being negotiated among the EU27, and they will subsequently be
negotiated with the European Parliament. They often allow for participation for
non-EU countries, on the conditions set out in the legislation; the details of
those conditions are being discussed during the negotiations. For instance, see
Article 16 of the latest draft of the proposed future
Erasmus programme
. Note that para 11 refers to the conditions for non-EU
countries’ participation in the EU legislation, without suggesting that the UK
and EU will negotiate amendments to those conditions.
The frequent assertion
that ‘the UK will be cut out of EU research programmes/Erasmus/et al’
in future is not correct, as the declaration sets out a political commitment to
agree terms on the UK’s participation in such programmes, if the UK meets the
relevant conditions. It is true to
say that the UK’s participation in those programmes is not absolutely certain,
but there is no way it could be
certain at this point given the EU’s unwillingness and perceived legal
inability to negotiate a legally binding future relationship before Brexit day.
12. The Parties will also explore
the participation of the United Kingdom to the European Research Infrastructure
Consortiums (ERICs), subject to the conditions of the Union legal instruments
and individual ERIC statutes, and taking into account the level of
participation of the United Kingdom in Union programmes on science and
innovation.
Comments: Non-EU countries can
participate in ‘ERICs’. The conditions for their participation is set out in
Article 9 of the Regulation
setting up the legal framework for ERICs.
13. The Parties recall their
shared commitment to delivering a future PEACE PLUS programme to sustain work
on reconciliation and a shared future in Northern Ireland, maintaining the
current funding proportions for the future programme.
Comments: The Commission has
already proposed
that this fund continue for the next EU budget cycle.
14. The Parties should engage in
dialogue and exchanges in areas of shared interest, with the view to
identifying opportunities to cooperate, share best practice and expertise, and
act together, including in areas such as culture, education, science and
innovation. In these areas, the Parties recognise the importance of mobility
and temporary movement of objects and equipment in enabling cooperation. The
Parties will also explore ongoing cooperation between culture and education
related groups.
15. In addition, the Parties note
the United Kingdom’s intention to explore options for a future relationship
with the European Investment Bank (EIB) Group.
Comment: notice there is no firm
commitment to develop this relationship. The EIB has some links with non-EU
countries (see the ‘Global Player’ section of its 2017
activity report
), but its main focus is the EU.
PART II: ECONOMIC PARTNERSHIP
I. OBJECTIVES AND PRINCIPLES
16. The Parties recognise that
they have a particularly important trading and investment relationship,
reflecting more than 45 years of economic integration during the United
Kingdom’s membership of the Union, the sizes of the two economies and their
geographic proximity, which have led to complex and integrated supply chains.
17. Against this backdrop, the
Parties agree to develop an ambitious, wide-ranging and balanced economic
partnership. This partnership will be comprehensive, encompassing a free trade
area as well as wider sectoral cooperation where it is in the mutual interest
of both Parties. It will be underpinned by provisions ensuring a level playing
field for open and fair competition, as set out in Section XIV of this Part. It
should facilitate trade and investment between the Parties to the extent
possible, while respecting the integrity of the Union’s Single Market and the
Customs Union as well as the United Kingdom’s internal market, and recognising
the development of an independent trade policy by the United Kingdom beyond
this economic partnership.
Comment: note the second
reference to UK trade policy here.
18. The Parties will retain their
autonomy and the ability to regulate economic activity according to the levels
of protection each deems appropriate in order to achieve legitimate public
policy objectives such as public health, animal health and welfare, social
services, public education, safety, the environment including climate change,
public morals, social or consumer protection, privacy and data protection, and
promotion and protection of cultural diversity. The economic partnership will
recognise that sustainable development is an overarching objective of the Parties.
The economic partnership will also provide for appropriate general exceptions,
including in relation to security.
19. The Parties recall their
determination to replace the backstop solution on Northern Ireland by a
subsequent agreement that establishes alternative arrangements for ensuring the
absence of a hard border on the island of Ireland on a permanent footing.
Comment: this reflects Articles
1(4), 2(1) and 20 of the Irish border protocol to the withdrawal agreement,
although the wording here does not suggest an absolute commitment to replace
the backstop. In fact it is less binding than the ‘best endeavours’ text of the
withdrawal agreement. At the very least, an amendment could better reflect the
more definitive text of the agreement. Better still, there could be more
detailed commitments on how this might take place, for instance a work
programme with a timetable and commitments to consider technological solutions.
Suggested amendment: ‘The
Parties recall their obligation to use their best endeavours
to conclude, by 31 December 2020, an agreement which
replaces
the backstop solution on Northern Ireland and by a subsequent
agreement that
establishes alternative arrangements for ensuring the
absence of a hard border on the island of Ireland on a permanent footing.’
A. Objectives and principles
20. The Parties envisage having a
trading relationship on goods that is as close as possible, with a view to
facilitating the ease of legitimate trade.
Comment: ‘with a view to
facilitating’ is in place of the UK government’s objective of ‘frictionless’.
Suggested amendment: to take
account of those in the UK who would like a closer relationship, this
commitment should be more open-ended in the event that UK ‘red lines’ change.
Add an additional sentence: ‘In the event that the UK Parliament
supports UK participation in the EU single market, the Parties will negotiate to
that effect
.’
21. These arrangements will take
account of the fact that following the United Kingdom’s withdrawal from the
Union, the Parties will form separate markets and distinct legal orders. Moving
goods across borders can pose risks to the integrity and proper functioning of
these markets, which are managed through customs procedures and checks.
22. However, with a view to facilitating
the movement of goods across borders, the Parties envisage comprehensive
arrangements that will create a free trade area, combining deep regulatory and
customs cooperation, underpinned by provisions ensuring a level playing field
for open and fair competition.
23. The economic partnership
should ensure no tariffs, fees, charges or quantitative restrictions across all
sectors, with ambitious customs arrangements that, in line with the Parties’
objectives and principles above, build and improve on the single customs
territory provided for in the Withdrawal Agreement which obviates the need for
checks on rules of origin.
Comment: this text reflects the
definition of a free trade area in Article XXIV GATT, but oddly does not make a
specific reference to the GATT. The second part of the sentence is ambiguous:
what does ‘building on’ the single customs territory in the backstop mean? How
would the UK have an ‘independent trade policy’ (as the declaration refers to
elsewhere), at least for tariffs on goods, if the EU and UK still have a single
customs territory (although it’s not clear whether or not they will)? But how
can checks on rules of origin (ie to determine which territory a good comes
from originally, in order to decide if it benefits from the free trade treaty
or not) be avoided unless there is a customs union of some sort? If the idea is
to avoid such checks by electronic means, the text should say so.
Suggested amendment: the
commitment in the first part of the text is too weak, and the second part of
the text is too vague, and does not provide for the possibility of a customs
union (the Labour party position). Proposal: ‘The economic partnership will
ensure no tariffs, fees, charges or quantitative restrictions….In
the event that the UK Parliament supports the negotiation of a customs union
between the EU and the UK, the Parties will negotiate one
.’
No deal comparison: in the
absence of the withdrawal agreement and a subsequent free trade agreement, UK
exports to the EU (and the other way around) will be subject to tariffs and
non-tariff barriers. Although some in the UK believe that EU non-tariff
barriers would violate WTO law, the EU takes a different view and intends to
apply such measures, according to the Commission’s no-deal
preparedness notices
. The UK could challenge this in the WTO, but the WTO
dispute settlement system is currently not fully functioning.
24. While preserving regulatory
autonomy, the Parties will put in place provisions to promote regulatory
approaches that are transparent, efficient, promote avoidance of unnecessary
barriers to trade in goods and are compatible to the extent possible. Disciplines
on technical barriers to trade (TBT) and sanitary and phytosanitary measures
(SPS) should build on and go beyond the respective WTO agreements.
Specifically, the TBT disciplines should set out common principles in the
fields of standardisation, technical regulations, conformity assessment,
accreditation, market surveillance, metrology and labelling. The Parties should
treat one another as single entities as regards SPS measures, including for
certification purposes, and recognise regionalisation on the basis of
appropriate epidemiological information provided by the exporting party. The
Parties will also explore the possibility of cooperation of United Kingdom
authorities with Union agencies such as the European Medicines Agency (EMA),
the European Chemicals Agency (ECHA), and the European Aviation Safety Agency
(EASA).
Comments: the WTO technical barriers
and SPS
agreements
set out basic standards to reduce checks on products, but there
is a commitment to go further. The commitment to consider UK involvement with
EU agencies is weak: it refers to ‘cooperation’, not participation, and the
parties have only agreed to ‘explore the possibility’. Note that the EMA
Regulation
has no provision for participation of non-EU countries; the ECHA
Regulation
provides generally for their participation (with no details) in
its Article 106; and the EASA
Regulation
provides either for limited technical cooperation with non-EU
countries (Article 90) or for full participation in the Agency (Article 129) –
but on condition that the non-EU country sign a treaty with the EU aligning to
EU aviation law.
Suggested amendments: the
second, third and fourth sentences are too weak: replace ‘should’ with ‘will’.
25. In this context, the United
Kingdom will consider aligning with Union rules in relevant areas.
26. The Parties will put in place
ambitious customs arrangements, in pursuit of their overall objectives. In
doing so, the Parties envisage making use of all available facilitative
arrangements and technologies, in full respect of their legal orders and
ensuring that customs authorities are able to protect the Parties’ respective
financial interests and enforce public policies. To this end, they intend to
consider mutual recognition of trusted traders’ programmes, administrative
cooperation in customs matters and mutual assistance, including for the recovery
of claims related to taxes and duties, and through the exchange of information
to combat customs fraud and other illegal activity.
Suggested amendments: the second
and third sentences are too weak: replace ‘envisage making use’ with ‘will make
use’ and ‘intend to consider’ with ‘will agree’.
27. Such facilitative
arrangements and technologies will also be considered in developing any
alternative arrangements for ensuring the absence of a hard border on the
island of Ireland on a permanent footing.
Suggested amendments: the text
is weaker than the backstop provisions of the withdrawal agreement. Add to the
end: ‘in order to replace the backstop in the withdrawal agreement as soon as
possible’.
E. Implications for checks and
controls
28. The Parties envisage that the
extent of the United Kingdom’s commitments on customs and regulatory
cooperation, including with regard to alignment of rules, would be taken into
account in the application of related checks and controls, considering this as
a factor in reducing risk. This, combined with the use of all available
facilitative arrangements as described above, can lead to a spectrum of
different outcomes for administrative processes as well as checks and controls,
and note in this context their wish to be as ambitious as possible, while
respecting the integrity of their respective markets and legal orders.
Suggested amendments: the
possibility of considering a customs union should be referred to here as well.
III. SERVICES AND INVESTMENT
A. Objectives and principles
29. The Parties should conclude
ambitious, comprehensive and balanced arrangements on trade in services and
investment in services and non-services sectors, respecting each Party’s right
to regulate. The Parties should aim to deliver a level of liberalisation in
trade in services well beyond the Parties’ World Trade Organization (WTO)
commitments and building on recent Union Free Trade Agreements (FTAs).
30. In line with Article V of the
General Agreement on Trade in Services, the Parties should aim at substantial
sectoral coverage, covering all modes of supply and providing for the absence
of substantially all discrimination in the covered sectors, with exceptions and
limitations as appropriate. The arrangements should therefore cover sectors
including professional and business services, telecommunications services,
courier and postal services, distribution services, environmental services,
financial services, transport services and other services of mutual interest.
Comments: Some commentary on the
future relationship suggests that ‘it says nothing on services’, a vital part
of the UK economy, but this is false. The UK and EU intend to agree free trade
in services, which will go beyond the basic provisions of the GATS (the
services part of the WTO) – yet fall short of participation in the EU internal
market for services. Oddly, the text of the political declaration does not
refer explicitly to ‘free trade in services’, so this might explain some of the
confusion.
Article
V GATS
is the provision providing for free-trade agreements in services. As
noted already, it is striking that para 23 does not refer to the equivalent
Article XXIV GATT, on free trade agreements or customs unions for goods. The
language here (‘substantial sectoral coverage’, ‘all modes of supply’, ‘absence
of substantially all discrimination’) is taken from that GATS Article and its
footnote.
The ‘modes of
supply’ in GATS are: Mode 1 (cross-border supply), Mode 2 (the customer moves),
Mode 3 (commercial presence, ie foreign investment and corporate service
provision via a subsidiary), and Mode 4 (supply of services by natural
persons). (See Article
I:2 GATS
). As for the list of services sectors, comparing the declaration
to the list used for GATS
classification
, note that the declaration leaves out the audio-visual
sub-sector (it’s part of the ‘communications services’ sector, along with
telecoms, courier and postal services), the construction sector, the education
and health sectors, and tourism and travel. These might ultimately be covered
by ‘other services of mutual interest’, but it is notable that they are not
referred to at the outset. For a more detailed discussion of future UK/EU
services trade issues, see the recent report
by Sam Lowe.
Suggested amendments: the degree
of commitment should be strengthened, and the free trade intention should be
explicit. Replace ‘should aim at’ with ‘will negotiate a free trade agreement
on services, comprising’; replace ‘should’ with ‘will’ in the second sentence.
Comparison with no deal: if
there is no withdrawal agreement or free trade in services, the two sides will
fall back onto the more limited GATS commitments, entailing less provision of
services in either direction.
B. Market access and
non-discrimination
31. The arrangements should
include provisions on market access and national treatment under host state
rules for the Parties’ service providers and investors, as well as address
performance requirements imposed on investors. This would ensure that the
Parties’ services providers and investors are treated in a non-discriminatory
manner, including with regard to establishment.
Comment: Market access (ie
removal of quotas, economic needs tests, caps on foreign investment et al) and
national treatment (ie treating foreign services and service suppliers equally
with their national equivalents) are concepts described in Article
XVI
and Article
XVII
GATS. The purpose of a free trade agreement in services is to remove
some of the restrictions on market access and national treatment which WTO
Members otherwise retain as regards some services.
Suggested amendments: the degree
of commitment should be strengthened. Replace ‘should’ and ‘would’ with ‘will’.
32. The arrangements should allow
for the temporary entry and stay of natural persons for business purposes in
defined areas.
Comment: this reflects Mode 4 of
the GATS. It does not amount to free movement of workers in general, as
confirmed by the GATS Annex
on movement of natural persons supplying services. GATS
Article V bis
refers to the possibility of labour market integration
agreements, but there is no suggestion of agreeing such an agreement between
the UK and EU in the text of the political declaration. Para 50 indicates that
the UK is not interested in an agreement on the free movement of persons in
general.
Suggested amendments: the degree
of commitment has to be strengthened,
as a free trade agreement omitting Mode 4 in services will not be consistent
with the GATS, as para 30 already points out. Amend to read: ‘In
accordance with Article V GATS
, the arrangements will
allow for…’
33. While preserving regulatory
autonomy, the arrangements should include provisions to promote regulatory
approaches that are transparent, efficient, compatible to the extent possible,
and which promote avoidance of unnecessary regulatory requirements.
34. In this context, the Parties
should agree disciplines on domestic regulation. These should include
horizontal provisions such as on licensing procedures, and specific regulatory
provisions in sectors of mutual interest such as telecommunication services,
financial services, delivery services, and international maritime transport
services. There should also be provisions on the development and adoption of
domestic regulation that reflect good regulatory practices.
35. In this context, the Parties
should establish a framework for voluntary regulatory cooperation in areas of
mutual interest, including exchange of information and sharing of best
practice.
Suggested amendments: the degree
of commitment in the previous three paras is weak. Replace ‘should’ with ‘will’
throughout.
36. The Parties should also
develop appropriate arrangements on those professional qualifications which are
necessary to the pursuit of regulated professions, where in the Parties’ mutual
interest.
Comment: There is no reference
here to the concept of mutual recognition referred to in Article VII GATS, or
as provided for in some free-trade agreements like the recent EU/Canada
free trade agreement
.
Suggested amendments: ‘The
Parties will also negotiate appropriate
arrangements for recognition of those professional qualifications
which are necessary to the pursuit of regulated professions, where in the
Parties’ mutual interest.’
37. The Parties are committed to
preserving financial stability, market integrity, investor and consumer
protection and fair competition, while respecting the Parties’ regulatory and
decision-making autonomy, and their ability to take equivalence decisions in
their own interest. This is without prejudice to the Parties’ ability to adopt
or maintain any measure where necessary for prudential reasons. The Parties
agree to engage in close cooperation on regulatory and supervisory matters in
international bodies.
38. Noting that both Parties will
have equivalence frameworks in place that allow them to declare a third
country’s regulatory and supervisory regimes equivalent for relevant purposes,
the Parties should start assessing equivalence with respect to each other under
these frameworks as soon as possible after the United Kingdom’s withdrawal from
the Union, endeavouring to conclude these assessments before the end of June
2020. The Parties will keep their respective equivalence frameworks under
review.
Suggested amendment: replace ‘should’
with ‘will’ in the first sentence.
39. The Parties agree that close
and structured cooperation on regulatory and supervisory matters is in their
mutual interest. This cooperation should be grounded in the economic
partnership and based on the principles of regulatory autonomy, transparency
and stability. It should include transparency and appropriate consultation in
the process of adoption, suspension and withdrawal of equivalence decisions,
information exchange and consultation on regulatory initiatives and other
issues of mutual interest, at both political and technical levels.
Suggested amendments: replace ‘should’
with ‘will’ in the second and third sentences.
40. In the context of the
increasing digitalisation of trade covering both services and goods, the
Parties should establish provisions to facilitate electronic commerce, address
unjustified barriers to trade by electronic means, and ensure an open, secure
and trustworthy online environment for businesses and consumers, such as on
electronic trust and authentication services or on not requiring prior
authorisation solely on the grounds that the service is provided by electronic
means. These provisions should also facilitate cross-border data flows and
address unjustified data localisation requirements, noting that this
facilitation will not affect the Parties’ personal data protection rules.
41. The Parties should provide,
through sectoral provisions in telecommunication services, for fair and equal
access to public telecommunication networks and services to each other’s
services suppliers and address anticompetitive practices.
42. The Parties should work
together though multilateral and multi-stakeholder fora, and establish a
dialogue to exchange information, experience and best practice relating to
emerging technologies.
Suggested amendments: replace ‘should’
with ‘will’ in paras 40-42.
 VI. CAPITAL MOVEMENTS AND PAYMENTS
43. The Parties should include
provisions to enable free movement of capital and payments related to
transactions liberalised under the economic partnership, subject to relevant
exceptions.
Comments: EU free trade
agreements usually provide for the free movement of payments related to
liberalised transactions, ie to ensure that goods and services moving in
accordance with the treaty can be paid for. Article
XI GATS
sets out the same rule for payments related to services movements
covered by the GATS. It should be noted that Article
64 TFEU
provides for the free movement of capital between the EU and non-EU
countries, subject to exceptions.
Suggested amendment: replace ‘should’
with ‘will’.
VII. INTELLECTUAL PROPERTY
44. The Parties should provide
for the protection and enforcement of intellectual property rights to stimulate
innovation, creativity and economic activity, going beyond the standards of the
WTO Agreement on Trade-Related Aspects of Intellectual Property Rights and the
World Intellectual Property Organisation conventions where relevant.
Comment: it is usual for free
trade agreements to provide for intellectual property protection higher than
the level of WTO and other international treaties referred to here, but this is
sometimes controversial as some argue (for example) that this stifles
innovation and keeps drug prices high.
45. This should preserve the
Parties’ current high levels of protection, inter alia, of certain rights under
copyright law, such as the sui generis right on databases and the artists’
resale right. Noting the protection afforded to existing geographical
indications in the Withdrawal Agreement, the Parties should seek to put in
place arrangements to provide appropriate protection for their geographical
indications.
Comment: This refers to some
existing EU laws (on databases
and resale
rights
; the UK was not keen on the latter law), but not others. Notably
there’s no reference to the Unified
Patent Court
linked to EU law, one part of which is to be located in the
UK, although the UK’s withdrawal from the EU may arguably cause legal
complications.
46. The Parties should maintain
the freedom to establish their own regimes for the exhaustion of intellectual
property rights.
Comment: This refers to the
question of whether once a product has been legally sold on the market by the
right holder, it can be sold again anywhere on the market by anyone. If it can,
this increases competition but reduces the de
facto
protection for the rights holder. EU law currently has EU-wide
exhaustion, but not international exhaustion (see the CJEU’s Silhouette
International
judgment).
47. The Parties should establish
a mechanism for cooperation and exchange of information on intellectual
property issues of mutual interest, such as respective approaches and processes
regarding trademarks, designs and patents.
Suggested amendments: replace ‘should’
with ‘will’ in all the paras in this section. However, since the EU is very
keen to ensure that all free trade agreements contain provisions for
geographical indications, the UK should not agree to commit itself on this
issue unless the EU makes a significant concession on an issue important to the
UK.
48. Noting the United Kingdom’s
intention to accede to the WTO Government Procurement Agreement (GPA), the
Parties should provide for mutual opportunities in the Parties’ respective
public procurement markets beyond their commitments under the GPA in areas of
mutual interest, without prejudice to their domestic rules to protect their
essential security interests.
Comment: It’s not unusual for
free trade agreements to provide for additional access to public procurement.
The UK’s accession to the GPA has recently been agreed in
principle
.
49. The Parties should also
commit to standards based on those of the GPA ensuring transparency of market
opportunities, public procurement rules, procedures and practices. Building on
these standards, the Parties should address the risk of arbitrary behaviour
when awarding contracts, and make available remedies and review procedures,
including before judicial authorities.
Suggested amendments: replace ‘should
provide’ and ‘should also commit to’ with ‘will negotiate’ in the previous two
paras, and replace ‘should address’ with ‘will address’.
50. Noting that the United
Kingdom has decided that the principle of free movement of persons between the
Union and the United Kingdom will no longer apply, the Parties should establish
mobility arrangements, as set out below.
Comment: While the following
provisions, as well as the section above on free trade in services, deal with
the movement of people to some extent, this should not be confused with the free movement of persons with the EU,
which is not UK government policy.
Suggested amendment: replace ‘should’
with ‘will’.
51. The mobility arrangements
will be based on non-discrimination between the Union’s Member States and full
reciprocity.
52. In this context, the Parties
aim to provide, through their domestic laws, for visa-free travel for
short-term visits.
Comment: The Commission recently
proposed
short-term visa-free travel for UK citizens visiting the EU after Brexit,
subject to reciprocity for all Member States by the UK (reflecting para 51).
Note that the reference here is to reciprocal matching domestic laws, not to a treaty on visa-free travel. EU practice
on this is mixed – it has treaties on visa-free travel with some countries
(such as Brazil),
but otherwise has matching reciprocity (with Japan, for instance).
53. The Parties agree to consider
conditions for entry and stay for purposes such as research, study, training
and youth exchanges.
Comment: The EU has not signed
any treaties on this form of movement with non-EU countries, but there’s no
explicit reference to a treaty here. It’s not clear what ‘agree to consider
conditions’ means. The reference to these four issues is perhaps because the EU
has a law partly harmonising admission of non-EU nationals for these four
purposes, which applied from spring 2018, replacing and amending previous EU
laws (see discussion of the newer law here).
 Since UK/EU relations are ‘unique’,
there is a case for negotiating on this issue; and Brexit supporters may wish
to consider whether they can offer something concrete (although falling short
of full free movement) to young people who largely reject their project.
The Prime
Minister recently appeared to suggest that the declaration could establish free
movement for these groups of people. This is false, since the conditions are
stricter. For instance, non-EU students do not have the right to equal
treatment in access to education and tuition fees, or family reunion, or to
stay to work after studies (the EU law on non-EU students says something on
this possibility, but it falls short of free movement). The EU law also limits
how much non-EU students can work while a student.
Suggested amendment: Amend to
‘…agree to consider negotiations on conditions…’
54. The Parties also agree to
consider addressing social security coordination in the light of future
movement of persons.
Comment: Again, there’s no
explicit reference to a treaty here, but it’s hard to see how social security
coordination can work without one. There are social security coordination
provisions in several EU association agreements, although a stand-alone treaty
on this issue should also be possible in theory. Notice the reference to future
movement, not future free movement of persons. Presumably the
reference to future movement is
because social security coordination for those EU and UK citizens who moved
before Brexit day (and before the end of the transition period provided for by
the withdrawal agreement) is regulated by the withdrawal agreement.
55. In line with their applicable
laws, the Parties will explore the possibility to facilitate the crossing of
their respective borders for legitimate travel.
Comment: This refers to issues
such as the EU travel authorisation system, the EU entry-exit system (neither
of which is operational yet) and the use of fast-track lanes at external border
crossing posts. The commitment is to ‘explore the possibility’, not to ensure
the outcome. EU policy (as set out in the relevant legislation) is to
facilitate crossing only where the non-EU country concerned has agreed to free
movement of people with the EU. (See more on the EU travel authorisation system
here,
and on EU immigration law implications for UK citizens post-Brexit here).
56. Any provisions will be
without prejudice to the Common Travel Area (CTA) arrangements as they apply
between the United Kingdom and Ireland.
Comment: The continuation of the
CTA has never been controversial. It is protected by the withdrawal agreement
and also by Protocols to the EU Treaties.
57. To support mobility, the
Parties confirm their commitment to the effective application of the existing
international family law instruments to which they are parties. The Union notes
the United Kingdom’s intention to accede to the 2007
Hague Maintenance Convention
to which it is currently bound through its
Union membership.
Comment: The reference here is
to international family law measures,
not treaties between the UK and EU. 
However, the following paragraph suggests possible such treaties. (For
the EU ratification of the Hague Convention, see here).
Note that the UK can accede to the Hague Convention unilaterally, without
needing approval of the EU or the other parties to that treaty (see Article 60
of the Convention).
58. The Parties will explore
options for judicial cooperation in matrimonial, parental responsibility and
other related matters.
Comment: The commitment to
‘explore options’ does not indicate an intended outcome. The existing EU law
governing the two issues mentioned (which the UK has opted in to) is the Brussels
II Regulation
. It is due to be amended soon (the UK has opted in to the proposed
amendment
, which was recently
agreed
). The UK also opted
in
to the EU’s maintenance
Regulation
, which goes beyond the Hague Convention mentioned in the
previous paragraph. The EU has not previously signed treaties with non-EU
countries on their participation in such EU laws.
Proposed amendments: the absence
of measures on this issue will complicate the lives of many ordinary people in
both the UK and EU, especially children. Suggest: ‘The Parties will
negotiate continued UK participation in EU
judicial cooperation measures
on
matrimonial, parental responsibility and maintenance
matters’.
59. These arrangements would be
in addition to commitments on temporary entry and stay of natural persons for
business purposes in defined areas as referred to in Section III of this Part.
Those commitments should not be nullified by the right of either Party to apply
their respective laws, regulations and requirements regarding entry, stay and
work.
Comment: the ‘nullify or impair’
language comes from the GATS Annex
on movement of natural persons supplying services.
60. The Parties should ensure
passenger and cargo air connectivity through a Comprehensive Air Transport
Agreement (CATA). The CATA should cover market access and investment, aviation
safety and security, air traffic management, and provisions to ensure open and
fair competition, including appropriate and relevant consumer protection requirements
and social standards.
Comment: the commitment falls
short of UK participation in the European
Common Aviation Area
(which is open to non-EU countries in Europe), which
would have entailed continuing to apply the status quo in terms of aviation
market access and aviation law. A separate agreement is likely to entail less
market access than at present.
Suggested amendment: replace
‘should’ with ‘will negotiate to ensure’; add sentence to the end: ‘If
agreed by the UK Parliament, the UK shall seek instead to retain its membership
of the ECAA, and the Parties will negotiate to ensure that continued membership
’.
No deal comparison: the
Commission communication
on ‘no deal’ states that the EU will take unilateral measures to ensure a basic
aviation service between the UK and EU. This will not stop planes from flying
(as some have claimed), but it would logically entail less aviation market access
than under a CATA or retaining membership in the ECAA.
61. The Parties should make
further arrangements to enable cooperation with a view to high standards of
aviation safety and security, including through close cooperation between EASA
and the United Kingdom’s Civil Aviation Authority (CAA).
Comment: As noted above, full
participation in the EASA is conditional on signing up to EU aviation law,
implicitly as set out in the ECAA. Therefore it is unclear how far this
cooperation between aviation regulators can go.
Suggested amendment: Add
sentence to the end: ‘If agreed by the UK Parliament, the UK
shall seek instead to be a full participant in EASA, pursuant to its membership
of the ECAA.
62. The Parties should ensure
comparable market access for freight and passenger road transport operators,
underpinned by appropriate and relevant consumer protection requirements and
social standards for international road transport, and obligations deriving
from international agreements in the field of road transport to which both the
United Kingdom and the Union and/or its Member States are signatories, notably
concerning conditions to pursue the occupation of a road transport operator,
certain conditions of employment in international road transport, rules of the
road, passenger carriage by road and carriage of dangerous goods by road. In
addition, the Parties should consider complementary arrangements to address
travel by private motorists.
Comment: The declaration
contemplates arrangements for both commercial drivers and private motorists,
but is not very clear about either.
Suggested amendment: replace
‘should’ with ‘will negotiate to ensure’ in both sentences.
No deal comparison: the
Commission communication
on ‘no deal’ states that ‘UK hauliers would have market access rights limited
to the permits offered under the European Conference of Ministers of Transport
(ECMT) which would allow for considerably less [commercial haulage]
traffic
than what currently takes place between’ the EU and UK. It
also states that there is no basis in EU law to grant UK additional permits.
This is likely to have a major impact not only on the commercial haulage
business, but on the movement of goods between the UK and EU
in general.
63. The Parties agree that
bilateral arrangements should be established, as appropriate, for crossborder
rail services, including to facilitate the continued smooth functioning and
operation of rail services, such as the Belfast-Dublin Enterprise Line and
services through the Channel Tunnel.
Suggested amendment: replace
‘should’ with ‘will’.
64. The Parties note that
passenger and cargo connectivity in the maritime transport sector will be
underpinned by the international legal framework. The Parties should also make
appropriate arrangements on market access for international maritime transport
services.
65. The future relationship
should facilitate cooperation on maritime safety and security, including exchange
of information between the European Maritime Safety Agency (EMSA) and the
United Kingdom Maritime and Coastguard Agency (MCA), consistent with the United
Kingdom’s status as a third country.
Comments: the EMSA is open to
the participation of non-EU countries which apply EU maritime safety law (see
Article 17 of the EMSA
Regulation
), but the declaration appears to consider a more limited
exchange of information instead. It might be questioned why the UK apparently
does not wish to seek full participation.
66. The Parties should cooperate
to support the delivery of cost efficient, clean and secure supplies of electricity
and gas, based on competitive markets and non-discriminatory access to
networks.
67. The Parties should establish
a framework to facilitate technical cooperation between electricity and gas
networks operators and organisations, such as the European Networks of
Transmission System Operators for Electricity
and Gas, in the planning and use of energy
infrastructure connecting their systems. The framework should also include
mechanisms to ensure as far as possible security of supply and efficient trade
over interconnectors over different timeframes.
68. Recognising the importance of
nuclear safety and non-proliferation, the future relationship should include a
wide-ranging Nuclear Cooperation Agreement between the European Atomic Energy
Community (EURATOM) and the United Kingdom on peaceful uses of nuclear energy,
underpinned by commitments to their existing high standards of nuclear safety.
The agreement should enable cooperation between EURATOM and the United Kingdom
and its national authorities. This should include exchange of information in
areas of mutual interest such as safeguards, safety and cooperation with the
International Atomic Energy Agency (IAEA). It should facilitate trade in
nuclear materials and equipment, and provide for the participation of the
United Kingdom as a third country in Union systems for monitoring and
exchanging information on levels of radioactivity in the environment, namely
the European Community Urgent Radiological Information Exchange and the
European Radiological Data Exchange Platform.
69. The Parties note the United
Kingdom’s intention to be associated with the EURATOM research and training
programmes as provided for in Section II of Part I.
Comment: Non-EU countries are
associated with Euratom and its research programmes, as I discuss here
(with further links).
Suggested amendments: replace
‘should’ with ‘will’ throughout para 68; para 69 to start ‘The Parties will
negotiate the UK’s association
with…’
XII. FISHING OPPORTUNITIES
73. The Parties should cooperate
bilaterally and internationally to ensure fishing at sustainable levels,
promote resource conservation, and foster a clean, healthy and productive
marine environment, noting that the United Kingdom will be an independent
coastal state.
Comment: note that the EU has
exclusive external competence over fisheries conservation, meaning that as with
trade, EU Member States will negotiate as a bloc, through the EU, with the UK.
74. While preserving regulatory
autonomy, the Parties should cooperate on the development of measures for the
conservation, rational management and regulation of fisheries, in a non-discriminatory
manner. They will work closely with other coastal states and in international
fora, including to manage shared stocks.
75. Within the context of the
overall economic partnership the Parties should establish a new fisheries
agreement on, inter alia, access to waters and quota shares.
76. The Parties will use their
best endeavours to conclude and ratify their new fisheries agreement by 1 July
2020 in order for it to be in place in time to be used for determining fishing
opportunities for the first year after the transition period.
Comment: the ‘best endeavours’
wording echoes Article 184 of the withdrawal agreement. Note that the
transition period (as discussed here)
preserves the current shares of fishing quotas.
77. The Parties recognise the
importance of global cooperation to address issues of shared economic,
environmental and social interest. As such, while preserving their
decision-making autonomy, the Parties should cooperate in international fora,
such as the G7 and the G20, where it is in their mutual interest, including in the
areas of: a) climate change; b) sustainable development; c) cross-border
pollution; d) public health and consumer protection; e) financial stability;
and f) the fight against trade protectionism.
78. The future relationship
should reaffirm the Parties’ commitments to international agreements to tackle
climate change, including those which implement the United Nations Framework
Conventions on Climate Change, such as the Paris Agreement.
XIV. LEVEL PLAYING FIELD FOR OPEN
AND FAIR COMPETITION
79. The future relationship must
ensure open and fair competition. Provisions to ensure this should cover state
aid, competition, social and employment standards, environmental standards,
climate change, and relevant tax matters, building on the level playing field arrangements
provided for in the Withdrawal Agreement and commensurate with the overall
economic relationship. The Parties should consider the precise nature of
commitments in relevant areas, having regard to the scope and depth of the
future relationship. These commitments should combine appropriate and relevant
Union and international standards, adequate mechanisms to ensure effective
implementation domestically, enforcement and dispute settlement as part of the
future relationship.
Comment: this refers to the
annexes to the Protocol on the Irish border backstop. This part of the
declaration has raised concern among those who believe it does not sufficiently
protect against lowering of standards as regards labour and environmental law.
The ambiguous phrase ‘building on’ makes another appearance.
Suggested amendment: Add a final
sentence: ‘In particular, the future relationship treaty will include binding
rules to ensure that labour and environmental standards are not lowered
’. 
PART III: SECURITY PARTNERSHIP
I. OBJECTIVES AND PRINCIPLES
80. With a view to Europe’s
security and the safety of their respective citizens, the Parties should
establish a broad, comprehensive and balanced security partnership. This
partnership will take into account geographic proximity and evolving threats,
including serious international crime, terrorism, cyber-attacks, disinformation
campaigns, hybrid-threats, the erosion of the rules-based international order
and the resurgence of state-based threats. The partnership will respect the
sovereignty of the United Kingdom and the autonomy of the Union.
81. The Parties will promote
global security, prosperity and effective multilateralism, underpinned by their
shared principles, values and interests. The security partnership should
comprise law enforcement and judicial cooperation in criminal matters, foreign
policy, security and defence, as well as thematic cooperation in areas of
common interest.
II. LAW ENFORCEMENT AND JUDICIAL
COOPERATION IN CRIMINAL MATTERS
82. The future relationship will
provide for comprehensive, close, balanced and reciprocal law enforcement and
judicial cooperation in criminal matters, with the view to delivering strong
operational capabilities for the purposes of the prevention, investigation,
detection and prosecution of criminal offences, taking into account the
geographic proximity, shared and evolving threats the Parties face, the mutual
benefits to the safety and security of their citizens, and the fact that the
United Kingdom will be a non-Schengen third country that does not provide for
the free movement of persons.
Comment: There’s no legal
requirement on the EU to distinguish between non-EU countries which apply
Schengen and free movement of persons and non-EU countries which don’t, but it
reflects existing EU practice to have a closer cooperation on security with the
former countries – namely Norway, Iceland, Switzerland and Liechtenstein. 
83. The Parties agree that the
scale and scope of future arrangements should achieve an appropriate balance
between rights and obligations – the closer and deeper the partnership the
stronger the accompanying obligations. It should reflect the commitments the
United Kingdom is willing to make that respect the integrity of the Union’s
legal order, such as with regard to alignment of rules and the mechanisms for
disputes and enforcement including the role of the Court of Justice of the
European Union (CJEU) in the interpretation of Union law. It should also be
underpinned by long-standing commitments to the fundamental rights of
individuals, including continued adherence and giving effect to the ECHR, and
adequate protection of personal data, which are both essential prerequisites
for enabling the cooperation envisaged by the Parties, and to the transnational
ne bis in idem principle and procedural rights. It should also reflect the
Union’s and its Member States’ commitment to the Charter of Fundamental Rights
of the European Union.
Comment: EU treaties with non-EU
countries on internal security do not require any non-EU countries to agree
jurisdiction for the CJEU, although in some cases there is a requirement to
take account of relevant CJEU case law and/or to hold discussions as to how to
deal with a divergence of case law if it happens. (For more details, see my blog
post
on the prospect of a post-Brexit UK/EU security treaty). There is no
good reason to treat the UK any differently on this issue.
For more on this
issue see the recent report
from the House of Commons Home Affairs Committee, and the earlier report
from the House of Lords EU Committee (note that I was a special adviser to the
latter enquiry).
There is CJEU
case law on human rights protection as a condition for the application of EU
rules on criminal law cooperation – including as regards the UK in the run up
to Brexit (see discussion here).
Logically this must apply by analogy to non-EU countries. While the EU has
signed criminal law treaties with countries that have not signed the ECHR
simply because of geography (ie, the US and Japan), it is unlikely to be
willing to sign or keep in force treaties with European countries that have
denounced that Convention. There would be legal challenges if it did. Again, it
is not clear if a future relationship security treaty would directly require
the UK to remain a party to the ECHR, or rather provide for a review and/or
denunciation by the EU side if it did not.
As for personal
data, as noted above, see the comments in para 9 above.
84. Noting these commitments, the
future relationship should cover arrangements across three areas of
cooperation: data exchange; operational cooperation between law enforcement
authorities and judicial cooperation in criminal matters; and anti-money
laundering and counter terrorism financing.
85. Recognising that effective
and swift data sharing and analysis is vital for modern law enforcement, the
Parties agree to put in place arrangements that reflect this, in order to
respond to evolving threats, disrupt terrorism and serious criminality,
facilitate investigations and prosecutions, and ensure the security of the
public.
86. The Parties should establish
reciprocal arrangements for timely, effective and efficient exchanges of
Passenger Name Record (PNR) data and the results of processing such data stored
in respective national PNR processing systems, and of DNA, fingerprints and
vehicle registration data (Prüm).
Comment: the UK has signed up to
the EU law on PNR data.
However, the EU also has treaties with non-EU countries on this issue, which
have different systems for exchanging data. It is not clear whether the idea is
to retain UK participation in the EU law, or set up a separate arrangement.
Note that the CJEU has ruled that one of the EU treaties on PNR failed to
protect personal data rights sufficiently (see discussion here);
that treaty is now being renegotiated as a result.
The exchange
of national information on DNA, fingerprints and vehicle registration data within
the EU takes place on the basis of the ‘Prüm’ Decision
(which was named after the place where a previous treaty dealing with these
issues was signed). Although the text of the political declaration is not
explicit, presumably the idea is for the UK to keep applying this law as a
non-EU country. The EU already has a treaty
with Norway and Iceland which associates those countries with the relevant EU
law (another such treaty is being
negotiated
with Switzerland and Liechtenstein). This treaty could easily be
adapted to apply to the UK (taking account of the fact that the UK already
applies
the relevant EU law).
87. The Parties should consider
further arrangements appropriate to the United Kingdom’s future status for data
exchange, such as exchange of information on wanted or missing persons and
objects and of criminal records, with the view to delivering capabilities that,
in so far as is technically and legally possible, and considered necessary and
in both Parties’ interests, approximate those enabled by relevant Union
mechanisms.
Comments: This paragraph
describes – but does not name – two EU laws in which the UK currently
participates – namely ‘SIS II’ (the second-generation Schengen Information
System) and ECRIS (the European Criminal Records Information System). The UK
has participated in SIS II since 2015 (see discussion here);
it also opted in to an updated
SIS II law
, which was recently finally
adopted
by the EU.  The UK uses the
SIS II system frequently in
practice
. To date, the only non-EU countries which the EU has agreed to
participate in this system are the four Schengen associated countries.
No deal comparison: if there’s
no deal, the UK will immediately lose any access to EU security databases and
frameworks for exchange of information (SIS II, ECRIS, PNR, Prum and others)
from Brexit Day.
B. Operational cooperation
between law enforcement authorities and judicial cooperation in criminal
matters
88. The Parties recognise the
value in facilitating operational cooperation between the United Kingdom’s and
Member States’ law enforcement and judicial authorities, and will therefore
work together to identify the terms for the United Kingdom’s cooperation via
Europol and Eurojust.
Comment: this is rather vague.
The terms of non-EU country cooperation with each agency are set out in the Europol
Regulation
(Articles 22 and 25) and the Eurojust
Regulation
(Articles 52-54 and 56) respectively.
Proposed amendment: replace the
second part with ‘…and will therefore negotiate the UK’s cooperation with
Europol and Eurojust on the basis of the relevant EU legislation
’.
89. The Parties should establish
effective arrangements based on streamlined procedures and time limits enabling
the United Kingdom and Member States to surrender suspected and convicted
persons efficiently and expeditiously, with the possibilities to waive the
requirement of double criminality, and to determine the applicability of these
arrangements to own nationals and for political offences.
Comment: this provides for a
fast-track extradition treaty probably not with all the provisions of the European
Arrest Warrant
(EAW), but that would remain to be seen. The EU has agreed
on a fast-track extradition
treaty
which is very similar to the EAW with Norway and Iceland, although
that treaty is not yet in force.
Suggested amendment: The
commitment here is too weak. Replace ‘should establish’ with ‘will negotiate’.
No deal comparison: if there’s
no deal, the UK and the EU Member States will, from Brexit day, fall back upon
the Council
of Europe extradition Convention
and its protocols, which provide for
slower and more complicated procedures than the EAW.
90. The Parties should consider
further arrangements appropriate to the United Kingdom’s future status for
practical cooperation between law enforcement authorities, and between judicial
authorities in criminal matters, such as joint investigation teams, with the
view to delivering capabilities that, in so far as is technically and legally
possible, and considered necessary and in both Parties’ interests, approximate
those enabled by relevant Union mechanisms.
Comment: this lacks mention of a
number of measures, such as the European
Investigation Order
on the transfer of evidence, the EU law on the transfer
of prisoners
, and others. In some cases there is a Council of Europe
fallback, which is less far-reaching than its EU counterparts.
Suggested amendment: The level
of commitment and the content is too weak. Replace ‘should consider’ with ‘will
negotiate’, and add specific references to the transfer of evidence, the
transfer of sentenced persons and the freezing and confiscation of criminal
assets.
C. Anti-money laundering and
counter-terrorism financing
91. The Parties agree to support international
efforts to prevent and fight against money laundering and terrorist financing,
particularly through compliance with Financial Action Task Force (FATF)
standards and associated cooperation. The Parties agree to go beyond the FATF
standards with regard to beneficial ownership transparency and ending the
anonymity associated with the use of virtual currencies, including through
obliging virtual currency exchanges and custodian wallet providers to apply
customer due diligence controls.
Comment: there’s no explicit reference
to EU
law on money laundering
here, and it is not clear what legal form all this
will take.
Suggested amendment: Add to the
end: ‘They agree to negotiate any necessary measures to this end’.
III. FOREIGN POLICY, SECURITY AND
DEFENCE
92. The Parties support
ambitious, close and lasting cooperation on external action to protect citizens
from external threats, including new emerging threats, prevent conflicts,
strengthen international peace and security, including through the United
Nations and NATO, and address the root causes of global challenges such as
terrorism or illegal migration. They will champion a rules-based international
order and project their common values worldwide.
Comment: It should be recalled
that Article 127(2) of the withdrawal agreement provides that a UK/EU foreign
policy treaty could be drawn up early, before the end of the transition period.
The declaration makes no specific reference to this possibility.
93. The Parties will promote
sustainable development and the eradication of poverty. In this regard, they
will continue to support the implementation of the United Nations Sustainable
Development Goals and the European Consensus on Development.
94. The Parties will shape and
pursue their foreign policies according to their respective strategic and
security interests, and their respective legal orders. When and where these
interests are shared, the Parties should cooperate closely at the bilateral
level and within international organisations. The Parties should design
flexible and scalable cooperation that would ensure that the United Kingdom can
combine efforts with the Union to the greatest effect, including in times of
crisis or when serious incidents occur.
95. To this end, the future
relationship should provide for appropriate dialogue, consultation,
coordination, exchange of information and cooperation mechanisms. It should
also allow for secondment of experts where appropriate and in the Parties’
mutual interest.
A. Consultation and cooperation

96. The Parties should establish
structured consultation and regular thematic dialogues identifying areas and
activities where close cooperation could contribute to the attainment of common
objectives.

97. In this regard, the Political
Dialogue on Common Foreign and Security Policy (CFSP) and Common Security and
Defence Policy (CSDP) as well as sectoral dialogues would enable flexible
consultation between the Parties at different levels (ministerial, senior
official, working). The High Representative may, where appropriate, invite the
United Kingdom to informal Ministerial meetings of the Member States of the
Union.
Comment: informal meetings are
usually held once every six months. Consultation at an infrequent informal
meeting is a marginal level of UK involvement. However, there is a less precise
reference to other dialogue at different levels.
98. The Parties should seek to
cooperate closely in third countries, including on security, consular provision
and protection, and development projects, as well as in international
organisations and fora, notably in the United Nations. This should allow the
Parties, where relevant, to support each other’s positions, deliver external
action and manage global challenges in a coherent manner, including through
agreed statements, demarches and shared positions.
99. While pursuing independent
sanctions policies driven by their respective foreign policies, the Parties
recognise sanctions as a multilateral foreign policy tool and the benefits of
close consultation and cooperation.
100. Consultation on sanctions
should include the exchange of information on listings and their justification,
development, implementation and enforcement, as well as technical support, and
dialogue on future designations and regimes. Where foreign policy objectives
that underpin a specific future sanction regime are aligned between the
Parties, intensified exchange of information at appropriate stages of the
policy cycle of this sanctions regime will take place, with the possibility of
adopting sanctions that are mutually reinforcing.
Comment: The EU mainly adopts
financial ‘smart’ sanctions against companies or individuals linked to
questionable regimes. Since much of the assets concerned (and therefore the
necessary intelligence) are in the City of London, EU sanctions policy is
weakened without close UK links. The declaration is quite vague when addressing
this issue.
C. Operations and missions
101. The Parties welcome close
cooperation in Union-led crisis management missions and operations, both
civilian and military. The future relationship should therefore enable the
United Kingdom to participate on a case by case basis in CSDP missions and operations
through a Framework Participation Agreement.
Comment: the EU has such agreements
with several non-EU countries.
102. Where, following early
consultation and exchange of information through the Political Dialogue, the
United Kingdom indicates its intention to contribute to a planned CSDP mission
or operation open to third countries, the Parties should intensify interaction and
exchange of information at relevant stages of the planning process and
proportionately to the level of United Kingdom’s contribution. This would allow
the United Kingdom to best tailor its contribution and provide timely
expertise.
103. As a contributor to a
specific CSDP mission or operation, the United Kingdom would participate in the
Force Generation conference, Call for Contributions, and the Committee of
Contributors meeting to enable sharing of information about the implementation
of the mission or operation. It should also have the possibility, in case of
CSDP military operations, to second staff to the designated Operations
Headquarters proportionate to the level of its contribution.
D. Defence capabilities
development
104. The future relationship
should benefit from research and industrial cooperation between the Parties’
entities in specific European collaborative projects to facilitate
interoperability and to promote joint effectiveness of Armed Forces. In this
regard, while both Parties should preserve their respective strategic autonomy
and freedom of action underpinned by their respective robust domestic defence
industrial bases, the Parties agree to enable to the extent possible under the
conditions of Union law: a) the United Kingdom’s collaboration in relevant
existing and future projects of the European Defence Agency (EDA) through an
Administrative Arrangement; b) the participation of eligible United Kingdom
entities in collaborative defence projects bringing together Union entities supported
by the European Defence Fund (EDF); and c) the United Kingdom’s collaboration
in projects in the framework of Permanent Structured Cooperation (PESCO), where
invited to participate on an exceptional basis by the Council of the European
Union in PESCO format.
Comment: the EDA already has
such Administrative Arrangements with several non-EU countries.
The proposed
EDF
for the next budget cycle provides for involvement of non-EU countries,
although only EEA States can participate without restrictions (the text is
being negotiated). As for PESCO, the decision
setting it up calls for general rules on limited participation by non-EU
countries (Article 9), which are due to be adopted soon (see also this press
story
from October).
E. Intelligence exchanges
105. The Parties should exchange
intelligence on a timely and voluntary basis as appropriate, in particular in
the field of counter-terrorism, hybrid threats and cyber-threats, and in
support of those CSDP missions and operations to which the United Kingdom will
be contributing. While the Parties will produce intelligence products
autonomously, such intelligence exchange should contribute to a shared
understanding of Europe’s security environment.
106. The future relationship
should allow for timely exchanges of intelligence and sensitive information
between the relevant Union bodies and the United Kingdom authorities. The European
Union Satellite Centre
(EUSC) and the United Kingdom should cooperate in
the field of space-based imagery.
Comment: the Decision
setting up the EUSC provides for cooperation with non-EU countries (Article
20).
107. The Parties should consider
appropriate arrangements for cooperation on space.
Comment: this is an ironic
masterpiece of content-free drafting. While the European Space Agency is an
intergovernmental body separate from the EU, the EU has links with it and has a
further space policy, explained here. This includes the
‘Galileo’ satellite project, which is the subject of a UK/EU dispute about
further participation; that may explain the drafters’ sarcasm.
G. Development cooperation
108. The Parties should establish
a dialogue to enable strategies in the programming and delivery of development
that are mutually reinforcing.
109. On the basis of their mutual
interest, the Parties should consider how the United Kingdom could contribute
to the Union’s instruments and mechanisms, including coordination with the
Union’s delegations in third countries.
Comment: for an overview of EU
development policy, see here.
110. The Parties reaffirm their
commitment to promote security and stability in cyberspace through increased
international cooperation. The Parties agree to exchange information on a
voluntary, timely and reciprocal basis, including on cyber-incidents,
techniques and origin of the attackers, threat-analysis, and best practices to
help protect the United Kingdom and the Union from common threats.
111. In particular, the United
Kingdom should cooperate closely with the Computer
Emergency Response Team – European Union
(CERT-EU) and, subject to the
conclusion of an agreement as provided for in Union law, participate in certain
activities of the Cooperation Group established under the Union’s Directive on
Security of Network and Information Systems and of the European Union Agency
for Network and Information Security (ENISA).
Comment: The Directive
on network information security provides for possible cooperation with non-EU
countries (Article 13). ENISA is open to the participation of non-EU countries
which apply EU law in the relevant field (Article 30, ENISA
Regulation
); it is not clear if this would cross a UK ‘red line’. ENISA is
due to be replaced by a ‘EU Cybersecurity Agency’; the proposed new Regulation
establishing the Agency, still under negotiation, will have vaguer provisions
on cooperation with non-EU countries (see Articles 11 and 39 of the latest
available draft
).
112. The Parties should cooperate
to promote effective global practices on cyber security in relevant
international bodies.
113. The United Kingdom and the
Union will establish a cyber dialogue to promote cooperation and identify
opportunities for future cooperation as new threats, opportunities and
partnerships emerge.
114. The Parties should cooperate
in the field of civil protection in respect of natural or man-made disasters.
This cooperation would be enabled by the United Kingdom’s participation in the
Union’s Civil Protection Mechanism as a Participating State.
Comments: the Civil
Protection Mechanism
is open to the participation of non-EU European States
(besides EEA and EU applicant/candidate States) subject to negotiations on the
terms (Article 28).
115. The Parties should cooperate
in matters of health security in line with existing Union arrangements with
third countries. The Parties will aim to cooperate in international fora on
prevention, detection, preparation for and response to established and emerging
threats to health security in a consistent manner.
Comments: the EU has a Health
Security Committee
, which coordinates responses to health crises, including
with non-EU countries.
116. The Parties will cooperate
to tackle illegal migration, including its drivers and its consequences, whilst
recognising the need to protect the most vulnerable. This cooperation will
cover: a) operational cooperation with Europol to combat organised immigration
crime; b) working with the European Border and Coastguard Agency to strengthen
the Union’s external border; and c) dialogue on shared objectives and cooperation,
including in third countries and international fora, to tackle illegal
migration upstream.
Comments: links between non-EU
countries and Europol were discussed above. The legislation establishing the EU
borders agency, better known as ‘Frontex’, is being renegotiated (see
discussion here);
the EU Council recently agreed on the part of the revised law dealing with
Frontex relations with non-EU countries (see text here),
although the new law must still be agreed with the European Parliament.
E. Counter-terrorism and
countering violent extremism
117. The Parties should cooperate
on counter-terrorism, countering violent extremism and emerging threats to
advance their common security and shared interests. Recognising the mutual
advantage of collective dialogue and operational cooperation, the partnership
should support: a) sharing best practice and expertise on key issues and
themes; b) cooperating with the appropriate intelligence analysis bodies to
ensure effective assessment sharing between the Parties, including on
counter-terrorism; and c) a close dialogue on emerging threats and new
capabilities.
V. CLASSIFIED AND SENSITIVE
NON-CLASSIFIED INFORMATION
118. The Parties agree to
conclude a Security of Information Agreement, along with Implementing
Arrangements, that would provide for reciprocal guarantees for the handling and
protection of the Parties’ classified information.
Comment: the EU has a number of
treaties with non-EU countries on the exchange of classified information. See a
list of them here.
119. Where necessary, the Parties
should set out the terms for the protection of sensitive nonclassified
information provided and exchanged between them.
PART IV: INSTITUTIONAL AND OTHER
HORIZONTAL ARRANGEMENTS
120. The future relationship
should be based on an overarching institutional framework covering chapters and
linked agreements relating to specific areas of cooperation, while recognising
that the precise legal form of this future relationship will be determined as
part of the formal negotiations. Where appropriate, the Parties may establish
specific governance arrangements in individual areas.
Comment: this provides for the
possibility of different dispute settlement rules, rather than one common
system.
 121. The Parties may also decide that an
agreement should sit outside of the overarching institutional framework, and in
those cases should provide for appropriate governance arrangements.
Comment: by derogation from the
‘overarching’ framework referred to in the previous paragraph, this provides
for the possibility of stand-along agreements, which would also have different
dispute settlement rules. This may be particularly relevant for foreign and
defence policy, where (as noted already) the withdrawal agreement already provides
for a separate treaty to be concluded even during the transition period.
122. The Parties note that the
overarching institutional framework could take the form of an Association
Agreement.
Comment: Article
217 TFEU
provides for association agreements with the EU. They must be
approved by unanimous vote of the Member States and the consent of the European
Parliament, and usually (but not always) have to be approved by national
parliaments too. Their content varies widely; having an association agreement
does not mean that a State is an ‘associate member’ of the EU (in fact, there’s
no such concept). Implementing them does not necessarily require a unanimous
vote, as CJEU case law (discussed here)
has confirmed.
123. The Parties should provide
for the possibility to review the future relationship.
124. In order to ensure the
proper functioning of the future relationship, the Parties commit to engage in
regular dialogue and to establish robust, efficient and effective arrangements
for its management, supervision, implementation, review and development over
time, and for the resolution of disputes and enforcement based on the
arrangements provided for in the Withdrawal Agreement, in full respect of their
own legal orders.
A. Strategic direction and
dialogue
125. The future relationship
should include dialogue between the Parties at summit, ministerial and
technical level, as well as at parliamentary level. The Parties should
encourage civil society dialogue.
126. In this context, the summit
and ministerial level should oversee the future relationship, provide strategic
direction and discuss opportunities for cooperation in areas of mutual
interest, including on regional and global issues. This would foster a strong
relationship between the Parties, support the operation of the agreements, and
enable the partnership to evolve in response to changing and unforeseen
circumstances.
127. There should also be
specific thematic dialogues at ministerial and senior official level,
established as part of the economic and security partnerships, which should
take place as often as is necessary for the effective operation of the future
relationship.
128. The Parties support the
establishment of a dialogue between the European Parliament and the Parliament
of the United Kingdom, where they see fit, in order for the legislatures to
share views and expertise on issues related to the future relationship.
Comment: the ‘governance’
provisions are similar to those in other comparable EU agreements. For
instance, see Articles 119-125 of the EU/Serbia
association agreement
.
B. Management, administration and
supervision
129. The Parties should establish
a Joint Committee responsible for managing and supervising the implementation
and operation of the future relationship, facilitating the resolution of
disputes as set out below, and making recommendations concerning its evolution.
Comment: Joint Committees are
common in international treaties, and indeed the withdrawal agreement provides
for one (Article 164). For another example, see Article 119 of the EU/Serbia
association agreement (in that case, known by the different title of
‘Stabilisation and Association Council’).
130. The Joint Committee should
comprise the Parties’ representatives at an appropriate level, establish its
own rules of procedures, reach decisions by mutual consent, and meet as often
as required to fulfil its tasks. As necessary, it could establish specialised
sub-committees to assist it in the performance of its tasks.
Comment: These are common
provisions. See, for instances, Articles 120 and 123 of the EU/Serbia
association agreement. The withdrawal agreement provides for a number of
specialised sub-committees (Article 165).
131. In full respect of the
autonomy of the Parties’ legal orders, the Union and the United Kingdom will
seek to ensure the consistent interpretation and application of the future
relationship.
132. The Parties will base the
arrangements for dispute settlement and enforcement on those provided for in
the Withdrawal Agreement. To that end, the Parties should first make every
attempt to resolve any matter concerning the operation of the future
relationship through discussion and consultation. If either Party deemed it
necessary, it should be able to refer the matter to the Joint Committee for
formal resolution.
Comment: In the withdrawal
agreement, dispute settlement before the Joint Committee is the first recourse
(Article 169), but the political declaration refers to informal bilateral
discussions first.
133. Unless otherwise provided,
the Joint Committee may agree to refer the dispute to an independent
arbitration panel at any time, and either Party should be able to do so where
the Joint Committee has not arrived at a mutually satisfactory resolution
within a defined period of time. The decisions of the independent arbitration
panel will be binding on the Parties.
Comment: Compare to Article 170
of the withdrawal agreement, which says that either side can send a dispute
settlement to arbitration if the Joint Committee does not settle it within
three months, and both sides could agree jointly to send the dispute to
arbitration before that point. Article 175 of that agreement equally provides
that arbitration decisions are binding.
134. Should a dispute raise a
question of interpretation of Union law, which may also be indicated by either
Party, the arbitration panel should refer the question to the CJEU as the sole
arbiter of Union law, for a binding ruling. The arbitration panel should decide
the dispute in accordance with the ruling given by the CJEU. Where a Party
considers that the arbitration panel should have referred a question of
interpretation of Union law to the CJEU, it may ask the panel to review and
provide reasons for its assessment.
Comment: Compare to Article 174
of the withdrawal agreement, which equally says (in a more elaborate form) that
the arbitrators must ask the CJEU to rule on interpretation of EU law, with a
review process if it does not.  This is
necessarily a legal ‘red line’ for the EU side, as the case law of the CJEU
provides that only the EU courts can give an interpretation of EU law that
binds the EU institutions or Member States (see, for instance, Opinion
1/92
). However, such provisions may be less relevant under the future relationship
than under the withdrawal agreement, as the future relationship treaties may
make fewer references to EU law.
135. Where a Party fails to take
measures necessary to comply with the binding resolution of a dispute within a
reasonable period of time, the other Party would be entitled to request
financial compensation or take proportionate and temporary measures, including
suspension of its obligations within the scope of the future relationship. The
future relationship will also set out the conditions under which obligations
arising from parts of any agreement between the Union and the United Kingdom
may be suspended, including as foreseen in Article 178 of the Withdrawal
Agreement. Either Party may refer the proportionality of such measures to the
independent arbitration panel.
Comment: This is less detailed
than the withdrawal agreement, which provides for a process to determine what
is a ‘reasonable period of time’ to comply (Article 176), then an arbitrators’
review of whether there was compliance (Article 177), then imposition of a lump
sum or penalty payment by the arbitrators for non-compliance (Article 178(1)),
then suspension of part of the withdrawal agreement or future relationship treaty
due to non-payment of the financial penalty or non-compliance with an
arbitration ruling (Article 178(2)). The last sentence – arbitrators’ review of
the proportionality of sanctions – reflects Article 178(3) of the agreement.
For anyone
inclined to think that this process is outrageous as compared to ‘WTO rules’,
note that it is in fact broadly similar to the way the WTO Dispute
Settlement Understanding
works, in case of non-compliance with a ruling
finding breach of WTO law.
III. EXCEPTIONS AND SAFEGUARDS
136. The future relationship
should provide for appropriate exceptions regarding security; national security
is the sole responsibility of the Member States of the Union and the United
Kingdom respectively.
Comment: there are national security
exceptions in the EU Treaties, WTO law, and free trade agreements, so this is
unexceptional (unless it is abused in practice, as Donald Trump is allegedly
doing).
137. The future relationship
should address the possibility for a Party to activate temporary safeguard
measures that would otherwise be in breach of its commitments in case of
circumstances of significant economic, societal or environmental difficulties.
This should be subject to strict conditions and include the right for the other
Party to rebalancing measures. The proportionality of measures taken will be
subject to independent arbitration.
Comment: free trade agreements
usually provide for economic safeguard exceptions; this is very similar to the
wording of Articles 112 and 114 of the EEA
treaty
. There’s no mention of whether measures against dumping or subsidies
will be agreed. These are usually possible under the WTO and free trade
agreements; EU law and the EEA are notable exceptions, due to harmonisation of
State aid and competition law.
138. In setting out the framework
of the future relationship between the Union and the United Kingdom, this
declaration confirms, as set out in the Withdrawal Agreement, that it is the
clear intent of both Parties to develop in good faith agreements giving effect
to this relationship and to begin the formal process of negotiations as soon as
possible after the United Kingdom’s withdrawal from the Union, such that they
can come into force by the end of 2020.
Comment: this reflects the
wording of Article 184 of the withdrawal agreement, which provides that that UK
and EU must use their ‘best endeavours, in good faith and in full respect of
their respective legal orders, to take the necessary steps to negotiate
expeditiously the agreements governing their future relationship referred to in
the political declaration…and to conduct the relevant procedures for the
ratification or conclusion of those agreements, with a view to ensuring that
those agreements apply, to the extent possible, as from the end of the
transition period.’ Note that the wording of the political declaration here
assumes that the transition period will not be extended after the end of 2020.
139. Both Parties affirm that the
achievements, benefits and commitments of the peace process in Northern Ireland
will remain of paramount importance to peace, stability and reconciliation.
They agree that the Good Friday or Belfast Agreement reached on 10 April 1998
by the United Kingdom Government, the Irish Government and the other
participants in the multiparty negotiations (the “1998 Agreement”) must be
protected in all its parts, and that this extends to the practical application
of the 1998 Agreement on the island of Ireland and to the totality of the
relationships set out in the 1998 Agreement.
Comment: this reflects the
wording of the preamble to the Irish border protocol to the withdrawal
agreement.
140. The Parties will progress
the development of the legal agreements giving effect to the future
relationship in two stages.
141. Between the approval of this
declaration and the United Kingdom’s withdrawal from the Union, the Parties
will each engage in preparatory organisational work, with the aim of enabling
rapid commencement of and progress in formal negotiations.
142. This work should draw up a
proposed schedule to deliver the work programme required, having identified the
areas likely to require the greatest consideration, such as those elements
related to the alternative arrangements for ensuring the absence of a hard
border on the island of Ireland on a permanent footing.
Comment: there seems no reason
to use the weak word ‘should’ here.
Suggested amendment: ‘This work will
draw up…’
143. The Parties will also
consider the logistical requirements of the formal negotiations.
144. After the Union has taken
the steps necessary to begin formal negotiations under Article 218 of the
Treaty on the Functioning of the European Union (TFEU), it is envisaged that
the Parties will negotiate in parallel the agreements needed to give the future
relationship legal form.
Comment: Article
218 TFEU
sets out the rules (for the EU side) on the EU negotiating and
approving treaties with non-EU countries. It’s significant that there’s a
reference to multiple agrements, and to negotiations in parallel, here. The
text is imprecise about when the EU will begin the formal process, and vague
about the negotiations.
Suggested amendment: ‘Immediately
after the UK’s withdrawal from the EU,
the Union will
take
the steps necessary to begin formal negotiations under Article
218 of the Treaty on the Functioning of the European Union (TFEU), and
it is envisaged that the Parties will negotiate in parallel…’
145. Immediately following the
United Kingdom’s withdrawal, and based on their preparatory work, the Parties
will agree a programme including: a) the structure and format of the
negotiation rounds, including with respect to parallel tracks; and b) a formal
schedule of negotiating rounds.
146. This programme will be
designed to deliver the Parties’ shared intention as set out in paragraph 138.
147. The Parties will convene a
high level conference at least every six months from the date of the United
Kingdom’s withdrawal from the Union to take stock of progress and agree, as far
as is possible between them, actions to move forward.





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