Analyzing the legality of the EU Commission’s proposed withdrawal of preferential tariffs for third countries when cooperation on migrant returns ‘fails’--an unholy alliance of trade and migration?

 

 

Marion Panizzon, Senior Research Fellow, World Trade Institute, University of Bern*

 

*Privat-Docent, Dr. iur., LL.M., Senior Research Fellow, World Trade Institute, University of Bern and Legal Consultant, World Trade Advisors, Ltd. Geneva. I thank Dr. Alan Desmond, Leicester University for his thoughtful comments on several earlier drafts. I’m grateful to Dr. Christian Häberli, World Trade Institute, for his critical read of an earlier draft in light of current WTO law and practice.

 

Photo credit: NOAA, via Wikimedia commons

 

 

As a strategy to rebalance uneven negotiating positions, the ‘comprehensive approach’ defined in paragraph 11 of the Global Compact for Safe, Regular and Orderly Migration (GCM) sets the stage for rendering more attractive EU trade and EU external migration policy to third countries. However, the comprehensive approach, considered a component of ‘shared responsibility’ under the GCM is often confounded with conditionality, because both might, according to Hocquét 2023, expand the radius of migration policies, to areas outside its immediate realm. There are marked differences though, since conditionality establishes a  co-dependency between measures the EU wishes to implement, with areas of interest to the third country, being education, energy, natural resources, climate adjustment, public health (Peers 2016). Conversely, the comprehensive approach while based on mutuality, rather than reciprocity, ideally strives to create the win-win-win situations, in most cases, breaks down to integrating safe pathways with border management (Vitiello 2022)

 

In trade, ‘rights-based conditionality’ for obtaining trade preferences, has been criticized by academics (Hafner-Burton et al. 2019) and UNCTAD alike (Irish 2007), and materializes when preferential import duties are leveraged for securing the developing or least-developed country’s cooperation to fulfill an EU public good, including combatting narcotics trading, child labor and worker exploitation,  as well as the smuggling and trafficking. At the outset, the trade and development chapter inserted in the 1960s into the General Agreement on Tariffs and Trade (GATT) had empowered developing and least-developed countries to catch-up. One such avenue came in the shape of GSP developed under the auspices of the UNCTAD in 1968 and anchored by several temporary waivers into GATT, to protect infant industries thru non-reciprocal treatment (Michalopoulos 2020). Today, the expectation on trade preferences is that they fulfill non-trade policy objectives (NTPO), which is an attribution that distorts the original idea behind the GATT Art. XXIV and the subsequent Enabling Clause, permanently waiving the most-favored nation treatment otherwise due if a WTO Member lowers a tariff(ECDPM 2020).

 

Initiated in 2021, the EU Commission’s reform of Regulation EU 978/2012 Generalized System of Preferences (GSP) for developing and least-developed countries, proposes to expand by the area of migrant readmission, the cooperation the EU requires from beneficiary countries for exports from those countries to benefit from a lower or zero import duty on two-thirds of tariff lines under standard GSP, a zero duty on the same tariff lines, conditioned on the ratification of 27 conventions (GSP+) or a zero import duty on all products from LDCs except for arms and ammunition (Everything-but-Arms, EBA)  into the EU. Adding to the EU’s long list of incentives to buy origin countries’ approval for sending back their citizens in irregular stays in the EU, the Commission’s proposal, critically viewed by the EU Parliament, NGOs, and academics alike, would have complemented that listing by adding preferential trade initiatives to it. Inversely, the GSP Regulation, equally boasting an ever increasing to-do list of criteria countries need to fulfill in order to enjoy the preferences, has now been topped by the criteria of readmitting (irregular) migrants.

 

The legality of both the EU external migration system with the new addition of trade and the EU GSP regulation with its expansion to include migration policy, poses challenges of legality and practicability under WTO law, as academics and practitioners have analysed and this post discusses.

 

In its reform proposal of EU GSP Regulation 978/2012, the EU Commission suggest for the very first time, to interlace EU external migration policy, notably EU readmission agreements and cooperation on assisted and voluntary return to the EU’s GSP for the period of 2024-34. In particular the proposal foresees to up the ante of EU Regulation 978/2012 withdrawal of tariff preferences procedure by adding migrant readmissions as one benchmark to measure good governance, the former which is, alongside sustainable development and human rights one of the areas of cooperation which can conditionality rewards either positively or which is sanctioned off negatively, by the withdrawal or suspension of preference, ranging from visa relaxation, development cooperation or lowered import tariffs into the EU. As Grundler and Guild 2023 have observed, the negative conditionality (Sabourin and Jones 2023) which the Commission would like to see, is insofar not surprising, as EU member states have traditionally taken to constructs double binds, pitting legal pathways against migration control (Garcia-Andrade 2020:260) in bilateral migration agreements, with questionable outcome.

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Whereas the EU has inserted Art. 25(a), a readmission clause in its 2019 revision of the  Schengen Visa Code (Bisong 2019; Grundler and Guild 2023), the Commission’s activating the Union’s common commercial policy Art. 207 TFEU, to secure cooperation on readmissions, uses a new tool for the same purpose, yet without specifying the periodicity of review of third countries’ cooperation or lack thereof, as Art. 25a does. Several human rights organizations have remarked in response to the Commission’s proposal and the Council’s endorsement in 2022, that the insertion of migration, is shaky on more than one legal ground (Human Rights Watch, FIDH, ECRE).

 

Firstly, withdrawing the preferential tariff treatment, which LDC and developing countries obtain under one of the three pillars of the GSP, GSP+ and Everything-but-Arms (EBA) treatment might be unlawful under the WTO Appellate Body jurisprudence, as shown by DG External Policies’ Report on the proposed GSP reform (2022). In that WTO decision of 2004, the benefit of lower tariffs must be granted on a non-discriminatory basis to ‘similarly situated beneficiary countries’ and a clear link between the benefit granted and the ‘development objective’ be made. Hence, the idea of threatening a developing or least developed country with the withdrawal of a tariff preference, is not new, as Peers (2016) points out (534-537), but the EU Parliament in its criticism of the EU Commission’s proposed new EU GSP Regulation  had legitimate concern, that the EU would be creating the similar situation that had led the WTO Appellate Body ruling in EC-Tariff Preferences, to condemn it and which had put a stop to any selective imposition of trade preferences (Bartels 2003).

 

Up until this day, the Commission rewards countries of origin for cooperating on forced returns, border screening, information campaign, via visa relaxations for diplomatic staff, journalists, by facilitating remittances transfers and lowering costs, by a promise of better integration of third country nationals (Peers 2016). In so doing, the EU has treated different migrant origin countries, differently, yet, so far, without risking WTO incompatibility, since if visa, remittances or integration remain outside the scope of the WTO. The situation is different, given the recently suggested negative trade conditionality, contingent on withdrawing tariff preferences, when a readmission cannot take place. It implies that the Commission must define ‘objective’ benchmarks around readmission, for when that tariff treatment is to be removed in addition to treating similarily situated countries, identically.

 

Secondly, the EP during the 2022 inter-institutional trilogues between Council, Commission, ascertained that tying preferences to readmission of one’s own nationals, might be too far removed a conditionality. Recently, the EP’s international trade (INTA) committee on 19 September 2023 voted in favour of extending the current EU GSP scheme to 31 December 2027, which the Commission proposed to avoid the current GSP lapsing in light of the lack of agreement on the main proposal, until the Parliament and Council can agree on how to update that Regulation. Meanwhile, INTA has not further entered into discussions about circumscribing the exact legal scope triggering a potential tariff withdrawal, whether a non-implementation of an EU readmission agreement or of a bilateral readmission agreement must be shown, or whether the refusal to negotiate such an agreement in the first place is sufficient to trigger the clause, or, as the DG External Relations suggested, the non-compliance with international obligations under a EURA. Nonetheless, the Commission’s proposal currently stands at the brink of extinction. Yet, it seems timely to analyse its legality with WTO and international obligations, as a final vote, after EP elections, could overturn the INTA’s refusal to follow the Commission’s proposal.

 

In this blogpost, I discuss legality of the EU’s reform proposal under two WTO instruments, the Enabling Clause 1971, setting the legal basis for the Special and Differential Treatment of trade in goods from developing and least-developed WTO Members and the LDC Services Waiver 2011, to understand which out of the two takes origin country concerns seriously. In so doing, I draw on the discussion started by Vidigal (2023) and Tans (2023) about why the  Commission proposal conflicts with WTO rules. In so doing, I touch upon the number of preferential trade agreements (PTAs) which, similarily, have used a trade component as the quid-pro-quo for obtaining a partner’s cooperation on irregular migration. Since PTAs pit trade in services, and thus a form of legal pathways (as opposed to trade in goods) to return migration, within their chapters on the temporary movement of natural persons, the conditionality is more closely or directly contingent on people-on-the-move.

 

Consequently, the EU Commission were better advised to negotiate such openings of its services markets for service supplying natural persons, from countries of origin, within one of its deep and comprehensive free trade agreements (DCFTA) than to go freestyle by attempting to match migrant readmission with trade-in-goods. Not only are countries of origin deeply in need of docking onto the global services markets, but that linkage to readmission, at least in theory, appears to be an immediate one, since services is the only trade flow, hinging, for face-to-face delivery, directly on human factor mobility. Finally, there is in WTO law, a legal basis for enabling such one-way flows of natural persons from developing and least-developing countries (LDCs), without this asymmetric trade posing problem under the WTO GATS most-favored nation clause (MFN), as discussed below.

 

Aggregated conditionality as catalyst of informalizing EU migration cooperation

 

As Frasca (2023) and Desmond (2023) point out, soft law, in the EU external migration context, re-asserts EU sovereignty in instances, where a legally binding obligation on shaky grounds. The key catalyst to jumpstart the process turns out to be conditionality, whitewashed as the comprehensive approach, because it allows to create the traction that soft law lacks. Consequently, conditionality substitutes for a norm failing to deploy a legally binding effect, whether a country refuses to embrace the internationally binding quality of the duty to take back one’s own nationals or considers not being concerned by the duty to take back one’s own nationals. However, the role of conditionality when the EU deploys its armada of informalized migration arrangements, whether partnerships, technical readmission arrangements, standard operation procedures, dialogues still needs more research.

 

Under the New Pact on Migration and Asylum of 23 September 2020, conditionality was up for a supposedly ‘fresh start’ with the  Communication, Attracting Skills and Talents to the EU (27 April 2022), spearheading the Talent partnerships complementing EU mobility partnerships as a multidimensional response to the 18 EU readmission agreements (2023) and 6 arrangements, which regularly fail for non-reciprocally engaging with the sending country ‘s interests and needs (Moraru, Cornelisse and de Bruycker 2022).  Whereas the Commission was not yet breaking with positive conditionality driving much of the EU external migration policy, conditionality’s new focus on vocational and professional upskilling of trainees thru circular Talent Partnerships bears evidence that the Commission is on the lookout for new anchors by which to reinvigorate conditionality, and its EU external migration policy (Tsourdi, Zardo and Sayed 2023).

 

Whereas negative conditionality, which retributes a third country for its lack of cooperation on implementing EU migration policy, has prompted Ethiopia and Afghanistan to sign non-binding readmission declarations (SWP Berlin 2020), the threatened suspension of development aid, has never materialized. Speaking against negative conditionality, as the one the Commission proposes for trade preferences is that raising visa processing charges has not encouraged cooperation (Grundler and Guild 2023), nor is cutting development aid the appropriate penalty for a country such as Nigeria, where remittances are high and thus, installing of vocational training makes more of a difference (Nigeria-Switzerland Migration Partnership of 2011).

 

In 2021, against the background of arrivals by at-sea crossings and over the central route to Europe (ICMPD 2023) tripling, the Commission introduced a new feature to its palette of negative conditionality for non-cooperation over irregular migration. Under its Proposal for a revised GSP Regulation, COM(2021) 579 final for 2024-2034, the EU would now withdraw preferential trade benefits, either under the GSP+ (Generalized System of Preferences) granted to the seven EU beneficiaries (Bolivia, Cape Verde, Kyrgyzstan, Mongolia, Pakistan, Philippines, Sri Lanka), or for least-developed countries (LDCs) under its Everything-but-Arms (EBA), if ‘beneficiary countries on migration and the readmission of rejected asylum seekers’ refuse to cooperate (Guild 2023 in this blogpost).

 

 

Along a well-trodden path—forerunners to identifying trade as leverage for incentivizing migrant returns

 

For the past decade or longer, EU Member States have sought to level the playing field over migration policy among North and West African countries of origin and transit, by proposing one-size-fits-all bilateral migration management, on the basis of Art. 79:5 TFEU in the shape of agreements linking legal pathways to cooperation on returns. France’s agreements on the joint management of migration flows and solidary development for example, stepped up labor admission quotas, or created the same new categories of admission, for all of the seven African countries willing to sign on to a readmission clause. The suggested EU GSP link to cooperation on migration, would run counter to precisely those efforts, that remove treating certain origin countries better than others, thus risking to re-install post-colonial privileges (Robertson 2017).

 

Another forerunner to the prospective trade and (return) migration linkage, is the EU Compact with Jordan which reduces tariffs to duty-free, quota-free exports (DFQF) for products manufactured in Jordan with 10% (first 2 years) and later on, 15% ‘refugee content’. For becoming eligible for this Everything-but-Arms (EBA) privilege, Jordan had to temporarily accept a least-developed country (LDC) status. Whereas Jordan was compensated for employing refugees, in an afterthought, the DFQF occurred with a view to reducing secondary onward movement of refugees to Europe (Lenner 2020). If the EU’s Jordan Compact targeted refugees and not migrants, it was critically received by scholars (Gordon 2021) and advocates of fair and ethical recruitment under ILO standards.

 

Tariff Reduction for Return Migrations? Criticism of the proposed EU GSP 2023-34

 

Trade preferences can be critical for the survival of a developing country on the global market, and their withdrawal carries ethical consequences, as discussed by Tans 2023. Questions about the legality of the EU GSP scheme under WTO law (ODI Report 2023) also arise. Firstly, for Tans, proposing to retract tariffs if migrant returns seem low (to the EU), is not immediate enough a link to human mobility (EP in-depth analysis of the Commission’s proposal of January 2022). In this line of thinking, the Commission would first need to open legal pathways for migrants under the temporary movement of persons, the so-called Mode 4, under an economic partnership agreement (EPA) before it could retract trade preferences in goods.

 

If we recall how Mode 4 GATS stands as the only format of international human mobility that is liberalised internationally, under the multilateral WTO/GATS (Chetail 2014), Mode 4 presents the very connection between trade and temporary migration that is missing from the EU’s proposal. Labelled ‘mode 4’ of Art. 1:2(d) GATS this temporary mobility is a sub-form of international migration. However, it is limited under an excruciatingly narrow definition, to a) temporary stay abroad, b) not entering the labor market (only the services) of the host country c) opened only under commitments by member states d) categories of persons are narrowly defined, often clustering in the highly-skilled segments (Trachtman 2009;). As (Tans in this blogpost) suggests, the EU conditionality working through Everything-but-Arms (EBA) and GSP+ should only apply to those nationals who move under the EU’s GATS mode 4 commitments, if they fail to return voluntarily at the end of their legal temporary stay.

 

Looking for Alternatives 1: Cotonou Convention’s Cooperation on Migrant Returns

 

To this day, the temporary, cross-border movement of natural persons, the so-called Mode 4 has been missing out of EU economic partnership agreements (EPA) with North African countries (Cottier and Shinghal 2021), such that threatening to withdraw tariff preferences under the EU GSP, or even suspending the cross-border mobility so as to penalize countries in North Africa for refusing to take back their own citizens in irregular stays abroad remains illusory. In addition, speaking against penalizing countries of origin for refusing to take back citizens, and thus, against applying the EU’s revised GSP, is Art. 74 on ‘return and readmission’ of the 15 April 2021 negotiated agreement text initialed by the EU and the ACPs chief negotiators -- a follow-up to the Cotonou agreement  -- restates Art. 5 Cotonou agreement with the exception of a return clause which is free from any conditionality—neither is there a negative consequence for failing to take back one’s nationals, nor are typical migrant host countries required to open their labor markets to potential migrant workers.

 

Looking for Alternatives 2: Preferential Trade Agreements and ‘Embedded’ Returns

 

Several economic partnership agreements (EPA) have been consolidating an emerging opinio juris of obliging the origin country to take back their own nationals, once these have terminated their temporary stay to supply a service abroad:  Japan’s EPAs with the Philippines (2008), Indonesia and Vietnam (2009) codify a return clause, which is linked to a services trade commitment. It spells out a requirement for the Filipino, Vietnamese nurses and caregivers to return home, who have failed Japan’s national board examination (NBE). Because this return clause applies solely to the closed-circuit of the categories of persons whose movement the EPA facilitates (Efendi at al. 2013; Naiki 2015), I label it ‘embedded return’. Japan’s EPA of 2019 with the EU, Annex 17 imposes a duty of cooperation on worker’s returns, even if it remains generic when compared to Japan’s EPA with the countries mentioned above. Unlike for what the EU Commission envisages with reforming its GSP regulation, Japan’s EPA carry no negative consequences if either Vietnam, Indonesia or the Philippines fail to cooperate on returns.

 

A Definitive ‘No’? Uncertain Legality of a Trade - Return Migration Linkage under WTO Law

 

As Carzaniga and Sharma 2022 note, WTO Members’ right to regulate emerges from Art. VI GATS. As such, there is a discretionary space under Art. VI, but not an unlimited one, which would permit biometric border surveillance and data collection at the border, under the condition that certain criteria, including transparency are met. However, such broad reading contrasts with the GATS Annex on the Temporary Movement of Natural Persons which stipulates that measures that regulate entry and stay remain under the sovereign right of WTO Members and fall outside the scope of the WTO. Under this narrow interpretation, any PTA linking return duties conditionally to the temporary movement of workers would, in theory, be in breach of the GATS Annex. To summarize, the EU Commission might be infringing WTO/GATS by proposing a GSP reform since the multilateral trade rules of the WTO/GATS Annex preclude a legal connection being made between migrants’ return and trade in services. Beyond the uncertain legality of the Commission’s proposed reform of Regulation EU 1083/2013, there are political economic reasons why arguing in favor of the reform would be bad judgment, discussed further below.

 

People-on-the-move and the ‘new’ EU GSP 2024-34: Moving to the GATS Services Waiver instead?

 

A key consideration speaking against using the revision of the EU GSP to manage the EU’s external migration policy, are the uncertain consequences for countries non-complying with the GSP+ or EBA? In general, countries subject to the GSP+, need to ratify the 27 international law conventions on good governance, labor and human rights, as well as environmental protection, for becoming eligible for the preferential tariff treatment. If the EU deems there is a failure to fully implement provisions of these 27 Conventions, it will normally suspend the preferential tariff and the country’s exports move back to the higher regular tariff (Cambodia in 2019). Now, if the EU considers a ‘failure to cooperate on return migration’ in the same rationale as the 27 Conventions, it conjures a questionable linearity between irregular migration and a non-existent international convention about protecting migrants’ rights. Naturally, the ILO Migrant Workers’ Convention could embody the 28th international convention countries of origin of migrants would be asked to sign to receive the tariff privilege, so as to create a closer lineage.

 

However, since no EU Member State has signed onto to it, this option falls out of question, even if thematically it would address the linkage the EU desires to build. If not the ICMWR, would the 7 GSP+ beneficiaries of the EU, which are Sri Lanka, Cap Verde, Pakistan, the Philippines, Kyrgysztan, in addition to ratifying the 27 UN Conventions be required to sign onto EU readmission agreements, or EU mobility partnerships or the UN anti-smuggling/trafficking protocols as the benchmark for obtaining the lower tariff? Would cooperating with a single EU Member State thru a bilateral readmission agreement be sufficient to hold off higher tariffs on cotton T’shirts or cocoa products or coffee? By the very act of withdrawing trade preferences, if the EU perceives efforts of reducing irregular migration as waning, becomes comparable to suspending tariff preferences from a beneficiary country where corruption starts to spread, narcotics are being produced or trafficked, labor standards are neglected, human trafficking and smuggling take place. In this logic, irregular migration becomes an act that is to be penalized and sanctioned, in the same order as narcotics trading, corrupting business practices or human trafficking and smuggling, which ethically and legally is a questionable nexus to make.

 

There are better ways to incentivize countries of origin to take back their citizens in unlawful stays abroad than to withdraw tariff preferences. One is to use the LDC Waiver of WTO/GATS whereby a host country increases sectoral labor market openings in services for nationals of a country of origin. This scheme has the advantage of closely matching with the EU Talent Partnerships, the former which are sending potential migrants for a training and upskilling to Europe. In concreto, the mechanism is the following: if the LDC cooperates with the EU on irregular migration, it shall obtain additional market access on mode 4 or mode 3 for its natural persons involved in service provision. Under this paradigm, unlike with for the GSP+/EBA, migration is neither treated as a criminal activity that needs to be contained. In fact, the EU is already testing an LDC Waiver type of model in its Skills Partnerships, which ‘buy professionals from an LDC to deliver services in Europe’ (WTO Council for Trade in Services, Webinar on LDC waiver 2-3 June 2021).

 

In preferring the LDC Waiver alternative to vamping up the GSP, the EU would make a strong statement that cross-border mobility, in the first instance, occurs for improving migrants’ wellbeing that it is ‘cooperative rather than punitive’ (FIDH 2023).

 

In addition, the EU GSP+/EBA reform, as proposed by the Commission, discredits its pilot projects on labor migration and skills partnerships, which already have incorporated a return obligation for all the trainees sent to an EU Member State for upskilling. Even if the contentious term of ‘return’, is replaced by the expression of a so-called ‘soft landing’ back home (Garcia Andrade 2020), these EU Talent Partnerships are anything but free from return obligations. Hence, to now enlist the GSP+/EBA scheme for securing even more returns, puts developing countries and LDCs at risk of an additional sanctioning mechanism (Bisong 2022).  

 

Exploring the ‘LDC Waiver’: Securing Cooperation on Returns by Providing Legal Pathways on Mode 4

 

Special and differential treatment (SDT) for the Global South under Art XIX GATS (OECD 2016) calls on  WTO Members to ‘give special priority’ when opening services markets to exports of LDCs.  On the basis of Art XIX, WTO Members took a Ministerial Conference decision on 17 December 2011 to install a LDC services waiver. Since WTO Members were not using it, LDCs were encouraged to make a collective request under the lead of Uganda, to indicate in which sectors of their services industries a waiver of the MFN and a removal of discriminatory barriers  to national treatment (including quotas, licensing requirements, authorization procedures, labor market tests or professional qualifications) could prove development-friendly. By 2015, 50 WTO Members had made offers, and at the Nairobi Ministerial Conference, a decision was adopted to prolong duration of the waiver until 2030.

 

Under the LDC waiver, the EU, US, Canada, Singapore offer ‘best Free Trade Agreement (FTA)-level’ or in 25% of cases above best FTA level, which is the only way for LDC service suppliers to enjoy a competitive advantage on the global services markets. The LDC waiver provides predictability to service traders who otherwise operate under high volatility, so that a sustainable services industry can grow in LDCs and is more in line with day-to-day reality of LDC economies, many of which are no longer export-based in terms of goods. Australia’s opening of warehouse services beyond the categories it has liberalized in the WTO is promising, while Switzerland opened insurance services to LDC providers with lower qualification/notification requirements.

 

Special and Differential Treatment (SDT) under the early years of GATT was limited to developing countries granted preferences amongst each other (1971) and later on, industrialized countries followed suit, when the GATT Enabling Clause L/4903 0f 1979 transformed the 10-year waivers  of the 1970s into permanent ones. In contrast, the LDC Services waiver, while based on the idea of SDT, requires countries, like the EU, to offer non-reciprocal market access in sectors or modes of services delivery of interest to the services exports of developing and least developed Members. Moreover, it is temporary without a clear scope for discretion over how much reciprocity the grant-giving country is prepared to offer. Such facts, including that SDT is generally considered more difficult to implement than trade facilitation (Elsig 2010), render the Commission proposal difficult to digest and even more treacherous to implement. On the upside, the causality of openings in all four modes of services supply or Mode 4 only, would make the case to embed international people-on-the-move and their forced returns within the Services Waiver more plausible, because the fourth mode of service delivery, the so-called Mode 4 of GATS is the only WTO entry point for the temporary movement of natural persons, which can involve migrants, including in irregular stays, depending on national immigration and labor legislation.

 

Conclusions

 

In this blogpost I put forward the case for subsuming a compensation mechanism for countries of origin taking back migrants in irregular stays under the LDC Services Waiver of the GATS, rather than under the 1971 GATT Enabling Clause legitimizing the sequence of EU GSP Regulations.

 

The EU Commission’s heralded ‘positive outcome’ for states cooperating on migrants’ return, appears to be a negative conditionality of withdrawing tariff duties. As such it is less attractive than pledging market access under the LDC Waiver, in more than one way. Firstly, sending countries are often serving as regional services hubs in construction, logistics, and production-related services or becoming global players in tourism and healthcare, such that benefitting from the LDC Waiver, if cooperating on return migration with the EU, resonates with the Global South’s evolution from export-based manufacturing to service economy.

 

Secondly, source countries are more likely to embrace a pledge by the EU to open a services sector, in exchange for ensuring a functioning readmission procedure, than they will actually benefit from already low tariffs. Therefore, to co-opt the LDC Waiver for migration management leads to a fuller integration of countries of origin into global value-chains.

 

Thirdly, the LDC Waiver works without attaching conditionalities. This is key because having too many conditionalities can increase the compliance costs on developing and least-developed countries and backfire, as a disproportionate amount of resources is invested into meeting criteria, rather than on the ground. (US Congress, GSP 2022).

 

In sum, the LDC Waiver not only responds to the WTO’s call for special and differential treatment of developing countries, but it offers more credibility to the revised EU GSP 2024-34 than the GSP, because of its co-ownership by countries of origin. The LDC Waiver opens up valuable export markets in exchange for a duty of taking back one’s own citizens. It would certainly be more in line with the WTO Marrakech Agreement’s Preamble which stresses ‘the need for positive efforts designed to ensure that developing countries …secure a share in the growth in international trade’ over negative retribution as a way to elevate nations out of poverty.

 

 

 

 

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

Professor Steve Peers, University of Essex

Introduction

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)
End June 2020: target date for completing assessment of financial services equivalence (para 38) [corrected on 9 Dec 2018]

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) and for Commission decision on adequacy of UK data protection law (para 9)

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

INTRODUCTION

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

I. BASIS FOR COOPERATION

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.

B. Data protection

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.

B. Dialogues

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.’

II. GOODS

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.

B. Tariffs

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.

C. Regulatory aspects

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.

D. Customs

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…’

C. Regulatory aspects

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.’

IV. FINANCIAL SERVICES

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.

V. DIGITAL

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.

VIII. PUBLIC PROCUREMENT

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’.

IX. MOBILITY

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.

X. TRANSPORT

A. Aviation

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.’

B. Road transport

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.

C. Rail transport

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’.

D. Maritime transport

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.

XI. ENERGY

A. Electricity and Gas

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.

B. Civil Nuclear

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.

XIII. GLOBAL COOPERATION

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, 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.

A. Data exchange

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.

ECRIS is currently set up on the basis of two EU laws: a Framework Decision and a Decision. (They would be amended and replaced by a proposed Regulation and proposed Directive, which are currently under negotiation). The EU has not previously agreed that any non-EU countries could be associated with this law.

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.

B. Sanctions

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).

F. Space

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.

IV. THEMATIC COOPERATION

A. Cyber security

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). [update, Dec 11 2018: this new Regulation has been agreed in principle]

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.

B. Civil protection

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).

C. Health security

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.

D. Illegal migration

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

I. STRUCTURE

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.

II. GOVERNANCE

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).

C. Interpretation

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.

D. Dispute settlement

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.

PART V: FORWARD PROCESS

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.

I. BEFORE WITHDRAWAL

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.

II. AFTER WITHDRAWAL

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.

III. REVIEW POINTS

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.