Brexit negotiations resource page

27th August 2017

This “resource page” sets out links and materials relevant to the current Brexit negotiations between the UK and the European Commission (on behalf of the EU).

These links and resources are (almost entirely) to official documents. There is the occasional other link (like to a YouTube video) to break up the monotony.

The links and materials are set out as follows:

Key documents – Article 50 etc, UK documents, EU documents, joint documents

Structure and format of negotiations – documents on how the talks are structured, including on “sequencing” and the “sufficient progress” issue, and the “principles” of both sides. This aloe sets out how the mandate of the negotiation team is coped.

Negotiation rounds – agendas, statements, etc.

 Exit Issues – these sections collect together (a) background materials from relevant documents (as well as links), and (b) the position papers (and similar documents) for each topic.  The topic are in the order provided by EU position paper numbering, other than the Irish border (for which there is not an EU position paper (yet), and which I have placed first) and some other topics for which the EU has not published a position paper.

Partnership papers – the UK has also published “partnership papers” for the broader agreement after the exit agreement.  These are listed at the end, but are included where applicable under Exit topics.

 

Notes on the below

This page is a work in progress (and is in “Beta” mode to begin with).  

There will be errors – so check original documents when applicable.  

There will also be omissions – please make suggestions (with links) in the comment box below.

Longer quoted paragraphs have been broken up into smaller paragraphs so as to make it easier for readers.  

Additions since 27th August 2017 are marked (*).  

This Page accompanies the resource page on “Brexit before the Article 50 notification – timeline and resources” here.

 

Official pages to watch

All with links to original documents:

UK’s Department for Exiting the European Union “Article 50 and negotiations with the EU” page

EU timeline on Brexit

EU negotiation documents

Key documents

Article 50 etc

Article 50 of the Treaty on European Union – Article 50(2) is the key provision for the negotiations:

A Member State which decides to withdraw shall notify the European Council of its intention.

“In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.

“That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union.

“It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.”

Article 218(3) of the Treaty on the Functioning of the European Union – this is an additional provision for the negotiations:

“The Commission…shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union negotiator or the head of the Union’s negotiating team.”

 

UK documents

Theresa May speech at Conservative party conference – 2nd October 2016

Theresa May sets out negotiating objectives in Lancaster House speech – 17th January 2017

Government White Paper on Brexit – 2nd February 2017

The Article 50 Notification Letter – 29th March 2017 (the “Article 50 Notification“)

 

EU documents

Statement after the informal meeting of the 27 heads of state or government, 15 December 2016 – setting out intended negotiation procedure

Remarks by President Donald Tusk following the UK notification – 29th March 2017 

European Council (Article 50) guidelines for Brexit negotiations, 29th April 2017  – the “EU Guidelines” (link)

Recommendation authorising the Commission to open negotiations on an agreement with the United Kingdom  setting out the arrangements for its withdrawal from the EU, 3rd May 2017 –  the “EU Recommendation” (link)

Directives for the negotiation of an agreement with the UK setting out the arrangements for its withdrawal from the European Union, 22nd May 2017 – the “EU Negotiating Directives” (link)

European Parliament resolution on negotiations with the United Kingdom following its notification that it intends to withdraw from the European Union,  5th April 2017 – the “European Parliament Resolution (link)

[Note the EU Negotiation team is bound by the EU Guidelines and EU Negotiating Directives, and are to have regard to the European Parliament Resolution.]

 

Joint documents

The jointly agreed EU and UK Terms of Reference for the Article 50 TEU negotiations, 19th June 2017 – the “Joint Terms of Reference” (link)

 

Structure and format of negotiations

Joint Terms of Reference

“The United Kingdom and the European Commission, representing the EU, share the understanding that the following elements will guide the negotiations under Article 50 of the Treaty of the European Union (TEU):

Negotiation Structure

“1. The negotiating rounds will consist of plenary sessions and negotiating
group meetings.

“2. Plenary negotiating sessions should be co-chaired by the Principals
and/or Coordinators who have the overall responsibility for managing
the negotiating process and provide necessary guidance, as appropriate.

“3. The following initial negotiating groups have been established:
– Citizens’ rights;
– Financial Settlement;
– Other Separation issues.

“In addition, a dialogue on Ireland / Northern Ireland has been launched
under the authority of the Coordinators.

“4. The Principals may decide to establish additional working groups, subgroups or organise breakout sessions.

“5. Each round of negotiations should comprise public officials of both sides
only.

Negotiating texts and other negotiating documents

“6. Negotiation texts that are intended for discussion at any negotiating
round should be shared at least one week in advance wherever possible.

Frequency of Negotiating Rounds

“7. Negotiation rounds will be organised once every 4 weeks in principle,
unless otherwise decided by mutual consent. Negotiators may meet
intersessionally to prepare negotiations, as required.

“8. Indicative dates for first sessions have been agreed as per paragraph 9
below. Each round will include discussion of each of the issues set out in
Paragraph 3.

“9. Indicative dates are:
 Opening: 19th June
 Second round: w/c 17th July
 Third round: w/c 28th August
 Fourth round: w/c 18th September
 Fifth round: w/c 9th October

Language

“10. English and French will be used, as working languages, during
negotiations and in working documents. Interpretation will be provided
by the European Commission.

Transparency

“11. For both parties the default is transparency.

“12. It is for the Party providing the information to state what, if any,
restrictions should apply to their further distribution.

“13. Any disclosure by either the United Kingdom or the European
Commission of documents originating from the other Party will be
subject to prior consultation of the originating party.

“14. Both Parties will handle negotiating documents in accordance with their
respective legislation.
Public messaging

“15. Where possible, both Parties will seek to agree public statements
relating to negotiating rounds.”

 

Scope of EU negotiating team mandate

The EU Guidelines, introductory paragraphs:

“These guidelines define the framework for negotiations under Article 50 TEU and set out the overall positions and principles that the Union will pursue throughout the negotiation.  In this context, the European Council welcomes the resolution of the European Parliament of 5 April 2017.

“The European Council will remain permanently seized of the matter, and will update these guidelines in the course of the negotiations as necessary. Negotiating directives will be adjusted accordingly.”

EU Recommendation, page 2:

“The negotiations will be conducted in the light of the European Council guidelines, in line with the negotiating directives and with due regard to the resolution of the European Parliament of 5 April 2017.”

From paragraphs 44 to 46 of the EU Negotiating Directives:

“…these negotiating directives establish the detailed arrangements governing the relationship between the Council and its preparatory bodies, on the one hand, and the Union negotiator on the other.

“45. The Union negotiator will conduct negotiations with the United Kingdom in continuous coordination and permanent dialogue with the Council and its preparatory bodies.

“In this respect, in full compliance with the institutional balance set out by the Treaties, the Council and Coreper, assisted by the Working Party on Article 50, will provide guidance to the Union negotiator, in light of the European Council guidelines and in line with the negotiating directives.

“46. The Union negotiator will in a timely manner consult and report to the preparatory bodies of the Council. To that end, the Council will organise before and after each negotiating session a meeting of the Working Party on Article 50.

“The Union negotiator will provide in a timely manner all necessary information and documents relating to the negotiations.”

 

Sequencing and “sufficient progress”

[The EU’s stated position is that the future relationship of the UK and EU can only be negotiated when there is “sufficient progress” on the exit issues.]

From paragraphs 4 and 5 of the EU Guidelines:

“5. […]The main purpose of the negotiations will be to ensure the United Kingdom’s orderly withdrawal so as to reduce uncertainty and, to the extent possible, minimise disruption caused by this abrupt change.

“To that effect, the first phase of negotiations will aim to:

–  provide as much clarity and legal certainty as possible to citizens, businesses, stakeholders and international partners on the immediate effects of the United Kingdom’s withdrawal from the Union;
– settle the disentanglement of the United Kingdom from the Union and from all the rights and obligations the United Kingdom derives from commitments undertaken as Member State.

“The European Council will monitor progress closely and determine when sufficient progress has been achieved to allow negotiations to proceed to the next phase.

“5. While an agreement on a future relationship between the Union and the United Kingdom as such can only be finalised and concluded once the United Kingdom has become a third country, Article 50 TEU requires to take account of the framework for its future relationship with the Union in the arrangements for withdrawal.

“To this end, an overall understanding on the framework for the future relationship should be identified during a second phase of the negotiations under Article 50 TEU.

“We stand ready to engage in preliminary and preparatory discussions to this end in the context of negotiations under Article 50 TEU, as soon as the European Council decides that sufficient progress has been made in the first phase towards reaching a satisfactory agreement on the arrangements for an orderly withdrawal.”

From the EU Recommendation, pages 2 to 3:

“An agreement on a future relationship between the Union and the United Kingdom can only be finalised and concluded once the United Kingdom has become a third country.

“However, Article 50 of the Treaty on European Union requires that the framework for the future relationship with the Union is taken into account in the agreement setting out the arrangements for the withdrawal. 

“To this end, as soon as the European Council decides that sufficient progress has been achieved to allow negotiations to proceed to the next phase, an overall understanding with the United Kingdom on the framework for the future relationship.”

Paragraphs 9 and 10 of the EU Negotiation Directives:

“9. The European Council guidelines set out a two-phased approach to the negotiations. The first phase will aim to:
– Provide as much clarity and legal certainty as possible to citizens, businesses, stakeholders and international partners on the immediate effects of the United Kingdom’s withdrawal from the Union;
– Settle the disentanglement of the United Kingdom from the Union and from all the rights and obligations the United Kingdom derives from commitments undertaken as a Member State.

“10. The present set of negotiating directives is intended for the first phase of the negotiations. In line with the aim established for the first phase of the negotiations by the European Council, these negotiating directives prioritise some matters which, at this stage, have been identified as necessary to ensure an orderly withdrawal of the United Kingdom from the Union. Other matters not covered by this set of negotiating directives, such as services, will be part of subsequent sets of negotiating directives.”

From Paragraph 19 of the EU Negotiation Directives:

“As soon as the European Council decides that sufficient progress has been achieved to allow negotiations to proceed to the second phase, there will be new sets of negotiating directives.”

 

Transition arrangements

Paragraph 6 of the EU Guidelines:

“To the extent necessary and legally possible, the negotiations may also seek to determine transitional arrangements which are in the interest of the Union and, as appropriate, to provide for bridges towards the foreseeable framework for the future relationship in the light of the progress made.

“Any such transitional arrangements must be clearly defined, limited in time, and subject to effective enforcement mechanisms.

“Should a time-limited prolongation of Union acquis be considered, this would require existing Union regulatory, budgetary, supervisory, judiciary and enforcement instruments and structures to apply.”

From page 3 of the EU Recommendation:

“Determining transitional arrangements under the withdrawal agreement, including bridges towards the foreseeable framework for the future relationship, in the light of the progress made, depends on the identification of an understanding over the framework for the future relationship between the Union and the United Kingdom which will be determined in the second phase of the negotiations.

“Therefore, matters that could be part of such transitional arrangements are not covered by the present recommended negotiating directives and will be
identified at a later stage.

“This approach will allow an efficient allocation of the limited time that Article 50 of the Treaty on European Union imposes for the conclusion of the Agreement.”

Paragraph 19 of the EU Negotiation Directives:

“As soon as the European Council decides that sufficient progress has been achieved to allow negotiations to proceed to the second phase, there will be new sets of negotiating directives.

“In this context, to the extent necessary and legally possible, matters that should be subject to transitional arrangements (i.e. bridges towards the foreseeable framework for the future relationship) and which are in the interest of the Union, will be included in those future sets of negotiating directives in the light of the progress made. Any such transitional arrangements must be clearly defined, limited in time, and subject to effective enforcement mechanisms.

“Should a time-limited prolongation of Union acquis be considered, this would require existing Union regulatory, budgetary, supervisory, judiciary and enforcement instruments and structures to apply.

“This approach will allow an efficient allocation of the limited time that Article 50 of the Treaty on European Union imposes for the conclusion of the Agreement by avoiding the need to address the same matter several times at different phases of the negotiations.”

Article 28 of the European Parliament Resolution:

“[The European Parliament] believes that transitional arrangements ensuring legal certainty and continuity can only be agreed between the European Union and the United Kingdom if they contain the right balance of rights and obligations for both parties and preserve the integrity of the European Union’s legal order, with the Court of Justice of the European Union responsible for settling any legal challenges; believes, moreover, that any such arrangements must also be strictly limited both in time – not exceeding three years – and in scope, as they can never be a substitute for European Union membership.”

 

EU and UK “Principles”

[Here I do not commend or endorse the “principles” – but they are set out as the EU negotiation team have to comply with their principles in the negotiations, and the UK has set out their principles.]

From the Article 50 Notification:

Proposed principles for our discussions

“Looking ahead to the discussions which we will soon begin, I would like to suggest some principles that we might agree to help make sure that the process is as smooth and successful as possible.

i. We should engage with one another constructively and respectfully, in a spirit of sincere cooperation

“Since I [May] became Prime Minister of the United Kingdom I have listened carefully to you, to my fellow EU Heads of Government and the Presidents of the European Commission and Parliament.

“That is why the United Kingdom does not seek membership of the single market: we understand and respect your position that the four freedoms of the single market are indivisible and there can be no “cherry picking”.

“We also understand that there will be consequences for the UK of leaving the EU: we know that we will lose influence over the rules that affect the European economy.

“We also know that UK companies will, as they trade within the EU, have to align with rules agreed by institutions of which we are no longer a part – just as UK companies do in other overseas markets.

ii. We should always put our citizens first

“There is obvious complexity in the discussions we are about to undertake, but we should remember that at the heart of our talks are the interests of all our citizens.

“There are, for example, many citizens of the remaining member states living in the United Kingdom, and UK citizens living elsewhere in the European Union, and we should aim to strike an early agreement about their rights.

iii. We should work towards securing a comprehensive agreement

“We want to agree a deep and special partnership between the UK and the EU, taking in both economic and security cooperation.

“We will need to discuss how we determine a fair settlement of the UK’s rights and obligations as a departing member state, in accordance with the law and in the spirit of the United Kingdom’s continuing partnership with the EU.

“But we believe it is necessary to agree the terms of our future partnership alongside those of our withdrawal from the EU.

iv. We should work together to minimise disruption and give as much certainty as possible

“Investors, businesses and citizens in both the UK and across the remaining 27 member states – and those from third countries around the world – want to be able to plan.

“In order to avoid any cliff-edge as we move from our current relationship to our future partnership, people and businesses in both the UK and the EU would benefit from implementation periods to adjust in a smooth and orderly way to new arrangements.

“It would help both sides to minimise unnecessary disruption if we agree this principle early in the process.

v. In particular, we must pay attention to the UK’s unique relationship with the Republic of Ireland and the importance of the peace process in Northern Ireland

“The Republic of Ireland is the only EU member state with a land border with the United Kingdom.

“We want to avoid a return to a hard border between our two countries, to be able to maintain the Common Travel Area between us, and to make sure that the UK’s withdrawal from the EU does not harm the Republic of Ireland.

“We also have an important responsibility to make sure that nothing is done to jeopardise the peace process in Northern Ireland, and to continue to uphold the Belfast Agreement.

vi. We should begin technical talks on detailed policy areas as soon as possible, but we should prioritise the biggest challenges

“Agreeing a high-level approach to the issues arising from our withdrawal will of course be an early priority.

“But we also propose a bold and ambitious Free Trade Agreement between the United Kingdom and the European Union.

“This should be of greater scope and ambition than any such agreement before it so that it covers sectors crucial to our linked economies such as financial services and network industries.

“This will require detailed technical talks, but as the UK is an existing EU member state, both sides have regulatory frameworks and standards that already match.

“We should therefore prioritise how we manage the evolution of our regulatory frameworks to maintain a fair and open trading environment, and how we resolve disputes.

“On the scope of the partnership between us – on both economic and security matters – my officials will put forward detailed proposals for deep, broad and dynamic cooperation.

vii. We should continue to work together to advance and protect our shared European values

“Perhaps now more than ever, the world needs the liberal, democratic values of Europe.

“We want to play our part to ensure that Europe remains strong and prosperous and able to lead in the world, projecting its values and defending itself from security threats.”

From Paragraph 1 of the EU Guidelines:

“[The EU] reiterates its wish to have the United Kingdom as a close partner in the future.

“The European Council further reiterates that any agreement with the United Kingdom will have to be based on a balance of rights and obligations, and ensure a level playing field.

“Preserving the integrity of the Single Market excludes participation based on a sector-by-sector approach.

“A non-member of the Union, that does not live up to the same obligations as a member, cannot have the same rights and enjoy the same benefits as a member.

“In this context, the European Council welcomes the recognition by the British Government that the four freedoms of the Single Market are indivisible and that there can be no “cherry picking”.

“The Union will preserve its autonomy as regards its decision-making as well as the role of the Court of Justice of the European Union.

From Page 3 of the EU Recommendation:

“In accordance with the European Council guidelines, the following core principles will apply equally to the negotiations on an orderly withdrawal, to any preliminary and preparatory discussions on the framework for a future relationship, and to any form of transitional arrangements:

“– The Agreement will have to be based on a balance of rights and obligations, and ensure a level-playing field;

“– Preserving the integrity of the Single Market excludes participation based on a sector-by-sector approach;

“– A non-member of the Union, which does not have the same obligations as a member, cannot have the same rights and enjoy the same benefits as a member;

“– Participation in the Single Market requires the acceptance of all four freedoms;

“– Negotiations with the United Kingdom will be conducted as a single package.  In accordance with the principle that nothing is agreed until everything is agreed, individual items cannot be settled separately. The Union will approach the negotiations with unified positions, exclusively through the channels set out in the European Council guidelines and in the negotiating directives and there will be no separate negotiations between individual Member States and the United Kingdom on matters pertaining to the withdrawal;

“– The Agreement will have to respect the autonomy of the Union as regards its
decision-making as well as the role of the Court of Justice of the European Union.”

It is also worth noting here Article 17 of the European Parliament Resolution:

“[The European Parliament] is of the opinion that the withdrawal agreement should address the following elements:  

– the legal status of EU-27 citizens living or having lived in the United Kingdom and of United Kingdom citizens living or having lived in other Member States, as well as other provisions concerning their rights; 

– the settlement of financial obligations between the United Kingdom and the European Union; 

– the European Union’s external border; 

– the clarification of the status of the United Kingdom’s international commitments undertaken as a Member State of the European Union, given that the European Union of 27 Member States will be the legal successor to the European Union of 28 Member States; 

– legal certainty for legal entities, including companies; 

– the designation of the Court of Justice of the European Union as the competent authority for the interpretation and enforcement of the withdrawal agreement”

 

Negotiation Rounds

Round One – 19th June 2017

Joint statement on 15th June 2017 of UK and EU

Agenda of meeting between the EU and the UK on Article 50 negotiations

Secretary of State David Davis’ statement following the opening of EU exit negotiations on 19th June 2017

David Davis’ opening remarks on 19th June 2017 at the start of EU exit negotiations in Brussels

Speech on 19th June 2017 by Michel Barnier, the European Commission’s Chief Negotiator, following the first round of Article 50 negotiations with the UK

The jointly agreed EU and UK Terms of Reference for the Article 50 TEU negotiations, 19th June 2017 – the “Joint Terms of Reference” (link)

11th July 2017 – David Davis’ evidence to Lords committee on First Round (transcript)

Speaking points by Michel Barnier on 12th July 2017

European Commission factsheet dated 12th July 2017:

“The first round of Article 50 negotiations between the European Commission and the United Kingdom took place on 19 June.

“Both parties agreed to create working groups on citizens’ rights, the financial settlement and other separation issues.

“The coordinators of the negotiations on the EU and UK side will also start a dialogue on issues pertaining to Northern Ireland.

“The outcome of this first round of negotiations is outlined in the “Terms of Reference” agreed between the UK and the European Commission…”

12th July 2017Evidence of Michel Barnier and others to Lords select committee

12th July 2017 – Michel Barnier responds to Boris Johnson’s “whistle” comment

The jointly agreed EU and UK Terms of Reference for the Article 50 TEU negotiations, 19th June 2017 – the “Joint Terms of Reference” (link)

 

Round Two – 17th to 20th July 2017

Agenda of the 2nd round of EU-UK Article 50 negotiations

David Davis’ opening remarks on 17th July 2017 at the start of second round of EU exit negotiations in Brussels

David Davis’ closing remarks on 20th July 2017 at the end of the second round of EU exit negotiations in Brussels

Speaking points by Michel Barnier at the press conference on 20th July 2017 following the second round of Article 50 negotiations with the United Kingdom

David Davis’ letter to Lords select committee on second round of negotiations

 

Round Three – 28th to 31st August 2017

Agenda of the 3rd round of EU-UK Article 50 negotiations

* David Davis’ opening remarks on 28 August 2017 at the start of the third round of EU exit negotiations

Speech by Michel Barnier on 31st August  2017 at the press conference following the third round of Article 50 negotiations 

* David Davis’ closing remarks at the end of the third round of EU exit negotiations in Brussels

* David Davis’ statement to the House of Commons on the second and third rounds of the Article 50 negotiations.

 

 

Exit Issues (including Position Papers)

[The EU and UK are publishing “Position Papers” on issues being negotiated under the Brexit negotiations – for other materials see also under the the relevant “Brexit issue” heading below.]

[You will see the the EU position paper topics are numbered and for convenience I have adopted this numbering. As the EU has not published a position paper on Northern Ireland so this is not numbered, but I have placed it first.  The earlier EU papers are addressed to EU27 rather than to the UK, for some reason.]

[These papers are from here and here if you want to check for updates.]

 

Northern Ireland and the Irish border

Background materials

From the UK’s Article 50 Notification:

“In particular, we must pay attention to the UK’s unique relationship with the Republic of Ireland and the importance of the peace process in Northern Ireland

“The Republic of Ireland is the only EU member state with a land border with the United Kingdom.

“We want to avoid a return to a hard border between our two countries, to be able to maintain the Common Travel Area between us, and to make sure that the UK’s withdrawal from the EU does not harm the Republic of Ireland.

“We also have an important responsibility to make sure that nothing is done to jeopardise the peace process in Northern Ireland, and to continue to uphold the Belfast Agreement.”

Paragraph 11 of the EU Guidelines:

“The Union has consistently supported the goal of peace and reconciliation enshrined in the Good Friday Agreement in all its parts, and continuing to support and protect the achievements, benefits and commitments of the Peace Process will remain of paramount importance.

“In view of the unique circumstances on the island of Ireland, flexible and imaginative solutions will be required, including with the aim of avoiding a hard border, while respecting the integrity of the Union legal order.

“In this context, the Union should also recognise existing bilateral agreements and arrangements between the United Kingdom and Ireland which are compatible with EU law.”

Paragraph 14 of the EU Negotiation Directives:

“In line with the European Council guidelines, the Union is committed to continuing to support peace, stability and reconciliation on the island of Ireland.

“Nothing in the Agreement should undermine the objectives and commitments set out in the Good Friday Agreement in all its parts and its related implementing agreements; the unique circumstances and challenges on the island of Ireland will require flexible and imaginative solutions.

“Negotiations should in particular aim to avoid the creation of a hard border on the island of Ireland, while respecting the integrity of the Union legal order.

“Full account should be taken of the fact that Irish citizens residing in Northern Ireland will continue to enjoy rights as EU citizens.

“Existing bilateral agreements and arrangements between Ireland and the United Kingdom, such as the Common Travel Area, which are in conformity with EU law, should be recognised.

“The Agreement should also address issues arising from Ireland’s unique geographic situation, including transit of goods (to and from Ireland via the United Kingdom).

“These issues will be addressed in line with the approach established by the European Council guidelines.”

Article 20 of the European Parliament Resolution:

“[The European Parliament] recognises that the unique position of and the special circumstances confronting the island of Ireland must be addressed in the withdrawal agreement;

“urges that all means and measures consistent with European Union law and the 1998 Good Friday Agreement be used to mitigate the effects of the United Kingdom’s withdrawal on the border between Ireland and Northern Ireland;

insists in that context on the absolute need to ensure continuity and stability of the Northern Ireland peace process and to do everything possible to avoid a hardening of the border.”

 

Position papers etc

The EU has not published a position paper on this issue.

UK position paper on Northern Ireland and the Irish border, 16th August 2017

 

 

1. Citizens’ rights

Background materials

Paragraph 8 of the EU Guidelines:

“The right for every EU citizen, and of his or her family members, to live, to work or to study in any EU Member State is a fundamental aspect of the European Union.

“Along with other rights provided under EU law, it has shaped the lives and choices of millions of people.

“Agreeing reciprocal guarantees to safeguard the status and rights derived from EU law at the date of withdrawal of EU and UK citizens, and their families, affected by the United Kingdom’s withdrawal from the Union will be the first priority for the negotiations.

“Such guarantees must be effective, enforceable, non-discriminatory and comprehensive, including the right to acquire permanent residence after a continuous period of five years of legal residence.

Citizens should be able to exercise their rights through smooth and simple administrative procedures.”

Paragraph 11 of the EU Negotiation Directives:

“Safeguarding the status and rights of the EU27 citizens and their families in the United Kingdom and of the citizens of the United Kingdom and their families in the EU27 Member States is the first priority for the negotiations because of the number of people directly affected and of the seriousness of the consequences of the withdrawal for them.

“The Agreement should provide the necessary effective, enforceable, non-discriminatory and comprehensive guarantees for those citizens’ rights, including the right to acquire permanent residence after a continuous period of five years of legal residence and the rights attached to it.”

Section III.1 of the EU Negotiation Directives:

“III.1. CITIZENS’ RIGHTS

“20. The Agreement should safeguard the status and rights derived from Union law at the withdrawal date, including those the enjoyment of which will intervene at a later date (e.g. rights related to old age pensions) as well as rights which are in the process of being obtained, including the possibility to acquire them under current conditions after the withdrawal date (e.g. the right of permanent residence after a continuous period of five years of legal residence which started before the withdrawal date).

“This should cover both EU27 citizens residing (or having resided) and/or working (or having worked) in the United Kingdom and United Kingdom citizens residing (or having resided) and/or working (or having worked) in one of the Member States of the EU27.

“Guarantees to that effect in the Agreement should be reciprocal and should be based on the principle of equal treatment amongst EU27 citizens and equal treatment of EU27 citizens as compared to United Kingdom citizens, as set out in the relevant Union acquis.

“Those rights should be protected as directly enforceable vested rights for the life time of those concerned. Citizens should be able to exercise their rights through smooth and simple administrative procedures.

21. The Agreement should cover at least the following elements:

a) Definition of the persons to be covered: the personal scope should be the same as that of Directive 2004/38 (both economically active, i.e. workers and self-employed, as well as students and other economically inactive persons, who have resided in the UK or EU27 before the withdrawal date, and their family members who accompany or join them at any point in time before or after the withdrawal date). In addition, the personal scope should include persons covered by Regulation 883/2004, including frontier workers and family members irrespective of their place of residence.

b) Definition of the rights to be protected: this definition should include at least the following rights:

i) the residence rights and rights of free movement derived from Articles 18, 21, 45 and 49 of the Treaty on the Functioning of the European Union and set out in Directive 2004/38 (covering inter alia the right of permanent residence after a continuous period of five years of legal residence and the right as regards access to health care) and the rules relating to those rights; any document to be issued in relation to the residence rights (for example, registration certificates, residence cards or certifying documents) should have a declaratory nature and be issued under a simple and swift procedure either free of charge or for a charge not exceeding that imposed on nationals for the issuing of similar documents;
ii) the rights and obligations set out in Regulation 883/2004 on the coordination of social security systems and in Regulation 987/2009 implementing Regulation 883/2004 (including future amendments of both Regulations) covering inter alia, rights to aggregation, export of benefits, and principle of single applicable law for all the matters to which the Regulations apply;
iii) the rights set out in Regulation 492/2011 on freedom of movement for workers within the Union (e.g. access to the labour market, to pursue an activity, social and tax advantages, training, housing, collective rights as well as rights of workers’ family members to be admitted to general educational, apprenticeship and vocational training courses under the same conditions as the nationals of the host State);
iv) the right to take up and pursue self-employment derived from Article 49 of the Treaty on the Functioning of the European Union.

22. For reasons of legal certainty, the Agreement should ensure, in the United Kingdom and in the EU27, the protection, in accordance with Union law applicable before the withdrawal date, of recognised professional qualifications (diplomas, certificates and other evidence of formal qualification) obtained in any of the Union Member States before that date.

“The Agreement should also ensure that professional qualifications (diplomas, certificates or other evidence of formal qualification) obtained in a third country and recognised in any of the Union Member States before the withdrawal date in accordance with Union law rules applicable before that date continue to be recognised also after the withdrawal date.

“It should also provide for arrangements relating to procedures for recognition which are ongoing on the withdrawal date.”

Article 18 of the European Parliament Resolution:

“[The European Parliament] requires the fair treatment of EU-27 citizens living or having lived in the United Kingdom and of United Kingdom citizens living or having lived in the EU-27 and is of the opinion that their respective rights and interests must be given full priority in the negotiations;

“demands, therefore, that the status and rights of EU-27 citizens residing in the United Kingdom and of United Kingdom citizens residing in the EU-27 be subject to the principles of reciprocity, equity, symmetry and non-discrimination, and demands moreover the protection of the integrity of Union law, including the Charter of Fundamental Rights, and its enforcement framework;

“stresses that any degradation of the rights linked to freedom of movement, including discrimination between EU citizens in their access to residency rights, before the date of withdrawal from the European Union by the United Kingdom would be contrary to Union law.”

 

Position papers etc

EU position paper (to EU27) on essential principles on citizens’ rights – 24th May 2017

EU position paper (to UK) on essential principles on citizens’ rights – 12th June 2017

UK position paper “Safeguarding the position of EU citizens in the UK and UK nationals in the EU” – 26th June 2017

Joint technical note on EU-UK positions on citizens’ rights after second round of negotiations, 20th July 2017 – this summarises the UK and EU positions and compares them following the 2nd round of Art. 50 negotiations

Joint technical note on EU-UK positions on citizens’ rights after third round of negotiations, 31st August 2017  – this summarises the UK and EU positions and compares them following the 3rd round of Art. 50 negotiations

 

2. Financial settlement

Background materials

Paragraph 10 of the EU Guidelines:

“A single financial settlement – including issues resulting from the MFF as well as those related to the European Investment Bank (EIB), the European Development Fund (EDF) and the European Central Bank (ECB) – should ensure that the Union and the United Kingdom both respect the obligations resulting from the whole period of the UK membership in the Union.

“The settlement should cover all commitments as well as liabilities, including contingent liabilities.”

Paragraph 12 of the EU Negotiation Directives:

“An orderly withdrawal of the United Kingdom from the Union requires settling the financial obligations resulting from the whole period of the UK membership in the Union.

“Hence, the methodology for the financial settlement based on the principles laid down in section III.2 has to be established in the first phase of the negotiations.”

Section III.2 of the EU Negotiation Directives:

“III.2. FINANCIAL SETTLEMENT

“23. A single financial settlement – including issues resulting from the MFF as well as those related to the European Investment Bank (EIB), the European Development Fund (EDF) and the European Central Bank (ECB) – should ensure that both the Union and the United Kingdom respect the obligations resulting from the whole period of the United Kingdom membership in the Union.

“The negotiations relating to the methodology for the financial settlement should be based on the following principles.

24. There should be a single financial settlement related to :
– the Union budget
– the termination of the membership of the United Kingdom of all bodies or institutions established by the Treaties1 (e.g. the European Investment Bank, the European Central Bank2);
– the participation of the United Kingdom in specific funds and facilities related to Union policies (e.g. the European Development Fund and the Facility for Refugees in Turkey).

25. This single financial settlement should be based on the principle that the United Kingdom must honour its share of the financing of all the obligations undertaken while it was a member of the Union.

“26. In accordance with paragraph 10 of the European Council guidelines, this covers obligations resulting from the MFFs, liabilities including pensions and contingent liabilities and any other obligations deriving from a basic act within the meaning of Article 54 of the Financial Regulation.  In addition, the United Kingdom should fully cover the specific costs related to the withdrawal process such as the relocation of the agencies or other Union bodies.
 […]

“27. The calculation method should use the amounts from relevant basic acts (including reference amounts), the financial programming and official consolidated annual accounts to be supplemented, as necessary, by making use of interim accounts audited by the European Court of Auditors. The obligations should be defined in euro.

“28. On this basis, the calculation method of the United Kingdom’s obligations towards the Union budget should be based on the own resources decision1 in all its dimensions and take into account past data related to its share of the financing before the withdrawal date.

“29. Modalities of payments should be agreed in order to mitigate the impact of the withdrawal on the budget for the Union and on its Member States.

“30. The Agreement should therefore contain:

a) A calculation of all obligations that the United Kingdom has to honour in order to settle its financial obligations toward the Union budget, all institutions or bodies established by the Treaties, and other issues with a financial impact. The calculated obligations may be subject to limited future technical adjustments.
b) A schedule of payments to be made by the United Kingdom and the practical modalities for making these payments.
c) Transitional rules to ensure control by the Commission (or, where applicable, another body responsible under Union law before the withdrawal date), the European Parliament, the Court of Auditors, OLAF and the power to adjudicate of the Court of Justice of the European Union for past payments/recovery orders to United Kingdom beneficiaries and any payments made to United Kingdom beneficiaries after the withdrawal date to honour all legal commitments (including possible loans) authorised by the responsible entity before the withdrawal date.
d) Possible arrangements in relation to legal commitments or future legal commitments made towards United Kingdom beneficiaries after the withdrawal date (e.g. concerning the managing authorities for the payment of United Kingdom beneficiaries).
e) Specific rules to address the issue of contingent liabilities assumed by the Union budget or specific institutions or bodies or funds (such as those relating to financing provided by the European Investment Bank and the European Investment Fund).”

Article 20 of the European Parliament Resolution:

“[The European parliament] Stresses that a single financial settlement with the United Kingdom on the basis of the European Union’s annual accounts as audited by the European Court of Auditors must include all its legal liabilities arising from outstanding commitments as well as making provision for off-balance sheet items, contingent liabilities and other financial costs arising directly as a result of the United Kingdom’s withdrawal.”

 

Position papers etc

EU position paper (to EU27) on essential principles on the financial settlement – 24th May 2017

EU position paper (to EU27) on essential principles on the financial settlement – 12th June 2017

The UK has not published a position paper on this issue.

 

3. Euratom

Background materials

Paragraph 37 of the EU Negotiation Directives:

“The Agreement should ensure, where appropriate, the transfer to the United Kingdom of the ownership of:

a) Special fissile material located on the territory of the European Atomic Energy Community which is currently the property of the said Community in accordance with Article 86 of the Treaty establishing the European Atomic Energy Community, the right of use of which is currently with a natural or legal person, whether public or private, in the United Kingdom;

b) European Atomic Energy Community property located in the United Kingdom used for the purposes of providing safeguards in accordance with the Treaty establishing the European Atomic Energy Community.

“The Agreement should also provide that the United Kingdom assumes all rights and obligations associated with the ownership of materials or property transferred and regulate other questions related to material and property under the Treaty establishing the European Atomic Energy Community, in particular safeguards obligations to be applied to the material referred to above.”

Position papers etc

EU position paper (to EU27) on nuclear materials and safeguard equipment, 22nd June 2017 (Euratom)

EU position paper on nuclear materials and safeguard equipment (Euratom), 12th July 2017

UK position paper on nuclear materials and safeguards issues, 13th July 2017

 

4. Governance of the withdrawal agreement

[Note this topic overlaps with the controversial issue of ECJ jurisdiction]

Background materials

Paragraph 13 of the EU Negotiation Directives:

“The Agreement should contain provisions relating to the overall governance of the Agreement.

“Such provisions must include effective enforcement and dispute settlement mechanisms that fully respect the autonomy of the Union and of its legal order, including the role of the Court of Justice of the European Union, in order to guarantee the effective implementation of the commitments under the Agreement, as well as appropriate institutional arrangements allowing for the adoption of measures to deal with unforeseen situations not covered by the agreement and for the incorporation of future amendments to Union law in the Agreement.”

Section III.5 of the EU Negotiation Directives:

“III.5. GOVERNANCE OF THE AGREEMENT

“39. The Agreement should set up an institutional structure to ensure an effective enforcement of the commitments under the Agreement, bearing in mind the Union’s interest in effectively protecting its autonomy and its legal order, including the role of the Court of Justice of the European Union.

“40. It should contain appropriate institutional arrangements allowing for the adoption of measures to deal with unforeseen situations not covered in the Agreement and for the incorporation of future amendments to Union law in the Agreement where this is necessary for the proper implementation of the Agreement.

“41. The Agreement should include provisions ensuring the settlement of disputes and the enforcement of the Agreement. In particular, these should cover disputes in relation to the following matters:

– continued application of Union law;
– citizens’ rights;
– application and interpretation of the other provisions of the Agreement, such as the financial settlement or measures adopted by the institutional structure to deal with unforeseen situations.

“42. In these matters, the jurisdiction of the Court of Justice of the European Union (and the supervisory role of the Commission) should be maintained.

“For the application and interpretation of provisions of the Agreement other than those relating to Union law, an alternative dispute settlement should only be envisaged if it offers equivalent guarantees of independence and impartiality to the Court of Justice of the European Union.

“43. The Agreement should foresee that any reference to concepts or provisions of Union law made in the Agreement must be understood as including the case-law of the Court of Justice of the European Union interpreting such concepts or provisions before the withdrawal date.

“Moreover, to the extent an alternative dispute settlement is established for certain provisions of the Agreement, a provision according to which future case-law of the Court of Justice of the European Union intervening after the withdrawal date must be taken into account in interpreting such concepts and provisions should be included.”

 

Position papers etc

EU position paper (to EU27) on governance (of the withdrawal agreement), 28th June 2017

EU position paper on governance (of the withdrawal agreement), 12th July 2017

Enforcement and dispute resolution – UK future partnership paper, 23rd August 2017

 

5. Ongoing EU judicial and administrative procedures

Position papers etc

EU position paper (to EU27) on Ongoing Union Judicial and Administrative Procedures, 28th June 2017

EU position paper on Ongoing Union Judicial and Administrative Procedures, 12th July 2017

UK position paper on Ongoing Union judicial and administrative proceedings, 13th July 2017

 

6. Issues relating to the functioning of the EU institutions, agencies and bodies

Background materials

Paragraph 36 of the EU Negotiation Directives:

“The Agreement should contain the necessary provisions relating to the protection of the property, funds, assets and operations of the Union and its institutions or bodies, and of their personnel (including retired personnel) and members of their family, as provided for in the Treaties and the Protocols to the Treaties (in particular Protocol No. 7 on the Privileges and Immunities of the European Union).”

Paragraph 38 of the EU Negotiation Directives:

“The Agreement should also provide that the United Kingdom ensures, within its jurisdiction, the continued respect by members of Union institutions, bodies, offices and agencies, members of committees, officials and other servants of the Union of the obligations incurred by them under Article 339 of the Treaty on the Functioning of the European Union before the withdrawal date.”

 

Position papers etc

EU position paper (to EU27) on issues relating to the Functioning of the Union Institutions, Agencies and Bodies, 28th June 2017

EU position paper on issues relating to the Functioning of the Union Institutions, Agencies and Bodies, 13th July 2017

UK position paper on privileges and immunities, 13th July 2017

UK position paper on confidentiality and access to documents, 21st August 2017

 

7. Goods placed on the market under EU law before the withdrawal date

[Note that this issue overlaps with the more controversial issue of single market/customs union membership.]

Background materials

Paragraph 9 of the EU Guidelines:

“…the United Kingdom leaving the Union will impact EU businesses trading with and operating in the United Kingdom and UK businesses trading with and operating in the Union.

“Similarly, it may affect those who have entered into contracts and business arrangements or take part in EU-funded programmes based on the assumption of continued British EU membership.

“Negotiations should seek to prevent a legal vacuum once the Treaties cease to apply to the United Kingdom and, to the extent possible, address uncertainties.”

Paragraph 13 of the EU Negotiation Directives:

“It has been identified at this stage that the Agreement should clarify the situation of goods placed on the market before the withdrawal date as well as of the ongoing procedures listed in section III.3, including judicial cooperation proceedings in civil, commercial and criminal matters, as well as administrative and law enforcement cooperation procedures.”

Paragraph 31 of the EU Negotiation Directives:

“Agreement should ensure that any good lawfully placed on the single market on the basis of Union law before the withdrawal date can continue to be made available on the market or put into service after that date both in the United Kingdom and in the EU27 under the conditions set out in the relevant Union law applicable before the withdrawal date.

“Other matters, such as services, where there may be a need to reduce uncertainty or avoid a legal vacuum, will be covered by subsequent sets of negotiating directives.”

 

Position papers etc

EU position paper (to EU27) on Goods placed on the Market under Union law before the withdrawal date, 28th June 2017

EU position paper on Goods placed on the Market under Union law before the withdrawal date, 12th July 2017

UK position paper on “Continuity in the availability of goods for the EU and the UK”, 21st August 2017

 

8. Ongoing police and judicial cooperation in criminal matters

Background materials

Paragraph 16 of the EU Guidelines:

“Arrangements ensuring legal certainty and equal treatment should be found for all court procedures pending before the Court of Justice of the European Union upon the date of withdrawal that involve the United Kingdom or natural or legal persons in the United Kingdom.

“The Court of Justice of the European Union should remain competent to adjudicate in these procedures.

“Similarly, arrangements should be found for administrative procedures pending before the European Commission and Union agencies upon the date of the withdrawal that involve the United Kingdom or natural or legal persons in the United Kingdom.

“In addition, arrangements should be foreseen for the possibility of administrative or court proceedings to be initiated post-exit for facts that have occurred before the withdrawal date.”

Paragraphs 32 to 35 of the EU Negotiation Directives:

“32. B. Ongoing judicial cooperation in civil, commercial and criminal matters between Member States under Union law

“The Agreement should provide for arrangements relating to judicial cooperation proceedings in civil, commercial and criminal matters governed by Union law which are ongoing on the withdrawal date.

“It should establish in particular that such proceedings remain governed until their completion by the relevant provisions of Union law applicable before the withdrawal date.

33. Regarding judicial cooperation in civil and commercial matters between the United Kingdom and the EU27, the Agreement should ensure that the recognition and enforcement of national judicial decisions handed down before the withdrawal date remain governed by the relevant provisions of Union law applicable before the withdrawal date.

“The Agreement should also ensure the continued application of the rules of Union law relating to choices of forum and choices of law made before the withdrawal date.

“C. Ongoing administrative and law enforcement cooperation procedures under Union law

34. The Agreement should provide for arrangements relating to administrative and law enforcement cooperation procedures, including verification, governed by Union law which are ongoing on the withdrawal date.

“Such arrangements should in particular ensure that these procedures remain governed until their completion by the relevant provisions of Union law applicable before the withdrawal date.

“They should also establish rules for the possible use of information and data in law enforcement investigations and criminal proceedings ongoing on the withdrawal date.

“They should cover both information and data received/held by United Kingdom which originates from the EU27 or Union institutions, bodies, offices and agencies, and information and data received/held by the EU27 or Union institutions, bodies, offices and agencies which originates from the United Kingdom.

“They should comprise rules on the protection of personal data and classified information, including security data.

“D. Ongoing Union judicial and administrative procedures

35. The Agreement should provide for arrangements relating to:

a) Judicial proceedings pending before the Court of Justice of the European Union on the withdrawal date involving the United Kingdom, United Kingdom natural and/or legal persons (including preliminary references); the Court of Justice should remain competent to adjudicate in these proceedings and its rulings must be binding upon the United Kingdom;

b) Ongoing administrative procedures in the Union institutions, bodies, offices and agencies concerning the United Kingdom (for example infringements proceedings, state aid) or, where applicable, concerning United Kingdom natural or legal persons;

c) The possibility to commence both administrative procedures before the Union institutions and judicial proceedings before the Court of Justice of the European Union concerning the United Kingdom (for example infringements proceedings, state aid) after the withdrawal date for facts that have occurred before the withdrawal date, including the possibility for the UK courts or tribunals to address questions to the Court of Justice of the European Union;

d) Continued enforceability of Union acts that impose pecuniary obligations and of judgments of the Court of Justice of the European Union, adopted or rendered before the withdrawal date or in the course of ongoing judicial and administrative proceedings.”

 

Position papers etc

EU position paper (to EU27) on Ongoing Police and Judicial Cooperation in Criminal matters, 28th June 2017

EU position paper on Ongoing Police and Judicial Cooperation in Criminal matters, 12th July 2017

 

9. Judicial cooperation in civil and commercial matters

Background materials

Paragraph 14 of the EU Guidelines:

“The withdrawal agreement would also need to address potential issues arising from the withdrawal in other areas of cooperation, including judicial cooperation, law enforcement and security.”

Paragraph 13 of the EU Negotiation Directives:

“It has been identified at this stage that the Agreement should clarify the situation of goods placed on the market before the withdrawal date as well as of the ongoing procedures listed in section III.3, including judicial cooperation proceedings in civil, commercial and criminal matters, as well as administrative and law enforcement cooperation procedures.”

Position papers etc

EU position paper (to EU27) on judicial cooperation in civil and commercial Matters, 28th June 2017

EU position paper on judicial cooperation in civil and commercial matters, 12th July 2017

Providing a cross-border civil judicial cooperation framework – a future partnership paper, 22nd August 2017

 

Exit Issue: Brexit and international agreements

Background materials

Paragraph 13 of the EU Guidelines:

“Following the withdrawal, the United Kingdom will no longer be covered by agreements concluded by the Union or by Member States acting on its behalf or by the Union and its Member States acting jointly.

“The Union will continue to have its rights and obligations in relation to international agreements. In this respect, the European Council expects the United Kingdom to honour its share of all international commitments contracted in the context of its EU membership.

“In such instances, a constructive dialogue with the United Kingdom on a possible common approach towards third country partners, international organisations and conventions concerned should be engaged.”

Paragraph 18 of the EU Negotiation Directives:

“In addition, in line with the European Council guidelines, a constructive dialogue should be engaged as early as practicable with the United Kingdom during the first phase of the negotiation on a possible common approach towards third country partners, international organisations and conventions in relation to the international commitments contracted before the withdrawal date, by which the United Kingdom remains bound, as well as on the method to ensure that the United Kingdom honours these commitments.”

 

Position papers etc

[There have not yet been position papers on this issue.]

 

Exit issue: Cyprus

Background materials

Paragraph 12 of the EU Guidelines:

“The Union should agree with the United Kingdom on arrangements as regards the Sovereign Base Areas of the United Kingdom in Cyprus and recognise in that respect bilateral agreements and arrangements between the Republic of Cyprus and the United Kingdom which are compatible with EU law, in particular as regards safeguarding rights and interests of those EU citizens resident or working in the Sovereign Base Areas.”

Paragraph 15 of the EU Negotiation Directives:

“In line with the European Council guidelines, the Union should agree with the United Kingdom on arrangements as regards the Sovereign Base Areas of the United Kingdom in Cyprus and recognise in that respect bilateral agreements and arrangements between the Republic of Cyprus and the United Kingdom which are compatible with Union law, taking into account Protocol 3 to the Act of Accession, the 1960 Treaty of Establishment and the associated Exchanges of Notes, in particular as regards safeguarding the rights and interests of those Union citizens residing or working in the Sovereign Base Areas.”

 

Position papers etc

[There have not yet been position papers on this issue.]

UK “future partnership” papers

[The UK is publishing “Relationship Papers” in anticipation of the relationship negotiations after the Brexit negotiations – these are when applicable also under the relevant “exit issue” heading below]

Providing a cross-border civil judicial cooperation framework – a future partnership paper, 22nd August 2017

Future customs arrangements – a future partnership paper24th August 2017

The exchange and protection of personal data – a future partnership paper24th August 2017

Enforcement and dispute resolution – UK future partnership paper, 23rd August 2017

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