On 8 December the Commission recommended to the European Council (Article 50) to conclude that sufficient progress has been made in the first phase of the Article 50 negotiations with the United Kingdom. Below I am sending you the main results of the agreement in principle on the first phase of the talks on the UK's withdrawal from the EU, as reported in the Joint report from the negotiators.

Citizens’ Rights (see also Joint technical note expressing the detailed consensus of the UK and EU positions on Citizens’ Rights)

• The Common Understanding in the agreement will aim to enable both EU citizens and UK nationals, as well as the respective family members, to continue to exercise their rights derived from EU law in each other’s territories for the rest of their lives, as long as they had moved before the date which the Joint Report calls the ‘specified date’ - the date of the UK’s withdrawal from the EU (this date could be the end of the transitional period.)
• Citizens without permanent residence (having lived for at least 5 years in the host state) will still be protected by the Withdrawal Agreement, and able to acquire permanent residence rights after the UK’s withdrawal.
• EU citizens and UK nationals, as well as their respective family members would be able to continue to live, work or study under the same conditions as under EU law, and benefit from the ban on discrimination on grounds of nationality.
• Citizens will also maintain their right to healthcare, pensions and other social security benefits, and if entitled to a benefit from one state, may receive it even if they live in another state. When citizens claim a benefit, also after the UK's withdrawal, previous periods of insurance, work or residence in the EU or in the UK will be taken into account.
• The current rights of spouses, registered partners, parents, grandparents, children, grandchildren and a person in a durable relationship will be protected, even if they do not yet live in the same State as the EU citizen or the UK national and they will be able to join them in the future.
• The right of reunification has no yet been agreed for future partners or spouses who are not partners or spouses at the ‘specified date’, this will be addressed in the second phase of the negotiations and linked to the future partnership.
• All children will be protected by the Withdrawal Agreement, wherever and whenever they are born, with the exception of children born after the UK’s withdrawal and for whom the parent not covered by the Withdrawal Agreement has sole custody under the applicable family law.
• The measures for determining criteria for lawful residence should be strictly necessary and proportionate measures with any unnecessary administrative burdens avoided. The procedures must be transparent, smooth and streamlined, costs must not exceed that imposed on nationals for similar documents and those citizens already holding a permanent residence document will be able to exchange it for the 'special status', free of charge.
• The administrative procedures for applications for the 'special status' under the Withdrawal Agreement will be clearly specified, and will specify that the host State cannot require more than is strictly necessary and proportionate to determine whether the criteria for lawful residence have been met. Errors, involuntary omissions or non-respect of the deadline to submit the application will respect the proportionality principle.
• No citizen will be deprived of his or her rights under the Withdrawal Agreement until a final decision or judgment on an application made for the 'special status' has been taken. The Withdrawal Agreement will ensure the same safeguards against any restriction of rights as those provided by EU law.
• The Withdrawal Agreement will contain an explicit provision that citizens will be able to rely directly on the rights and that inconsistent or incompatible rules will be disapplied. The UK will also adopt primary legislation to incorporate the citizens’ rights Part of the Withdrawal Agreement into its legal order.
• To ensure a consistent interpretation of citizens’ rights enshrined in the Withdrawal Agreement, the role of the CJEU in the interpretation of EU law is recognised: UK courts or tribunals must have “due regard” to relevant decisions of the CJEU after the withdrawal date; UK courts or tribunals will also be enabled to ask the CJEU, where they consider necessary, questions of interpretation of those rights for litigation brought within 8 years from the date of application of the Withdrawal Agreement.
• The implementation and application of citizens’ rights in the EU will be monitored by the Commission. In the UK, this role will be fulfilled by an independent national authority.
• However, this agreement does not prejudge future discussions on the general governance of the Withdrawal Agreement or transitional arrangements.
• Decisions on recognition of qualifications granted to persons covered by the scope of the Withdrawal Agreement before the specified date in the host State and, for frontier workers, the State of work (either the UK or an EU27 Member State) under Title III of Directive 2005/36/EC (recognition of professional qualifications where the person concerned was exercising the freedom of establishment), Article 10 of Directive 98/5/EC (lawyers who gained admission to the host State profession and are allowed to practise under the host State title alongside their home State title) and Article 14 of Directive 2006/43/EC (approved statutory auditors) will be grandfathered. Recognition procedures under these Directives that are ongoing on the specified date, in respect of the persons covered, will be completed under Union law and will be grandfathered. Outside the scope of the EU mandate for the first phase of the negotiations are:
  • the continuing protection of rights for UK nationals covered by the Withdrawal Agreement who move after the specified date to take up residence in another Member State;
  • posted workers;
  • professional qualifications: future recognition decisions, recognition of qualifications of non-residents, and equal treatment for professionals who are neither frontier workers nor resident;
  • recognition of licences and certificates that are currently recognised EU-wide
  • lawyers practising under home title; and
  • territorial scope of economic rights, in particular secondary establishment and cross-border provision of services.

Other separation issues

• On cooperation in civil and commercial matters there is general agreement that: (a) EU rules on conflict of laws continue to apply to contracts before withdrawal date and non-contractual obligations where an event causing damage occurred before the withdrawal date; (b) EU law on jurisdiction should continue to apply to legal proceedings instituted before the withdrawal date; (c) EU law should continue to apply to the recognition and enforcement of judgments handed down before withdrawal; (d) Relevant pending judicial cooperation should be finalised.
• Questions remain over whether EU law should continue to apply to the recognition and enforcement of judgments handed down after withdrawal in proceedings ongoing on the withdrawal date. Disagreement persists over a choice of court clause concluded before withdrawal should trigger the application of EU law on recognition and enforcement of judgments in litigation after withdrawal.
• On police and judicial cooperation in criminal matters there is broad agreement that: all structured and formalised cooperation procedures ongoing on the withdrawal date that have passed a certain threshold still to be defined should be completed under EU law. More work is needed on the list of the instruments concerned to identify an ‘end point’ ascertaining completion of the relevant procedures. Further discussions are also needed to clarify that EU instruments providing for procedural rights would continue to apply, throughout such procedures after withdrawal.
• On ongoing EU judicial procedures, it has been agreed between the negotiators that: the CJEU remains competent for UK judicial procedures with the UK as applicant or defendant and for preliminary references originating in the UK, registered at the CJEU on the date of withdrawal; and those procedures should continue through to a binding judgment.
• There is disagreement over the continued competence of the CJEU in relation to facts having arisen before the UK’s withdrawal, the enforceability of the decisions of the CJEU after withdrawal and the possibility for the UK to intervene before the CJEU in the future.
• With regards to ongoing EU administrative proceedings the UK does not have a position on pending administrative compliance procedures being completed with a binding force and possibly result in binding subsequent judicial procedures.
• On ensuring continuity in the availability of goods placed on the market under EU law before withdrawal there is agreement that: (a) Goods placed on the market under EU law before withdrawal may freely circulate on the markets of the UK and the EU (b) There should be no need for product modifications or re-labelling; (c) Goods may be put into service where provided in EU law; (d) Goods concerned should be subject to continued oversight.
• Substantial work is still necessary on the notion of ‘placing on the market’. Fundamental disagreement persists on the EU’s intention to apply EU rules on importation to all animal-derived products as from the withdrawal date, irrespective of when they were placed on the market, as well as on the competence for performing EU compliance activities under EU law after withdrawal.
• The EU insists on any compliance activity post-withdrawal will be performed by competent authorities or bodies under current EU law, the UK wants the UK to retain temporary (but potentially open ended) competence for such activities.
• With regard to the general governance of the Withdrawal Agreement some discussions have taken place on dispute resolution and the monitoring of the functioning of the Withdrawal Agreement, including the possibility of setting up a joint committee, but significant divergences remain. The UK has made clear its opposition to according a central role to the CJEU, while the Commission has stressed the need to protect the autonomy of the EU and of its legal order.

Next steps

• The agreement reached on first phase issues will now be reviewed by Member State Ambassadors ahead of a meeting of the General Affairs Council to discuss the progress of negotiations scheduled for 12 December of 2017.
• The European Parliament may hold a vote on a Resolution on 13 December as to whether it considered sufficient progress had been made, following statements from the Commission and Council on the progress of the talks to be made in plenary.
• The 15 December European Council meeting will be used to decide whether sufficient progress has been made to progress the talks onto the future trading relationship and transitional period.
• If sufficient progress is considered to have been made, then the European Council will adopt a new set of guidelines for the Chief Negotiator on the second phase of the talks with regards the future relationship and the possibility of a transition period.
• If insufficient progress is deemed to have been made at the December meeting, emergency talks on the direction of the negotiations are expected to be held early in January 2018.
• In parallel the Committee Stage of the EU Withdrawal Bill in the UK's Houses of Parliament, will continue on 12, 13 and 20 December. As the vote on the passage of the Withdrawal Bill is crucial for the governments strategy and because of the delicate balance of votes in the Parliament, the presence of all MPs will be essential. The timeline for the votes could be subject to delays however.
• The Withdrawal Agreement, will need to be drafted on the basis of the Joint Report and the outcome of the negotiations on other withdrawal issues, including the transition period. These negotiations will be carried out during the first half of 2018. A final version of the Withdrawal Bill is expected to completed by October 2018 so that it can be ratified before end of March 2019.
• An eventual negotiated agreement would need to be adopted by a qualified majority in the Council. The final agreement would also need to be approved by the European Parliament, voting by a simple majority as well as the UK Parliament.

notizia segnalata dal Prof. Guido Alpa