The European Commission’s and the United Kingdom's negotiators have reached an agreement on the entirety of the Withdrawal Agreement of the United Kingdom of Great Britain and Northern Ireland (UK) from the European Union and the European Atomic Energy Community (EU), as provided for under Article 50 of the Treaty on European Union. The Withdrawal Agreement establishes the terms of the UK's withdrawal from the EU. It ensures that the withdrawal will happen in an orderly manner and offers legal certainty once the Treaties and EU law will cease to apply to the UK.
The Withdrawal Agreement covers the following areas:
- Common provisions, setting out standard clauses for the proper understanding and operation of the Withdrawal Agreement.
- Citizens' rights, protecting the life choices of over 3 million EU citizens in the UK, and over 1 million UK nationals in EU countries, safeguarding their right to stay and ensuring that they can continue to contribute to their communities.
- Separation issues, ensuring a smooth winding-down of current arrangements and providing for an orderly withdrawal (for example, to allow for goods placed on the market before the end of the transition to continue to their destination, for the protection of existing intellectual property rights including geographical indications, the winding down of ongoing police and judicial cooperation in criminal matters and other administrative and judicial procedures, the use of data and information exchanged before the end of the transition period, issues related to Euratom, and other matters).
- A transition period, during which the EU will treat the UK as if it were a Member State, with the exception of participation in the EU institutions and governance structures. The transition period will help in particular administrations, businesses and citizens to adapt to the withdrawal of the United Kingdom.
- The financial settlement, ensuring that the UK and the EU will honor all financial obligations undertaken while the UK was a member of the Union.
- The overall governance structure of the Withdrawal Agreement, ensuring the effective management, implementation and enforcement of the agreement, including appropriate dispute settlement mechanisms.
- The terms of a legally operational backstop to ensure that there will be no hard border between the Republic of Ireland and Northern Ireland. The protocol on Ireland/Northern Ireland also contains UK commitments not to diminish rights set out in the Good Friday (Belfast) Agreement 1998, and to protect North-South cooperation. It provides for the possibility to continue the Common Travel Area arrangements between Ireland and the UK, and preserves the Single Electricity Market on the island of Ireland.
- A protocol on the Sovereign Base Areas (SBA) in Cyprus, protecting the interests of Cypriots who live and work in the Sovereign Base Areas following the UK's withdrawal from the Union.
- A Protocol on Gibraltar, which provides for close cooperation between Spain and the UK in respect of Gibraltar on the implementation of citizens' rights provisions of the Withdrawal Agreement, and concerns administrative cooperation between competent authorities in a number of policy areas.
One of the most important issues covered by the agreement concerns Citizens’ rights.
The right for every EU citizen and their family members to live, work or study in any EU Member State is one of the foundations of the European Union. Many EU and UK citizens have made their life choices based on rights related to free movement under Union law. Protecting the life choices of those citizens and their family members has been the first priority from the beginning of the negotiation.
The Withdrawal Agreement safeguards the right to stay and continue their current activities for over 3 million EU citizens in the UK, and over 1 million UK nationals in EU countries.
Who is protected by the Withdrawal Agreement?
The Withdrawal Agreement protects those EU citizens who will be residing in the UK and UK nationals who will be residing in one of the 27 EU Member States at the end of the transition period, where such residence is in accordance with EU law on free movement. The Withdrawal Agreement also protects the family members that are granted rights under EU law (current spouses and registered partners, parents, grandparents, children, grandchildren and a person in an existing durable relationship), who do not yet live in the same host state as the Union citizen or the UK national, to join them in the future.
Children will be protected by the Withdrawal Agreement, wherever they are born before or after the UK's withdrawal, or whether they are born inside or outside the host state where the EU citizen or the UK national resides. The only exception foreseen concerns children born after the UK's withdrawal and for which a parent not covered by the Withdrawal Agreement has sole custody under the applicable family law.
Which rights are protected?
The Withdrawal Agreement enables both EU citizens and UK nationals, as well as their respective family members, to continue to exercise their rights derived from Union law in each other's territories, for the rest of their lives, where those rights are based on life choices made before the end of the transition period.
Union citizens and UK nationals, as well as their respective family members can continue to live, work or study as they currently do under the same substantive conditions as under Union law, benefiting in full from the application of the prohibition of any discrimination on grounds of nationality and of the right to equal treatment compared to host state nationals.
The only restrictions which apply are those derived from Union law or as provided for under the Agreement. The Withdrawal Agreement does not prevent the UK or Member States from deciding to grant more generous rights.
The substantive conditions of residence are and will remain the same as those under current EU law on free movement. In the case where the host states opted for a mandatory registration system, decisions for granting the new residence status under the Withdrawal Agreement will be made based on objective criteria (i.e. no discretion), and on the basis of the exact same conditions set out in the Free Movement Directive (Directive 2004/38/EC): Articles 6 and 7 confer a right of residence for up to five years on those who work or have sufficient financial resources and sickness insurance, Articles 16 – 18 confer a right of permanent residence on those who have resided legally for five years.
In essence, EU citizens and UK nationals meet these conditions if they are: workers or self-employed; or have sufficient resources and sickness insurance; or are family members of some other person who meets these conditions; or have already acquired the right of permanent residence and are therefore no longer subject to any conditions.
The Withdrawal Agreement does not require physical presence in the host state at the end of the transition period – temporary absences that do not affect the right of residence and longer absences that do not affect the right of permanent residence are accepted. Those protected by the Withdrawal Agreement who have not yet acquired permanent residence rights, if they have not lived in the host state for at least five years – will be fully protected by the Withdrawal Agreement, and will be able to continue residing in the host state and acquire permanent residence rights also after the UK's withdrawal.
EU citizens and UK nationals arriving in the host state during the transition period will enjoy exactly the same rights and obligations under the Withdrawal Agreement as those who arrived in the host state before 30 March 2019. Their rights will be subject to the same restrictions and limitations, too. The persons concerned will no longer be beneficiaries of the Withdrawal Agreement if they are absent from their host state for more than five years.
Rights of workers and self-employed persons, and recognition of professional qualifications
The persons covered by the Withdrawal Agreement will have the right to take up employment or to carry out an economic activity as a self-employed person. They will also keep all their workers' rights based on Union law. For example, they will maintain the right not to be discriminated against on ground of nationality as regards employment, remuneration and other conditions of work and employment; the right to take up and pursue an activity in accordance with the rules applicable to the nationals of the host state, the right to employment assistance under the same conditions as the nationals of the host state, the right to equal treatment in respect of conditions of employment and work, the right to social and tax advantages, collective rights, and the right for their children to access education.
The Withdrawal Agreement will also protect the rights of frontier workers or frontier self-employed persons in the countries where they work.
Additionally, when a person covered by the Withdrawal Agreement who had his or her professional qualifications recognised in the country (an EU Member State or the UK) where he or she currently resides or, for frontier workers, where he or she works, will be able to continue to rely on the recognition decision there for the purpose of carrying out the professional activities linked to the use of those professional qualifications. If he or she has already applied for the recognition of his or her professional qualifications before the end of the transition period, his or her application will be processed domestically in accordance with the EU rules applicable when the application was made.
The Withdrawal Agreement provides for rules on social security coordination in relation to the beneficiaries of the citizens' part of the Withdrawal Agreement, and to other persons who at the end of the transition period are in a situation involving both the United Kingdom and a Member State from the social security cooperation perspective.
Those persons will maintain their right to healthcare, pensions and other social security benefits, and if they are entitled to a cash benefit from one country, they may be able to receive it even if they decide to live in another country.
The social security provisions of the Withdrawal Agreement will address the rights of EU citizens and UK nationals in social security cross-border situations involving the UK and (at least) one Member State at the end of the transition period.
Those provisions can be extended to cover "triangular" social security situations involving a Member State (or several Member States), the UK and an EFTA country (Iceland, Liechtenstein, Norway and Switzerland). This will allow the rights of EU citizens, UK nationals as well as EFTA country citizens who are in that type of triangular situations to be protected.
For this to be operational, three different agreements need to be applicable: an article in the Withdrawal Agreement protecting EFTA nationals, provisions protecting EU citizens in corresponding agreements between the UK and the EFTA countries, and provisions protecting UK nationals in corresponding agreements between the EU and the EFTA countries.
Only if the two latter agreements are concluded and applicable, the article in the Withdrawal Agreement protecting EFTA nationals will be applicable as well. The decision on the applicability of this article will be taken by the Joint Committee created by the Withdrawal Agreement.
The full Draft Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, as agreed at negotiators' level on 14 November 2018 can be found here
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