UPN, Alm.del - 2017-18 - Bilag 142: Endeligt forhandlingsdirektiv vedr. Storbritanniens udtræden af EU

Det Udenrigspolitiske Nævn 2017-18
UPN Alm.del Bilag 142
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Council of the

European Union

Brussels, 29 January 2018

(OR. en)

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NOTE

From:

To:

Subject:

General Secretariat of the Council

Delegations

ANNEX to the COUNCIL DECISION supplementing the Council Decision

of 22 May 2017 authorising the opening of the negotiations with the United

Kingdom of Great Britain and Northern Ireland for an agreement setting out

the arrangements for its withdrawal from the European Union

- Supplementary directives for the negotiation of an agreement with the

United Kingdom of Great Britain and Northern Ireland setting out the

arrangements for its withdrawal from the European Union

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ANNEX

Supplementary directives for the negotiation of an agreement with the United Kingdom of

Great Britain and Northern Ireland setting out the arrangements for its withdrawal from the

European Union

In line with the European Council guidelines of 29 April 2017 and the Council negotiating

directives of 22 May 2017, the first phase of the negotiations focused on the rights of citizens,

the financial settlement, the issues relating to the island of Ireland, other separation issues, and

the governance of the Withdrawal Agreement.

Noting the progress made so far, on 20 October 2017, the European Council called for work

to continue with a view to consolidating the convergence achieved and pursuing negotiations

in order to be able to move to the second phase of the negotiations as soon as possible. The

European Council thus invited the Council together with the Union negotiator to start internal

preparatory discussions, including on possible transitional arrangements.

Based on:

–

the recommendation made by the Commission Communication on the state of progress

of the negotiations with the United Kingdom under Article 50 of the Treaty on

European Union of 8 December 2017

COM(2017) 784 final.

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–

the Joint Report from the negotiators of the European Union and the United Kingdom

Government on progress during phase 1 of negotiations under Article 50 TEU on the

United Kingdom's orderly withdrawal from the European Union of 8 December 2017,

on which the Commission's recommendation is based,

the European Council, on 15 December 2017, welcomed the progress achieved during the first

phase of the negotiations and decided that it was sufficient to move to the second phase

related to transition and the framework for the future relationship.

The European Council also made clear that negotiations in the second phase could only

progress as long as all commitments undertaken during the first phase were respected in full

and translated faithfully in legal terms as quickly as possible. During the second phase of the

negotiations, an overall understanding on the framework for the future relationship of the

Union with the United Kingdom should also be reached. For that purpose, the European

Council decided that it would adopt additional guidelines on this framework in March 2018

and called for further clarity on the United Kingdom’s position on the framework for the

future relationship.

The present set of negotiating directives supplements the first set of negotiating directives

adopted on 22 May 2017. The European Council guidelines of 29 April 2017 as well as the

general principles and the procedural arrangements for the conduct of the negotiations

established in the Council negotiating directives of 22 May 2017 continue to apply in their

entirety to this phase of the negotiations, including as regards the territorial scope of the

withdrawal agreement, including its provisions on transitional arrangements, and of the future

framework; these negotiating directives should therefore, as the first set of the negotiating

directives, fully respect paragraphs 4 and 24 of the European Council guidelines of

29 April 2017, notably as regards Gibraltar.

During the second phase of the negotiations, in view of the unique circumstances and specific

nature of issues related to the island of Ireland, the work on detailed arrangements required to

give effect to the principles and commitments set out in the Joint Report should continue in a

distinct strand.

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Since the arrangements applicable to relations between the Union and the Sovereign Base

Areas in Cyprus will continue to be defined within the context of the Republic of Cyprus’

membership of the Union, appropriate arrangements should be determined during the

negotiations as necessary, to achieve the objectives set out in Protocol 3 to the Act of

Accession of the Republic of Cyprus to the Union

SSUES RELATED TO THE ORDERLY WITHDRAWAL OF THE

NITED

INGDOM FROM THE

UROPEAN

NION

In line with the European Council guidelines of 15 December 2017 and with the negotiating

directives annexed to the Council Decision of 22 May 2017 as supplemented by these

negotiating directives, it is necessary to complete the work on all withdrawal issues, including

those not yet addressed in the first phase. These include – without being confined to – issues

such as the governance of the Withdrawal Agreement, intellectual property rights, ongoing

public procurement procedures, customs-related matters needed for an orderly withdrawal

from the Union, protection of personal data and use of information obtained or processed

before the withdrawal date.

Negotiations in the second phase should furthermore translate into clear and unambiguous

legal terms the results of the negotiations, including those obtained during the first phase,

which should, where appropriate, be adapted in the light of the existence of the transitional

arrangements referred to below. In particular, the provisions of the Citizens' rights part of the

withdrawal agreement should apply as from the end of the transition period. The 'specified

date' referred to in paragraph 8 of the Joint Report should consequently be defined as that of

the end of the transition period.

Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia,

the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of

Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the

Slovak Republic and the adjustments to the Treaties on which the European Union is

founded - Protocol No 3 on the sovereign base areas of the United Kingdom of Great Britain

and Northern Ireland in Cyprus, OJ L 236, 23.09.2003, p. 940-944.

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II.

10.

TRANSITIONAL ARRANGEMENTS

The European Council guidelines of 29 April 2017 set out general core principles applying to

any agreement with the United Kingdom as well as to any transitional arrangements:

–

any 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, 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;

–

the four freedoms of the Single Market are indivisible and 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. According to the European Council

guidelines of 15 December 2017, this refers notably to the competence of the Court of

Justice of the European Union.

11.

In addition to these core principles, the European Council guidelines of 29 April 2017 set out

specific conditions applicable to any possible transitional arrangements. To the extent

necessary and legally possible, the negotiations may 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. As reiterated by the European Council Guidelines of 15 December 2017, any such

transitional arrangements must be clearly defined and precisely limited in time. They must

also be subject to effective enforcement mechanisms.

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12.

These supplementary negotiating directives are based on and further develop the principles

and conditions laid down in the European Council guidelines of 15 December 2017.

13.

In line with those guidelines, which further specify and develop the core principles laid out in

the European Council guidelines of 29 April 2017, any transitional arrangements provided for

in the Withdrawal Agreement should cover the whole of the Union acquis, including Euratom

matters. Notwithstanding paragraph 18 of these negotiating directives, the Union acquis

should apply to and in the United Kingdom as if it were a Member State. Any changes to the

Union acquis should automatically apply to and in the United Kingdom during the transition

period. For acts adopted in the Area of Freedom, Security and Justice by which the United

Kingdom is bound before its withdrawal, Articles 4a of Protocol (No 21) and 5 of Protocol

(No 19) annexed to the Treaties, which allow the United Kingdom not to participate in an act

amending a measure by which it is already bound, should continue to apply during the

transition period including the possibility for the Union to determine that this non

participation would make the relevant measure inoperable and therefore that the measure

should cease to apply to the United Kingdom. The United Kingdom should however no longer

be allowed to opt-in to measures in this Area other than those amending, replacing or building

upon the above mentioned existing acts.

14.

During the transition period, Union law covered by these transitional arrangements should

deploy in the United Kingdom the same legal effects as those which it deploys within the

Member States of the Union. This means, in particular, that the direct effect and primacy of

Union law should be preserved.

15.

During the transition period, and in line with the European Council guidelines of

29 April 2017, the United Kingdom should remain bound by the obligations stemming from

the agreements concluded by the Union, or by Member States acting on its behalf, or by the

Union and its Member States acting jointly, while the United Kingdom should however no

longer participate in any bodies set up by those agreements.

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16.

In line with the European Council guidelines of 15 December 2017, any transitional

arrangements require the United Kingdom's continued participation in the Customs Union and

the Single Market (with all four freedoms) during the transition. The United Kingdom should

take all necessary measures to preserve the integrity of the Single Market and of the Customs

Union. The United Kingdom should continue to comply with the Union trade policy. It should

also in particular ensure that its customs authorities continue to act in accordance with the

mission of EU customs authorities including by collecting Common Customs Tariff duties

and by performing all checks required under Union law at the border vis-à-vis other third

countries. During the transition period, the United Kingdom may not become bound by

international agreements entered into in its own capacity in the fields of competence of Union

law, unless authorised to do so by the Union.

17.

In line with the European Council guidelines of 29 April 2017 and the first set of negotiating

directives of 22 May 2017, any time-limited prolongation of the Union acquis requires

existing Union regulatory, budgetary, supervisory, judiciary and enforcement instruments and

structures to apply, including the competence of the Court of Justice of the European Union.

18.

In relation to the application of the Union acquis to the United Kingdom, the Withdrawal

Agreement should therefore, during the transition period, preserve the full competences of the

Union institutions (in particular the full jurisdiction of the Court of Justice of the European

Union), bodies, offices and agencies in relation to the United Kingdom and to United

Kingdom natural or legal persons. In particular, Union institutions, bodies and agencies

should conduct all supervision and control proceedings foreseen by Union law. In line with

the European Council guidelines of 15 December 2017, the United Kingdom will however no

longer participate in or nominate or elect members of the Union institutions, nor participate in

the decision-making or the governance of the Union bodies, offices and agencies.

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19.

During the transition period, as a general rule, the UK will not attend meetings of committees

referred to in Article 3 (2) of Regulation (EU) No 182/2011

or Commission experts groups

and other similar entities or of the agencies, offices or bodies where Member States are

represented. Exceptionally on a case-by-case basis, the United Kingdom could be invited to

attend without voting rights such meetings provided that:

–

the discussion concerns individual acts to be addressed to the United Kingdom

or to United Kingdom natural or legal persons; or

–

the presence of the United Kingdom is necessary and in the interest of the

Union, in particular for the effective implementation of the Union acquis

during the transition period.

20.

The Withdrawal Agreement should define the precise conditions and the clear framework

under which such exceptional attendance should be allowed.

21.

Specific consultations should also be foreseen with regard to the fixing of fishing

opportunities (total allowable catches) during the transition period, in full respect of the Union

acquis.

22.

The transition period should apply as from the date of entry into force of the Withdrawal

Agreement and should not last beyond 31 December 2020.

Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February

2011 laying down the rules and general principles concerning mechanisms for control by

Member States of the Commission’s exercise of implementing powers, OJ L 55, 28.2.2011,

p. 13–18.

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