The common provisions found in Part 1 of the Withdrawal Agreement form the bedrock for the provisions made for Citizens’ Rights in Part 2. In that regard, beneficiaries of the Withdrawal Agreement’s provision for Citizens’ rights, that is those falling within its personal scope, benefit from EU law to the extent provided for the Withdrawal Agreement and not otherwise. Thus, for example, among those within the scope of the Agreement are EU citizens who exercise their right to reside in the United Kingdom in accordance with EU law before the end of the transition period (31 December 2020) and continue to reside there thereafter (article 10).
But what is EU law in this context? How are the Withdrawal Agreement and the applicable EU law to be implemented, applied, and enforced? And what are the obligations on the UK, the EU, and EU states to give effect to it? The common provisions of the Withdrawal Agreement cover all these topics and provide EU citizens and their family members falling within its personal scope with a source of law and rights that extend beyond the residence status for which express provision is made. When a German banker or a self-employed Italian journalist present in the UK before the end of the transition period (31 December 2020) comes to assess what rights he or she derive from the Withdrawal Agreement they may draw strength from the other parts of EU law to which the Agreement makes reference.
European Union Law
For the purposes of the Withdrawal Agreement, EU law is (article 2):
- the Treaty on European Union, the Treaty on the Functioning of the European Union, and the Euratom Treaty, as amended or supplemented
- the Treaties of Accession (made when a country joins the EU)
- the Charter of Fundamental Rights (one source of fundamental rights)
- the General Principles of EU law (another source of fundamental rights)
- the acts adopted by EU institutions, bodies, offices or agencies
- international agreements to which the EU is party
- international agreements concluded by the EU member states acting on behalf of the EU
- the agreements between EU member states entered into in their capacity as EU member states
- acts of the European Council or EU Council (representatives of the governments of the member states), and
- The declarations made at intergovernmental conferences which adopt the Treaties
That is a formidable list. That it includes both the Charter of Fundamental Rights and the General Principles of EU law means that there are two sources of fundamental rights protection for those falling within the personal scope of the Citizens’ Rights part of the Agreement.
EU law as it evolves throughout the transition period may be material. As applied to the Part of the Withdrawal Agreement concerning Citizens’ rights, unless otherwise provided, all references to EU law must be understood as references to EU law, including as amended or replaced, as applicable on the last day of the transition period (31 December 2020) (article 6). Further, where the Agreement makes reference to EU acts or provisions, that reference, where relevant, must be understood to include a reference to EU law or its provisions that, although replaced or superseded by the act referred to, continue to apply in accordance with that act. Finally, references to the applicable provisions of EU law must be understood to include references to the relevant EU acts supplementing or implementing those provisions.
The Effect, Implementation, and Application of the Withdrawal Agreement and EU law: Methods and Principles
By the Withdrawal Agreement and those parts of EU law made applicable by it, the same legal effects are produced in and as regards the UK as are produced within the EU and its member states (article 4). As a result, people and entities with legal personality (such as companies) are expressly able to rely directly on the provisions contained in the Withdrawal Agreement or which are referred in the Agreement and found elsewhere in EU law, where those provisions meet the conditions for direct effect in EU law. This is very useful. The provisions of the Withdrawal Agreement (and the applicable parts of EU law) that meet the criteria for direct effect may be relied on by EU citizens and their family members (who are within the personal scope of the Withdrawal Agreement) when dealing with UK administrative authorities or where relevant when asserting their rights in UK courts and tribunals.
Obligations on the UK
The UK is obliged to ensure compliance, including as regards the powers of its judicial and administrative authorities to disapply inconsistent or incompatible domestic provisions, through domestic primary legislation (article 4). For consideration of the provision made in UK law by the European Union (Withdrawal Agreement) Act 2020 see my blog post Statutory Magic and Appeal Rights for EU Citizens under the UK’s European Union (Withdrawal Agreement) Bill.
Moreover, the provisions of the Withdrawal Agreement referring to EU law or to its concepts or provisions must be interpreted and applied in accordance with the methods and General Principles of EU law. This provision applies to UK judicial and administrative authorities among others.
As regards the case law of the EU’s Court of Justice handed down before the end of the transition period (31 December 2020), in their implementation and application the provisions of the Withdrawal Agreement referring EU law or to its concepts or provisions must be interpreted in conformity with the relevant case law of the Court. This provision applies to UK judicial and administrative authorities among others.
Further, as regards the case law of the EU’s Court of Justice handed down after the end of the transition period (31 December 2020), in the interpretation and application of the Withdrawal Agreement, the UK’s judicial and administrative authorities must have due regard to relevant case law of the Court. The question of what constitutes due regard may prove to be controversial.
Finally, as an additional layer of protection, there is an obligation to act in good faith. This could be a useful provision to deploy were UK rules, policy, procedure or practice as regards EU Citizens’ Rights to depart from the objectives of or provision made by the Withdrawal Agreement. The UK and the EU are bound to assist each other in carrying out tasks that flow from the Withdrawal Agreement in full mutual respect and good faith (article 5). They must take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising from the Agreement. In addition, they must refrain from any measures that could jeopardise the attainment of the Agreement’s objectives. These requirements are without prejudice to the application of EU law pursuant to the Withdrawal Agreement and in particular the principle of sincere cooperation.