Professor Steve Peers, University of Essex

Introduction

If Brexit proceeds based on the updated withdrawal agreement, what will the UK-EU relationship look like? The revised political declaration addresses this, outlining the future relationship. This declaration, revised during recent UK-EU negotiations, clarifies their post-Brexit partnership.

Although not legally binding as a treaty, the political declaration gains relevance domestically through the proposed withdrawal agreement bill. This bill mandates that Parliament’s agenda for the future relationship must align with the declaration. However, Parliament could amend the bill if it moves forward. A potential Labour government elected before Brexit would likely prioritize amending the political declaration and potentially hold another referendum on the revised deal or remaining in the EU.

The revised declaration emphasizes a deadline to finalize negotiations by the end of 2020, a target that appears increasingly unrealistic. Despite this, the UK government remains committed to exiting the withdrawal agreement’s transition period by the end of 2020. This could lead to another ’no deal’ scenario, more accurately a ’no trade deal’ situation, as other withdrawal agreement aspects, such as citizens’ rights and financial settlements, would remain valid.

This post, fifth in a series on the revised withdrawal agreement, focuses on the future relationship. It analyzes the revised political declaration, highlighting changes from the previous version and offering context within broader EU membership and relations with non-EU nations.

The annotation provided highlights changes in Boris Johnson’s government’s negotiated version compared to Theresa May’s government’s version using bold/underline and strikethrough. It explains the declaration in the context of EU membership and relations with non-EU countries. This analysis is not exhaustive and does not modify the original text, but adds hyperlinks for clarity.

Possible amendments are suggested to enhance precision and commitment, potentially reflecting amendments a Labour government might seek. The structure of the political declaration is summarized, and deadlines mentioned are listed.

Comparisons are drawn between the potential future relationship (including the withdrawal agreement) and a no-deal scenario between the UK and the EU.

Structure of the political declaration

An Introduction spans the first five paragraphs. Part I (paras 6-15) outlines Initial Provisions, including cooperation bases (core values, data protection) and shared interests (EU program participation, dialogues).

Part II, the Economic Partnership (paras 16-77), comprises 14 sections, beginning with objectives and principles, followed by goods, services, financial services, and more. It acknowledges the shift from a customs union to a free trade agreement, incorporates ’level playing field’ measures, and explicitly recognizes that trade will not be frictionless, with UK/EU trade subject to rules of origin.

Part III, the Security Partnership (paras 78-117), covers objectives, law enforcement, foreign policy, and thematic cooperation. It clarifies that the UK has no obligation to participate in all EU defense measures.

Part IV addresses Institutional and Horizontal Arrangements (paras 118-134), covering structure, governance, and exceptions.

Lastly, Part V (paras 135-141) outlines the Forward Process. This section has been streamlined, removing references to a preparatory negotiation phase.

List of dates in the Political Declaration

• Immediately after Brexit Day: work program for talks agreed (para 138)
• As soon as possible after Brexit Day: Commission initiates assessments on UK data protection law adequacy (para 9)
• June 2020: high-level conference to review and advance negotiations (para 141)
• July 1, 2020: target for a new fisheries agreement to be finalized and ratified, applicable from the first year after the transition period (para 74)
• End of 2020: target for future relationship agreements to take effect, for a Commission decision on UK data protection law adequacy, and for completing financial services equivalence assessments (para 9, 36, 135)

Barnard & Peers: chapter 27

Photo credit: Paramount

Annex: Annotation of the Political Declaration

POLITICAL DECLARATION SETTING OUT THE FRAMEWORK FOR THE FUTURE RELATIONSHIP BETWEEN THE EUROPEAN UNION AND THE UNITED KINGDOM

INTRODUCTION

1. The European Union (EU) and the United Kingdom of Great Britain and Northern Ireland (UK) have agreed upon this political declaration concerning their future relationship, based on Article 50(2) of the Treaty on European Union (TEU). This article allows for an agreement outlining the withdrawal process of a departing Member State, considering the framework for its future relationship with the EU. In this context, this declaration accompanies the Withdrawal Agreement endorsed by both parties, pending ratification.

2. The EU and the UK are dedicated to collaborating to uphold the rules-based international order, the rule of law, the promotion of democracy, and high standards of free and fair trade, workers’ rights, consumer and environmental protection, and cooperation against internal and external threats to their shared values and interests.

3. This declaration outlines the framework for an ambitious, wide-ranging, deep, and flexible partnership encompassing trade and economic cooperation with a comprehensive and balanced Free Trade Agreement as its core, law enforcement, criminal justice, foreign policy, security, defense, and broader areas of cooperation. The future relationship may extend beyond this declaration to encompass additional areas of cooperation deemed mutually beneficial during negotiations. This relationship will be firmly rooted in the shared values and interests of the EU and the UK, stemming from their geography, history, and ideals grounded in their common European heritage. Both parties recognize that embracing free and fair trade, upholding individual rights and the rule of law, safeguarding workers, consumers, and the environment, and jointly confronting threats to their rights and values from both internal and external sources contribute to prosperity and security.

Comment: The revised political declaration emphasizes a Free Trade Agreement.

4. The foundation of the future relationship will be a balance of rights and obligations, acknowledging the principles of each party. This balance must ensure the EU’s decision-making autonomy and align with its principles, particularly regarding the integrity of the Single Market, the Customs Union, and the indivisibility of the four freedoms. It must also ensure the UK’s sovereignty and the protection of its internal market while respecting the outcome of the 2016 referendum, including the development of its independent trade policy and the termination of free movement of people between the EU and the UK.

Comment: The text reiterates both parties’ ‘red lines’: the UK government emphasizes sovereignty, the UK internal market, trade policy, and ending free movement of people, a point reiterated later.

5. The UK’s EU membership has fostered deep integration between their economies and interwoven their people and priorities. While the future relationship cannot replicate the rights and obligations of membership, both parties agree on a highly ambitious approach to its scope and depth, recognizing its potential to evolve over time. Above all, it should prioritize the interests of EU and UK citizens, both now and in the future.

Comment: Both parties recognize the UK’s former EU membership as a ‘unique context,’ yet the EU still treats the UK like a non-Member State in some aspects, such as the single market (para 4) and security.

PART I: INITIAL PROVISIONS

I. BASIS FOR COOPERATION

A. Core values and rights

6. The future relationship should be built upon shared values such as respect for and safeguarding human rights and fundamental freedoms, democratic principles, the rule of law, and support for non-proliferation. These values are fundamental to the envisioned cooperation framework. Both parties reaffirm their commitment to promoting effective multilateralism.

7. The future relationship should incorporate the UK’s continued commitment to uphold the European Convention on Human Rights (ECHR) framework, while the EU and its Member States remain bound by the Charter of Fundamental Rights of the European Union, reaffirming rights derived from the ECHR.

Comment: The UK’s ECHR commitment lacks specific legal expression. There’s no explicit mention of a legal obligation for the UK to remain an ECHR signatory, although stronger wording exists in para 81.

B. Data protection

8. Given the importance of data flows for the future relationship, both parties are committed to guaranteeing high personal data protection to facilitate such flows between them.

9. The EU’s data protection rules allow the European Commission to recognize third-country data protection standards as adequate, facilitating data transfers. Based on this framework, the Commission will begin assessing the UK as soon as possible after its withdrawal, aiming to reach a decision by the end of 2020 if conditions are met. Acknowledging the UK’s development of its own data transfer regime, the UK will take similar steps within the same timeframe to ensure comparable data transfer facilitation to the EU if conditions are met. Both parties retain autonomy over their data protection rules.

Comment: EU data protection rules allow for ‘adequacy decisions’ on data transfers to non-EU countries. Without an adequacy decision, transfers become more complex but not impossible. This applies to commercial and security-related transfers. The EU faces limitations in waiving its standards due to CJEU case law enforcing data protection rights outlined in the EU Charter of Fundamental Rights, and potential legal action from privacy advocates if standards are perceived as compromised.

No deal comparison: Without a withdrawal agreement and a subsequent free trade agreement, UK exports to the EU (and vice versa) will face tariffs and non-tariff barriers. While some in the UK argue that EU non-tariff barriers would breach WTO law, the EU disagrees and plans to implement them. The UK could challenge this through the WTO, but its dispute settlement system is currently impaired.

10. Both parties should also establish mechanisms for appropriate cooperation between regulatory bodies in data protection.

Comment: Article 50 of the GDPR (General Data Protection Regulation) provides for international cooperation on data protection.

II. AREAS OF SHARED INTEREST

A. Participation in Union programs

11. Given the envisioned breadth and depth of the future relationship and their citizens’ close ties, the parties will establish general principles, terms, and conditions for UK participation in EU programs, subject to conditions outlined in the corresponding EU instruments, in areas like science, innovation, youth, culture, education, overseas development, external action, defense capabilities, civil protection, and space. These should include a fair and appropriate financial contribution, provisions for sound financial management, fair treatment of participants, and management and consultation aligned with the nature of cooperation.

Comment: Under the withdrawal agreement’s transition period clauses, the UK will participate in current EU programs until the end of the current EU budget cycle (end-2020). The EU’s financial programs for the next budget cycle (2021-27) are under negotiation among the EU27 and will later be negotiated with the European Parliament. Non-EU countries can often participate in these programs under conditions outlined in their establishing legislation. The specifics of these conditions are being determined during negotiations. The statement that the UK will be excluded from EU research programs, Erasmus, etc., is inaccurate, as the declaration expresses a political commitment to agree on terms for UK participation if the UK fulfills the required conditions. While UK participation is not guaranteed, it cannot be definitively ruled out at this stage due to the EU’s reluctance and perceived legal inability to negotiate a legally binding future relationship before Brexit.

12. The parties will also explore the UK’s potential participation in European Research Infrastructure Consortiums (ERICs), contingent on the conditions outlined in EU legal instruments and individual ERIC statutes, considering the UK’s level of involvement in EU science and innovation programs.

Comments: ERICs allow for participation from non-EU countries. The conditions for their participation are outlined in Article 9 of the regulation establishing the ERIC legal framework.

13. Both parties reaffirm their shared commitment to implementing a future PEACE PLUS program to support reconciliation efforts and a shared future in Northern Ireland, maintaining the current funding proportions for the future program.

Comments: The European Commission has already proposed the continuation of this fund for the next EU budget cycle.

B. Dialogues

14. The parties should engage in dialogues and exchanges in areas of shared interest, aiming to identify cooperation opportunities, share best practices and expertise, and collaborate in areas such as culture, education, science, and innovation. They acknowledge the importance of mobility and temporary movement of objects and equipment for facilitating cooperation in these areas and will explore continued cooperation between culture and education-related groups.

15. Additionally, the parties acknowledge the UK’s interest in exploring potential future relationships with the European Investment Bank (EIB) Group.

Comment: Notably, there’s no firm commitment to develop this relationship. The EIB has some existing connections with non-EU countries but primarily focuses on the EU.

PART II: ECONOMIC PARTNERSHIP

I. OBJECTIVES AND PRINCIPLES

16. Both parties acknowledge their significant trading and investment relationship, a result of over 45 years of economic integration during the UK’s EU membership, the scale of their economies, and their geographical proximity, which have created intricate and interconnected supply chains.

17. Given this context, both parties agree to develop an ambitious, wide-ranging, and balanced economic partnership. This partnership will be comprehensive, encompassing a Free Trade Agreement and wider sectoral cooperation where mutually beneficial. It will include provisions ensuring a level playing field for open and fair competition, as outlined in Section XIV of this Part. It should facilitate trade and investment between the parties to the fullest extent possible, while upholding the EU’s Single Market and Customs Union integrity, the UK’s internal market, and recognizing the UK’s development of an independent trade policy beyond this partnership.

Comment: The UK’s trade policy is referenced for the second time here. The revised political declaration emphasizes a ‘Free Trade Agreement,’ although the distinction from ‘free trade area’ is unclear.

18. Both parties retain their autonomy and right to regulate economic activities according to their chosen levels of protection to achieve legitimate public policy objectives. These objectives include public health, animal welfare, social services, public education, safety, environmental protection (including climate change), public morals, social and consumer protection, privacy, data protection, and the promotion of cultural diversity. The economic partnership acknowledges sustainable development as a shared overarching objective and will incorporate appropriate general exceptions, including those related to security.

19. The commitment to replace the backstop solution for Northern Ireland with a subsequent agreement establishing alternative arrangements for a permanent solution ensuring no hard border on the island of Ireland is acknowledged.

Comment: The removal of this provision reflects the revised Northern Ireland protocol, which establishes a permanent arrangement within the revised withdrawal agreement rather than a temporary backstop, although replacement remains possible.

II. GOODS

A. Objectives and principles

19. The parties envision an ambitious trading relationship for goods based on a Free Trade Agreement, with the goal of simplifying legitimate trade.

Comment: The revised political declaration again highlights a ‘Free Trade Agreement,’ but without the previous objective of ‘frictionless’ trade and the removal of ‘as close as possible,’ its meaning remains unclear.

Suggested amendment: To address those in the UK seeking a closer relationship, this commitment should be more adaptable if UK ‘red lines’ change. A possible additional sentence: ‘Should the UK Parliament support UK participation in the EU single market, the parties will negotiate accordingly.’

20. These arrangements will acknowledge that the UK and the EU will become separate markets with distinct legal orders following the UK’s withdrawal. Consequently, moving goods across borders may pose risks to the integrity and proper functioning of these markets, necessitating customs procedures and checks.

21. However, to streamline the movement of goods across borders, the parties envision comprehensive arrangements creating a free trade area. This area will combine deep regulatory and customs cooperation, supported by provisions ensuring a level playing field for open and fair competition, as detailed in Section XIV of this Part.

B. Tariffs

22. The economic partnership, through a Free Trade Agreement, should ensure the elimination of tariffs, fees, charges, or quantitative restrictions across all sectors. It will include appropriate and modern rules of origin, along with ambitious customs arrangements aligned with the parties’ objectives and principles.

Comment: While this aligns with the definition of a free trade area in Article XXIV GATT and explicitly mentions an FTA, it lacks a specific reference to GATT. The revised text omits the ‘single customs territory’ concept and accepts the existence of rules of origin, which may increase costs and checks.

Suggested amendment: To increase ambition and allow for ‘red line’ adjustments (aligning with the Labour party’s position), the text could be revised to: ‘The economic partnership will ensure no tariffs, fees, charges, or quantitative restrictions… Should the UK Parliament support negotiating a UK-EU customs union, the parties will negotiate one.’

No deal comparison: The Commission communication states that without a deal, the EU will not consider an adequacy decision regarding the UK. This will complicate data transfers for both commercial and security purposes.

C. Regulatory aspects

23. While preserving regulatory autonomy, both parties will implement provisions promoting transparent and efficient regulatory approaches that minimize unnecessary trade barriers for goods and are compatible to the extent possible. Disciplines concerning technical barriers to trade (TBT) and sanitary and phytosanitary measures (SPS) should build upon and exceed the respective WTO agreements. Specifically, TBT disciplines should establish common principles in areas such as standardization, technical regulations, conformity assessment, accreditation, market surveillance, metrology, and labeling. For SPS measures, including certification, the parties should treat each other as single entities and recognize regionalization based on appropriate epidemiological information provided by the exporting party. They will also explore the possibility of UK authorities cooperating with EU agencies like the European Medicines Agency (EMA), the European Chemicals Agency (ECHA), and the European Aviation Safety Agency (EASA).

Comments: While the WTO’s TBT and SPS agreements set basic standards for reducing product checks, this signifies a commitment to go further. The commitment to explore UK involvement with EU agencies is weak, referring to ‘cooperation’ rather than participation, and only agreeing to ’explore the possibility.’ Notably, the EMA Regulation lacks provisions for non-EU country participation; the ECHA Regulation generally allows for their participation (without specifics) in its Article 106; and the EASA Regulation provides for limited technical cooperation with non-EU countries (Article 90) or full participation (Article 129), contingent upon signing a treaty with the EU aligning with EU aviation law.

Suggested amendments: The second, third, and fourth sentences lack strength: replace ‘should’ with ‘will’.

24. In this context, the UK will consider aligning with EU rules in relevant areas.

Comment: The reference to alignment has been removed. The lack of alignment will make joining EASA difficult under current regulations.

D. Customs

25. Both parties will implement ambitious customs arrangements to achieve their shared goals. They envision utilizing all available facilitative arrangements and technologies, respecting their legal orders, and ensuring customs authorities can protect their respective financial interests and enforce public policies. They intend to explore mutual recognition of trusted trader programs, administrative cooperation in customs and value-added tax (VAT) matters, and mutual assistance. This includes assistance with recovering tax and duty claims, exchanging information to combat customs and VAT fraud, and other illicit activities.

Comment: The revised political declaration includes references to VAT.

Suggested amendments: The second and third sentences are weak: replace ’envisage making use’ with ‘will make use’ and ‘intend to consider’ with ‘will agree’.

26. Such facilitative arrangements and technologies will also be explored in developing permanent alternative arrangements that ensure no hard border on the island of Ireland.

Comment: These revisions align with the changes to the Northern Ireland protocol.

Suggested amendments: The language is weaker than the withdrawal agreement’s backstop provisions. Add to the end: ‘with the aim of replacing the withdrawal agreement’s backstop as soon as possible’.

E. Implications for checks and controls

27. The parties envision that the scope of the UK’s commitments to customs and regulatory cooperation, including rule alignment, would be considered when applying related checks and controls as a factor in risk reduction. Combined with utilizing available facilitative arrangements, this can lead to various outcomes for administrative processes, checks, and controls. They note their desire to be as ambitious as possible while respecting the integrity of their markets and legal orders.

Comment: The revised political declaration omits the reference to legal alignment.

Suggested amendments: The potential for a customs union should also be mentioned here.

III. SERVICES AND INVESTMENT

A. Objectives and principles

28. The parties should establish ambitious, comprehensive, and balanced arrangements for trade and investment in services and non-services sectors, respecting each party’s right to regulate. They should strive to achieve a level of services trade liberalization that significantly surpasses their World Trade Organization (WTO) commitments, building on recent EU Free Trade Agreements (FTAs).

29. Following Article V of the General Agreement on Trade in Services, the parties should aim for substantial sectoral coverage, covering all modes of supply and minimizing discrimination in covered sectors, with appropriate exceptions and limitations. These arrangements should encompass sectors including professional and business services, telecommunications, courier and postal services, distribution, environmental services, financial services, transport services, and other mutually beneficial services.

Comments: Despite claims that the future relationship framework is silent on services, a vital component of the UK economy, the revised political declaration addresses this aspect. It outlines intentions for the UK and EU to agree on free trade in services, exceeding basic GATS (WTO services) provisions but falling short of participation in the EU’s internal market for services. However, the lack of explicit mention of ‘free trade in services’ in the text may contribute to confusion.

Article V GATS provides for free trade agreements in services, and unlike the previous section, the political declaration directly references this WTO rule. The language used (‘substantial sectoral coverage,’ ‘all modes of supply,’ ‘absence of substantially all discrimination’) is drawn from this GATS article and its footnote.

GATS outlines four ‘modes of supply’: Mode 1 (cross-border supply), Mode 2 (customer movement), Mode 3 (commercial presence, i.e., foreign investment and corporate service provision via a subsidiary), and Mode 4 (service supply by natural persons). The declaration’s list of service sectors, compared to the GATS classification, omits the audiovisual sub-sector (part of ‘communications services’ alongside telecommunications, courier, and postal services), construction, education, health, tourism, and travel. While these could fall under ‘other services of mutual interest,’ their omission from the outset is notable.

Suggested amendments: Stronger commitment and explicit mention of free trade intentions are needed. Replace ‘should aim at’ with ‘will negotiate a free trade agreement on services, comprising’ and replace ‘should’ with ‘will’ in the second sentence.

Comparison with no deal: Without a withdrawal agreement or free trade in services, both parties revert to the more limited GATS commitments, resulting in reduced service provisions in both directions.

B. Market access and non-discrimination

30. The arrangements should include provisions for market access, national treatment under host state rules for service providers and investors, and address performance requirements imposed on investors. This would ensure non-discriminatory treatment for both parties’ service providers and investors, including establishment.

Comment: Market access (removing quotas, economic needs tests, foreign investment caps, etc.) and national treatment (treating foreign services and providers equally to domestic equivalents) are outlined in Articles XVI and XVII GATS. Free trade agreements in services aim to remove some restrictions on market access and national treatment that WTO members otherwise retain for certain services.

Suggested amendments: Stronger commitment is needed. Replace ‘should’ and ‘would’ with ‘will’.

31. The arrangements should allow for the temporary entry and stay of individuals for business purposes in specified areas.

Comment: This reflects GATS Mode 4 and doesn’t constitute general free movement of workers, as confirmed by the GATS Annex on the movement of individuals supplying services. While GATS Article V bis mentions the possibility of labor market integration agreements, the political declaration doesn’t suggest such an agreement between the UK and the EU. Paragraph 48 confirms that the UK isn’t seeking a general free movement of persons agreement.

Suggested amendments: Stronger commitment is necessary, as omitting GATS Mode 4 from a free trade agreement would violate its provisions, as noted in para 28. Amend to: ‘In accordance with Article V GATS, the arrangements will allow for…’

C. Regulatory aspects

32. While maintaining regulatory autonomy, the arrangements should promote regulatory approaches that are transparent, efficient, compatible where possible, and minimize unnecessary regulatory requirements.

33. Both parties should agree on disciplines concerning domestic regulation, including horizontal provisions on licensing procedures and specific regulatory provisions in mutually beneficial sectors like telecommunications, financial services, delivery services, and international maritime transport. Provisions on developing and adopting domestic regulations should reflect good regulatory practices.

34. In this context, the parties should establish a framework for voluntary regulatory cooperation in areas of mutual interest, including information exchange and best practice sharing.

Suggested amendments: The previous three paragraphs demonstrate weak commitment. Replace ‘should’ with ‘will’ throughout.

35. The parties should also develop suitable arrangements for professional qualifications required for regulated professions, where mutually beneficial.

Comment: There’s no mention of mutual recognition as outlined in Article VII GATS or in some free trade agreements, like the recent EU-Canada agreement.

Suggested amendments: ‘The parties will negotiate appropriate arrangements for recognizing professional qualifications needed for regulated professions, where mutually beneficial.’

IV. FINANCIAL SERVICES

36. Both parties are committed to maintaining financial stability, market integrity, investor and consumer protection, and fair competition while respecting each other’s regulatory and decision-making autonomy and their ability to make equivalence decisions in their own interest. This doesn’t impede their ability to adopt or maintain necessary measures for prudential reasons. Both parties agree to engage in close cooperation on regulatory and supervisory matters within international bodies.

37. Acknowledging that both will have equivalence frameworks allowing them to declare a third country’s regulatory and supervisory regimes equivalent for relevant purposes, the parties should begin assessing each other under these frameworks as soon as possible after the UK’s withdrawal, aiming to conclude assessments by the end of June 2020. They will keep their equivalence frameworks under review.

Suggested amendment: Replace ‘should’ with ‘will’ in the first sentence.

38. Close and structured cooperation on regulatory and supervisory matters is in both parties’ mutual interest. This cooperation, grounded in the economic partnership, should be based on regulatory autonomy, transparency, and stability. It should include transparency and appropriate consultation regarding equivalence decisions’ adoption, suspension, and withdrawal, information exchange, and consultation on regulatory initiatives and other shared concerns at both political and technical levels.

Suggested amendments: Replace ‘should’ with ‘will’ in the second and third sentences.

V. DIGITAL

39. Given the increasing digitalization of trade encompassing both services and goods, the parties should establish provisions to facilitate e-commerce, address unjustified barriers to digital trade, and ensure a secure, open, and trustworthy online environment for businesses and consumers. This includes provisions on electronic trust, authentication services, and refraining from requiring prior authorization solely based on electronic service provision. These provisions should facilitate cross-border data flows and address unjustified data localization requirements without impacting their data protection rules.

40. The parties should, through sectoral provisions on telecommunications services, provide fair and equal access to public telecommunications networks and services for each other’s service suppliers and address anti-competitive practices.

41. Both parties should collaborate through multilateral and multi-stakeholder forums and establish a dialogue to exchange information, experiences, and best practices related to emerging technologies.

Suggested amendments: Replace ‘should’ with ‘will’ in paragraphs 39-41.

VI. CAPITAL MOVEMENTS AND PAYMENTS

42. The parties should include provisions enabling the free movement of capital and payments related to transactions liberalized under the economic partnership, subject to relevant exceptions.

Comments: EU free trade agreements typically ensure free movement of payments for liberalized transactions, ensuring payment for goods and services traded under the treaty. Article XI GATS outlines the same rule for payments related to services covered by GATS. Notably, Article 64 TFEU allows for free movement of capital between the EU and non-EU countries, subject to exceptions.

Suggested amendment: Replace ‘should’ with ‘will’.

VII. INTELLECTUAL PROPERTY

43. To encourage innovation, creativity, and economic activity, the parties should ensure intellectual property rights protection and enforcement, going beyond WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and World Intellectual Property Organization (WIPO) conventions where relevant.

Comment: It’s common for free trade agreements to include intellectual property protection exceeding WTO and other international treaty standards, although this is sometimes contentious, with arguments that it hinders innovation and keeps drug prices high.

44. This should maintain both parties’ current high levels of protection, including specific rights under copyright law, such as the sui generis right for databases and the artists’ resale right. Considering the protection for existing geographical indications in the Withdrawal Agreement, the parties should establish arrangements for appropriate protection of their geographical indications.

Comment: This refers to some existing EU laws, but not all. The Unified Patent Court, linked to EU law and partly situated in the UK, is not mentioned. The UK’s withdrawal might cause legal complications for this plan. Given the EU’s emphasis on including geographical indication provisions in all free trade agreements, the UK should leverage this for significant concessions on other important issues.

45. Both parties should retain the freedom to establish their own regimes for the exhaustion of intellectual property rights.

Comment: This concerns whether a product, once legally sold by the rights holder, can be resold by anyone anywhere. This practice increases competition but reduces de facto protection for rights holders. EU law currently has EU-wide exhaustion but not international exhaustion.

46. The parties should create a mechanism for cooperation and information exchange on intellectual property issues of mutual interest, including approaches and processes for trademarks, designs, and patents.

Suggested amendments: Replace ‘should’ with ‘will’ throughout this section.

VIII. PUBLIC PROCUREMENT

47. Acknowledging the UK’s intention to join the WTO Government Procurement Agreement (GPA), the parties should provide mutual opportunities in public procurement markets beyond their GPA commitments in mutually beneficial areas, without prejudice to domestic rules protecting essential security interests.

Comment: Including provisions for additional public procurement access is typical in free trade agreements. The UK’s GPA accession has already been agreed upon within the WTO.

48. The parties should commit to standards based on the GPA, ensuring transparency in market opportunities, public procurement rules, procedures, and practices. Building on these standards, they should address the risk of arbitrary contract awards and provide remedies and review procedures, including access to judicial authorities.

Suggested amendments: Replace ‘should provide’ and ‘should also commit to’ with ‘will negotiate’ in the previous two paragraphs, and replace ‘should address’ with ‘will address’.

IX. MOBILITY

49. Acknowledging the UK’s decision to end free movement of people between the EU and the UK, the parties should establish mobility arrangements as outlined below.

Comment: While the following provisions and the section on free trade in services address movement of people, this shouldn’t be mistaken for ‘free movement of persons’ with the EU, which contradicts UK government policy.

Suggested amendment: Replace ‘should’ with ‘will’.

50. These arrangements will be based on non-discrimination between EU Member States and full reciprocity.

51. In this context, both parties aim to implement visa-free travel for short-term visits through their domestic laws.

Comment: The EU has enacted legislation allowing short-term visa-free travel for UK citizens visiting the EU post-Brexit, contingent on reciprocal arrangements from the UK for all Member States. This highlights the use of reciprocal domestic laws, not a treaty, for visa-free travel. The EU’s approach is varied, with treaties in place with some countries (e.g., Brazil) and reciprocal arrangements with others (e.g., Japan).

52. The parties agree to consider entry and stay conditions for purposes such as research, study, training, and youth exchanges.

Comment: The EU hasn’t signed treaties with non-EU countries regarding this type of movement, and the text doesn’t explicitly mention a treaty. The meaning of ‘agree to consider conditions’ is unclear. These four areas are mentioned because of an EU law (partially harmonizing non-EU national admission for these purposes) that came into effect in spring 2018, replacing previous legislation. Given the unique nature of the UK-EU relationship, negotiating this point is warranted; Brexit proponents might consider offering something concrete (short of full free movement) to young people who largely oppose their project.

The previous Prime Minister seemingly suggested that the declaration could guarantee free movement for these groups, which is false, as the conditions are stricter. For instance, non-EU students lack equal treatment regarding access to education, tuition fees, family reunification, or post-study work rights (EU law on non-EU students addresses this but falls short of free movement). The EU law also restricts working hours for non-EU students.

Suggested amendment: Revise to ‘…agree to consider negotiations on conditions…’

53. The parties also agree to consider social security coordination in light of future movement of people.

Comment: Again, there’s no explicit mention of a treaty, but social security coordination without one seems difficult. Social security coordination provisions are present in several EU association agreements, and a stand-alone treaty on this issue should be theoretically possible. Note the reference to future movement, not free movement, of people. This distinction likely arises because the withdrawal agreement regulates social security coordination for EU and UK citizens who moved before Brexit and the transition period’s end.

54. In line with applicable laws, both parties will explore options to facilitate legitimate border crossings.

Comment: This addresses issues like the EU travel authorization system, the EU entry-exit system (neither operational yet), and fast-track lanes at external border crossings. The commitment is to ’explore the possibility,’ not guarantee the outcome. EU policy, as outlined in relevant legislation, facilitates crossings only when the non-EU country has a free movement of people agreement with the EU.

55. Any provisions will not affect the Common Travel Area (CTA) arrangements between the UK and Ireland.

Comment: The CTA’s continuation has never been contentious and is safeguarded by both the withdrawal agreement and Protocols to EU Treaties.

56. To support mobility, the parties reaffirm their commitment to effectively apply existing international family law instruments to which they are party. The EU acknowledges the UK’s intention to accede to the 2007 Hague Maintenance Convention, to which it is bound through EU membership.

Comment: This refers to international family law measures, not UK-EU treaties, although the following paragraph suggests the potential for such treaties. It’s worth noting that the UK can unilaterally accede to the Hague Convention without requiring approval from the EU or other signatories.

57. The parties will explore options for judicial cooperation in matrimonial matters, parental responsibility, and related areas.

Comment: ‘Exploring options’ doesn’t imply a specific outcome. The existing EU law governing these issues, which the UK opted into, is the Brussels II Regulation, recently amended. The UK also opted into the EU’s Maintenance Regulation, which expands on the Hague Convention. The EU hasn’t previously engaged in treaties with non-EU countries for participation in such EU laws.

Proposed amendments: The absence of measures here will complicate life for many in both the UK and EU, particularly children. Suggested revision: ‘The parties will negotiate continued UK participation in EU judicial cooperation measures concerning matrimonial matters, parental responsibility, and maintenance.’

58. These arrangements would supplement commitments on temporary entry and stay for business purposes in specified areas, as outlined in Section III of this Part. The right of either party