The document provides an explanatory guide to understanding the Brexit deal between the UK and EU. It summarizes the key aspects of the deal, including general rules and institutions established, the scope of the deal in areas like trade, services, and financial services, provisions around a level playing field, the sanctions regime, social security coordination, law enforcement cooperation, and the role of human rights protections. Overall, the deal establishes a trade agreement and cooperation in other areas, but with the UK having a less integrated relationship with the EU than as a member and subject to certain enforcement mechanisms.

1. Understanding the Brexit-Deal
An Explanatory Guide
At the invation of MEP Sven Giegold and MEP Anna Cavazzini
and Professor Molly Scott Cato (University of Roehampton)

2. Contents
 General Rules and Institutions
 Scope of the Deal
 Closer look at‘Level-Playing-Field’
 Sanctions regime
 Social Security Coordination
 Law Enforcement
 Role of Human Rights
 Preliminary Conclusions

3. General Rules and Institutions
 General rules
− Legal base on the EU side: Article 217 TFEU (association agreement)
 Horizontal agreement, going beyond trade
 Consent given by European Parliament
 Unanimous vote within the Council
 Provisional application: Article 218(5) TFEU (ceases upon ratification or on 28 February 2021 or on
another date decided by PC)
− UK Parliament has already ratified the Treaty (EU (Future Relationship) Act 2020)
− Territorial scope ≠ Gibraltar, UK overseas territories
− Review: 5 years after the entry into force (and every 5 years thereafter)
− No direct effect (Art. COMPROV.16)
− General termination clause: 12 months following a written notification
− New countries joining the EU: Consulting the UK (no veto)

4. General Rules and Institutions
 Institutions
− Partnership Council (PC)
 Representatives of the EU and the UK
 Co-chaired by a member of the COM and representative of the UK at ministerial level
 Powers
− Adopt decisions where the Agreement provides for a legal base
− Adopt amendments to the Agreement where provided for in the Agreement and (within 4 years) where necessary to
correct errors, to address omissions or other deficiences
− Establish specialised committees
 Decsions are adopted by mutual consent
− Committees
 Trade Partnership Committee (TPC)
− Further 10 Trade Specialised Committees (more can be established by the PC) supervised by the TPC
 Further 8 specialised committees (more can be established by the PC)
− Working Groups

5. General Rules and Institutions
 Institutions
− Parliamentary Assembly
 To be established by the European Parliament and the UK Parliament
 Can make recommendations to the PC
− Civil Society Forum
− Arbitration Tribunal
 Established on an ad hoc basis
 Composed of 3 arbitrators
− Picked by the Parties from a pre-established list of arbitrators
 Ruling (interim report and report of the Arbitration Tribunal)
− binding upon the EU and the UK
− Expert Panels
 Replacing the Arbitration Panel for the purposes of LPF rules

6. Scope of the Deal
 Trade Agreement
 Law Enforcement and Judicial Cooperation in Criminal Matters
 Security Cooperation
 Participation in Union Programmes

7. Scope of the Deal – Trade Agreement
equal to EU law
less than EU law but
more than WTO law
equal to WTO law (‘hard Brexit’)

8. Scope of the Deal – Trade Agreement
equal to EU law
less than EU law but
more than WTO law
equal to WTO law (‘hard Brexit’)

9. Scope of the Deal – Trade Agreement
equal to EU law
less than EU law but
more than WTO law
equal to WTO law (‘hard Brexit’)

10. Scope of the Deal – Trade Agreement
equal to EU law
less than EU law but
more than WTO law
equal to WTO law (‘hard Brexit’)

11. Scope of the Deal
 Trade in Goods
− Zero tariff/Zero quota only applies to goods that the meet the relevant
‘rules of origin’(let’s call it the‘nationality’of a product)
 Problematic for goods that consist of many components sourced from different countries (set
out in annexes)
− Ex.: Cars may not contain more than 45% of materials coming neither from the UK or the EU
− Ex.: After 31 December 2026: Electric cars need to have their batteries from within the UK or the EU
− Ex.: Cane sugar from the Caribbean rafined in the UK won’t qualify
− Ex.: Meat products must contain only meat from animals born and raised in the UK or the EU
− No exemption from product standards
 Products have to undergo EU conformity assessments (no mutual recognition of such
assessments as in CETA) albeit simplifications for certain categories
 SPS border controls remain in place

12. Scope of the Deal
 Trade in Services
− Non-discrimination and market access for services (except for air services, AV
services, national maritime cabotage, inland waterways transport)
− BUT: Negative-list approach in annexes listing non-conforming measures within the
EU and the UK that can be upheld
− Whilst the service may enter (subject to non-discriminatory rules within each MS),
the service provider may not (list of‘short-term business visitors’that may enter
without visa):
 Meetings and consultations
 Research and design
 Trading seminars, trade fairs and exhibitions
 Purchasing activities
 After-sales and after-lease service
 Commercial transactions
 Tourism personnel
 Translation and interpretation

13. Scope of the Deal
 Financial services
− Market access on the basis of non-discrimination provided that services providers
are established in the respective countries (excl. MFN)
− UK financial service providers will lose their passporting rights
 Services have to comply with requirements in each MS
 There has to be an EU equivalence decision (for which a Commission delegated act is needed
subject to approval by the European Parliament and the Council); yet, not all sectors can be
covered by equivalence decisions the adoption of which must be foreseen in the basic EU legal
act regulating a particular financial service (e.g.: deposit taking)
− Joint Declaration setting out the cooperation between the EU and the UK in
matters of financial regulation (which forms the basis for equivalence decisions)
 Commitment to adopting an MoU (less than EU-Japan FTA)

14. Level-Playing Field
Divergence
Remedies
Non-regression
Enforcement
Area
Level-Playing Field
Domestic
enforcement
Domestic
enforcement
Unilateral
remedial
measures
Protection
against
Divergence
Domestic
enforcement
Non-regression
clause
Temporary
Remedies
Protection
against
Divergence
Domestic
enforcement
Non-regression
clause
Temporary
Remedies
Protection
against
Divergence
Competition
Law
State Aid
Trade and
Sustainable
Development
Labour and
Social Standards
Environment
and Climate
Taxation
• certain OECD
• public CbCR

15. Safeguards
Certain Treaty
obligations
Violation
Failure of prior
consultations
Sanctions Regime
Non-Compliance
with a Ruling by the
Arbitration Panel
Non-Compliance with the final
report by the Expert Panel
Failure of prior consultations
Weakening or reducing the
levels of protection in a manner
affecting trade or investment
between the Parties
Existing levels of labour and
social, environmental or
climate protection
60 days (within which the
other Party may react)
Causation of or serious risk of
causing a significant negative
effect on trade or investment
between the Parties
Subsidies
Rebalancing measures
(tariffs, suspension of concessions)
Failure of prior consultations
Significant divergences, which result into
material impacts on trade or investment
between the Parties
Labour and social,
environmental or
climate protection
Subsidy control
Ruling by the Arbitration
Panel on the consistency
of the rebalancing
measures
Suspension
Compensation
Temporary
Remedies
WTO trade
remedies
Anti-dumping duties
Countervailing duties
Remedial measures
(tariffs, suspension of
concessions)
Entry into prior consultations

16. Sanctions regime
 What does‘affecting trade or investment between the Parties’mean?
− Arbitration case: USA v Guatemala (under the CAFTA-DR)
 Issue: non-compliance of Guatemala with labour laws and labour rights
 Article 16.2(1)(a): ‘A Party shall not fail to effectively enforce its labor laws, through a sustained or
recurring course of action or inaction, in a manner affecting trade between the Parties, after the
date of entry into force of this Agreement.’
 Arbitral Panel: The US failed to prove that there were cost savings from specific labour rights
violations and that the savings were of sufficient scale to confer a material competitive
advantage in trade between the parties.
 High standard of proof
− EU-UK arbitration case may still be decided differently as there is no‘stare decisis’in
arbitration
− Economic relationship between the EU/UK is a different one
− Yet, the purpose of this formulation is to narrow
the scope of LPF

17. Social Security
 Protocol on Social Security Coordination
− Principle: Persons to whom the Protocol applies will be subject to the legal order of
one state only (ruling out double contributions)
− Protocol mainly replicates the EU Social Security Coordination Regulation
 Non-discrimination rule
 Access to sickness benefits and healthcare (arrangement similar to EHIC)
− Differences
 Special rules for detached workers (payment of social security contributions in the employer‘s
country; if not opted for this, contributions have to be paid in the employee’s country)
 Coverage: no family benefits, and excl. certain long-term care benefits (set out in an annex)
 Right to export excludes unemployment benefits

18. Law Enforcement
 Matters covered by the Part Three on Law Enforcement
− Exchange of PNR data
 Special unconditional suspension right (Art. LAW.PNR.38)
− Sharing DNA, fingerprint, and vehicle registration data through Prüm (without
giving the UK direct real-time access to the database but decentralised‘match/no-
match’system)
 Special suspension right (Art. LAW.PRÜM.19) because of divergence of legislation
− Exchange of information relevant to police operations without giving the UK direct
access to SIS II
− Cooperative relations with Europol/Eurojust, falling short of membership
− Extradition rules follow the example of the EAW (with an opt-out for
extradition of own nationals)
 List of 32 offences, for which dual criminality test is not required
 Transmission via Interpol and not via SIS II

19. Human Rights
 General Human-Rights Conditionality
− Art. INST.35 provides for consequences in case of a serious and substantial failure to
fulfil obligations relating to‘essential elements’
 Termination of the Agreement in whole or in part
 Suspension of the Agreement in whole or in part
− Essential elements
 Democracy, Rule of Law and Human Rights
 Fight against climate change
 Countering proliferation of weapons of mass destruction
− Serious and substantial failure: Failure whose‘gravity and nature would have to be
of an exceptional sort that threatens peace and security or that has
international repercussions’

20. Human Rights
 Human-Rights Conditionality of the Criminal Law part
− Art. LAW.OTHER.136 provides for consequences in case of denouncing the ECHR or
Protocols 1, 6 or 13 thereof
 Termination of Part III (‘Law Enforcement and Judicial Cooperation in Criminal Matters’) without
further conditions with nine months’notice
 Termination of Part III (‘Law Enforcement and Judicial Cooperation in Criminal Matters’) without
further conditions at the moment of denunciation of the ECHR (or 15 days if notice after that)
− Suspension of Part III or titles thereof in case of‘serious and systemic deficiencies’as
regards the protection of fundamental rights, the principle of the rule of law or the
protection of personal data

21. Preliminary Conclusions

22. Vielen Dank für die
Aufmerksamkeit!
Prof. Dr. René Repasi
Erasmus School of Law Rotterdam
Burgemeester Oudlaan 50
3000 DR Rotterdam
E-Mail: repasi@law.eur.nl