On 28 February 2018, the Commission of the European Union published the ‘European Commission Draft Withdrawal Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community’ (TF50 (2018) 33 – Commission to EU 27). This Draft Withdrawal Agreement is to be transmitted to the U.K. Government for further negotiations, after having been discussed by the European Council and the Brexit Steering Group of the European Parliament. The Draft Withdrawal Agreement consists of six parts: Common Provisions, Citizens’ Rights, Separation Provisions, Transition, Financial Provisions, and Institutional and Final Provisions. Added to these parts is inter alia a Protocol on Ireland/Northern Ireland.
The Protocol on Ireland/Northern Ireland consist of five chapters. These chapters deal with the Rights of individuals, the Movement of persons, a Common regulatory area, Institutional provisions, and General and final provisions. The preamble to the Protocol holds some sweeping statements. It refers ‘to the historic ties and enduring nature of the bilateral relationship between Ireland and the United Kingdom’, and affirms ‘that the Good Friday or Belfast Agreement of 10 April 1998 between the Government of the United Kingdom, the Government of Ireland and the other participants in the multi-party negotiations […] should be protected in all its parts’. The preamble also recognises ‘that cooperation between Northern Ireland and Ireland is a central part of the 1998 Agreement and is essential for achieving reconciliation and the normalisation of relationships on the island of Ireland’.
Chapter III of the Protocol (‘Common regulatory area’) proposes something quite remarkable, in providing that ‘A common regulatory area comprising the Union and the United Kingdom in respect of Northern Ireland is hereby established’. Under this proposed common regulatory area a large number of EU provisions ‘shall apply to and in the United Kingdom in respect of Northern Ireland’. This proposal, inter alia, stipulates that ‘Customs duties on imports and exports, and any charges having equivalent effect, shall be prohibited between the Union and the United Kingdom in respect of Northern Ireland’, ‘Quantitative restrictions on imports and exports and all measures having equivalent effect shall be prohibited between the Union and the United Kingdom in respect of Northern Ireland’, and ‘The Union and the United Kingdom in respect of Northern Ireland shall not impose, directly or indirectly, on the products of the other party any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products’.
The proposed common regulatory area (already criticized by U.K. Prime Minister Theresa May) would create a unique status for Northern Ireland. In the wording of the preamble, it would reflect ‘the commitment of the United Kingdom to protect North-South cooperation and its guarantee of avoiding a hard border, including any physical infrastructure or related checks and controls’. This common regulatory area could make of Northern Ireland an unprecedented economic area between the U.K. and the EU, that – in its relations with both the U.K. and the EU Northern Ireland would be free from customs duties, quantitative restrictions and internal taxation exceeding taxation imposed on domestic products – this could give Northern Ireland an economic intermediary position between the U.K. and the EU, thereby prospering itself and giving added value to both the Irish and U.K. economies.
The European Commission Draft Withdrawal Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community can be found at the ‘TF50’ website.