This EU Task Force sourced document was sent to the EU27 Member
States, to the Brexit Steering Group of the European Parliament and
published on the TF50 website on 19th March 2018. It is not
yet what might be termed a final draft as the EU Member States and
the European Parliament have yet to comment.
The colour coded draft reflecting various degrees of agreement
as to text and possible amendments can be found
Green shows the text agreed at negotiators' level and will only
be subject to technical legal revisions in the coming weeks.
Yellow shows the text agreed as to the policy objective but
indicates that drafting changes or clarifications are still
White shows the text corresponding to that proposed by the
European Union upon which discussions are continuing and upon
which no agreement has been reached as yet.
What is clear is that the legal distinction between a "national"
and a "citizen" has been deployed so as to remove any vestige of
European citizenship for British citizens in Europe, indicating
that the EU Treaty will be interpreted on the basis that only
nationals of continuing Member States are to be treated as citizens
of the Union. There is no vestige of EU citizenship, which is
therefore shown to be no longer a stable concept but a dependent
The Treatment given to Channel Islanders and Manxmen over the
transitional period will therefore be bundled up with United
Kingdom nationals in the Withdrawal Treaty, subject to their
already limited rights. They will no longer enjoy the status of
European citizens with Union residence rights, as opposed to
freedom of movement and establishment post-Brexit, certainly
after the end of the Transitional Period.
Note however the current drafting of the proposed Article 4:
" Methods and principles relating to the effect, the
implementation and the application of this Agreement
1. Where this Agreement provides for the application of Union
law in the United Kingdom, it shall produce in respect of and in
the United Kingdom the same legal effects as those which it
produces within the Union and its Member States.
In particular, Union citizens and United Kingdom nationals shall
be able to rely directly on the provisions contained or referred to
in Part Two. Any provisions inconsistent or incompatible with that
Part shall be disapplied.
2. The United Kingdom shall ensure compliance with paragraph 1,
including as regards the required powers of its judicial and
administrative authorities, through domestic primary
The potential ambiguity arises when taken with Article 3:
1. Unless otherwise provided in this Agreement or in Union
law made applicable by this Agreement, any reference in this
Agreement to the United Kingdom or its territory, shall be
understood as referring to:
(a) the United Kingdom ;
(b) Gibraltar to the extent that Union law was applicable to it
before the date of entry into force of this Agreement;
(c) the Channel Islands and the Isle of Man to the extent
that Union law was applicable to them before the date of entry into
force of this Agreement,…."
There is an ambiguity in the term or terms "United Kingdom or
its territory", insofar as the wording in the draft might need to
refer to either the United Kingdom or its territory or to both as
one in certain situations in the process of "unwinding" the
Protocol 3 arrangements for the CDs and the other arrangements for
each of the other territories concerned. The answer to the
question "does or mean or" may be as follows.
There is no "and" or "or" or other indication between Article 3
1. (e) and (d) , nor any indication such as "as the case may be.
The article might have fallen victim to its continental drafting
style were it not for specific phrases in article 3 1. (b) -
For example, at article 8(c) the term "United Kingdom" is used,
rather than "territory". That effectively means that EU citizens
who have established themselves in the Crown Dependencies or
territories listed at Article 3 1. (c) to (e) as opposed to the
United Kingdom and/or Gibraltar will therefore become subject to
the territories' respective internal and domestic legislation
alone. They will not have the citizens rights referred to in Part 2
which are granted to their peers in the United Kingdom.
The Crown Dependencies will probably wish to maintain their own
domestic preferences, and rights to regulate, as each Dependency
has put different mechanisms in place to address the particular
aspects of the Protocol in particular article 4. They ued to
be refered to as Crown Peculiars to indicate their distinct and
independent status from each other and the mainland Crown.
Constitutionally, the drafting might appear to cohabit with the
concept that the United Kingdom is responsible for the
international relationships of the Crown Dependencies and that it
is therefore justifiable to bundle all the eggs into one basket or
under one hen. However that in turn could override several internal
constitutional safeguards as to the independence of these islands
in areas currently covered by the Treaty and the arrangements in
There may need to be a note assisting the understanding of the
scope and intention of the term "United Kingdom or its territory" ,
or even a redafting to make it clear how the jurisdictions cited in
(c) through to (e) are each specifically actually affected by the
remainder of the Treaty if its general princples are to apply to
So, given the somewhat crucial constitutional context: "does
"or" mean or"?
The answer will probably lie in the drafting
of Article 3.1. (b) and (c) which restricts the
application of the Brexit Withdrawal Treaty to the CDs and
Gibraltar to the areas in which Union law was applicable to them
prior to the Withdrawal. Article 3 1. (d) through to (e) would
provide a similar answer insofar as those jurisictions are
However, the term used is qualified by the phrase "to the
extent that Union law was applicable to them .....". That
term is considerably wider in scope than a mere reference to
Protocol 3, and could include references even further afield than
for example the principles laid down by the then ECJ on the
application of article 4 of that Protocol thus ranging for example
to competition in goods and to State Aid.