Proposal for a COUNCIL DECISION establishing the position to be adopted on behalf of the European Union in the Joint Committee established by the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community as regards the adoption of a decision to amend the Agreement
Date: 2020-05-15
Institutions: European Commission, UK Task Force
Subjects: EAEC, United Kingdom, ad hoc committee, agreement (EU), revision of an agreement, withdrawal from the EU

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   EUROPEAN COMMISSION  Brussels, 15.5.2020  COM(2020) 195 final 2020/0079 (NLE)  Proposal for a COUNCIL DECISION establishing the position to be adopted on behalf of the European Union in the Joint Committee established by the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community as regards the adoption of a decision to amend the Agreement  
 
EXPLANATORY MEMORANDUM 

1. 

SUBJECT MATTER OF THE PROPOSAL 

The  Commission  proposes  that  the  Council  establishes  the  position  to  be  adopted  on  the 
Union's behalf in the Joint Committee established by the Agreement on the withdrawal of the 
United  Kingdom  of  Great  Britain  and  Northern  Ireland  from  the  European  Union  and  the 
European  Atomic  Energy  Community  (‘the  Withdrawal  Agreement’)  on  a  Joint  Committee 
decision to amend that Agreement. 

2. 

2.1. 

CONTEXT OF THE PROPOSAL 

The Agreement on the withdrawal of the United Kingdom of Great Britain and 
Northern Ireland from the European Union and the European Atomic Energy 
Community 

The Withdrawal Agreement sets out the arrangements for the orderly withdrawal of 
the  United  Kingdom  from  the  Union  and  Euratom.  The  Withdrawal  Agreement 
entered into force on 1 February 2020. 

2.2. 

The Joint Committee 

The Joint Committee established under Article 164(1) of the Withdrawal Agreement 
comprises representatives of the Union and of the United Kingdom. It is co-chaired 
by  the  Union  and  the  United  Kingdom.  Annex  VIII  to  the  Withdrawal  Agreement 
lays down the rules of procedure of the Joint Committee. The Joint Committee meets 
at least once a year or at the request of the Union or the United Kingdom and it sets 
its meeting schedule and agenda by mutual consent.  

The  tasks  of  the  Joint  Committee  are  laid  down  in  Article  164  of  the  Withdrawal 
Agreement and consist principally of: 

 

 

 

overseeing  the  implementation  and  application  of  the  Agreement  directly  or 
through the work of the specialised committees reporting to it; 

adopting  decisions  and  recommendations,  including  amendments  to  the 
Agreement in the cases provided therein; 

preventing  problems  and  resolving  disputes  that  may  arise  regarding  the 
interpretation and application of the Agreement. 

2.3. 

The envisaged decision of the Joint Committee 

The  Joint  Committee  can  adopt  a  decision  amending  the  Withdrawal  Agreement, 
pursuant  to  Article  164(5)(d)  of  the  Agreement,  to  correct  errors,  to  address 
omissions  or  other  deficiencies,  or  to  address  situations  unforeseen  when  the 
Withdrawal  Agreement  was  signed,  provided  that  the  modifications  do  not  amend 
the essential elements of the Agreement. 

The purpose of the envisaged decision is to address omissions and deficiencies which 
do not amend the essential elements of the Withdrawal Agreement. 

The  envisaged  decision  will  become  binding  on  the  Parties  in  accordance  with 
Article 166(2) of the Withdrawal Agreement. In accordance with Rule 9 of the Rules 
of  Procedure,  decisions  adopted  by  the  Joint  Committee  will  specify  the  date  at 
which they take effect. 

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3. 

POSITION TO BE ADOPTED ON THE UNION'S BEHALF 

3.1. 

Part Five on Financial Provisions 

As the Withdrawal Agreement entered into force later than initially envisaged due to 
several  extensions  of  the  UK’s  status  as  a  Union  Member  State,  Part  Five  on 
Financial Provisions requires several technical adjustments.  

3.1.1.  Article  135  concerns  the  United  Kingdom’s  contribution  and  participation  in  the 
implementation  of  the  Union  budgets.  It  aims  at  ensuring  the  United  Kingdom’s 
normal  contribution  and  participation  in  the  Union  budgets  from  the  date  of 
withdrawal  until  the  end  of  the  transition  period.  As  the  date  of  withdrawal  of  the 
United Kingdom from the Union was 31 January 2020, it is appropriate, for the sake 
of legal certainty, to delete the reference to the year 2019 in the title and paragraph 
1 of Article 135 of the Agreement.  

3.1.2.  Article  137  concerns  the  United  Kingdom’s  participation  in  the  implementation  of 
the  Union  programmes  and  activities  from  the  date  of  withdrawal  of  the  United 
Kingdom  from  the  Union  until  the  end  of  the  transition  period.  As  the  date  of 
withdrawal  of  the  United  Kingdom  from  the  Union  was  31  January  2020,  it  is 
appropriate, for the sake of legal certainty, to delete the reference to the year 2019 in 
the title and in paragraph 1 of Article 137 of the Agreement. 

3.1.3.  Article 143 concerns the contingent financial liabilities related to loans for financial 
assistance,  EFSI,  EFSD  and  the  external  lending  mandate.  It  contains  several 
reporting  obligations  for  the  Union  for  which  the  reference  dates  have  already 
passed. The first date is 31 July 2019 which was the expected date for the first report 
illustrating  the  situation  on  financial  operations  under  Article  143  at  the  date  of 
withdrawal of the United Kingdom from the Union. As the date of withdrawal was 31 
January 2020, it is necessary to modify paragraph 1 of Article 143 to the effect that 
the first report be due on 31 July 2020. It is also necessary to delete the references to 
the year 2019 in the rest of that paragraph.  

3.1.4.  Article  144  concerns  financial  instruments  under  direct  or  indirect  implementation 
financed  by  the  programmes  of  the  MFF  2014-2020  or  under  earlier  financial 
perspectives.  It  contains  a  reference  to  the  first  report  illustrating  the  situation  on 
financial  operations  under  Article  143  and  its  date.  It  is  therefore  necessary  to 
modify the reference to this date in Article 144(1). 

3.1.5.  Article  150  concerns 

liability  of 

the  continued 

the  United  Kingdom  and 
reimbursement of paid-in capital in the framework of the European Investment Bank 
(EIB)  in  twelve  instalments.  It  contains  the  date  for  the  first  instalment  in  the 
framework  of  the  reimbursement  by  the  EIB  of  the  paid-in  capital  to  the  United 
Kingdom (15 December 2019), with the objective of starting repayment at the end of 
the year in which the withdrawal of the United Kingdom from the Union takes place. 
As  the  date  of  withdrawal  was  31  January  2020,  it  is  necessary  to  modify  the 
reference  to  this  date.  After  discussions  with  the  EIB,  it  is  proposed  to  foresee  the 
first  instalment  in  2020  and  more  specifically  on  15  October  2020.  With  the 
reimbursement starting one year later, it is also necessary to modify the date of the 
final  payment,  which  should  be  on  15  October  2031.  Paragraph  4  of  Article  150 
should be amended accordingly. 

Article 150 also provides for the communication by the EIB of the United Kingdom’s 
exposure  under  the  EIB  financial  operations  on  31  July  2019.  As  the  date  of 

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withdrawal was 31 January 2020, it is necessary to modify in paragraph 8 the date 
of this communication to the same day but a year later, i.e. to 31 July 2020. 

Article 150 contains an obligation for the EIB to communicate every year and until 
the extinction of the liability of the United Kingdom under that Article the remaining 
exposure  of  the  United  Kingdom  under  the  EIB  financial  operations.  The  date 
currently indicated in the Agreement is 31 March of every year starting in 2020. As 
the  date  of  withdrawal  was  31  January  2020,  the  first  remaining  exposure  to  be 
reported is the one for 31 December 2020; therefore, the first communication should 
be  made  on  31  March  2021.  Article  150(8),  second  subparagraph  should  be 
amended accordingly.  

3.1.6.  Article  145  concerns  the  reimbursement  of  the  United  Kingdom’s  share  of  the  net 
assets  of  the  European  Coal  and  Steel  Community  (ECSC).  The  revenue  of  these 
assets are transferred to the Research Fund for Coal and Steel (RFCS) that finances 
research  projects  in  the  area  of  coal  and  steel.  These  projects  are  not  part  of  the 
MFF and have their own legal base in Protocol No 37 of the Treaty on the European 
Union  on  the  financial  consequences  of  the  expiry  of  the  ECSC  treaty  and  on  the 
Research fund for Coal and Steel. It follows that the grants related to these projects 
are  not  covered  by  Articles  137  and  138  of  the  Withdrawal  Agreement  and  that 
therefore  there  are  no  provisions  foreseen  for  such  on-going  grants  awarded  to 
United Kingdom’s beneficiaries by the end of the transition period.  

It is therefore necessary to amend the Withdrawal Agreement in order to fill in this 
legal vacuum. It is proposed to follow for grants under the RFCS the same logic as 
the one applied to grants financed under the MFF. It means that RFCS grants signed 
with United Kingdom beneficiaries before the end of the transition period should be 
honoured until their closure. Such approach would also be in line with the financing 
rules  of  the  RFCS,  according  to  which  the  year  N  commitments  are  financed  by 
revenues from the assets of the European Coal and Steel Community of the year N-2 
(in other words, in 2020 projects are financed with revenue from 2018). By analogy 
with  the  MFF  rule  and  taking  into  account  the  reimbursement  of  the  assets  to  the 
United  Kingdom  from  30  June  2021,  it  is  proposed  to  add  as  a  cut-off  date  for 
signature  the  end  of  the  transition  period.  A  third  paragraph  should  be  added  to 
Article 145 of the Agreement to reflect this. 

3.2. 

Annex 2 to the Protocol on Ireland/Northern Ireland 

The  Protocol  on  Ireland/Northern  Ireland  has  been  put  in  place  in  order  to  address 
the unique circumstances on the island of Ireland in the framework of the withdrawal 
of  the  United  Kingdom  from  the  Union.  It  includes  provisions  for  avoiding  a  hard 
border  between  Ireland  and  Northern  Ireland  and  foresees  Northern  Ireland’s 
alignment to a limited set of rules that are related to the Union’s Single Market for 
goods. Annex 2 to the Protocol contains a list of the provisions of Union law referred 
to  in  Article  5(4)  of  the  Protocol,  which  apply  in  this  respect  to  Northern  Ireland. 
Eight acts which are essential for the application of the rules of the Internal Market 
for  goods  to  Northern  Ireland  have  by  oversight  not  been  listed  in  this  annex.  In 
addition, three notes that are necessary to further define the scope of application of 
certain  specific  acts  listed  in  Annex  2  to  the  Protocol  on  Ireland/Northern  Ireland 
have by oversight not been included in this annex. 

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3.2.1.  Directive  (EU) 2019/904 on the reduction of  the  impact  of  certain plastic products 

on the environment1 

Directive  (EU)  2019/904  promotes  circular  approaches  that  give  priority  to 
sustainable and non-toxic re-usable products and re-use systems rather than to single-
use  products,  aiming  to  reduce  the  quantity  of  waste  generated.  This  Directive  is 
complimentary  to  Directive  94/62/EC  on  packaging  and  packaging  waste  already 
included  in  annex  2  to  the  Protocol  on  Ireland/Northern  Ireland.  Applying  both 
instruments  on  the  territory  of  Northern  Ireland  is  necessary  to  avoid  the  use  of 
different approaches to waste, for example on labelling requirements, and ensure that 
products that could be placed on the Northern Irish market can be safely and legally 
be brought across the border in Ireland and in the rest of the single market. 

In light of the above, and with the objective to preserve the integrity of the internal 
market as far as package and waste packaging is concerned, it is proposed to include 
Directive  (EU)  2019/904  in  the  list  of  provisions  of  Union  law  which  apply  to 
Northern  Ireland  under  “Waste”  in  Annex  2  to  the  Protocol  on  Ireland/Northern 
Ireland. 

3.2.2.  Directive 2011/91/EU on indications or marks identifying the lot to which a foodstuff 

belongs2 

Directive  2011/91/EU  sets  rules  of  a  general  and  horizontal  nature  in  order  to 
manage  a  common  lot  identification  system.  It  establishes  a  general  obligation  to 
indicate  the  lot,  provides  exceptions  to  this  obligation,  allocates  responsibility  of 
compliance to operators and contains specifications for the content of the indication 
and its placement on foods.  

The  lot  indication  is  a  useful  source  of  information  when  foods  are  the  subject  of 
dispute  or  constitute  a  health  hazard  for  consumers.  It  facilitates  food  business 
operators’ management of withdrawal of unsafe foods from the market, both in terms 
of identifying rapidly the lot of unsafe foods and in terms of removing it timely from 
the  market.  It  is  an  indispensable  tool  for  the  national  authorities  in  the  context  of 
investigations of food frauds.  

Although there is a general obligation to provide a reference to the manufacturing or 
packaging  lot  of  pre-packaged  food  at  international  level  (Codex  Alimentarius 
General  Standard  for  the  Labelling  of  Pre-packaged  Foods),  the  Directive  sets  out 
specific  common  requirements  that  go  beyond  this  obligation.  Finally,  foods  that 
enter  the  European  Union  from  third  countries  must  comply  with  the  traceability 
requirements  set  in  the  Union  legislation  in  order  to  be  legally  marketed  in  the 
Union.  

Finally, Directive 2011/91/EU adds to the obligations set out by Regulation (EC) No 
178/2002 of the European Parliament and of the Council of 28 January 2002 laying 
down the general principles and requirements of food law, establishing the European 
Food Safety Authority and laying down procedures in matters of food safety which is 
already included in Annex 2 to the Protocol on Ireland/Northern Ireland. 

In  light  of  the  above,  and  with  the  objective  to  preserve  the  unity  of  the  internal 
market  as  well  as  the  health  and  safety  of  Union  citizens,  it  is  proposed to  include 
Directive 2011/91/EU in the list of provisions of Union law which apply to Northern 

1 
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OJ L 155, 12.6.2019, p. 1. 
OJ L 334, 16.12.2011, p.1. 

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Ireland in terms of “Food – general” in Annex 2 to the Protocol on Ireland/Northern 
Ireland. 

3.2.3.  Council  Directive  66/401/EEC  of  14  June  1966  on  the  marketing  of  fodder  plant 

seed3 

Directive  66/401/EEC  sets  out  rules  concerning  the  marketing  of  fodder  plant  seed 
within  the  Union.  It  includes  requirements  concerning  the  identity,  health  and 
quality, as well as certification measures of those seeds, pursuant to which they may 
be freely marketed in the Union.  

In light of the above, and with the objective to preserve the marketing of fodder plant 
in the Union, it is proposed to include Directive 66/401/EEC in the list of provisions 
of  Union  law,  which  apply  to  Northern  Ireland  in  terms  of  “Plant  reproductive 
material” in Annex 2 to the Protocol on Ireland/Northern Ireland. 

3.2.4.  Council  Directive  98/56/EC  of  20  July  1998  on  the  marketing  of  propagating 

material of ornamental plants4 

Directive 98/56/EC sets out rules concerning the marketing of propagating material 
of  ornamental  plants  in  the  Union.  It  includes  requirements  concerning  the  quality 
and health of that material, pursuant to which it may be freely marketed in the Union. 

In light of the above, and with the objective to preserve the marketing of propagating 
material  of  ornamental  plants  in  the  Union,  it  is  proposed  to  include  Directive 
98/56/EC in the list of provisions of Union law, which apply to Northern Ireland in 
the  Protocol  on 
terms  of  “Plant  reproductive  material” 
Ireland/Northern Ireland. 

in  Annex  2 

to 

3.2.5.  Council  Directive  2008/72/EC  of  15  July  2008  on  the  marketing  of  vegetable 

propagating and planting material, other than seed5 

Council Directive 2008/72/EC sets out rules concerning the marketing of vegetable 
propagating and planting material in the Union. It includes requirements concerning 
the identity, health, and quality, as well as control measure of that material, pursuant 
to which it may be freely marketed within the Union. 

In light of the above, and with the objective to preserve the marketing of vegetable 
propagating  and  planting  material  in  the  Union,  it  is  proposed  to  include  Directive 
2008/72/EC in the list of provisions of Union law, which apply to Northern Ireland in 
terms  of  “Plant  reproductive  material” 
the  Protocol  on 
Ireland/Northern Ireland. 

in  Annex  2 

to 

3.2.6.  Council Regulation (EC) No 111/2005 laying down rules for the monitoring of trade 

between the Union and third countries in drug precursors6 

Regulation  (EC)  No  111/2005  implements  the  United  Nations  Convention  against 
Illicit Traffic in Narcotic Drugs and Psychotropic Substances adopted in Vienna on 
19  December  1988,  to  which  the  Community  is  a  party.  Regulation  (EC)  No 
111/2005  in  particular  aims  at  implementing  in  Union  law  Article  12  of  this 

3 

4 

5 

6 

OJ 125, 11.7.1966, p. 2298–2308 

OJ L 226, 13.8.1998, p. 16–23 

OJ L 205, 1.8.2008, p. 28–39 

OJ L 22, 26.1.2005, p.1.  

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Convention by laying down Community rules on trade in substances frequently used 
in  the  illicit  manufacture  of  narcotic  drugs  and  psychotropic  substances  and  by 
establishing a system to monitor trade between the Union and third countries in drug 
precursors.  

In  addition,  Regulation  (EC)  No  111/2005  is  inextricably  connected  to  Regulation 
(EC)  No  273/2004  of  the  European  Parliament  and  of  the  Council  on  drug 
precursors, which is included in Annex 2 to the Protocol on Ireland/Northern Ireland: 
only  the  combination  of  these  two  instruments  ensures  a  coherent  and  all-
encompassing  drug  precursor  control  system.  Applying  only  Regulation  (EC)  No 
273/2004  as  provided  in  the  current  Protocol  to  Ireland/Northern  Ireland  would 
create  a  loophole  in  the  drug  precursor  control  system  as  there  would  be  no 
monitoring  of  and  control  on  the  import/transit/export  of  drug  precursors  via 
Northern  Ireland,  which  would  then  become  an  attractive  region  for  illegal  drug 
manufacturing.  Furthermore,  in  the  absence  of  hard  borders  between  Northern 
Ireland and the Republic of Ireland, drug precursors which are diverted via Northern 
Ireland could  easily find their way into the Republic of  Ireland (and from  there, in 
other parts of the EU) where they could be used for illegal drug manufacture. 

In light of the above, and with the objective to preserve the drug precursors control 
system in the Union, it is proposed to include Regulation (EC) No 111/2005  in the 
list  of  provisions  of  Union  law  which  apply  to  Northern  Ireland  in  terms  of 
“Chemicals and related” in Annex 2 to the Protocol on Ireland/Northern Ireland. 

3.2.7.  Regulation  2019/880  of  the  European  Parliament  and  of  the  Council  on  the 

introduction and the import of cultural goods7 

Regulation  2019/880  aims  at  preserving  humanity’s  cultural  heritage  and  at 
preventing the illicit trade in non-EU cultural goods, especially when such trade may 
contribute  to  terrorist  financing.  For  this  purpose,  the  Regulation  prohibits  any 
introduction  in  the  Union  of  cultural  goods  which  were  illegally  exported  from  a 
third  country.  This  general  prohibition  will  apply  from  28  December  2020.  The 
Regulation  also  provides  for  systematic  controls  of  non-EU  cultural  goods  when 
these  are  imported  into  the  Union.  Since  the  system  of  documentary  controls  – 
import licences and importer statements – relies on a centralised electronic system, it 
will  become  applicable  when  that  IT  system  becomes  operational  and  by  from  28 
June 2025 at the latest. 

If Regulation 2019/880 is not included in the list of provisions of Union law which 
apply  to  Northern  Ireland,  cultural  goods  pillaged  or  stolen  from  third  countries, 
including the United Kingdom, could gain access to the Union’s internal market via 
Northern Ireland as there will be no hard borders between Northern Ireland and the 
Republic  of  Ireland,  and  thus  no  controls  by  customs  or  other  law  enforcement 
authorities  there.  This  will  undoubtedly  be  exploited  by  fraudulent  operators  to 
bypass the Union controls at import and thus render the Regulation ineffective.  

In light of the above, and with the objective to preserve the integrity of the internal 
market  as  far  as  import  of  cultural  goods  is  concerned,  it  is  proposed  to  include 
Regulation (EU) No 2019/880 in the list of provisions of Union law which apply to 
Northern  Ireland  under  “Other”  in  Annex  2to  the  Protocol  on  Ireland/Northern 
Ireland. 

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OJ L 151, 7.6.2019, p.1. 

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3.2.8.  Regulation  (EU)  2019/287  of  the  European  Parliament  and  of  the  Council 
implementing  bilateral  safeguard  clauses  and  other  mechanisms  allowing  for  the 
temporary withdrawal of preferences in certain trade agreements concluded between 
the European Union and third countries8 

Regulation  2019/287  lays  down  provisions  for  the  implementation  of  bilateral 
safeguards  clauses  and  other  mechanisms  for  the  temporary  withdrawal  of  tariff 
preferences  or  other  preferential  treatment  contained  in  the  trade  agreements 
concluded  between  the  Union  and  third  countries.  This  Regulation  applies  in 
particular  to  the  most  recent  trade  agreements  concluded  by  the  Union  with  for 
example Japan or Singapore.  

Annex  2  to  the  Protocol  on  Ireland/Northern  Ireland  contains  a  list  of  all  Union 
regulations on bilateral safeguards. Regulation 2019/287 was not in force at the time 
the list in Annex 2 to the Protocol on Ireland/Northern Ireland was drawn up. 

In  light  of  the  above,  and  with  the  objective  to  preserve  the  application  of  all  EU 
trade  measures  to  goods  brought  into  Northern  Ireland  which  are  at  risk  of 
subsequently being moved into the Union, it is proposed to include Regulation (EU) 
2019/287  in  the  list  of  provisions  of  Union  law  which  apply  to  Northern  Ireland 
under  “Regulations  on  bilateral  safeguards”  in  Annex  2  to  the  Protocol  on 
Ireland/Northern Ireland. 

3.2.9.  Explanatory note on the scope of application of Regulation (EU) 978/20129 

Regulation  (EU)  978/2012  applies  the  Union’s  scheme  of  generalised  tariff 
preferences  (GSP).  To  ensure  the  proper  functioning  and  integrity  of  the  Union’s 
GSP and the Protocol on Ireland/Northern Ireland, the United Kingdom in respect of 
Northern Ireland should be excluded for certain elements of the scope of application 
of this act. 

In  light  of  the  above,  it  is  proposed  to  insert  a  note  under  the  heading  “4.  General 
trade  related  aspects”,  in  the  entry  for  Regulation  (EU)  978/2012  that  without 
prejudice to the fact that the tariff preferences for eligible countries pursuant to the 
Union’s  GSP  shall  be  applicable  in  the  United  Kingdom  in  respect  of  Northern 
Ireland: 

– 

– 

– 

the  references  to  “Member  State”  in  Article  9(1)(c)(ii),  and  in  Chapter  VI 
[Safeguards  and  surveillance  provisions]  in  Regulation  (EU)  978/2012  shall 
not be read as including the United Kingdom in respect of Northern Ireland;  

the  references  to  “Union  market”  in  Article  2(k)  and  Chapter  VI  [Safeguards 
and surveillance provisions] in Regulation (EU) 978/2012 shall not be read as 
including the market of United Kingdom in respect of Northern Ireland; and  

the references to “Union producers” and “Union industry” in Regulation (EU) 
978/2012  shall  not  be  read  as  including  the  producers  and  industry, 
respectively, of the United Kingdom in respect of Northern Ireland. 

3.2.10.  Explanatory  note  on  the  scope  of  application  of  the  Union  trade  defence  basic 

regulations and measures 

The Union trade defence basic regulations are included in Annex 2 of the Protocol on 
Ireland/Northern  Ireland.  To  ensure  the  proper  functioning  and  integrity  of  the 

8 
9 

OJ L 53, 22.2.2019, p.1. 
OJ L 303, 31.10.2012, p. 1. 

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Union’s trade defence regulations and the Protocol on Ireland/Northern Ireland, the 
scope  of  application  of  certain  acts  in  the  United  Kingdom  in  respect  of  Northern 
Ireland should be clarified. 

In light of the above it is proposed to insert a note in the section “5. Trade defence 
instruments”  that  without  prejudice  to  the  fact  that  the  Union’s  trade  defence 
measures shall be applicable in the United Kingdom in respect of Northern Ireland, 
the  references  to  “Member  States”  or  “Union”  in  Regulation  (EU)  2016/1036, 
Regulation  (EU)  2016/1037,  Regulation  (EU)  2015/478  and  Regulation  2015/755 
shall not be read as including the United Kingdom in respect of Northern Ireland. In 
addition,  importers  that  paid  Union  anti-dumping  or  countervailing  duties  on 
importation  of  goods  customs  cleared  in  Northern  Ireland  may  ask  for  a  refund  of 
such  duties  exclusively  pursuant  to  Article  11(8)  of  Regulation  (EU)  2016/1036  or 
Article 21 of Regulation (EU) 2016/1037 respectively.  

3.2.11.  Explanatory  note  on  the  scope  of  application  of  the  Union  bilateral  safeguard 

measures  

The  Union  regulations  on  bilateral  safeguard  measures  are  included  in  Annex  2  of 
the  Protocol  on  Ireland/Northern  Ireland.  To  ensure  the  proper  functioning  and 
integrity of the Union’s regulations and the Protocol on Ireland/Northern Ireland, the 
scope  of  application  of  certain  acts  in  the  United  Kingdom  in  respect  of  Northern 
Ireland should be clarified. 

Without prejudice to the fact that the Union’s bilateral safeguard measures shall be 
applicable  in  the  United  Kingdom  in  respect  of  Northern  Ireland,  the  references  to 
“Member States” or  “Union” in  the regulations listed in  the section 6 “Regulations 
on bilateral safeguards” shall not be read as including the United Kingdom in respect 
of Northern Ireland. 

3.3. 

Annex I to the Withdrawal Agreement on social security coordination 

Part  I  of  Annex  I  to  the  Withdrawal  Agreement  contains  the  decisions  and 
recommendations of the Administrative Commission for the Coordination of Social 
Security Systems of which the Union and the United Kingdom must take due account 
when  applying  the  social  security  coordination  rules  (see  Article  31  of  the 
Withdrawal Agreement). 

On  19  December  2018,  the  Administrative  Commission  for  the  Coordination  of 
Social Security Systems approved Decision No F310 concerning the interpretation of 
Article 68 of Regulation (EC) No 883/2004 relating to the method of calculation of 
the  differential  supplement.  This  decision  is  applicable  since  16  July  2019;  it  was 
however not listed in Part I of Annex I, and should be added. 

On  27  June  2019,  the  Administrative  Commission  for  the  Coordination  of  Social 
Security  Systems  approved  Decision  No  E711  that  lays  down  the  practical 
arrangements  for  cooperation  and  data  exchange  applicable  since  3  July  2019  and 
until  the  Electronic  Exchange  of  Social  Security  Information  (EESSI)  is  fully 
implemented in the Member States. This decision was, however, not listed in Annex 
I to the Withdrawal Agreement, and should be added. 

10 
11 

OJ C 215, 26.6.2019, p.2 
OJ C 73, 6.3.2020, p.5.  

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4. 

LEGAL BASIS 

Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) provides for 
decisions establishing ‘the positions to be adopted on the Union’s behalf in a body set up by 
an  agreement,  when  that  body  is  called  upon  to  adopt  acts  having  legal  effects,  with  the 
exception of acts supplementing or amending the institutional framework of the agreement.’ 

The decision which the Joint Committee is called upon to adopt constitutes an act having legal 
effects. The envisaged act will be binding on Parties law in accordance with Article 166(2) of 
the Agreement.  

The  envisaged  act  does  not  supplement  or  amend  the  institutional  framework  of  the 
Agreement. 

Therefore, the procedural legal basis for the proposed decision is Article 218(9) TFEU. 

The  sole  objective  and  content  of  the  envisaged  act  relates  to,  on  one  hand,  amending  the 
Agreement to address omissions and deficiencies, while not amending the essential elements 
therein,  and,  on  the  other,  amending  the  Agreement  in  a  case  specifically  foreseen  by  the 
latter. 

The  conclusion  of  the  Agreement  was  based  on  Article  50(2)  of  the  Treaty  on  European 
Union. 

Therefore, and in accordance with the basic principle that an act can be amended only by an 
act of the same type, the substantive legal basis of the proposed decision is Article 50(2) of 
the Treaty on European Union. 

4.1. 

Conclusion 

The  legal  basis  of  the  proposed  decision  should  be  Article  50(2)  of  the  Treaty  on 
European Union, in conjunction with Article 218(9) TFEU. 

5. 

PUBLICATION OF THE ENVISAGED ACT 

As  the  decision  of  the  Joint  Committee  will  amend  the  Withdrawal  Agreement,  it  is 
appropriate to publish it in the Official Journal of the European Union after its adoption. 

EN 

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2020/0079 (NLE) 

Proposal for a 

COUNCIL DECISION 

establishing the position to be adopted on behalf of the European Union in the Joint 
Committee established by the Agreement on the withdrawal of the United Kingdom of 
Great Britain and Northern Ireland from the European Union and the European 
Atomic Energy Community as regards the adoption of a decision to amend the 
Agreement 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty on European Union, and in particular Article 50(2) thereof,  

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 218(9) thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

The  Agreement  on  the  withdrawal  of  the  United  Kingdom  of  Great  Britain  and 
Northern  Ireland  from  the  European  Union  and  the  European  Atomic  Energy 
Community  (‘the  Withdrawal  Agreement’)  was  concluded  by  the  Union  by  Council 
Decision (EU)  2020/13512  of  30  January  2020  and  entered  into  force  on  1  February 
2020.  

Article  164(5)(d)  of  the  Withdrawal  Agreement  empowers  the  Joint  Committee  to 
adopt  decisions  amending  that  Agreement,  provided  that  such  amendments  are 
necessary  to  correct  errors,  to  address  omissions  or  other  deficiencies,  or  to  address 
situations  unforeseen  when  the  Agreement  was  signed,  and  provided  that  such 
decisions do not amend the essential elements of that Agreement. Pursuant to Article 
166(2)  of  the  Withdrawal  Agreement,  the  decisions  adopted  by  the  Joint  Committee 
are  binding  on  the  Union  and  the  United  Kingdom,  and  the  Union  and  the  United 
Kingdom  must implement  those decisions, which shall have the same legal  effect  as 
the  Withdrawal  Agreement  In  accordance  with  Article  182  of  the  Withdrawal 
Agreement,  the  Protocol  on  Ireland/Northern  Ireland  form  an  integral  part  of  that 
Agreement. 

Certain  dates  referred  to  in  the  Withdrawal  Agreement  had  already  passed  at  the 
moment  of  its  entry  into  force,  and  should  therefore  be  amended,  together  with 
corresponding adjustments, in the interest of legal certainty.  

Article  145  of  the  Withdrawal  Agreement  does  not  contain  provisions  governing 
grants  under  the  Research  Fund  for  Coal  and  Steel  granted  to  United  Kingdom’s 
beneficiaries  before  the  end  of  the  transition  period,  and  should  therefore  be 
supplemented in this respect, to provide legal certainty as regards ongoing grants.  

(5) 

By oversight, two decisions of the Administrative Commission for the Coordination of 
Social Security Systems  have not  been listed in Part  I of Annex  I to  the Withdrawal 

12 

OJ L 29, 31.1.2020, p.1.  

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Agreement  and  eight  acts  which  are  essential  for  the  application  of  the  rules  of  the 
internal market for goods to Northern Ireland have not been listed in Annex 2 to the 
Protocol  on  Ireland/Northern  Ireland.  These  decisions  and  acts  should  therefore  be 
added to those annexes. In addition, three notes are also necessary to further define the 
scope  of  application  of  certain  specific  acts  listed  in  Annex  2  to  the  Protocol  on 
Ireland/Northern  Ireland.  These  notes  should  therefore  be  added  to  Annex  2  to  the 
Protocol on Ireland/Northern Ireland. 

The  Joint  Committee  should  adopt  a  decision  pursuant  to  Article  164(5)(d)  of  the 
Withdrawal Agreement to address these omissions and deficiencies.  

It is therefore appropriate to establish the position to be taken on the Union's behalf in 
the Joint Committee, 

(6) 

(7) 

HAS ADOPTED THIS DECISION: 

The  position  to  be  taken  on  the  Union's  behalf  in  the  Joint  Committee  established  by  the 
Withdrawal Agreement on a Joint Committee decision to be taken in accordance with Article 
164(5)(d) thereof shall be to amend the Withdrawal Agreement as follows: 

Article 1 

1) 

2) 

In  Article  135,  in  the  title,  the  words  “budgets  for  the  years  2019  and  2020” 
shall be replaced by the words “budget for the year 2020” and, in paragraph 1, 
the words “years 2019 and” shall be replaced by the word “year”; 

In  Article  137,  in  the  title  and  in  the  first  subparagraph  of  paragraph  1,  the 
words “2019 and” shall be deleted; 

3)  Article 143 (1) shall be amended as follows: 

(a) 

in the second subparagraph, “31 July 2019” shall be replaced by “31 July 
2020”; 

(b) 

the third subparagraph shall be replaced by the following:  

“In the consolidated accounts of the Union relating to 2020, the payments 
made  out  of  the  provisions  referred  to  in  point  (b)  of  the  second 
subparagraph from the date of entry into force of this Agreement until 31 
December  2020,  shall  be  disclosed  for  the  same  financial  operations  as 
referred to in this paragraph but which are decided upon on or after the 
date of entry into force of this Agreement.”;  

4) 

In Article 144(1), in the second subparagraph, “31 July 2019” shall be replaced 
by “31 July 2020”; 

5) 

In Article 145, the following paragraph shall be added: 

“In  respect  of  the  projects  under  the  Research  Fund  for  Coal  and  Steel 
established  by  Protocol  37  to  the  Treaty  on  the  European  Union  and  to  the 
Treaty  on  the  Functioning  of  the  European  Union  under  grant  agreements 
signed  until  the  end  of  the  transition  period,  the  applicable  Union  law  shall 
continue to apply to and in the United Kingdom after the end of the transition 
period  and  until  the  closure  of  the  projects.  The  applicable  Union  law  shall 
include  in  particular  the  following  provisions,  including  any  amendments  to 
those  provisions,  irrespective  of  the  date  of  adoption,  entry  into  force  or 
application of the amendment: 

EN 

11 

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(a)  Council Decisions 2003/76/EC13, 2003/77/EC14 and 2008/376/EC15; 

(b) 

the acts referred to in Article 138(2)(a) and (c)-(e).”; 

6)  Article 150 shall be amended as follows: 

(a) 

paragraph 4 shall be amended as follows: 

(i) 

(ii) 

in  the  fourth  sentence,  “15  December”  shall  be  replaced  by  “15 
October” and “2019” shall be replaced by “2020”; 

in the fifth sentence, “15 December 2030” shall be replaced by “15 
October 2031”; 

(b)  paragraph 8 shall be amended as follows: 

(i) 

in the first subparagraph, “2019” shall be replaced by “2020”; 

(ii) 

in  the  first  sentence  of  the  second  subparagraph,  “2020”  shall  be 
replaced by “2021”. 

7) 

In  Annex  2  to  the  Protocol  on  Ireland/Northern  Ireland,  the  following  notes 
shall be inserted: 

(a)  Under  “4.  General  trade  related  aspects”,  following  the  entry  for 
“Regulation  (EU)  No  978/2012  of  the  European  Parliament  and  of  the 
Council  of  25  October  2012  applying  a  scheme  of  generalised  tariff 
preferences and repealing Council Regulation (EC) No 732/2008”:  

“Without  prejudice  to  the  fact  that  the  tariff  preferences  for  eligible 
countries pursuant to the Union’s General Scheme of Preferences shall be 
applicable in the United Kingdom in respect of Northern Ireland: 

– 

– 

– 

the  references  to  “Member  State”  in  Article  9(1)(c)(ii)  and  in 
Chapter VI [Safeguards and surveillance provisions] in Regulation 
(EU) 978/2012 shall not be read as including the United Kingdom 
in respect of Northern Ireland;  

the  references  to  “Union  market”  in  Article  2(k)  and  Chapter  VI 
[Safeguards  and  surveillance  provisions]  in  Regulation  (EU) 
978/2012  shall  not  be  read  as  including  the  market  of  United 
Kingdom in respect of Northern Ireland; and 

the  references  to  “Union  producers”  and  “Union  industry”  in 
Regulation  (EU)  978/2012  shall  not  be  read  as  including  the 
producers  and  industry,  respectively,  of  the  United  Kingdom  in 
respect of Northern Ireland.” 

(b)  Under “5. Trade defence instruments” under the title of the section: 

13 

14 

15 

Council  Decision  2003/76/EC  of  1  February  2003  establishing  the  measures  necessary  for  the 
implementation  of  the  Protocol,  annexed  to  the  Treaty  establishing  the  European  Community,  on  the 
financial consequences of the expiry of the ECSC Treaty and on the Research Fund for Coal and Steel 
(OJ L 29, 5.2.2003, p. 22). 
Council  Decision  2003/77/EC  of  1  February  2003  laying  down  multiannual  financial  guidelines  for 
managing the assets of the ECSC in liquidation and, on completion of the liquidation, the Assets of the 
Research Fund for Coal and Steel (OJ L 29, 5.2.2003, p. 25). 
Council  Decision  2008/376/EC  of  29  April  2008  on  the  adoption  of  the  Research  Programme  of  the 
Research Fund for Coal and Steel and on the multiannual technical guidelines for this programme (OJ L 
130, 20.5.2008, p. 7). 

EN 

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“Without  prejudice  to  the  fact  that  the  Union’s  trade  defence  measures 
shall be applicable in the United Kingdom in respect of Northern Ireland, 
the  references  to  “Member  States”  or  “Union”  in  Regulation  (EU) 
2016/1036,  Regulation  (EU)  2016/1037,  Regulation  (EU)  2015/478  and 
Regulation 2015/755 shall not be read as including the United Kingdom 
in  respect  of  Northern  Ireland.  In  addition,  importers  that  paid  Union 
anti-dumping  or  countervailing  duties  on  importation  of  goods  customs 
cleared  in  Northern  Ireland  may  ask  for  a  refund  of  such  duties 
exclusively  pursuant  to  Article  11(8)  of  Regulation  (EU)  2016/1036  or 
Article 21 of Regulation (EU) 2016/1037, respectively.” 

(c)  Under  “6.  Regulations  on  bilateral  safeguards”  under  the  title  of  the 

section: 

“Without  prejudice  to  the  fact  that  the  Union’s  bilateral  safeguard 
measures  shall  be  applicable  in  the  United  Kingdom  in  respect  of 
Northern  Ireland,  the  references  to  “Member  States”  or  “Union”  in  the 
regulations  listed  below  shall  not  be  read  as  including  the  United 
Kingdom in respect of Northern Ireland.” 

8) 

In Annex 2 to the Protocol on Ireland/Northern Ireland, the following acts are 
added: 

– 

– 

– 

– 

– 

Under  “6.  Regulations  on  bilateral  safeguards”:  Regulation  (EU) 
2019/287  of  the  European  Parliament  and  of  the  Council  implementing 
bilateral  safeguard  clauses  and  other  mechanisms  allowing  for  the 
temporary  withdrawal  of  preferences  in  certain  trade  agreements 
concluded between the European Union and third countries16; 

Under  “23.  Chemicals  and  related”:  Council  Regulation  (EC)  No 
111/2005  laying  down  rules  for  the  monitoring  of  trade  between  the 
Union and third countries in drug precursors17; 

Under  “25.  Waste”:  Directive  (EU)  2019/904  on  the  reduction  of  the 
impact of certain plastic products on the environment18; 

Under  “29.  Food  –  general”:  Council  Directive  2011/91/EU  on 
indications or marks identifying the lot to which a foodstuff belongs19; 

Under “42. Plant reproductive material”:  Council Directive 66/401/EEC 
of  14  June  1966  on  the  marketing  of  fodder  plant  seed20;  Council 
Directive  98/56/EC  of  20  July  1998  on  the  marketing  of  propagating 
material of ornamental plants21; and Council Directive 2008/72/EC of 15 
July  2008  on  the  marketing  of  vegetable  propagating  and  planting 
material, other than seed22; 

16 
17 
18 
19 
20 
21 
22 

OJ L 53, 22.2.2019, p. 1. 
OJ L 22, 26.1.2005, p. 1.  
OJ L 155, 12.6.2019, p. 1. 
OJ L 334, 16.12.2011, p.1. 
OJ 125, 11.7.1966, p. 2298–2308 
OJ L 226, 13.8.1998, p. 16–23 
OJ L 205, 1.8.2008, p. 28–39 

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– 

Under  “47.  Other”:  Regulation  (EU)  2019/880  of  the  European 
Parliament  and  of  the  Council  on  the  introduction  and  the  import  of 
cultural goods23. 

9) 

In  Part  I  of  Annex  I  to  the  Withdrawal  Agreement,  the  following  acts  are 
added: 

– 

– 

Under  “Electronic  Data  Exchange  (E  series)”:  Decision  No  E7  of  the 
Administrative  Commission  for  the  Coordination  of  Social  Security 
Systems  concerning  practical  arrangements  for  cooperation  and  data 
exchange  until  the  Electronic  Exchange  of  Social  Security  Information 
(EESSI) is fully implemented in the Member States24;  
Under  “Family  Benefits  (F  series)”:  Decision  No  F325  of 
the 
Administrative  Commission  for  the  Coordination  of  Social  Security 
Systems  concerning  the  interpretation  of  Article  68  of  Regulation  (EC) 
No  883/2004  relating  to  the  method  of  calculation  of  the  differential 
supplement 

The decision of the Joint Committee shall be published in the Official Journal of the European 
Union. 

Article 2 

This Decision shall enter into force on the date of its adoption. 

Done at Brussels, 

Article 3 

For the Council 
The President 

23 
24 
25 

OJ L 151, 7.6.2019, p.1. 
OJ C 73, 6.3.2020, p. 5.  
OJ C 215, 26.6.2019, p.2 

EN 

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