Royal Decree-Law 5/2019, of March 1, adopting contingency measures for the withdrawal of the United Kingdom from the European Union without an agreement

OFFICIAL STATE BULLETIN
No. 53 Saturday, March 2, 2019 Sec. I. Page 20345
I. GENERAL PROVISIONS
HEAD OF STATE
2976 Royal Decree-Law 5/2019, of March 1, adopting contingency measures for the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union without an agreement having been reached under Article 50 of the Treaty on European Union.
I
On March 29, 2017, the United Kingdom officially notified the European Council of its intention to leave the European Union invoking the procedure provided for in Article 50 of the Treaty on European Union. Unless this decision is revoked or the deadline is extended unanimously, the withdrawal will take effect on March 30, 2019.
A two-year period was then opened for the European Union and the United Kingdom to negotiate an agreement regulating their withdrawal and future relationship, with the aim of achieving an orderly exit.
The negotiators of both sides reached a consensus on the text of the Withdrawal Agreement on November 14, 2018. At the extraordinary meeting held on November 25, 2018, the European Council endorsed 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, and invited the Commission, the European Parliament and the Council to take the necessary measures to ensure that this agreement could enter into force on March 30, 2019. On February 19, 2019, Decision (EU) 2019/274 of the Council of January 11, 2019, concerning the signing, on behalf of the European Union and the European Atomic Energy Community, of said Agreement, together with the texts of the Agreement and the Political Declaration setting out the framework for future relations between the European Union and the United Kingdom, was published in the "Official Journal of the European Union". The Withdrawal Agreement must be ratified by the United Kingdom, in accordance with its own constitutional requirements. On January 15, the British Parliament voted against the proposed Withdrawal Agreement, and there are no guarantees that an agreed exit will be achieved before March 30, 2019. Whether or not the agreement is adopted, on March 30, 2019, the United Kingdom will cease to be a Member State of the European Union, unless the United Kingdom communicates to the Union that it is withdrawing its decision to leave or unless the United Kingdom and the Union agree to an extension of the negotiation period. Given the uncertainty surrounding the ratification process of the Agreement, the European Council has reiterated on various occasions the appeal made previously to the Commission and the Member States to intensify work on preparing for the consequences of the withdrawal of the United Kingdom in all areas and taking into account all possibilities. Within the European Union, the Commission has presented three communications. The first, of July 19, 2018, relating to preparation work for any scenario. The second, of November 13, 2018, focused on contingency planning, which came to establish the general principles and areas on which the European Union's contingency measures would be projected. The third, of December 19, 2018, specified the implementation of the Commission's contingency plan, listing the legal acts intended to be adopted at the European level and indicating the schedule planned for their adoption. Additionally, the Commission has published sectoral notes aimed at informing Member States, economic operators and citizens of the consequences of the withdrawal of the United Kingdom. cve: BOE-A-2019-2976 Verifiable at http://www.boe.es

OFFICIAL STATE BULLETIN
No. 53 Saturday, March 2, 2019 Sec. I. Page 20346 In successive communications, the Commission has requested that Member States, companies and citizens also carry out, within the scope of their respective competences and responsibilities, preparation for the consequences that the withdrawal of the United Kingdom from the European Union inevitably entails.
II
From the moment the United Kingdom communicated its decision to leave the European Union, the Government established an inter-ministerial coordination system and with territorial administrations for information and work on Brexit, through the Interministerial Commission for the Monitoring of the Withdrawal of the United Kingdom from the EU and the working groups dependent on it.
From October 2018, preparation work for a scenario of withdrawal without agreement was intensified.
The autonomous communities have been consulted through the Conference on Affairs Related to the European Union and an inter-administrative coordination system has been created through focal points to facilitate the flow of information.
The Government's contingency planning pursues two fundamental objectives. First, to preserve the interests of Spanish and British citizens who exercised their right to free movement before the withdrawal date. Second, to preserve the normal development of commercial flows and the economic interests of Spain. To achieve these objectives, three lines of action have been articulated: regulatory, logistical and communication.
III
With regard to regulatory actions, and in line with the guidelines contained in the communications with the European Commission, the contingency measures adopted at all levels must adhere to a set of principles.
They must be of a temporary nature, according to deadlines that may vary depending on the specific sector in question. They must respect the distribution of competences established by the Treaties and must be compatible with Union law.
Within the framework of these guidelines, the measures contemplated in this royal decree-law are aimed at protecting the interests of citizens and economic operators who exercised their right to free movement under the freedoms conferred by the Treaties in those areas of national competence, and who may be affected by the withdrawal of the United Kingdom. In the specific case of the Colony of Gibraltar (hereinafter, Gibraltar), the provisions of the four memoranda of understanding signed on November 29, 2018 with the United Kingdom must also be taken into account. They are aimed at counteracting, as far as possible, the undesirable effects derived from a withdrawal of the United Kingdom without agreement in those areas of state competence deemed indispensable to favor an adequate transition to the new situation. However, it must be emphasized that these are measures of a temporary nature, aimed at facilitating the transition to the new situation resulting from the consideration of the United Kingdom as a third state. Thus, their validity will cease when the period indicated in each case has elapsed, or earlier, if instruments are adopted, at the internal or international level, intended to regulate, on a permanent basis, relations with the United Kingdom in the matters covered by this law. Additionally, when so established, the maintenance over time of the legal situations regulated by this royal decree-law is subject to the granting of reciprocal treatment by the authorities of the United Kingdom to Spanish citizens and economic operators. This condition of reciprocity must necessarily be verified at a later moment after the entry into force of this royal decree-law, through the mechanisms specifically enabled for this purpose. cve: BOE-A-2019-2976 Verifiable at http://www.boe.es

OFFICIAL STATE BULLETIN
No. 53 Saturday, March 2, 2019 Sec. I. Page 20347 IV
Chapter I, titled "General Provisions", regulates the object of the law, the mechanism of reciprocity required for some of the legislative measures it contemplates, and its temporary nature, when so established, enabling the possibility of extension.
Some of the measures regulated in the royal decree-law will be suspended by the Government once a minimum period of two months has elapsed since their entry into force, if the competent British authorities do not grant equivalent treatment to natural or legal persons of Spanish nationality in each of the affected areas.
Those measures subject to a validity period will cease to be in force by the mere passage of said period, unless the Government proceeds to extend them.
Chapter II contemplates the provisions on citizenship that require urgent adoption in the event of a possible unagreed exit of the United Kingdom from the European Union. Through these provisions, the most harmful effects that such an exit would cause to citizens of the United Kingdom who have exercised the right to free movement before the withdrawal date are avoided. In addition, several measures on social security and health assistance are incorporated aimed at guaranteeing access to these rights to citizens who have or have had ties with the United Kingdom. Thus, and in the event of an unagreed exit by the United Kingdom, the rights of citizens are protected and maximum legal certainty is guaranteed to them.
Section 1 of this Chapter II regulates the residence and work of UK nationals residing in Spain and members of their families. The approval of these provisions is of urgent necessity because, in the scenario of an unagreed exit, and from one day to the next, UK nationals, as well as members of their families, would become, for immigration purposes, nationals of third countries, ceasing to be covered by the Regime of Union citizens and passing to be covered by the General Regime of Foreigners, without having the corresponding documentation. In order to avoid a situation of inadvertent irregularity, this section creates an ad hoc regime for the documentation, as citizens of third countries, of UK nationals and members of their families who reside in Spain before the withdrawal date.
The application to obtain this documentation must be submitted within twenty-one months from the withdrawal of the United Kingdom from the European Union without agreement, enabling it to be submitted by both those who had a registration certificate or residence card as a family member of a Union citizen, and by those who did not have them but can prove their status as residents in Spain before the withdrawal date.
Until that date, the registration certificates and family cards will remain valid as long as they are not replaced by the new documents. Furthermore, in order to guarantee the legal certainty of UK nationals residing in Spain before the withdrawal date and their families, regardless of whether they were in possession of EU certificates or EU citizen family residence cards, it is confirmed that their residence in Spain will continue to be legal. Likewise, the royal decree-law regulates the requirements for access to long-term residence for UK nationals residing in Spain and members of their families who have legally and continuously resided in Spanish territory for at least five years. For its part, Section 2 articulates the procedure for the issuance of a work authorization to UK nationals who meet the condition of frontier workers. Considering the particularity of the circumstances regulated in these two sections, the royal decree-law refers to the instructions that the Council of Ministers will approve to regulate the most technical aspects of the mentioned procedures. These instructions cve: BOE-A-2019-2976 Verifiable at http://www.boe.es

OFFICIAL STATE BULLETIN
No. 53 Saturday, March 2, 2019 Sec. I. Page 20348 will be issued based on the additional provision first, paragraph four, of the Regulation of Organic Law 4/2000, of January 11, on the rights and freedoms of foreigners in Spain and their social integration, approved by Royal Decree 557/2011, of April 20, which provides for their approval in cases of special relevance not regulated and when circumstances of an economic, social or labor nature advise it.
Section 3 of Chapter II regulates access and exercise of profession, and the rules applicable to access and maintenance of the status of public employees of UK nationals serving the Spanish Public Administrations.
Article 7 addresses the situation of UK nationals who, at the time of the effective withdrawal of the United Kingdom, are permanently exercising a profession or professional activity in Spain for which they have obtained recognition of their professional qualifications, allowing them to continue exercising this profession or professional activity on the same terms in which it is recognized, provided they meet the rest of the conditions to which their exercise is subject, even for those professions for which access and exercise required being a national of a Member State.
Analogously, those Spanish nationals or nationals of any other Member State of the European Union, as well as nationals of third countries to whom Union law or national law grants equivalent treatment, who are permanently exercising a profession or professional activity in Spain for which they have obtained recognition of their professional qualifications acquired in the United Kingdom or in Gibraltar, may continue to exercise their profession or professional activity on the same terms in which it is recognized, provided they meet the rest of the conditions to which their exercise is subject. UK nationals may also participate in the aptitude tests for access to the exercise of certain professions, without the need to request the nationality exemption procedure, in those aptitude tests where such procedure was required, and provided that these have been convened prior to the effective withdrawal date of the United Kingdom. This article prolongs the application of the existing legal regime for applications for recognition of professional qualifications obtained in the United Kingdom, Gibraltar or any other Member State that are submitted by UK nationals to the Spanish authorities prior to the entry into force of this royal decree-law or within the following five years, provided that the studies or activities leading to their obtaining had been initiated prior to the withdrawal. The same is established for applications for recognition of professional qualifications obtained by Spaniards or nationals of another Member State in the United Kingdom or in Gibraltar, which are submitted to the Spanish authorities prior to the entry into force of this royal decree-law or within the following five years, provided that the studies or activities leading to their obtaining had been initiated prior to the withdrawal. The regime applicable to titles of automatic recognition is also regulated in this provision, for those who are exercising a profession or professional activity in Spain on a temporary or occasional basis, for professional societies and for accountants and audit firms registered in the Official Register of Accountants and Audit Firms. What is established in this article is conditioned on the granting of reciprocal treatment by the competent British authorities.
Article 8 addresses the situation of UK nationals who have accessed the status of public employees, and their possibilities of participation in selection processes for access to the civil service.
Access to the Spanish civil service by nationals of other States is regulated in Article 57 of the consolidated text of the Basic Statute of the Public Employee Law, approved by Royal Legislative Decree 5/2015, of October 30, which guarantees equal treatment and non-discrimination of Union workers and their families in relation to access to public employment. cve: BOE-A-2019-2976 Verifiable at http://www.boe.es

OFFICIAL STATE BULLETIN
No. 53 Saturday, March 2, 2019 Sec. I. Page 20349 To address the situation of UK nationals who already hold the status of career civil servants, trainees or interim staff of the state, autonomous, local or university administrations, Article 8.1 provides that they will continue to provide their services under the same conditions, provided that access or initiation of activity had occurred before the effective withdrawal of the United Kingdom. This continuity is also foreseen for persons who meet the personal circumstances provided for in Article 57.2 of the consolidated text of the Basic Statute of the Public Employee Law, that is, the spouse of the British, provided they are not legally separated, as well as their descendants and those of their spouse, provided they are not legally separated, are under twenty-one years of age or over that age and dependent. Paragraph 2 of Article 8 allows British citizens to participate in selection processes for civil service personnel, provided that the expiration date of the application submission period is prior to the effective withdrawal date of the United Kingdom. Here, what is already generally provided for in selection processes is specified: the requirements for entry into the civil service must be met on the day of termination of the application submission period to participate in them. Finally, in paragraph 3 of Article 8, the possibility of accessing the status of public employee as labor personnel is contemplated by reference to Article 57.4 of the consolidated text of the Basic Statute of the Public Employee Law: "Foreigners (...) with legal residence in Spain may access the Public Administrations, as labor personnel, on equal conditions with Spaniards." This provision is also consistent with what is provided in Organic Law 4/2000, of January 11, on the rights and freedoms of foreigners in Spain and their social integration, as well as with the provisions developing it, since resident foreigners who meet the requirements provided for in these laws have the right to exercise a remunerated activity for another, as well as to access the social security system, in accordance with current legislation.
Section 4, titled "Labor Relations", guarantees the continuity in the application of the applicable regulations in cases of worker posting to UK nationals working in Spain, as well as the maintenance of European works councils.
Section 5, titled "Social Security", contains, in two articles, the necessary measures to protect workers from the British and Spanish social security systems in the absence of an international instrument regulating the coordination of both systems on a permanent basis, in those aspects considered most relevant and requiring urgent action. Such measures are exclusively referred to, in this area, to those situations that have occurred prior to the withdrawal date of the United Kingdom.
Article 11 includes certain measures aimed at protecting the social security rights of UK nationals who, on the withdrawal date or prior to it, are or have been subject to Spanish social security legislation or who, being subject to British legislation, whether as active workers or as pensioners, reside in Spain on the withdrawal date.
In this sense, Spain will continue to export contributory pensions and their corresponding revaluations, recognized by our social security system to UK nationals, regardless of the country of residence of the beneficiaries.
Likewise, the accumulation of insurance periods accredited in Spain and in the United Kingdom prior to the withdrawal date is foreseen, by nationals of that country, in order to acquire the right and calculate the amount, both of contributory pensions for retirement, permanent disability and death and survivorship, as well as for temporary disability, maternity and paternity benefits to which they may, in their case, have access. On the other hand, with respect to UK nationals residing in Spain, the facts, events, benefits or income that take place or are received in the United Kingdom prior to the withdrawal date will produce the same effects as cve: BOE-A-2019-2976 Verifiable at http://www.boe.es

OFFICIAL STATE BULLETIN
No. 53 Saturday, March 2, 2019 Sec. I. Page 20350 if they had taken place or occurred in Spain, for the purposes of the application of Spanish internal legislation.
The measures included in this Article 11 also provide that UK nationals may access unemployment benefits paid by Spain, for contribution periods in the United Kingdom before the withdrawal date, provided that the last contributions have been made in Spain and while residence in Spain is maintained.
For its part, Article 12 also includes certain measures on social security aimed at protecting the rights of Spanish nationals affected by the withdrawal of the United Kingdom, as well as nationals of Member States of the European Union, the European Economic Area and Switzerland.
Spanish pensioners dependent on our system will continue to receive their contributory pensions, as well as the corresponding revaluations and, in their case, minimum supplements recognized, even if they reside in the United Kingdom after the withdrawal date.
Similarly, and in parallel to what is provided in Article 11 for UK nationals, Spanish nationals who prove contributions in that country and in Spain prior to the withdrawal date will benefit from the accumulation of insurance periods, for the purpose of acquiring the right and calculating contributory pensions for retirement, permanent disability and death and survivorship, as well as for temporary disability, maternity and paternity benefits that may correspond to them, in their case. Likewise, with respect to Spanish nationals residing in the United Kingdom, the facts, events, benefits or income that take place or are received in that country prior to the withdrawal date will produce the same effects as if they had taken place or occurred in Spain, for the purposes of appl