The post below was first published on our PIL blog
We have known for some time now that the UK and EU have very different views regarding the state-to-state dispute resolution mechanism to be contained in the Withdrawal Agreement between the EU and the UK. The EU has never made any secret of its intention for the CJEU to adjudicate on disputes between the UK and the EU over the interpretation of, and compliance with, the Withdrawal Agreement. Yesterday the EU released a draft Withdrawal Agreement for the UK’s consideration which contains a state-to-state dispute resolution provision which is consistent with that approach. This post provides an initial reaction to this draft provision.
The European Commission has today published the draft Withdrawal Agreement between the EU and the UK. The draft Withdrawal Agreement translates into legal terms the European Commission’s view of the 8 December 2017 Joint Report from the negotiators of the EU and the UK Government on the progress achieved during phase 1 of the negotiations, published on 8 December 2017, and proposes text for those outstanding withdrawal issues which are mentioned in, but not set out in detail, in the Joint Report. It also integrates the text on the transition period, based on the supplementary negotiating directives adopted by the Council on 29 January 2018. The Commission has presented this draft now to first allow for time for consultation with the Member States and the European Parliament and, subsequently, for negotiation with the UK.
This document sets out the United Kingdom’s approach to the legal text of the transitional period to be provided for in the Withdrawal Agreement. It responds with a number of amendments to the EU draft position paper on the transitional arrangements in the Withdrawal Agreement adopted on 7 February 2018.
Click here to view the Draft Text For Discussion: Implementation Period and here to follow the EU paper on the same topic.
This paper addresses the issues for international recognition of reconstruction and insolvency proceedings affecting international banks raised by the United Kingdom’s decision to leave the European Union, and considers what the United Kingdom and the European Union and its member states could do to address the potential loss of recognition and cooperation, as well as possible wider international initiatives. The relation of this issue to the World Trade Organization’s General Agreement on Trade in Services is also considered.
To read the full paper, please click here.
There is much current discussion about the application of the EU’s current preferential trade agreements to the UK post-Brexit, both during and after a transition period. The attached briefing considers a number of issues this raises, including the potential to roll-over third country agreements and specific problems that arise in relation to a transition period.
Click here to read the full briefing.
Here is a recent report aimed at general counsel and published by Legal Business which Herbert Smith Freehills contributed to.
The European Commission has today published a draft text of the transitional arrangements proposed to be included in the Article 50 Withdrawal Agreement, following the United Kingdom’s request to remain in the Single Market and the Customs Union for a short time-limited period after its withdrawal from the European Union on 30 March 2019. Today’s text reflects the mandate provided to the Commission by the Member States on such possible transitional arrangements. In particular, it translates into legal terms the principles set out in the European Council guidelines of 29 April 2017 and 15 December 2017, as well as the negotiating directives adopted on 29 January 2018. As the UK would remain, in effect, part of the Single Market and the Customs Union (with all four freedoms) until 31 December 2020, the UK will remain bound by EU law and the jurisdiction of the European Court of Justice. Union acquis will continue to apply in full to and in the UK during this period. Any changes made to the acquis during this time are proposed to be automatically applied. It is also proposed that the UK will no longer be represented in Union institutions, agencies, bodies and offices. The draft text will now be discussed amongst the EU27 Member States before being formally transmitted to the United Kingdom
To read the position paper, please click here.
The House of Lords EU Committee has published its report into the implications of Brexit for competition law and State aid control in the UK. In particular, the report recommends that the UK maintains consistency with the EU’s economic efficiency and consumer welfare-based approach to competition law policy, while considering those areas where the UK could take a more innovative and responsive approach to enforcement, including in relation to fast-moving digital markets and online platforms. On State aid, the report concludes that it is highly likely that some form of State aid control will be required in any future UK-EU trade agreement, potentially along with a domestic UK State aid authority (and indeed, the importance of maintaining a level playing field in relation to State aid, has been highlighted in a recently published Commission discussion paper).
Herbert Smith Freehills provided evidence in relation to State aid and related international trade law issues, which the report draws on in many places. Notably, we proposed that there is likely to be a link between the level of access to the EU internal market and the degree of parallel State aid control required under a future UK-EU trade agreement, a premise that was accepted in the report. Our evidence was prepared by State aid and international trade lawyers Lode Van Den Hende, Eric White and Morris Schonberg.
Click here to read the full House of Lords report and here to read our submitted evidence.
Morris SchonbergSenior AssociateEmail
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Tax analysis: The Taxation (Cross-border Trade) Bill will give the government the ability to establish a standalone customs regime, and ensure VAT and excise legislation operates effectively, following the UK’s withdrawal from the EU. Heather Gething, partner, Dorothy Livingston, consultant, and Dawen Gao, associate, all at Herbert Smith Freehills LLP, discuss the Bill in more detail, focusing on the options outlined, protection against unfair trading practices, and information sharing obligations, among other things.
To read the full article, please click here.
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The Brexit debate often looks different viewed from Brussels rather than from London. It is however important for businesses to also keep in mind the Brussels perspective and therefore we publish a monthly view from our Brussels office on recent developments and the state of the negotiations.
In this issue we focus on the supplement to the negotiation guidelines adopted by the European Council on 29 January 2018, more particularly on the requirements for a standstill transition and on the issues raised by third country agreements. We also take a closer look at the “preparedness notices” issued by the EU by way of preparation for a possible hard Brexit. These are of interest not just for what they say about the EU view of the consequences of a no-deal scenario but also because they effectively constitute the starting point for the forthcoming negotiations.
Click here to read the full ‘The view from Brussels on developments in January 2018’
Click here to visit our Brexit hub page.