The Brexit debate often looks different when viewed from Brussels rather than from London. That Brussels perspective however is important for businesses to keep in mind and therefore we publish a monthly view from our Brussels office on recent developments and the state of the negotiations.
Brexit now seems inevitable on 31 January 2020 but that is only the beginning of the process of defining a new relationship between the UK and the EU. Serious negotiations on that relationship will only start thereafter, hopefully as soon as February. In this View from Brussels, we look at how this process will unfold.
The draft Withdrawal Agreement has finally been amended to replace the previous Protocol on Ireland/Northern Ireland with a new Protocol taking a rather different approach to securing the objective of avoiding a hard border between Northern Ireland and the Republic of Ireland. In this View from Brussels we describe the main features of the new approach and then highlight some of the outstanding questions that will need to be resolved during its implementation.
The position of the EU changed almost imperceptibly over the summer from that which we noted in June 2019 of “the Withdrawal Agreement is not open for renegotiation” to “where is your proposal?”
There have been talks but, so far, the UK has not made any proposal – at least not in writing. This is a matter of concern since completing the approval processes for an amended withdrawal agreement before 31 October will be a major challenge and require unprecedented acceleration of procedures.
In this View from Brussels we examine from a legal perspective some of the ideas that have been put forward to break the deadlock and make a further original suggestion of our own – that increased customs and regulatory cooperation across the border could include enhanced extradition arrangements.
Both candidates to be leader of the Conservative Party, and therefore to be UK Prime Minister, have vowed to renegotiate the Withdrawal Agreement and in particular the Protocol on Ireland/Northern Ireland. Meanwhile in Brussels, the EU-27 (meeting in Euro summit format) has just reiterated, again, that “the Withdrawal Agreement is not open for renegotiation”.
In this View from Brussels we examine from a legal perspective how the parties can finally come to an agreement.
In any negotiation, it is necessary not only to seek the best terms for oneself but also to ensure that the terms can be accepted by the other side – otherwise the negotiations will have failed. Of course, this is not easy when the other side has no coherent position on what it can accept – or wants from the negotiation. This is the problem now facing the EU and the UK. The negotiations have not led to an agreement that both sides can accept.
In this View from Brussels we discuss how EU law could be used by the UK to improve the Withdrawal Agreement and Political Declaration along the lines recently requested by the UK Parliament.
The backstop, if triggered, starts to apply only once the transition period has expired and has no end date. As such, it relates to the UK/EU future relations. However, the EU has argued that Article 50 only allows the conclusion of an agreement that deals with separation issues, not agreements setting out a future relationship. The backstop therefore exposes a major inconsistency in the position of the EU on what is legally allowed under Article 50, meaning that the backstop in its present from is illegal as a matter of EU law.
The negotiated withdrawal deal comprising a legally binding Withdrawal Agreement and a Political Declaration on future relations is facing significant opposition in the UK and is now unlikely to be submitted for parliamentary approval before January. The situation is confused and expressions of despair are being heard in Brussels as well as in the UK. While we do not seek in the View from Brussels to make predictions about a largely unpredictable process, this issue provides legal commentary on the various alternative ways forward in the event that the negotiated withdrawal deal is rejected. The alternatives that are discussed in this briefing are: (i) seeking a renegotiation of the withdrawal deal; (ii) delaying the date of Brexit; (iii) revocation of the notice to withdraw; (iv) withdrawal without an agreement; (v) and EEA membership.
This issue of ‘The View from Brussels’ focuses on the relevance of WTO arguments in the negotiations. The UK has so far not deployed any serious arguments based on the obligations and constraints faced by the EU as a member of the WTO, either through lack of familiarity with WTO rules or fear that making WTO arguments would breach the obligation of sincere cooperation or otherwise poison the negotiations and reduce goodwill. Recent developments in the negotiations however have shown that the EU has no such compunctions and does know how to exploit WTO arguments in the negotiations. This briefing takes a closer look at the relevance of WTO arguments in the negotiations on the future relationship.
On 12 July 2018 the UK government finally published its White Paper on the future relationship between the United Kingdom and the European Union including a proposal for the establishment of an economic partnership between the UK and the EU. At the core of this proposal is the establishment of a free trade area for goods which is intended to avoid friction at the border, preserve economic prosperity and allow commitments with respect to the border between Northern Ireland and the rest of the island of Ireland to be respected. It is accompanied by proposals for far-reaching cooperation in numerous areas (many of which will facilitate trade in services) and a new institutional framework. In this View from Brussels we review the proposed economic partnership and comment on the EU’s reaction to its various components so far.
In this View from Brussels we comment on parallel developments that have taken place in the international arena. Brexit will not only impact the trade relations between the UK and the EU. It will also have important consequences for the trade relations of both the UK and the EU with third countries with which they are bound through numerous free trade agreements (“FTAs”) as well as the WTO Agreement. This briefing considers the roll-over of existing free trade agreements and the disentangling of the UK from the EU membership of the WTO.
The latest in our View from Brussels commentaries on the Brexit negotiations examines one of the contradictions in the EU’s negotiating position – the inconsistency between refusing to negotiate the future relationship until the UK has left the EU while insisting that the relationship of the EU with Northern Ireland be regulated in a legal text before Brexit occurs.
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.
In this third issue, we focus on the move from phase 1 discussions to the second phase involving discussion of the future relationship and transition. We also look at developments in other areas of preparation for Brexit including in relation to the EU Emission Trading Scheme, Justice and Home Affairs, the WTO, relocation of Agencies and the approach to Financial Services and Aviation.
In this second issue of ‘The view from Brussels’, we focus on the outcome of the recent European Council meeting and also take a closer look at the issues relating to the financial settlement, which is currently the main obstacle to progress in the first phase of the negotiations.
This first monthly update looks at issues arising from the relationship between the transitional arrangements and the future relationship between the UK and the EU.