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 view from our Brussels office on recent developments and the state of the negotiations.
On 13 June, the United Kingdom Government introduced before Parliament the Northern Ireland Protocol Bill that would unilaterally override the main content of the Northern Ireland Protocol contained in the Withdrawal Agreement by which the UK left from the European Union.
This is the culmination of a long period of dissatisfaction with the Protocol in the UK. The UK is not implementing the parts of the Protocol concerning customs checks in full and has been requesting a number of changes. The absence of full implementation has led the European Commission to initiate infringement proceedings as allowed under the Protocol, but also to present a package of measures to ease the main points of friction.
In this View from Brussels, we explain the content of the Bill and examine the legal justification advanced by the UK, comparing it with taking safeguard measures as specifically allowed under the Protocol. We will also comment on the important and difficult issue of the jurisdiction of the Court of Justice of the European Union over the interpretation of the Protocol and the trade regime for Northern Ireland that it introduces.
The Protocol on Ireland/Northern Ireland to the UK Withdrawal Agreement is proving hard to implement. The European Parliament Research Service has produced a useful summary. The UK government has even suggested reneging on it but pulled back following howls of objections, not least from within the UK itself. It has since proposed changing or replacing the Protocol and there has been an intensive debate (see here for an account). Most recently, the UK Chief Negotiator on Brexit, Lord Frost, has now proposed, in a speech in Lisbon, a complete rewriting of the Protocol. The EU, for its part, has steadfastly refused to reopen the text but the Commission has finally recognised that there are issues to be addressed with a suite of proposals published on 13 October 2021.
In this View from Brussels, we look into some of the key challenges posed by the Protocol and what the UK and the EU may do to resolve them.
We now have an agreement on the future partnership between the UK and the EU. It is given the name Trade and Cooperation Agreement (TCA) but is, in EU parlance, an Association Agreement – a type of agreement which, in accordance with its legal basis – Article 217 TFEU, involves “reciprocal rights and obligations, common action and special procedures”.
At its heart is a classic but not very ambitious free trade agreement – tariff and quota-free trade in goods but little mutual recognition and very modest commitments on services. The real innovations come with the emphasis on preserving the so-called level playing field and with the “special procedures” that it creates for its governance, which is what we discuss in this View from Brussels.
The negotiations on the future partnership between the UK and the EU started with each side publishing their own views of what the future relationship might contain. As we discussed in May, these competing drafts and the fanfare surrounding them highlighted the “fundamental differences” between the parties more than their common purpose.
There have been nine formal rounds of negotiations and we are regularly told that progress is being made, but significant differences remain and there is no precise indication about the very many compromises that will need to be made for the negotiations to reach a successful conclusion. In this View from Brussels, we look where the negotiations are currently at.
Negotiations on the Future Partnership between the UK and the EU have progressed through three rounds – held by video conference rather than face-to face given the current circumstances. The EU was the first to publish its draft while the UK has only just released its drafts of a suite of agreements, having insisted on keeping them confidential even from EU Member States until now.
In this View from Brussels we compare the two sets of drafts and discuss some of the problematic issues and comment on how the difficulties might be resolved. In doing so we concentrate on the UK draft of a free trade agreement (“FTA”) and the corresponding trade provisions of the EU draft.
Since the conclusion of the Withdrawal Agreement, attention has turned to the negotiations of the future relationship between the EU and the UK which is to apply from the end of the transition period. However, there is also a risk of the UK exiting the transition period without an agreement on the future relationship. In that case, the consequences will be to some extent the same as for a failure of the negotiations on a Withdrawal Agreement.
In this View from Brussels, we look at these consequences and how they may be addressed.
The European Commission has started a debate with the Member States on the shape of the Union’s future trade relationship with the UK and has made its views public in a series of slides. The UK Government has so far not set out its position in anything like the same detail but has indicated a desire to follow the model of the EU’s Comprehensive Economic and Trade Agreement with Canada (CETA) and to conclude the new agreement by the end of 2020, even anchoring in law a determination not to extend the transition period to allow more time for negotiation.
In this View from Brussels, we look at some of the critical issues that will need to be resolved during 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.