On 28 August, in advance of the next round of EU-UK talks, the UK Government published three Technical Notes, one of which “provides further information to support the UK’s position published on 13 July in the UK’s position paper on Privileges and Immunities” (the Technical Note). The 13 July Position Paper is discussed in our blog post here. The Technical Note requests clarification from the EU on a number of issues, in particular as regards the EU’s position on the implications of the UK’s withdrawal from Protocol (No 7) on the privileges and immunities of the European Union of the Treaty on the Functioning of the EU (Protocol 7).
As a general premise, the Government asks whether the EU’s position on the extent of the privileges and immunities to be granted under the Withdrawal Agreement (the Agreement) should differ depending upon whether or not the Agreement confers, or continues to confer, upon the EU functions in, or in respect of, the UK.
In particular, the Technical Note seeks confirmation from the EU that it agrees that the privileges and immunities granted to EU institutions, agencies and officials in the UK should reduce after exit so as to be linked solely to any function that may be conferred, or continue to be conferred, by the Withdrawal Agreement. To the extent that any wider application of privileges and immunities of the EU in the UK is envisaged, the EU is asked to clarify why this is necessary. Specifically, the Government requests an indication from the EU as to the rationale for any continued protections in the UK for MEPs, and how such protections would operate.
The Technical Note foresees the continued presence of an EU delegation to the UK after the UK’s exit, and asks for clarification regarding how provision could be made to allow for this. It also asks for confirmation and assurances that the UK’s representation to the EU should continue to enjoy the same diplomatic privileges and immunities as a permanent mission of a Member State after Brexit. A reciprocal recognition is also acknowledged of ongoing privileges and immunities for representatives of Member States taking part in the work of institutions, agencies or bodies based in the UK, and of the UK taking part in the work of the EU within Member States’ territory, where such continued work is envisaged in the Agreement.
The questions posed in the Technical Note provide an interesting indication of the nature of the discussions taking place between the EU and the UK on the issue of ongoing privileges and immunities. This issue is fundamentally bound into the nature of the future relationship between the UK and the EU under the Agreement (and any further relationship agreements). As such, the Technical Note centres its requests on the continuing functions to be carried out by each side, and seeks clarification in respect of privileges and immunities that may be sought outside such functions. Central to these questions, therefore, will be the continuing role of the EU in the UK, and vice versa, under the Agreement.
For more information, please contact Andrew Cannon, Partner, Hannah Ambrose, Professional Support Consultant, Vanessa Naish, Professional Support Consultant or your usual Herbert Smith Freehills contact.