Special Section – Brexit

Brexit: the Withdrawal Agreement and Political Declaration

HOUSE OF LORDS – European Union Committee – 24th Report of Session 2017–19
Official text

The UK Government publishes presentation on the UK-EU economic partnership framework – 24 May 2018. The presentation published today sets out the UK Government’s proposed approach for the future UK-EU economic partnership.Full documentNotice to stakeholders on Brexit’s impact on the internal energy market from the EU Commission – 27 April 2018. The Commission has issued on 27 April 2018 its Notice to stakeholders on UK’s withdrawal of the EU and the internal energy market.

The Commission and the EU agencies have been producing “be prepared for Brexit notices” which give insights into their views of the consequences in the various policy areas of a no-transition or hard Brexit and often include recommendations as to action that stakeholders should take. They also provide clues as to the position that the EU will take in the negotiation of transitional measures and even the future relationship.

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Supreme Court to consider legality of devolved parliaments’ Brexit continuity legislation – The UK Government has referred two key pieces of Brexit legislation recently passed by the Scottish Parliament and Welsh Assembly to the Supreme Court. The devolved parliaments’ bills seek to ensure the continuity of EU law and in doing so confer enhanced powers on the Scottish and Welsh governments post-Brexit. Following the referral, the UK and Welsh governments have reached a political compromise involving significant amendments to the European Union (Withdrawal) Bill (“EUWB“). Unless a compromise can be reached with the Scottish Government, the Supreme Court will rule on whether its legislation is within the Scottish parliament’s legislative competence. The referral underscores heightened tensions between the UK and devolved governments over the demarcation of returned powers post-Brexit and the likelihood of future legal challenges and regulatory uncertainty in key devolved policy areas.

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The UK ratifies the unified patent court agreement on world IP day – 26 April 2018.

The UK has ratified the UPC Agreement on 26 April 2018, which also happens to be World IP Day. The UK IP Minister announced the ratification at a World IP Day event at the House of Commons this afternoon. It seems that the UK Government has listened to the many representative groups in the Patent arena who suggested that being part of the new system prior to Brexit was preferable to trying to join it post-Brexit. Now we need to wait to see if the German constitutional challenges can be resolved before the end of March next year.

For more info on the UPC Agreement including the other states which have ratified already see the UPC Agreement section of our UPC hub (www.hsf.com/upc).

Brexit Update – Eea (Re)Insurers. EEA insurers and reinsurers doing business in the UK under the insurance passport must prepare for the UK’s withdrawal from the EU. We consider, in our latest “At a Glance” guide, the impact of Brexit on the cross-border activities of EEA (re)insurers, including how firms might respond to the European Council’s recent agreement to a transition period. The “At a Glance” guide can be found here.

Study – Consequences of Brexit in the area of consumer protection – Directorate-General for Internal Policies of the Union, 11.10.2017

This paper outlines the consequences of the United Kingdom’s withdrawal from the European Union in the area of consumer protection. It examines the withdrawal’s impact on consumer protection under different scenarios: a future EEA membership of the UK (a); a relationship governed only by WTO rules; (c) a relationship governed by a “tailor-made agreement”. It comes to the conclusion that from the perspective of consumers in the EU28, an EEA membership of the UK is the most favourable scenario. Irrespective of the scenario, adequate transitory provisions taking into consideration the “two-step” negotiating schedule are necessary to resolve legal uncertainties occurring irrespective of the scenario. This document was prepared for Policy Department A at the request of the Committee on Internal Market and Consumer Protection.

Study – The settlement of disputes arising from the United Kingdom’s withdrawal from the European Union – European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs – 24.11.2017

This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the AFCO Committee, analyses the various jurisdiction options, under EU law and under public international law, in settling disputes arising from the Withdrawal Agreement of the UK from the EU and in the context of the Future Relationship Agreement with the UK. It examines in particular the continued involvement of the CJEU in the new context of the EU-UK relations and, based on CJEU case-law and previous international agreements, presents the various governance possibilities for these agreements.

Study – The implications of the United Kingdom’s withdrawal from the European Union for the Area of Freedom, Security and Justice – Committee on Civil Liberties, Justice and Home Affairs – Directorate General for Internal Policies of the Union – 18.01.2018

This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the LIBE Committee, appraises the implications of the United Kingdom’s withdrawal from the European Union for the Area of Freedom, Security and Justice and protection of personal data for law enforcement purposes. It maps the various policy areas in which the UK is currently participating and analyses the requirements for the disentanglement of the UK from them, as well as the prerequisites for possible UK participation in AFSJ policies after ithdrawal. Furthermore, it provides an assessment of the political and operational impact of Brexit for the EU in the Area of Freedom, Security and Justice.

Brexit Literature Updated – 02/2018 – Corporate author(s) – European Parliament – Download pdf

Guidelines adopted by the European Council (Art. 50) on the future relationship EU-UK – 23 March 2018

On 23 March 2018, the European Council has published a document of guidelines with a view to the opening of negotiations on the overall understanding of the framework for the future relationship EU-UK. In respect of judicial cooperation and the role of the CJEU, worth mentioning are the following guidelines:

[Guidelines 7 and 15 refer to the CJEU]

7. The European Council further reiterates that the Union will preserve its autonomy as regards its decision-making, which excludes participation of the United Kingdom as a third-country in the Union Institutions and participation in the decision-making of the Union bodies, offices and agencies. The role of the Court of Justice of the European Union will also be fully respected.

15. Designing the overall governance of the future relationship will require to take into account:

iii) the requirements of the autonomy of the EU legal order, including the role of the Court of Justice of the European Union, notably as developed in the jurisprudence.

10. The future partnership should include ambitious provisions on movement of natural persons, based on full reciprocity and non-discrimination among Member States, and related areas such as coordination of social security and recognition of professional qualifications. In this context, options for judicial cooperation in matrimonial, parental responsibility and other related matters could be explored, taking into account that the UK will be a third country outside Schengen and that such cooperation would require strong safeguards to ensure full respect of fundamental rights.

Draft Withdrawal Agreement between the EU and the UK – 19 March 2018

On 19 March 2018, the European Union and the United Kingdom have reached an agreement on the transition period for Brexit: from March 29 of next year, date of disconnection, until December 31, 2020.

Within the Draft Withdrawal Agreement, in green, the text is agreed at negotiators’ level and will only be subject to technical legal revisions in the coming weeks; in yellow, the text is agreed on the policy objective but drafting changes or clarifications are still required; in white, the text corresponds to text proposed by the Union on which discussions are ongoing as no agreement has yet been found.

For ongoing judicial cooperation in civil and commercial matters (Title VI of Part III, to be applied from December 31, 2020: see Art. 168), this actually means that subject to “technical legal revisions”, the following has been accepted:

Art. 62: The EU and the UK are in accordance as to the application by the latter (no need to mention the MS for obvious reasons) of the Rome I and Rome II regulations to contracts concluded before the end of the transition period, and in respect of events giving rise to damage, and which occurred before the end of the transition period.
Art. 64: There is also agreement as to the handling of ongoing cooperation procedures, whereby requests for service abroad, the taking of evidence and in the frame of the European Judicial Network are meant.
Art. 65: There is agreement as well as to the way Council Directive 2003/8/EC (legal aid), Directive 2008/52/EC on certain aspects of mediation in civil and commercial matter, and Council Directive 2004/80/EC (relating to compensation to crime victims) will apply after the transition period.

Conversely, no agreement has been found regarding Art. 63, i.e., how to deal with jurisdiction, recognition and enforcement of judicial decisions, and related cooperation between central authorities (but whatever is agreed will also be valid in respect of the provisions of Regulation (EU) No 1215/2012 as applicable by virtue of the agreement between the European Community and the Kingdom of Denmark, see Art. 65.2, in green).

More by Marta Requejo: Ddraft Withdrawal Agreement 19 March 2018: still a way to go

On the Draft of February 28, 2018 see P. Franzina. The Draft was transmitted to the Council (Article 50) and the Brexit Steering Group of the European Parliament; the resulting text was sent to the UK and made public on March 15.

On 18 February 2018, Jürgen Basedow, Emeritus Director of the Max Planck Institute for Comparative and International Private Law in Hamburg spoke with Radio New Zealand about ”Brexit’s legal minefield“. The interview is available under the following link: Brexit’s legal minefield: Jürgen Basedow

Brexit’s far-reaching ramifications in private law – 7 November 2017 – Jürgen Basedow, Director at the Max Planck Institute for Comparative and International Private Law

‘Brexit will be more complicated than many believe’ – 2 November 2017 – Jürgen Basedow (Director at the Max Planck Institute for Comparative and International Private Law) explains why the UK can expect long, drawn-out negotiations – and why little is likely to change in the short run

UK Parliament’s Briefing paper on Brexit and European Civil Justice – 14 October 2017

The House of Commons Library of the UK Parliament has released on 5 October 2017 a briefing paper on Brexit and Civil Judicial Cooperation. The paper considers civil judicial cooperation post-Brexit. The UK is seeking a new agreement mirrored on existing provisions.