Brexit: Time is nigh and analysis of the legal text

Coronavirus leads to calls for an extension of the transitional period

With several of the negotiators from the UK-EU Taskforce, including Michel Barnier, forced to self-isolate due to coronavirus, the FTA negotiations got off to a bumpy start. While informal discussions continued, the formal face-to-face rounds were inevitably postponed for most of March and April.

It was agreed that formal negotiations would restart in the week commencing the 20^th April, via video conference, and there will be two further rounds of negotiations, ahead of the planned stocktaking exercise in June.

The delays do though mean that the already ambitious timetable, by which to agree and ratify an FTA in time for the 1^st January 2021, looks even tighter.

This limited availability to negotiate has led to various calls for an extension to the transitional period, including by MEPs from the European Parliament and the head of the IMF Kristalina Georgieva, who called for both sides not to add to the current economic uncertainty.

The UK Government remains though confident that further progress can be made, with UK Chief Brexit negotiator David Frost informing the EU negotiating team that “the UK does not intend to ask for an extension to the transition period, which ends on December 31 this year.” 

Some comments on the EU text 

The publication of the draft legal text by the European Commission on the 18^th March was an important milestone, setting out the EU’s opening offer. This builds on the EU Mandate for the FTA negotiations, adopted on the 25th February, and the political declaration of October 2019.

While the text does not include national reservations, due to be set out within the annexes at a later date, it does contain a number of key chapters and provisions relating to legal services and judicial cooperation. A version of the text was widely leaked in advance, but the official version contains some important differences.

At a broader level, the proposals support the argument that it is now the EU which is pushing for CETA-plus economic arrangements with some provisions going beyond a typical free trade agreement, for example on Level Playing Field and State Aid, where it is proposed the Commission is granted legal standing before UK courts and tribunals to seek enforcement by UK authorities.

With the UK Government currently declining requests to publish its draft legal text, it is difficult to compare specific proposals, but it is widely expected that the UK negotiating team will push back on these types of arrangements which depart clearly from precedent in terms of existing FTAs.

For legal services in particular, the draft text contains expected provisions on market access for Services and it will be critical to see how the general provisions are impacted by national reservations. The provisions on entry and temporary stay for business purposes are largely similar to the EU-Japan FTA, albeit it with extra caveats regarding Most Favoured Nation (MFN), while on Mutual Recognition of Professional Qualifications, the Commission is due to be granted a more influential role than was the case with CETA, in order to coordinate and finalise any Mutual Recognition Agreements implemented under the Treaty framework.

Encouragingly, the provisions on criminal judicial cooperation would ensure coordination between authorities, including Europol and Eurojust, but the UK would have to rely on the Mutual Assistance Convention in order to obtain information which can be relied upon in court proceedings. The security partnership is also contingent on the UK adhering to the ECHR, reflecting EU concerns on this issue.

It is possible that coronavirus may also impact the progress of other decisions which are critical for the future relationship, for example the UK accession to the Lugano Convention on civil judicial cooperation and the adequacy decision on data. Initially it was planned that many of the equivalence assessments would be completed by July but this now looks unlikely.

The UK Law Societies are continuing to explore how the provisions can best benefit legal services and facilitate judicial co-operation.

Further information on

- the Law Society of England and Wales Brexit priorities and communications, including no deal guidance is available from here

- the Law Society of Scotland Brexit page can be accessed here,

- and the Law Society of Northern Ireland website here

The UK Law Societies’ website also includes our Brexit information, including the joint Law Societies’ and UK delegation position papers and various articles written on the topic.