Costa Bravo - The Barclay-Barnier Letters

1/5 Following the House of Commons unanimous support for my amendment seeking to protect the rights of millions of UK citizens in the EU and EU citizens in the UK, my letter to European Council President @eucopresident. #CostaAmendment pic.twitter.com/IX8K7QAKvN

— Alberto Costa MP (@AlbertoCostaMP) March 1, 2019

Jane Lambert

The Department for Exiting the EU has published a series of letters between the Rt Hon Steve Barclay MP and Michel Barnier on Alberto Costa MP's proposal that requires HM Government to seek a joint UK/EU commitment to preserving the citizens’ rights section of the draft withdrawal agreement whatever the outcome of the brexit negotiations.

By a letter dated 4 March 2019 to Monsieur Barnier, Mr Barclay explained the proposal, acknowledged that the Commission had already made a statement on the matter but requested  Monsieur Barnier's "formal views on our Parliament's proposal.

Monsieur Barnier responded on 25 March 2019. He began by stating that safeguarding the rights of citizens affected by the UK's withdrawal from the EU had been a top priority for the EU from the start and that the draft withdrawal agreement provided those safeguards.  He said that he was familiar with the proposal having received a copy of Mr Costa's letter to Donald Tusk from Mr Costa himself. However, he found it hard to reconcile the proposal with Parliament's vote of 13 March 2019 not to leave the EU without a deal. He stressed that the draft agreement was a fair compromise and the best and only deal possible.  As the provisions on citizens' rights were mixed up with other provisions such as the continued jurisdiction of the Court of Justice on certain matters, it was impossible to see how the rights provisions could be severed from the rest.  If the UK left the EU without a deal, the member states would continue to treat British nationals fairly.

There matters stood until 17 June 2019 when Mr Barclay had another go,  He said that there was growing support for the proposal in the UK and other member states, particularly among those representing the persons affected.  He invited Monsieur Barnier to think again.

Monsieur Barnier responded the very next day. He firmly believed that an orderly exit from the EU in accordance with the withdrawal agreement remains the best outcome for both the UK and the EU. If the UK leaves without a deal, the EU and its member states "would act in a responsible way through unilateral measures." These had already been set out in the Commission's Communication of 12 June 2019. The Commission noted in that document:

"In a ‘no-deal' scenario, the UK will become a third country without any transitional arrangements. All EU primary and secondary law will cease to apply to the UK from that moment onwards. There will be no transition period, as provided for in the Withdrawal Agreement. This will obviously cause significant disruption for citizens and businesses and would have a serious negative economic impact, which would be proportionally much greater in the United Kingdom than in the EU27 Member States."

It is unusual for negotiations of this kind to be conducted in writing or for such correspondence to be published. The British government must intend the general public and, in particular, British nationals and residents to read the letters. Is it cynical to suppose that the ground is being prepared for a blame game after 31 Oct?

Anyone wishing to discuss this post or brexit, in general, should call me on 020 7404 5252 during office hours or send me a message through my contact form.

Geographical Indications after Brexit

Stilton Cheese

Author: Dominik Hundhammer
Licence: Creative Commons Attribution-Share Alike 3.0 unported

Source Wikipedia  Commons

Jane Lambert

A geographical indication is a sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin.  Examples include Cornish pasties, Scotch whisky and, of course, Stilton cheese (see HM Government Protected Food Scheme: UK registered products 15 Jan 2014). The UK is bound to protect such signs by art 22 of the Agreement on Trae-Related Aspects of Intellectual Property Rights ("TRIPS") and art 10bis  of the Paris Convention for the Protection of Industrial Property.

HM Government discharges those obligations by

• collective and certification marks;
• the extended action of passing off; and
• special European Union legislation for agricultural farm products and foodstuffs and wines and spirits.

The special EU legislation is Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs 14.12.2012.

If and when the UK ever leaves the EU, Regulation 1151/2012 will cease to apply to the UK except in so far as, and to the extent that, it is caught by s.3 of the European Union (Withdrawal) Act 2018.  The draft withdrawal agreement of 14 Nov 2018 provided for EU law, including that regulation, to continue to apply to the UK from the exit date to the 31 Dec 2020. Thereafter art 54 (2) of that agreement provided for at least the same level of protection to continue to apply to products registered under regulation 1151/2012 from 31 Dec 2020 without any re-examination. Paragraph 45  of the political declaration on the future relationship between the EU and UK noted the protection afforded to existing geographical indications in the withdrawal agreement and required  the UK and EU to  seek to put in place arrangements to provide appropriate protection for their respective geographical indications.

Unless the British government revokes its notification of intention to leave the EU of 29 March 2017 before 31 Oct 2019 (or the expiry of such further extension to the notice period as may be agreed by the UK and remaining member states) this country must implement its own scheme for protecting geographical indications before 31 Oct 2019 or 31 Dec 2020 at the latest. The Department for the Environment, Food and Rural Affairs ("DEFRA") has already held consultations on establishing a UK geographical indications scheme after brexit and the enforcement of what it calls "the protected food name scheme". There is as yet no draft legislation but DEFRA has published Guidance on protecting food and drink names if there's no Brexit deal, 

The guidance states that the UK will set up its own geographical indications scheme which will be managed by DEFRA. The department will maintain a register of protected products and process new applications. The new UK scheme will use the same classes as the current EU one, namely:

• Protected Designation of Origin (PDO)
• Protected Geographical Indication (PGI), and
• Traditional Specialities Guaranteed (TSG).

Local authority trading standards officers will enforce the legislation.

All existing UK products registered under the EU scheme will automatically get UK status and remain protected in the UK. Food and drink producers from the UK and abroad will be entitled to apply for protection in accordance with advice to be published by DEFRA in October. DEFRA will design a new set of logos for each of the above classes which may be used by British and overseas food producers alike.

British products will continue to be protected by EU legislation and the legislation of third countries with which the EU has a trade agreement if the UK leaves the EU in accordance with the draft withdrawal agreement or possibly such other agreement as may be negotiated.  The guidance warns that that may not happen if the UK leaves without a withdrawal agreement in which case British food and drink producers will have to reapply to the Commission for EU geographical indication protection or some other form of protection such as a certification or collective EU trade mark,

Anyone wishing to discuss this article or geographical indications generally should call me on 020 7404 5252 during office hours or send me a message through my contact form.

Brexit Briefing - May 2019

In which @RoryStewartUK explains how terrible “no deal” is pic.twitter.com/wDxZtuJIOb

— Rupert Myers (@RupertMyers) May 30, 2019

In one sense a lot has changed since the last Brexit Briefing.  Mrs May has announced that she will cease to be the leader of the Conservative Party on the 7 June 2019.  Elections have been held for the European Parliament at which the Brexit Party appeared to have the largest vote but the total votes of the parties opposing brexit were greater than the total votes of the Brexit Party, UKIP and the Conservatives. In another sense, very little has changed for the options are still the same as they have always been.

The UK can leave the EU on 31 Oct 2019 and face massive tariffs and restrictions on its exports in its largest market that are faced by none of its major competitors inside and outside the EU. It can stay which mean that we retain unrestricted market access but would disappoint a lot of people who voted for the Brexit Party, UKIP, the Conservatives and perhaps the Labour Party in the recent elections. Or we can take the deal of the 14 Nov 2019 which Parliament has rejected numerous times.  The chances of negotiating another with governments that regard no deal as less damaging to their interests than one for which at least some of the Tory party leadership hopefuls lobby seem forlorn to say the least,

The advice that I have given to businesses in the UK remains substantially the same as it has been for over a year.  There is no certainty as to which of those options will be taken.  Businesses that can transfer their manufacturing and service facilities from the UK should continue to do so.  Those that cannot, should do the best they can by stockpiling, developing goods and services that will still be competitive even with discriminatory tariffs and other restrictions and they should look for new markets wherever they can be found.

I suppose one thing that should be mentioned is that the decision to issue a summons in a private prosecution against Tory leadership front runner, Boris Johnson MP, has been criticized vehemently in some quarters.  I am not going to enter the discussion because the matter is sub judice but I will put a link to the District Judge's decision so that readers can judge for themselves as to whether it was well reasoned and properly considered.

Anyone wishing to discuss this article or brexit generally should call me on 020 7404 5252 during office hours or send me a message through my contact page.