The Future Relationship with the EU The UK’s Approach to Negotiations - An Introduction and Overview

Jane Lambert

Except for the misleading and mischievous inference in paragraph 2 that the UK was somehow less than economically and politically independent while it was one of the most powerful and influential EU member states and the reference to a non-existent agreement between the EU and Australia in paragraph 7, the policy statement entitled The Future Relationship with the EU the UK’s Approach to Negotiations CP 211 is considerably less confrontational and better thought through than many of the documents emanating from our side than in the negotiations for the withdrawal agreement.  It is, of course, very different in form from the European Council's Decision authorising the opening of negotiations with the United Kingdom of Great Britain and Northern Ireland for a new partnership agreement.  A Council Decision is a legal instrument that binds the European Commission's negotiating team.  A policy statement binds nobody though a departure from its terms might have political consequences.

The policy statement proposes a comprehensive free trade agreement consisting of 33 chapters:

• Chapter 1: General Definitions and Initial Provisions 
• Chapter 2: National Treatment and Market Access for Goods
• Chapter 3: Rules of Origin
• Chapter 4: Trade Remedies
• Chapter 5: Technical Barriers to Trade (TBT)
• Chapter 6: Sanitary and Phytosanitary (SPS) Measures
• Chapter 7: Customs and Trade Facilitation (CTF) 
• Chapter 8: Cross-Border Trade in Services
• Chapter 9: Investment
• Chapter 10: Temporary Entry and Stay for Business Purposes
• Chapter 11: Domestic Regulation
• Chapter 12: Mutual Recognition of Professional Qualifications
• Chapter 13: Telecommunications Services
• Chapter 14: Delivery Services
• Chapter 15: Audio-Visual Services
• Chapter 16: Financial Services
• Chapter 17: Digital
• Chapter 18: Capital Movements, Payments and Transfers
• Chapter 19: International Road Transport
• Chapter 20: Subsidies 
• Chapter 21: Competition Policy
• Chapter 22: State Owned Enterprises, Enterprises Granted Special Rights or Privileges and Designated Monopolies
• Chapter 23: Intellectual Property
• Chapter 24: Good Regulatory Practice and Regulatory Cooperation
• Chapter 25: Trade and Sustainable Development
• Chapter 26: Trade and Labour
• Chapter 27: Trade and Environment
• Chapter 28: Tax
• Chapters 29-31: Administrative Provisions, Transparency, and Exceptions
• Chapter 32: Managing the Agreement
• Chapter 33: Final Provisions.

Some of the issues raised by the policy statement will be less controversial than others.  For instance, I can see no discernible difference between HM government's position on intellectual property than the Council's. On the other hand, there is a difference in approach to competition policy, particularly in relation to state aid.

The British government suggests separate agreements in relation to fishing, aviation, energy, mobility and social security coordination, continued participation in certain EU programmes such as Erasmus and Horizon, nuclear cooperation, law enforcement and judicial cooperation, asylum and migration, the security of information and other matters.

The paper also addresses technical and other processes beyond the scope of the future relationship negotiations such as third country listing and similar procedures for animals, plants and foodstuffs, data adequacy, equivalence in financial services and civil judicial cooperation.  I am heartened by the government's aspiration to contract to the Lugano Convention which would effectively continue the arrangements under the Brussels Convention.

Anyone wishing to discuss this article or the future relationship negotiations, in general, should call me on +44 (0)20 7404 5252 or send me a message through my contact form.

Future Relationship Negotiations: The EU sets out its Stall

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Jane Lambert

The United Kingdom left the European Union on 31 Jan 2020 pursuant to the Agreement on the withdrawal of theUnited Kingdom of Great Britain and Nothern Ireland from the EuropeanUnion and the European AtomicEnergy Community ("the Withdrawal Agreement"). The Withdrawal Agreement provides for an implementation period during which EU law will continue to apply to the UK until 31 Dec 2020. One of the reasons for the implementation period is to enable the parties to negotiate a new relationship to take effect from 1 Jan 2021.

The parties have already agreed a framework for such a relationship in the Political Declaration setting out the framework for the future relationship between the European Union and the theUnited Kingdom ("the Political Declaration").  The European Council has now authorized the opening of negotiations with the UK for a new partnership agreement in the terms of the draft decision of 13 Feb 2020 and an addendum to the decision setting out directives for those negotiations.

The decision consists of 8 recitals and 3 articles.  The recitals refer to the Withdrawal Agreement and the Political Declaration as well as Council guidelines of 30 March 2018 restating the Council's determination to have as close as possible a partnership with the UK covering trade and economic cooperation and also other areas including, in particular the fight against terrorism and international crime, as well as security, defence and foreign policy. Art 1 of the decision authorizes the European Commission to open negotiations for a new partnership agreement.  Art 2 nominates the Commission as the EU's negotiator.  Art 3 requires the negotiations to be conducted in consultation with the Working Party on the United Kingdom and in accordance with the directives contained in the addendum, subject to any directives which the Council may subsequently issue to the Commission.

The addendum is a much larger document consisting of 46 pages containing 172 paragraphs divided into an introduction and four Parts.  Paragraph 5 of the introduction reminds readers that:

"The negotiations of the envisaged partnership should be premised on the effective implementation of the Withdrawal Agreement and of its three Protocols. In this context, the envisaged partnership should continue to protect the Good Friday or Belfast Agreement reached on 10 April 1998 by the United Kingdom Government, the Government of Ireland and the other participants in the multiparty negotiations in all its parts, in recognition of the fact that the peace process in Northern Ireland will remain of paramount importance to the peace, stability and reconciliation on the island of Ireland. While preserving the integrity of the Single Market, the envisaged partnership should ensure that issues arising from Ireland's unique geographic situation are addressed."

Paragraph 9 acknowledges the very short duration of the implementation period. The Commission is urged to achieve as much as possible during that time and to be ready to continue negotiations after its expiry.

Part I of the addendum concerns "Initial Provisions".  Paragraph 12 recites the parties' core values and rights including a shared commitment to combat climate change which may or may not be reflected in this country's negotiations for a trade agreement with the USA.  Another shared commitment is maintaining a high level of data protection. The proposed partnership envisages future UK participation in some EU and Euratom programmes in cultural, scientific and other matters.

Part II concerns economics.  It should conform to the Agreement to establish the World Trade Organization and its policies for trade.  There should be free trade in goods, customs cooperation, trade facilitation and a measure of regulatory alignment.  Trade in services and the free flow of investment should be prioritized.  Intellectual property is mentioned specifically.  There are sections on financial services, competition, mobility of labour, transport cooperation and fisheries the last of which is likely to be particularly sensitive politically.

Part III covers security and addresses law enforcement and judicial cooperation, intelligence sharing, foreign policy coordination including sanctions, defence procurement, space, international development, refugees and infection control.

Part IV deals with institutional matters. Paragraph 155 proposes "a governing body responsible for managing and supervising the implementation and operation of the envisaged partnership, facilitating the resolution of disputes" Disputes that cannot be resolved through consultation should be referred to arbitration with provision for the referral of points of EU law to be referred to the Court of Justice of the European Union. That provision has been criticized by some but it is hard to see an objection. It merely provides machinery to access the Court where none exists right now.   The tribunal will have its seat in a national jurisdiction with direct access to national courts on issues of national law.

Anyone wishing to discuss this article or the new relationship negotiations generally should call me on +44 (0)20 7404 5252 during normal office hours or send me a message through my contact page.

Brexit Briefing January 2020

Hey @BorisJohnson and @Nigel_Farage, we just made Big Ben bong for you😉. Sound on. pic.twitter.com/6wnxYi9BOU

— Led By Donkeys (@ByDonkeys) January 31, 2020

Jane Lambert

Some marked the UK's departure from the EU with countdowns and flag-waving.  Others, such as "Led by Donkeys", protested. I attended a concert by the European Union Chamber Orchestra at St George's Hall in Bradford,  As its name suggests, this is an orchestra made up of artists from 10 countries which is funded by the European Commission,  It describes itself on its homepage as a "musical ambassador" for the European Union.

As I listened to the music I would not help reflecting on the smoothness with which brexit had been achieved.  Thanks to the  Agreement on the withdrawal of theUnited Kingdom of Great Britain and Nothern Ireland from the European Union and the European Atomic Energy Community, the rules that have governed this country's relations with its nearest neighbours, closest allies and biggest market will continue to apply until the end of the year at least and in some respects beyond which gives businesses and individuals time to plan. However, I also reflected that achieving such continuity had been a close-run thing.  The Agreement was signed only in the last few days of January and the legislation which implements it received royal assent only on 23 Jan 2020.  For much of the period since the referendum, there was a very real danger that the rules governing the UK's relationship with the 27 remaining member states would simply cease to apply when it left the EU.

In the field of intellectual property, much of the way ahead has been charted by art 126 and Title IV of the withdrawal agreement as I explained in Intellectual Property Post Brexit 2 Feb 2020 and The Intellectual Property Provisions of the Draft Withdrawal Agreement 19 Nov 2018.  However, some uncertainties remain.  One is whether the Unified Patent Court Agreement will ever come into force and if it does whether the United Kingdom can remain a party to it.  Another is whether the UK will accede to the Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters when  Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters OJ L 351, 20.12.2012, p. 1–32 ceases to apply.  One hopeful sign is that Iceland, Norway and Switzerland have agreed to support the UK's intent to accede (see the Ministry of Justice's News story Support for the UK’s intent to accede to the Lugano Convention 2007 28 Jan 2020).   I discussed the mechanics of the settlement between the UK and the EU in The Revised Draft Withdrawal Agreement and Political Declaration  21 Oct 2019 and The European Union (Withdrawal Agreement) Act 2020 30 Jan 2020). 

Now that the UK has left the EU the focus changes from the terms of withdrawal to the future relationship.  The European Commission has already begun to set out its stall with the President's speech to the London School of Economics (see The UK's Future Relationship with the EU - Ursula von der Leyen's Speech and Meeting with Johnson 9 Jan 2020).   It has also published its position on a number of issues (see The UK's Future Relationship with the EU - The Commission sets out its Negotiating Position 17 Jan 2020).  The Prime Minister is due to set out the UK's position today (see Rajeev Syal and others UK will refuse close alignment with EU rules, Johnson to say, Prime minister’s vision on future trading relationship will clash with that of EU leaders 2 Feb 2020 The Guardian/ The Observer).

To reflect the change of focus I have removed many of the links on this website to resources on the withdrawal agreement negotiations and inserted links to resources on the future relationship.  Anyone wishing to discuss this article should call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact page. 

Intellectual Property Post Brexit

Author Furfur  Licence CC BY-SA 4.0 Source Wikipedia Brexit

Jane Lambert

While many regret the UK's departure from the EU, it could have been so much worse.  There was a very real danger that the 2 year notification period provided by art 50 (3) of the Treaty of European Union would expire without any agreement on the arrangements for British withdrawal and that the rules that had governed the UK's relations with its nearest neighbours, closest allies and biggest market would simply cease to apply. The Agreement on the withdrawal of theUnited Kingdom of Great Britain and Nothern Ireland from the European Union and the European Atomic Energy Community sets out the terms upon which the country leaves the EU and the Political Declaration setting out the framework for the future relationship between the European Union and the theUnited Kingdom maps out the path for future cooperation.

Art 126 of the Withdrawal Agreement provides for a transition or implementation period between 1 Feb and 31 Dec 2020 during which time European Union law will continue to apply to the UK.  That is implemented by s.1 of the European Union (Withdrawal Agreement) Act 2020 which inserts a new s.1A into the European Union Withdrawal Act 2018 suspending the repeal of the law-making provisions of the European Communities Act 1972 until the end of the transition period,   Title IV of the Agreement contains provisions converting EU trade marks and registered Community designs and Community plant varieties into British trade marks, registered designs and plant breeders; rights from 1 Jan 2021.   I discussed those provisions while they were in draft form in The Intellectual Property Provisions of the Draft Withdrawal Agreement on 19 Nov 2018.

The upshot is that Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark OJ L 154, 16.6.2017, p. 1–99, Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs OJ L 3, 05/01/2002 P. 1 - 24 and Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights OJ L 227, 1.9.1994, p. 1–30 continue to apply to the UK until 31 Dec 2020.  As the Intellectual Property Office's news story, Intellectual property and the transition period published 29 Jan and updated 31 July 2020, points out, EU trade marks and Community designs and plant varieties remain in force. International registrations for trade marks and designs protected via the Madrid and Hague systems which designate the EU will continue to extend to the UK.  The courts of the UK that have been designated EU Trade Mark and Community Design courts will retain their jurisdiction for the rest of the year.

The same applies to other EU legislation including Regulation (EC) No 469/2009 on supplemental protection certificates for medicinal products and Regulation (EU) 2017/1128 of the European Parliament and of the Council of 14 June 2017 on cross-border portability of online content services in the internal market and to rules of law such as the exhaustion of rights doctrine. Judges in the UK can continue to refer questions of EU law to the Court of Justice of the European Union for preliminary rulings under art 267 of the Treaty on the Functioning of the European Union.  Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters OJ L 351, 20.12.2012, p. 1–32 will continue to apply.

These arrangements will end on 31 Dec 2020  but most rights holders will continue to be protected.  Instead of their EU trade marks and registered Community designs and plant varieties, proprietors will rely on their equivalent UK intellectual property rights.  A new British supplemental unregistered design right will apply to designs that are protected as unregistered Community designs. Proprietors of plant protection and medicinal product inventions may continue to apply for supplemental protection certificates.   These and other matters are discussed in greater detail in my article of 19 Nov 2018. 

In that article I wrote:

"The draft withdrawal agreement makes no provision for the Unified Patent Court Agreement which is awaiting German ratification. However, if Germany ratifies the Unified Patent Court Agreement during the implementation period there would appear to be no reason why that agreement should not come into force during that period, What would happen after that will depend on the terms of the UK's future relationship with the EU."

According to Geoffrey Bacon of Bristows, there are indications that the German Federal Constitutional Court could deliver judgment on a challenge to German ratification of the Unified Patent Court Agreement in the next few weeks (see Bacon Update on BVerfG cases allocated to Justice Huber, the UPC case rapporteur 23 Jan 2020 Bristows UPC website).  The European Patent Office has confirmed its readiness to grant unitary patents. Decisions on continued British participation and probably the future of the project will, therefore, have to be made before the end of this year.

Anyone wishing to discuss this article or IP and British withdrawal from the EU generally may call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form.