Showing posts with label art 50 (3). Show all posts
Showing posts with label art 50 (3). Show all posts

Friday, 12 July 2019

Brexit Briefing - June 2019


Standard YouTuve Licence

Jane Lambert

As the purpose of this website is to advise rather than to exhort, I will leave it to others to decide whether a Conservative leadership election is the best use of the time that the remaining 27 member states of the European Union allowed this country under art 50 (3) of the Treaty of European Union.  Having said that, the leadership contest cannot be ignored because both candidates seek to renegotiate the draft withdrawal agreement before that extension runs out.  Their respective plans for Bexit have been analysed succinctly by the YouTube channel TLDR (see Boris Johnson's Brexit Plan - Brexit Explained and Jeremy Hunt's Brexit Plan - Brexit Explained).

Even though both candidates stress that they hope to conclude a withdrawal agreement with the EU, preparations for the UK's departure without such as agreement are continuing in both the UK and the remaining member states.  On the whole, the EU appears to be more relaxed than the UK about the prospect probably because it believes that the UK will be hurt by a no-deal departure much more than the remaining member states (see my article EU Preparations for a "No-Deal" Brexit  2 July 2019). According to the Bank of England's Financial Stability Report and Record for July 2019, British financial institutions could probably survive the economic disruption and market volatility that is likely to result from a disorderly brexit. Indications of the preparedness of the rest of British industry are a lot less encouraging (see George Parker UK not ready for a no-deal Brexit, confidential cabinet note warns 12 June 2019 Financial Times).

One of the principal economic arguments for brexit has been that the UK could greatly increase its trade with the rest of the world if it were not obliged to impose the common external tariff (see Martin Howe QC Leaving the EU on WTO terms will pull down the barriers to world trade and cut prices for consumers 20 Aug 2019 Brexit Central).  Since the UK government served notice of its intention to leave the EU the Department for International Trade has concluded the following trade agreements:
Note that those agreements make provision for intellectual property and geographical indications the latter of which I discussed in Geographical Indications after Brexit on 22 June 2019. The UK has also signed mutual recognition agreements with the United States, Australia and New Zealand.

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

Wednesday, 1 May 2019

Brexit Briefing April 2019

Author Gustave Doré
"Day after day, day after day,
We stuck, nor breath nor motion;
As idle as a painted ship
Upon a painted ocean"




























Jane Lambert

In the first paragraph of my January Brexit Briefing 5 Feb 2019 I set out four possible scenarios for what could happen before 29 March 2019. The one that occurred was the third of those possibilities:  an extension of the notice period first to 12 April 2019 (see Extension of Art 50 (3) Notice Period 27 March 2019) and subsequently to 31 Oct 2019 (see European Council Decision of 11 April 2019 extending the Period under art 50 (3) of the Treaty of European Union to 31 Oct 2019 11 April 2019).

The uncertainty from which there has been something of a lull since the second extension has been at a cost.   Businesses fearing delays and increased costs in the event of the UK's departure from the EU without a withdrawal agreement stockpiled raw materials and components leaving fewer resources for anything else.  IHS Markit manufacturing purchasing managers’ index dropped from 55.1 to 53.1 in April and demand for exports fell as customers sought alternatives to British suppliers (see IHS/CIPS news release of 1 May 2019).

Uncertainty as to whether the UK will depart from the EU at all and if so on what terms is naturally unsettling for business but that does not require everything to be put on hold. There are opportunities for British business regardless of what happens with brexit. Only last week, heads of state, heads of government and senior ministers met in Beijing for The Second Belt and Road Forum.  I first mentioned the One Belt One Road project in The Shanghai Cooperation Organization on 9 Sept 2017. It is a massive transport infrastructure project to link China more closely with the rest of the world.  As such, it will provide unparalleled opportunities not just for British construction companies and manufacturers but also for the UK's banks and other financial and professional service providers.

The climate change protests in central London and Edinburgh and the visit of Greta Thunberg to the Houses of Parliament have raised public awareness of the need to reduce carbon emissions drastically in the next 30 years.  This will require changes in transportation, housing, agriculture and many other fields that will provide opportunities for enterprising and innovative British companies. This is not the time for industry to cut back on R & D and marketing but to expand it.

Anyone wishing to discuss this article or the legal issues to any of the topics mentioned in it should call me on 020 7404 5252 during office hours or send me a message through my contact page.

Thursday, 11 April 2019

European Council Decision of 11 April 2019 extending the Period under art 50 (3) of the Treaty of European Union to 31 Oct 2019

Donald Tusk
Licence Creative Commons Attribution-Share Alike 2.0
























Another of the uncertainties that I mentioned in my March Brexit Briefing was the outcome of the special Council meeting of 10 April 2019 which President Tusk called on 29 March 2019 after the draft withdrawal agreement of 14 Nov 2018  was rejected by the House of Commons for the third time.  The reason for the meeting was that the United Kingdom was due to leave the European Union at 23:00 on 12 April 2019.

Even before she was obliged to do so by s.1 of the European Union (Withdrawal) Act 2019, the Prime Minister applied for an extension of the notification of the period provided by art 50 (3) of the Treaty of European Union by a letter dated 5 April 2019.   The European Council referred to that letter in paragraph (8) of the recitals to its decision of 11 April 2019 extending that notice period to 31 Oct 2019 at the latest.

The decision consists of 14 paragraphs of recitals and 2 articles   Art 1 extends the notice period from 12 April 2019 to 31 Oct 2019. Art 2 inserts the condition of holding elections to the Europen Parliament on 22 May 2019 warning:
"This decision shall cease to apply on 31 May 2019 in the event that the United Kingdom has not held elections to the European Parliament in accordance with applicable Union law and has not ratified the Withdrawal Agreement by 22 May 2019."
As the Council also recited in paragraph (9):
"...... under Article 50(3) TEU, the Withdrawal Agreement may enter into force on an earlier date, should the Parties complete their respective ratification procedures before 31 October 2019. Consequently, the withdrawal should take place on the first day of the month following the completion of the ratification procedures or on 1 November 2019, whichever is the earliest. "
As several MPs had urged the British government to disrupt the EU's business if it were granted a long adjournment paragraph (10) of the recitals noted:
"This further extension cannot be allowed to undermine the regular functioning of the Union and its institutions. Furthermore, it will have the consequence that the United Kingdom will remain a Member State until the new withdrawal date, with full rights and obligations in accordance with Article 50 TEU, and that the United Kingdom has a right to revoke its notification at any time. If the United Kingdom is still a Member State on 23-26 May 2019, and if it has not ratified the Withdrawal Agreement by 22 May 2019, it will be under an obligation to hold the elections to the European Parliament in accordance with Union law. In the event that those elections do not take place in the United Kingdom, the extension should cease on 31 May 2019. The European Council takes note of the commitment by the United Kingdom to act in a constructive and responsible manner throughout the extension period in accordance with the duty of sincere cooperation, and expects the United Kingdom to fulfil this commitment and Treaty obligation in a manner that reflects its situation as a withdrawing Member State. To this effect, the United Kingdom shall facilitate the achievement of the Union’s tasks and shall refrain from any measure which could jeopardise the attainment of the Union’s objectives, in particular when participating in the decision-making processes of the Union."
The decision  also made clear in paragraph (12) of the recitals that the withdrawal agreement could not be renegotiated:
"This extension excludes any re-opening of the Withdrawal Agreement. Any unilateral commitment, statement or other act by the United Kingdom should be compatible with the letter and the spirit of the Withdrawal Agreement, and must not hamper its implementation. Such an extension cannot be used to start negotiations on the future relationship."
Anyone wishing to discuss this article or brexit generally may call me on 020 7404n 5252 during office hours or send me a message through my contact page.

Wednesday, 10 April 2019

European Union (Withdrawal) Act 2019

Jane Lambert

In my March Brexit Briefing, I wrote:
"Had all gone according to plan, this would have been my first post-exit day Brexit Briefing. However, the UK is still a full member of the European Union at least until 12 April 2019 on the terms that I mentioned in Extension of Art 30 Notice Period 27 March 2019. What happens after that will depend on the European Council meeting which shall take place on 10 April 2019, the current discussions between the Prime Minister and the Leader of the Opposition and the fate of the European Union (Withdrawal) (No 5) Bill in the House of Lords."
At least one of those uncertainties has been removed as the Bill cleared the Lords almost as quickly as it cleared the Commons. It has received royal assent and is now law.

The new statute, which is known as the European Union (Withdrawal) Act 2019, consists of three sections:
  1. Duties in connection with Art 50 extension
  2. Procedure for ensuring domestic legislation matches Art 50 extension
  3. Interpretation, commencement, extent and short title.
S.1 (1) requires a Minister of the Crown to move the following motion in the House of Commons immediately after the Act receives royal assent:
“That this House agrees for the purposes of section 1 of the European Union (Withdrawal) Act 2019 to the Prime Minister seeking an extension of the period specified in Article 50(3) of the Treaty on European Union to a period ending on […]” 
If a motion in that form is passed without amendment, the PM must seek an extension to the date in square brackets.  The Minister can accept a different period provided it ends not earlier than 22 May 2019. In that regard, s.1 (7) provides:
"In deciding for the purposes of subsection (6) whether an extension cannot end earlier than 22 May 2019, the earlier ending of the extension as a result of the entry into force of the withdrawal agreement (as provided for in Article 50(3) of the Treaty on European Union) is to be ignored."
S.20 (1) of the European Union (Withdrawal) Act 2018 had defined "exit day" (the date upon which the UK leaves the EU) as "29 March 2019 at 11.00 p.m" subject to s.20 (2) to (5).  Those subsections set out a procedure for amending the definition of "exit day" by statutory instrument,  However, para 14 of Sched 7 to the 2018 Act had provided:
"A statutory instrument containing regulations under section 20( 4) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament."
S.2 of the 2019 Act amends paragraph 14 by removing the words from "may" to "each" and substitutes the words "is subject to annulment in pursuance of a resolution of either”.    The paragraph now reads:
"A statutory instrument containing regulations under section 20 (4) is subject to annulment in pursuance of a resolution of either House of Parliament."
S.3 (1) provides for the Act to come into force as soon as it receives royal assent.

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 form.


Wednesday, 27 March 2019

Extension of Art 50 (3) Notice Period













Jane Lambert

In my January Brexit Briefing, I wrote that one of four things had to happen before 23:00 on 29 March 2019:
The government chose the third of those options.   It applied to the European Council for an extension of the notification period.  The Council granted its application by a decision dated 22 March 2019.

The decision is a very short document.  It consists of 2 articles and 12 paragraphs of recitals.  The effective provision is art 1 which is divided into 2 paragraphs. The first paragraph of art 1 extends the notification period to 22 May 2019 provided that the House of Commons approves the draft withdrawal agreement by 29 March 2019.  If the Commons does not do so, the second paragraph extends the notification period until 12 April 2019 in which case "the United Kingdom will indicate a way forward before 12 April 2019, for consideration by the European Council."

The reason for the time limits is explained in para (10) of the recitals:
"This extension will have the consequence that the United Kingdom will remain a Member State with all the rights and obligations set out in the Treaties and under Union law. If the United Kingdom is still a Member State on 23-26 May 2019, it will be under the obligation to hold the elections to the European Parliament in accordance with Union law. It is to be noted that the United Kingdom would have to give notice of the poll by 12 April 2019 in order to hold such elections."
If the Commons fails to ratify the withdrawal agreement by 29 March 2018, the choices for the government are to leave the EU without a deal on 12 April 2019, seek a longer extension to the notification period which would require this country to participate in the European Parliament elections or revoke its notification of 29 March 2017.

A head of steam is building up for revocation of that notification as evidenced by the massive numbers who took place in the march on Saturday and the even larger numbers of signatories to the Revoke Article 50 and remain in the EU. The government's response has been shrill.  In an email to all signatories it wrote:
"This Government will not revoke Article 50. We will honour the result of the 2016 referendum and work with Parliament to deliver a deal that ensures we leave the European Union.

It remains the Government’s firm policy not to revoke Article 50. We will honour the outcome of the 2016 referendum and work to deliver an exit which benefits everyone, whether they voted to Leave or to Remain. 
Revoking Article 50, and thereby remaining in the European Union, would undermine both our democracy and the trust that millions of voters have placed in Government. 
The Government acknowledges the considerable number of people who have signed this petition. However, close to three quarters of the electorate took part in the 2016 referendum, trusting that the result would be respected. This Government wrote to every household prior to the referendum, promising that the outcome of the referendum would be implemented. 17.4 million people then voted to leave the European Union, providing the biggest democratic mandate for any course of action ever directed at UK Government.
British people cast their votes once again in the 2017 General Election where over 80% of those who voted, voted for parties, including the Opposition, who committed in their manifestos to upholding the result of the referendum. 
This Government stands by this commitment. 
Revoking Article 50 would break the promises made by Government to the British people, disrespect the clear instruction from a democratic vote, and in turn, reduce confidence in our democracy. As the Prime Minister has said, failing to deliver Brexit would cause “potentially irreparable damage to public trust”, and it is imperative that people can trust their Government to respect their votes and deliver the best outcome for them. 
Department for Exiting the European Union."
Be that as it may, the march and petition appear to have spooked at least some MPs into reconsidering their opposition to the draft withdrawal agreement.

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

Thursday, 6 September 2018

Brexit Briefing - August 2018

Rt Hon Dominic Raab MP
Author Chris McAndrew
Licence  Creative Commons Attribution Share Alike 2.0 unported
Source Parliament



























Jane Lambert

Unless the British government withdraws its notice of intention to leave the European Union or the 27 remaining member states of the EU unanimously extend the notice period under art 50 (3) of the Treaty of European Union, the UK will leave the EU on 29 March 2019.  There are two possible scenarios as to what will happen after that.  If both sides sign a withdrawal agreement as contemplated by art 50 (2) arrangements between the UK and the remaining member states will continue more or less as they are now until 31 Dec 2020.  That would give negotiators a breathing space to negotiate an agreement for a future partnership with the EU that will come into effect on 1 Jan 2021.  If a withdrawal agreement is not signed by 29 March 2019 then the legal framework that has governed the UK's relations with its 27 closest neighbours, trading partners and allies will cease to exist with all sorts of unknown consequences.

A draft of the withdrawal agreement was published in February and 80% of it has been agreed according to Michel Barnier  in his op-ed An ambitious partnership with the UK after Brexit 2 Aug 2018 and the Rt Hon Dominic Raab MP, the new Brexit secretary, in his statement to the House of Commons on 4 Sept 2018.   However, as in all commercial negotiations, nothing is agreed until everything is agreed and the sticking point up to now has been how to ensure that there are no customs formalities at the border between Northern Ireland and the Irish Republic after the UK leaves the single market and customs union.  Two possible solutions have been offered so far neither of which is likely to be agreed.  The Commission has proposed a backstop arrangement by which Northern Ireland remains in the customs union and customs and immigration checks take place at British and Irish sea and airports.  The British government has suggested free movement for goods with a common rule book in its white paper on The Future Relationship between the United Kingdom and the European Union.

In his Commons statement Mr Raab described the Commission's proposals as "unacceptable, because they would create a customs border down the Irish Sea."  The white paper proposals have already prompted the resignation of two cabinet ministers and have been described by a former minister as less popular than the poll tax.  They are unlikely to survive a vote in the Commons let alone scrutiny by the Commission's art 50 task force.   Mr Raab told the Commons that "we are determined to reach a solution that protects the Belfast Agreement and avoids a hard border on the island of Ireland" but gave no details as to what that solution could be.

Interestingly, there now seems to be another snag which concerns geographical indications, a form of intellectual property.   In a statement following his meeting with Mr Raab on 31 Aug 2018, Monsieur Barnier said:
"On geographical indications - 3000 geographical indications in the 28 countries of the Union - I expressed again my worry. 
The EU's position is clear: Brexit should not lead to a loss of existing intellectual property rights.

We must protect the entire stock of geographical indications.

This protection is an international obligation, and seeing as it is one of the separation subjects, it must be clarified in the Withdrawal Agreement. We will come back to this subject, whose solution must be in the Withdrawal Agreement."
It is not clear why this is a problem as the UK is bound to protect geographical indications by section 3 of the TRIPs agreement and has always done so through the registration of collective and certification marks and the law of passing off.

Although Mr Raab stressed that he expected to reach a deal with the EU, that it remained the most likely outcome and the government's top and indeed its overriding priority, HMG had a duty as a responsible government to prepare for any eventuality.  Accordingly it has started to publish guidance to businesses and individuals on how to prepare for withdrawal without an agreement which I discussed in And if there is no deal ................. on 24 Aug 2018.

Concern over the consequences of leaving without a withdrawal agreement appears to have begun a shift in attitude over Brexit.  A number of opinion polls were published apparently showing growing disenchantment with Brexit and support for a second referendum (see Benjamin Kentish
2.6 million Leave voters have abandoned support for Brexit since referendum, major new study finds 4 Sept Independent and Patrick Grafton-Green Brexit news latest: Brits would vote 59-41 to remain in EU if second referendum was held, new poll shows 5 Sept 2016 Evening Standard).  A number of politicians in the Labour and Conservative parties as well as the Liberal Democrats have called for a peoples' vote or second referendum on the terms of the UK's withdrawal from the EU and they have been joined by a growing number of business and trade union leaders. The prime minister has rejected those calls and they have not been endorsed by the leader of the opposition but these are uncertain times in which anything is possible.

Anyone withing to discuss this article or Brexit in general should call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact page.

Friday, 24 August 2018

And if there is no deal ..................

Author Furfur
Licence Creative Commons Attribution Share Alike 4.0 International

























Jane Lambert

Art 50 (3) of the Treaty of European Union requires the treaties upon which the European Union is founded and their legal superstructure to cease to apply to the UK from the date of the withdrawal agreement that the remaining member states are required by art 50 (2) to negotiate with the UK or the 29 March 2019, whichever occurs first.  A draft of such a withdrawal agreement was published at the end of February and about 80% of its text is said to have been agreed but there are a number of differences to resolve not the least of which is the border between Northern Ireland and the Irish Republic.  If those differences cannot be resolved before 29 March 2019 many of the laws under which the UK has done business with its 27 neighbours will disappear.

It goes without saying that that will have substantial economic and social consequences for businesses and individuals in both the UK and the remaining member states.  It also goes without saying that it is the responsibility of government to help British citizens and businesses prepare for those eventualities.  The government has now accepted that responsibility in a speech by the Rt Hon Dominic Raab MP, Secretary for State on Exiting the European Union on no deal planning and the publication of the first batch of guidance documents on how to prepare for Brexit if the event of no deal on 23 Aug 2018,

Those guidance documents cover the following topics:
One of the most interesting and in some ways alarming of those documents is the Guidance Banking, insurance and other financial services if there’s no Brexit deal 23 Aug 2018.  That document considers the consequences of the loss of passporting rights and acknowledges that at least some British institutions are setting up subsidiaries in the EU to continue their business after Brexit.

Anyone wishing to discuss this article or Brexit in general should call me during office hours in +44 (0)20 7404 5252 during normal office hours or send me a message through my contact form.

UPC Injunction Restraining Infringement of a European Patent (UK) - Fujifilm v Kodak

View of Mannheim Author Georg Buzin   Licence CC BY-SA 4.0     Source Wikimedia   Commons   Jane Lambert Court of First Instance of the Unif...