Brexit: The Documents in Summary

No doubt everyone will be aware that the UK government has now reached agreement with the EU on a draft Brexit withdrawal agreement. Although a good chunk of the 585 pages deal with retaining the existing legislative and administrative position through the transition period to 31 December 2020 (which can be extended by agreement between the UK and the EU), amongst the "status quo" provisions there are some headline points worth noting:

• UK status during transition:  During the transition period the UK will be treated as if it were a member state for most intents and purposes, although it will not be entitled to participate in EU institutions and governance structures.
• International agreements:  During the transition period the UK will be bound by obligations stemming from the EU’s international agreements. However, the UK can negotiate, sign and ratify international agreements in the areas of EU exclusive competence provided those agreements do not enter into force during the transition period.
• Courts:  The Court of Justice of the European Union will continue to have jurisdiction over the UK during the transition period.
• Law and jurisdiction:  The Rome I and II Regulations (governing law of contracts) will continue to apply to contracts concluded before the end of the transition period and the Brussels Regulation (enforcement of judgments) will apply to legal proceedings commenced before the end of the transition period.
• Intellectual property: EU IP rights granted / registered before the end of the transition period will automatically give rise to an equivalent UK right. Where a right is exhausted in the EU before the end of the transition period, that exhaustion will also apply in the UK.
• Customs union: A temporary single customs territory will apply, effectively keeping the whole of the UK in the EU customs union, until both the EU and the UK agree that it is no longer necessary (the Northern Ireland backstop). Whilst the single customs territory is in place, the UK will be subject to “level playing field” conditions, preventing it from undercutting EU competitors, as well as other “non-regression clauses”, preventing it from lowering standards in the fields of environmental, labour and social regulations.
• Data protection: GDPR and related legislation will continue to apply to the processing of personal data of data subjects outside the UK, where that data has been processed under EU law in the UK before the end of the transition period, or are processed in the UK after the end of the transition period on the basis of the withdrawal agreement. The agreement does not explicitly set out provisions relating to the transfer of data from the EEA to the UK, but it seems that the UK will continue to be treated as part of the EEA during the transition period under the general transitional provisions.
• Movement of persons: UK individuals with a right of residence facilitated by an EU host state prior to the end of the transition period will retain that right subsequently, and vice versa for EU individuals in the UK, provided in each case that they continue to reside there. Rights of permanent residence will be available for those who have been resident for a continuous period of 5 years.

Of course, the agreement will need to be approved by Parliament before it can be put in place – most certainly not a done deal at this point.

Alongside the draft Brexit withdrawal agreement was published an outline political declaration which sets out the proposed framework for the future relationship between the EU and the UK after the transitional period.

 Headline points worth noting are as follows:-

• Data protection: The Commission will commence assessment of the UK’s standards on the basis of the Union’s adequacy framework, endeavouring to adopt decisions by the end of 2020. An adequacy decision for the UK would allow the continued export of data from the EEA to the UK without the need for additional mechanisms such as the standard contractual clauses (“model clauses”).
• Customs union: It is proposed to create a free trade area combining deep regulatory and customs cooperation. This will include ambitious customs arrangements that build on the single customs territory provided for in the withdrawal agreement.
• Financial services: The City of London’s access to the EU financial markets will be under the “equivalence” regime which is available to non-EU countries such as the US and Japan for certain areas of the finance industry.
• Public procurement: It is proposed that there will be mutual opportunities in the parties’ respective public procurement markets beyond their commitments under the WTO Government Procurement Agreement.
• Mobility: It is proposed to put in place arrangements on temporary travel for business purposes and other aspects of mobility including visa-free travel for short-term visits.
• Law enforcement: It is proposed to implement comprehensive, close, balanced and reciprocal law enforcement and judicial cooperation in criminal matters, including swift and effective extradition arrangements.

In addition to the other points, the declaration also includes a variety of high-level statements in areas such as facilitating electronic commerce, protection and enforcement of intellectual property rights, cooperation in climate change and related areas, intelligence exchange etc..

It is clear that the majority of issues surrounding Brexit will be subject to significant negotiation through the transition period, but the declaration does very much position the parties’ intentions as aiming for a close and involved relationship between the EU and the UK for the longer term.