Brexit round-up – 09/10/20

European Commission launches infringement proceedings against UK

The European Commission (EC) has announced that it has launched infringement proceedings against the UK for breaching the UK’s obligations under the UK-EU withdrawal agreement. The EC’s announcement, together with a press statement by the President of the European Commission, noted that despite requests by the EU, the UK Government had not withdrawn the contentious parts of the United Kingdom Internal Market Bill by the end of September 2020 and that the Bill breaches the obligation of good faith in Article 5 of the withdrawal agreement. The EC said that if the Bill is enacted in its current form, it will “flagrantly violate” the Northern Ireland Protocol by allowing UK authorities to disregard the legal effect of the Protocol’s substantive provisions under the withdrawal agreement. During the transition period, Article 131 of the withdrawal agreement provides that the Court of Justice of the European Union (CJEU) has jurisdiction and the European Commission has its usual powers under EU law in relation to the UK. This also applies as regards the interpretation and application of the withdrawal agreement. The European Commission sent the UK the letter of formal notice on 1 October 2020, giving the UK one month to submit its observations. If after examining the UK’s observations, or if no observations are submitted, the European Commission may decide to issue a reasoned opinion, explaining why the European Commission believes that the UK is in breach, and calling for compliance by a specified deadline. If the UK does not comply within a reasoned opinion within the period specified then it will be referred to the CJEU who can then make a binding ruling or a declaration of breach and a requirement for the UK to take the necessary measures to comply.

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Governments statement following ninth negotiating round

On 2 October 2020, the UK Government and the European Commission published statements on the outcome of the ninth round of negotiations on the future UK-EU relationship, which was held from 29 September to 2 October 2020. The Government’s statement described progress on the law enforcement agreement and convergence on the structure of the overall partnership. However, it also pointed to familiar differences regarding the level playing field, where there has been some limited progress but the Government requires the EU to move further before an understanding can be reached and fisheries in which it noted that the gap between the two sides was “very large.”

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European Commission’s statement following ninth negotiating round

Following the ninth round of negotiations on the future UK-EU relationship, the European Commission also published a statement which noted that there were ongoing points of convergence, most of which had already been recorded in previous rounds, and positive new developments on some topics such as aviation safety, social security co-ordination, and the respect of fundamental rights and individual freedoms. It noted that there had been a lack of progress on some important topics such as the protection of personal data, climate change commitments and carbon pricing and there were persistent serious divergences on matters of major importance for the EU. The European Commission statement also included a reminder that any UK-EU economic partnership agreement requires level playing field guarantees with effective enforcement mechanisms and a commitment towards non-regression from social, taxation, environmental and climate standards as well as an efficient governance framework, based on a comprehensive agreement, with robust enforcement and dispute settlement mechanisms, and effective remedies.

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UK’s new Instrument of Accession to 2005 Hague Choice of Court Convention and new Instrument of Ratification to 2007 Hague Maintenance Convention

Of interest to international litigators amongst others is that on 28 September 2020, the UK deposited a new Instrument of Accession to the 2005 Hague Choice of Court Convention and a new Instrument of Ratification to the 2007 Hague Maintenance Convention. They will take effect at the end of the Brexit transition period. The Conventions originally applied to the UK by virtue of EU membership. Under the withdrawal agreement, the UK continues to be bound by the Conventions during the transition period, but at the end of the transition period the 2005 Hague Choice of Court Convention will cease to apply to the UK, unless the UK accedes to it as a contracting state in its own right. The 2007 Hague Maintenance Convention will cease to apply to the UK, unless the UK ratifies it as a contracting state in its own right. The UK had previously deposited an Instrument of Accession and an Instrument of Ratification as part of its no-deal Brexit planning however after the withdrawal agreement was reached, the UK withdrew those instruments. The new Instrument of Accession and Instrument of Ratification have not yet been published, but the press release states that they will “ensure continuity in the application of these Conventions after the conclusion of the transition period.”

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Webinar: Employing EU nationals post Brexit

An internationally diverse workforce is the norm in many sectors, as easy access to non-UK nationals has enriched the talent pool. Freedom of movement within the EU has increased competitiveness, and sharpened everyone’s focus, employers’ and employees’ alike. But will this change next year, and what do businesses need to consider when recruiting and building the best workforce in the future?

At this Zoom webinar on 21st October at 12pm, immigration specialist Flora Mewies will enlighten us about the post Brexit landscape – click here for more information and to register.

If you have any questions about any of the issues which are raised, or would like to discuss your own organisation’s options during the Brexit process, please do not hesitate to get in touch.