Post-Brexit UK-EU Negotiations Update: Key Points from ALBA Talk with Anneli Howard Monckton Chambers

An update on the post-Brexit UK-EU negotiations highlighting key points discussed in the ALBA talk with Anneli Howard from Monckton Chambers on July 23, 2020. The discussions cover various aspects including trade in goods, regulatory cooperation, sectoral agreements, and the UK's stance on key issues like the role of the Court of Justice.

• Brexit
• UK-EU negotiations
• ALBA
• Anneli Howard
• Monckton Chambers

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1. LEGAL LANDSCAPE POST BREXIT UK/EU NEGOTIATIONS Anneli Howard Monckton Chambers Talk to ALBA 23 July.2020 +44 (0)20 7405 7211

2. Negotiating the divide.. UK EU Trade in Goods CETA basis zero tariffs, ROs Regulatory autonomy to set UK standards and self-certification No further commitments re high standards FTA for zero tariffs provided UK commits to LPF Customs facilitation and SPS subject to WTO Level Playing Field Reciprocal commitments not to weaken protections re labour, environment, competition, state aid and tax Not subject to dispute resolution No public procurement - WTO Strong legally binding LPF guarantees non regression Continued application of EU current and future rules on state aid, tax, climate change, food Subject to Treaty enforcement mechanism Services Same as other EU FTAs Regulatory cooperation Liberalisation for business and professional services and certain sectors FTA beyond WTO like other FTAs Regulatory cooperation Mutual recognition of qualifications where in EU interest www.monckton.com +44 (0)20 7405 7211

3. Regulatory and sectoral cooperation UK EU Sectors Separate agreements based on relationship of sovereign equals : Equivalence of financial services Aviation separate agreement Road haulage Energy trading Internal security Unilateral equivalence for different FS activities dependent on close alignment Aviation and Nuclear No audio visual No road haulage benefits UK outside electricity and gas market Cooperation Third country participation in Horizon, Euratom, Erasmus Time limited Fair compensation Framework for UK participation in science, youth, culture and education for fee Judicial cooperation/ Governance Data exchange for law enforcement No mention RBR or Rome civil matters No role of CJEU Close cooperation as comprehensive security package data exchange, Europol, Eurojust Conditional on ECHR www.monckton.com +44 (0)20 7405 7211

4. David Frosts statement 23.7 Specifically, the EU has listened to the UK on some of the issues most important to us, notably on the role of the Court of Justice, and we welcome this more pragmatic approach. Similarly, we have heard the EU s concerns about a complex Switzerland-style set of agreements and we are ready to consider simpler structures, provided satisfactory terms can be found for dispute settlement and governance. .. We have also had constructive discussions on trade in goods and services, and in some of the sectoral agreements, notably on transport, social security cooperation, and participation in EU programmes But considerable gaps remain in the most difficult areas, that is, the so- called level playing field and on fisheries. We have always been clear that our principles in these areas are not simple negotiating positions but expressions of the reality that we will be a fully independent country at the end of the transition period. www.monckton.com +44 (0)20 7405 7211

5. ONGOING IMPACT OF EU LAW Talk to ALBA 23 July.2020 +44 (0)20 7405 7211

6. Withdrawal Agreement - Role of CJEU Ongoing Commission and CJEU proceedings relating to pre- transition cases Art 86 & 92 Preliminary references for Citizens Rights commenced 8 years post transition Commission infraction proceedings against UK for 4 years Art 87 Financial matters Preliminary references re NI Protocol Art 12(4) NIP) www.monckton.com +44 (0)20 7405 7211

7. Northern Ireland Protocol Protocol has direct effect in the UK (Art 4 WA) Arts 5-10 and Annexes preserve EU rights: Annex 1 equal treatment provisions for employees Annex 2 Technical regulations and standards for goods, environmental standards, energy efficiency, labelling & product safety requirements; food & agricultural requirements Annex 5 Treaty state aid prohibition and notices apply insofar as they affect trade between NI and the EU. www.monckton.com +44 (0)20 7405 7211

8. Withdrawal Agreement Art 4 Many provisions in WA apply only from end of the transition period Art 4(1): Provisions have same legal effect as in EU Member States Art 4(2): UK to ensure courts and admin authorities disapply inconsistent or incompatible domestic provisions Art 4(3): Provisions referring to EU law/concepts to be interpreted and applied in accordance with the methods and general principles of Union law www.monckton.com +44 (0)20 7405 7211

9. NI Protocol - Interpretation NIP has direct effect and same legal effects Articles 4(4) &(5), Article 13(2) of the Protocol EU concepts will, in their implementation and application, be interpreted in conformity with relevant CJEU case law Both pre and post transition No time limits UK courts bound indefinitely including future CJEU rulings www.monckton.com +44 (0)20 7405 7211

10. EUWA - Perfect Cut & Paste? EUWA replicates existing EU-derived rights into statute S.2 Exit Day watershed - 31 January 2020 : All EU-derived legislation cut and paste and regarded as binding precedent. S.1B In practice extends to all legislation during transition period up to end of December 2020. with interpretative glosses Snapshot: All regulations, decisions, tertiary legislation Rights from Directives not carried across Other exceptions in s.5 and Schedule 1 such as Charter, fundamental principles and supremacy Operative in force and applies before exit day Complications for in flight provisions www.monckton.com +44 (0)20 7405 7211

11. Judicial Interpretation Interpretation is a question of law not fact (unlike other foreign law) Sch 5 para 3 Where necessary in legal proceedings Not bound by CJEU rulings post transition But courts may have regard to "anything done by the EU Courts, another EU entity or the EU" so far as relevant (s. 6(2)). NB Art 4 WA refers to due regard Judicial notice or admissibility (Sch 5 para 4) www.monckton.com +44 (0)20 7405 7211

12. Judicial Interpretation S6(3): EU derived domestic legislation and EU retained law interpreted in light of: retained case law (comprising retained domestic case law and retained EU case law) retained principles Save where there are relevant separation agreement laws in WA that conflict (s. 6(6A)). UNTIL: 1. Parliament enacts modifying legislation 2. Supreme Court departs from it but see consultation here. www.monckton.com +44 (0)20 7405 7211

13. Thank you! Anneli Howard Monckton Chambers ahoward@Monckton.com