Transition text agreed

Posted in UK and EU legal framework

UK and EU negotiators have agreed the text for the agreement governing the transition (or implementation) period following the UK’s departure from the EU.

As set out previously, there were in fact few areas of dispute between the parties with regard to arrangements for the transition period, which will comprise part of the wider withdrawal treaty.  

Significantly, the revised draft text confirms the UK’s agreement that the transition period should end at the end on 31 December 2020 (Article 121). This is slightly shorter than the UK had previously suggested, but has the advantage of certainty – and will no doubt help to focus the minds of the parties as to the time available to reach agreement as to the future trading relationship between the UK and the EU, particularly given that at present there does not appear to be any mechanism for extending it.

The draft confirms that during the transition period, UK domestic law will continue to reflect the EU acquis, notwithstanding that the UK will not participate in EU decision making during this time.

However, it also provides that the UK may negotiate, sign and ratify international agreements entered into in its own capacity in the areas of exclusive EU competence, “provided those agreements do not enter into force or apply during the transition period”, unless authorised by the EU (Article 124(4)).

It should be borne in mind that insofar as the transitional provisions form part of the withdrawal treaty, agreement must still be reached on the terms of the UK’s departure in order for the transitional arrangements to come into effect. This includes the contentious issue of the Irish border. While the ‘back-stop’ solution that the UK will maintain regulatory alignment between Northern Ireland and Ireland remains in the protocol to the draft treaty, the precise wording does yet not appear to have been agreed. Following the announcement of agreement on transitional arrangements, on the question of the Irish border, David Davis commented only that there was agreement “on the need to include legal text detailing the back stop solution for the border of Northern Ireland and Ireland in the withdrawal agreement that is acceptable to both sides”.

Ultimately, if there is no agreement reached on the terms of the UK’s departure, the agreement as to the transitional period would also fall away. This latest announcement regarding agreement as to the terms of the transitional period is a significant step in the Brexit negotiations but there is work still to be done.

Brexit: planning for the future as negotiations continue

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