Impact of the COVID-19 pandemic on UK-EU negotiations (updated 6 April 2020)

(Updated) 6 April 2020

The ongoing coronavirus crisis is unsurprisingly having a significant impact on the ongoing negotiations between the United Kingdom (UK) and the European Union (EU) on their future relationship following the end of the transition period established in the Withdrawal Agreement (WA).  The agreed timetable of formal negotiations has already been affected by the rapid escalation of the virus, as the second negotiating round, originally scheduled for 18-20 March 2020 in London, was postponed.  This Brexit Insight explains the current status of negotiations and identifies possible impacts of the crisis on the timetable for the negotiations on the future relationship as a whole.

Under the WA, the implementation or “transition period” (during which Union law shall continue to be “applicable to and in” the UK) ends on 31 December 2020 (Article 126), unless extended by the Parties by way of a decision of the Joint Committee before 1 July 2020 (Article 132).  Although Article 132 WA provides for the possibility of an extension of the transition period for “up to 1 or 2 years”, the UK Government has repeatedly stated that the transition period will not be extended.  Moreover, a prohibition on the Government agreeing to an extension of the implementation period has been written into UK law, in the form of section 15A of the European Union (Withdrawal) Act 2018 (as inserted by section 33 of the European Union (Withdrawal Agreement) Act 2020).

With the aim of concluding an agreement before the end of 2020, in their Political Declaration of 19 October 2019, the UK and the EU had envisaged a series of rounds of negotiations during the first six months of 2020, culminating in a high level meeting in June 2020 to “take stock of progress” (paragraph 141).  In its recently published “Approach to Negotiations”, which we discuss in our latest Brexit Insight, the UK Government states that it hopes for the broad outline of the agreement to be in place by June 2020 and finalised by September 2020 (Introduction, paragraph 9).  In the light of this, the UK and EU agreed on five rounds of negotiations to take place between 2 March and 16 May 2020, as set out in the Terms of Reference on the UK-EU Future Relationship Negotiations of 28 February 2020.

The first round of negotiations was held, as planned, in Brussels between 2 and 5 March 2020.  However, the coronavirus crisis caused the postponement of the second round, which had been due to start in London on 18 March.  The pandemic has also personally impacted the representatives of the two parties involved in the talks, as Michel Barnier, the Head of the Task Force for Relations with the UK, has been diagnosed with the virus, while his UK opposite number, David Frost, is reported to have symptoms and has gone into self-isolation.  The UK’s Prime Minister Boris Johnson also tested positive for COVID-19, and is therefore undergoing a period of self-isolation.

According to the European Council’s latest statement, both sides are willing to continue the negotiations despite the circumstances, and are currently exploring alternative ways to do so, including the use of video conferencing.  On 18 March 2020, the European Commission published a draft legal agreement covering the future EU-UK partnership, and as the European Council has stated, “substantive work on the draft legal texts by both parties will continue in the weeks ahead”.  According to a letter sent by the Chancellor of the Duchy of Lancaster (Michael Gove) to the Chair of the (House of Commons) Committee for the Future Relationship with the EU on 31 March 2020, the UK also shared (in confidence) a draft text with the EU.  He indicated that the “structure of negotiations is likely to change to reflect the current situation” and that the UK was “exploring flexibility in the structure for the coming weeks”.

Despite pleas from one European Parliament group, the European People’s party, to extend the transition period and give the two sides more time to negotiate their future partnership, the UK Government appears to be sticking, for the time being, to its existing commitments.  Indeed, if the Government were to change its position on timing and look to agree an extension to the transition period in the light of the interruptions caused by the crisis, it would require a change in the law and therefore the consent of the UK Parliament.  The next round of negotiations, which will be held via videoconference, was due to commence today, Monday, 6 April 2020.

 

The European Council’s overview of the current status of the negotiations is available here.

The terms of reference on the UK-EU negotiations, including the agreed timetable, jointly published by the European Commission and the UK Government on 28 February 2020, are available here.  The joint statement of the UK and EU negotiators of 12 March 2020 on the postponement of the second round of negotiations is available here.  The official information on the first round of negotiations held between 2 and 5 March 2020 in Brussels is available here.  The letter from Michael Gove MP to the Committee for Exiting the EU is available here.

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