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Brexit transition period
The European Union (Withdrawal Agreement) Act 2020 has passed parliament and therefore the UK will leave the EU on 31 January 2020. Under the negotiated withdrawal agreement, the UK–EU relationship will enter a transition period from 1 February.
During the transition period the EU will treat the UK as if it were a member state, except that the UK will not participate in EU institutions and governance structures.
One exception to this rule is that UK experts can attend working group meetings when the discussion concerns acts applying to the UK during the transition period and/or where the UK’s presence is “necessary and in the interest” of the EU. These experts will not have voting rights.
The UK will be bound by obligations stemming from the EU’s international agreements during transition, but can negotiate, sign and ratify international agreements in the areas of EU exclusive competence provided those agreements do not come into force during the transition period.
The Court of Justice of the European Union (CJEU) retains jurisdiction over the UK during the transition period.
Mutual recognition of professional qualifications
Article 27 of the withdrawal agreement covers requalification into host country profession under Article 10 of the Lawyers Establishment Directive and under Title III of the Mutual Recognition of Professional Qualifications (MRPQ) Directive.
Qualifications that have been recognised by the end of the transition period will continue to have effect after the end of the period.
For ongoing procedures in recognising qualifications, Article 28 provides for applications introduced before the end of the transition period. During this time, the same rules apply, meaning individuals need to have been registered as registered European lawyers (RELs) in a particular jurisdiction for at least three years by the end of the transition period in order to be able to requalify in that jurisdiction.
In the UK, the Solicitors Regulation Authority (SRA) will stop accepting applications to register as RELs on 1 February 2020, but those already registered as RELs will be able to apply for requalification until 31 December 2020.
Ongoing civil judicial cooperation
The Rome I and II Regulations on the law governing contractual and non-contractual obligations will apply to contracts concluded before the end of the transition period, and in respect of events which occurred during the transition period which give rise to damages.
The Brussels Regulation and other rules on jurisdiction will apply to proceedings taken before the end of the transition period.
On the recognition and enforcement of judgments, the Brussels Regulation applies to proceedings taken before the end of the transition period. It also applies to registered instruments and court settlements that are approved or concluded before the end of the transition period.
The same applies to Brussels IIa, the Maintenance Regulation, and to European Enforcement Orders (provided that the certification as a European Enforcement Order was applied for before the end of the transition – Article 67).
For ongoing judicial procedures (Article 68), the Service of Documents Regulation and the regulation on the taking of evidence will apply to judicial documents received and requests received before the end of the transition period.
The regulation on the mutual recognition of protection measures in civil matters will apply to all certificates that have been issued before the end of the transition period.
Similarly, the Insolvency Regulation will apply to insolvency proceedings provided that the main proceedings were opened before the end of the transition period.
Provisions on ongoing cases
The CJEU has jurisdiction in all cases brought by or against the UK before the end of the transition period. This also applies to appeals before the European Court of Justice (ECJ) and cases before the General Court when the case is referred back to the General Court by the ECJ.
The CJEU can decide on preliminary rulings referred to it before the end of transition.
The Commission can take proceedings against the UK up to four years after the end of the transition period if the UK has not fulfilled its obligations under the treaties or implemented an EU decision during the transition period.
Article 90 sets out the UK’s rights to intervene in a case of concern to it in the CJEU.
Representation of lawyers at EU courts
UK lawyers have the right to continue to represent a party in proceedings before the CJEU in all stages of proceedings, in relation to the proceedings mentioned above.
Ongoing intellectual property rights
Article 54 provides for the automatic transfer of an EU intellectual property right into an equivalent UK right where the right was granted or registered before the end of transition.
Geographical indications granted in the EU before the end of the transition period will be protected in the UK at the end of the transition, without need for re-examination (also Article 54).
Registration of intellectual property rights in the UK will be free for rights holders and will be carried out by the UK authorities using data from the EU Intellectual Property Office (Article 55).
Where a right is exhausted in the EU before the end of the transition period, exhaustion will also apply in the UK (Article 61).
The dispute resolution mechanism and institutional arrangements
The Joint Committee will oversee everything and is a forum for both the UK and the EU to settle disputes at the political level.
If a dispute cannot be settled through the committee within three months, the EU or UK can request the establishment of an arbitration panel through the International Bureau of the Permanent Court of Arbitration.
The new Independent Migration Authority in the UK will monitor the application of the provisions on citizens’ rights in the UK. It will have powers similar to the Commission’s current powers in this area.
The Independent Migration Authority can bring legal actions to UK courts where it receives complaints from EU citizens on the basis of the provisions of the withdrawal agreement.
A specialised committee on citizens’ rights reporting to the above Joint Committee will review the Commission and Independent Migration Authority’s work on a yearly basis. After eight years, the Joint Committee can directly assess the Independent Migration Authority’s work and can at that point abolish it.
Furthermore, the UK courts can refer cases to the CJEU for eight years after the end of the transition period (Article 158). However, this part does not contain any provision on the right for UK lawyers to represent clients in front of the court.
The Joint Committee ultimately oversees the Independent Migration Authority’s work.
EU Legal Professional Privilege
We've created guidance to reflect ongoing discussions on EU legal privilege for UK practitioners, especially those operating in the EU as Third Country lawyers following the end of the transitional period.