Brexit negotiations: recent developments

The EU expects the negotiations to take place in three phases: withdrawal, future relationship and the transition phase.

Withdrawal phase

The Brexit negotiations on the withdrawal phase started on 19 June 2017. The second, third, fourth and fifth rounds of negotiations were in July, August, September and October respectively. On 03 October 2017, the European Parliament adopted a non- legislative resolution noting that it did not believe that sufficient progress had yet been made on the three key issues of: citizens’ rights, the UK’s financial settlement and the Republic of Ireland/Northern Ireland border.

On 20 October 2017, the European Council concluded that sufficient progress had not yet been achieved in Brexit negotiations on the withdrawal matters (phase one) to begin discussions on the future relationship phase (phase two). The European Council said it would reassess the state of progress at its next meeting on 14-15 December 2017, but meanwhile invited the Council of the European Union (Council) and European Commission to start internal preparatory discussions for phase two. The sixth round of talks was held on 09 and 10 November 2017.

On 08 December 2017, a Joint Report from the negotiators of the EU and the UK Government on progress during phase one of negotiations, which was jointly endorsed by Prime Minister Theresa May during a meeting with President Jean-Claude Juncker, was published. The Joint Report was accompanied by a European Commission Communication to the European Council on the state of progress of the negotiations and an updated joint technical note on citizens' rights.

On 15 December 2017, the European Council announced that the EU27 leaders agreed that sufficient progress has been achieved in the first phase of the Brexit negotiations. On this basis, they adopted the draft guidelines to move to the second phase of negotiations where they will also start discussions on: a transition period and the framework for the future relationship.

Second phase

On 20 December 2017, the European Commission sent a Recommendation to the Council on additional negotiating directives for this phase of the negotiations. On 29 January 2018, the General Affairs Council (Article 50) adopted a Council Decision and supplementary negotiating directives for the Brexit negotiations which set out the EU27's negotiating position on a possible transitional period. These are based on the Commissions’ recommendation and include that:

  • there should be no “cherry picking” - the UK should continue to participate in the customs union and the single market (with all four freedoms)
  • all EU law should continue to apply as if the UK were still an EU member state, including any changes made to EU law during any transition period
  • all existing Union regulatory, budgetary, supervisory, judiciary and enforcement instruments and structures will apply, including the competence of the Court of Justice of the EU
  • but the UK would be a third country as of 30 Mach 2019 and would not be able to participate in any of the EU institutions, agencies, bodies or offices, and
  • the transition period needs to be clearly defined and precisely limited in time and should not last beyond 31 December 2020. Consequently, the provisions on citizens' rights in the Withdrawal Agreement should apply from the end of the transition period.

Negotiations were held on 06 to 09 February and 26 to 27 February 2018.

Withdrawal Ageement

On 28 February 2018 the European Commission published the draft Withdrawal Agreement between the EU and the UK, together with a Q&A factsheet. The draft Withdrawal Agreement is in six parts, which include introductory provisions, provisions on: citizens' rights; other separation issues such as goods placed on the market before the withdrawal date; the financial settlement; transitional arrangements, and institutional provisions, and a protocol on Ireland/Northern Ireland.

See “European Commission publish draft Withdrawal Agreement: impact on civil jurisdiction and judicial cooperation” for some initial observations on those articles in the draft Withdrawal Agreement that are particularly relevant to the recognition of English choice of law and court clauses, English judgments and the authority of the Court of Justice of the European Union.

On 15 March 2018, following discussion of the 28 February 2018 draft with the Council and the European Parliament's Brexit steering group, the European Commission published an amended draft Withdrawal Agreement and submitted it to the UK government for negotiation.

On 19 March 2018, the UK government and the European Commission published a draft Withdrawal Agreement which includes the legal text agreed by the negotiators on the post-Brexit transition period. The transition period is expected to start when the Withdrawal Agreement comes into force (30 March 2019) and to end on 31 December 2020.

Future EU/UK relationship

On 23 March 2018, the European Council adopted new negotiating Guidelines for discussions on the framework for the future relationship between the EU and the UK. These guidelines set out the EU27's position on the elements that it would like to see included in the future EU/UK relationship, including a free trade agreement. These guidelines supplement the European Council guidelines of 29 April 2017 and 15 December 2017.

On 4 May 2018, the Department for Exiting the European Union and the EuropeanCommission jointly published a document setting out the topics for discussion in the negotiations on the framework for the future UK-EU relationship. The document sets out the discussions under four headings:

  • Basis for cooperation, which includes discussions on governance, dispute settlement and participation and cooperation with EU bodies.

  • Economic partnership, which includes discussions on goods, customs, agricultural, food and fisheries products, services and investment, financial services, digital and broadcasting, transport, energy, and the mobility framework.

  • Security partnership, which includes discussions on law enforcement and criminal justice; foreign, security and defence; and wider security issues.

  • Cross cutting cooperation and standalone issues, which includes discussions on data protection; co-operative accords in science, innovation/culture and education; and fishing opportunities

On 12 July 2018, the UK government published a White Paper on the future relationship between the UK and the EU including a proposal for the establishment of an economic partnership between the UK and the EU. It clarified that the future relationship is likely to consist of a number of separate agreements (many of which will facilitate trade in services) most of which will sit within a new institutional framework.

On 24 July 2018, another White Paper was released by the UK government which provides further details on how the government intends to implement the Withdrawal Agreement (once agreed) into domestic law. The government is continuing to plan for all eventualities, including a “no deal” scenario (under which there would be no Withdrawal Agreement, and no transition period), until the Withdrawal Agreement is in place.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.