Britain's new relationship with Europe: what could the future look like?
This article provides an overview of the implications of the withdrawal process of the UK from the EU, together with a summary of the possible opt-out options.
The immediate consequence of the UK's vote to leave the EU on 23 June 2016 has been to unleash a period of uncertainty for businesses in the UK and for their trading partners in the EU and elsewhere. In the midst of this, it is important to consider the implications of legal and regulatory change, insofar as this is possible pending the start of negotiations with the EU and other countries.
Background to the referendum
Although the UK has been a member of the EU since 1973 and been allowed opt-outs from adopting the euro and joining the Schengen border-free area, as well as in the areas of justice and home affairs, deep-rooted anti-EU sentiment within the Conservative party led to the pledge to hold a referendum in the party’s 2015 general election manifesto. The then Prime Minister David Cameron promised that the referendum would be held after reforms of the EU had been agreed. But despite his attempts to broker certain limited concessions from the EU, the UK voted by a clear majority to leave the EU.
There is no formal procedure under UK law for the government to initiate the process for withdrawal. For example, there is no fixed period within which the government must serve the notice which starts the process for withdrawal set out in Article 50 of the Treaty on European Union (Article 50) (the government's current plan appears to be early 2017).
Article 50 allows an EU member state to serve an irrevocable notification of its intention to leave the EU to the European Council. Following a withdrawal notification, there is a two-year negotiation period in which to conclude a withdrawal agreement.
A withdrawal agreement must be approved by the European Parliament and a qualified majority of the Council, excluding the withdrawing member state. To the extent that the terms of the withdrawal agreement involve provisions about the UK's future relationship with the EU that are outside the EU's own competence or otherwise require the EU treaties to be amended, the consent of all the remaining member states will also be required.
Withdrawal takes effect on the earlier of the date of conclusion of a withdrawal agreement or the date two years after the initial notification to the Council, unless the Council and the withdrawing member state agree an extension. It is therefore possible, at least in theory, that withdrawal could occur at the end of the two-year period without an agreement having been concluded.
The purpose of the withdrawal agreement is:
To set out the arrangements needed for the withdrawal of a member state, including the steps needed to unravel the huge range of budgetary, legal, political and other obligations that exist between the EU, its institutions and the UK.
To consider the framework required for the withdrawing member state’s future relationship with the EU.
Where rights and obligations are being terminated, transitional arrangements may be needed to avoid unnecessary disruption to existing arrangements.
Legal implications of withdrawal
The implications for the UK's own laws of leaving the EU are considerable:
EU treaties, directives, directly effective decisions and regulations, and rulings of the European Court of Justice will cease to apply to the UK, unless their effect is specifically preserved by UK national law.
The EU courts will no longer have jurisdiction over the UK, and UK citizens will no longer have the rights of EU citizens.
The UK will no longer be entitled to participate in agencies such as the European Supervisory Authorities in relation to financial services (comprising the European Banking Authority, European Securities and Markets Authority and European Insurance and Occupational Pensions Authority). The UK may also have to leave a large number of EU technical working groups and other bodies in which it currently participates.
EU agencies that are based in the UK, such as the European Medicines Agency and the European Banking Authority, will presumably be relocated to an alternative EU location and the position of the many organisations and projects supported by EU funding will be uncertain.
In many areas, UK law is heavily derived from EU law and the way in which EU law provisions have been implemented into UK law is very complex, often involving a combination of amendments to existing primary legislation, new primary legislation, secondary legislation and other rules, such as the rules of the Financial Conduct Authority and the Prudential Regulation Authority in relation to financial services.
For at least a transitional period, assuming that there will not be a desire or capacity to rewrite UK law from scratch, provisions derived from EU law will probably be retained and directly effective EU regulations deemed to continue. However, it will still be necessary to ensure that these laws function properly in the new situation. For example, where EU institutions have direct administrative powers, these will need to be replaced by alternative arrangements, and the scope and meaning of legislation or rules referring to the EU may need to be clarified.
Similarly, businesses and other organisations and individuals will need to consider their own private contractual or other arrangements to ensure that they still operate as intended in the changed circumstances, or whether they need to take steps to change anything as a result of the different political climate and any consequential commercial impact on their affairs.
A new relationship?
There is no comparable example of a member state leaving the EU. In the absence of any precedent, a number of different models of relationship with the EU could be considered (see box “Opt-out options”).
However, there are drawbacks to all of the existing models, so it seems most likely that the UK will need to form a new kind of relationship with the EU and other member states.
As well as negotiating a new relationship with the EU, the UK is likely to seek to put in place trade arrangements with other non-EU countries with whom it currently deals on EU negotiated terms. Since the EU has exclusive competence in the area of trade policy, the EU’s existing trade agreements with third countries are entered into by the EU as a bloc rather than by the individual member states, and so the UK will not, unless otherwise agreed, continue to participate in them on withdrawing from the EU.
Any new trade agreements with existing EU trade partners, or other third countries, will require separate negotiations with the relevant countries. The UK alone may not have the same negotiating power as the EU, which represents a much larger market, so both the timing and terms of what future arrangements might be achieved are difficult to predict. On the other hand, negotiating as a single country, rather than to meet the interests of 28 member states, is likely to be a more straightforward task, all things being equal.
Key issues for businesses
Withdrawal from the EU will be a complex, lengthy and uncertain process. In developing a new relationship, much will depend on the attitude that the EU and other countries take to a post-withdrawal UK and how co-operative all parties choose to be.
Disentangling the UK from EU law and regulation will raise many detailed technical issues. Businesses that are affected by the UK’s membership of the EU will need to consider the implications (and, already in some cases, the reality) of uncertainty and potential change on their operations and strategy.
Key issues include:
Product sales or supply chains that span the EU or other countries with which the EU has trade agreements.
The provision of services in reliance on EU passporting regimes or other forms of mutual recognition of qualifications or standards.
The employment of workers from the EU in the UK, or vice versa.
Businesses also need to consider the impact of the UK’s withdrawal on a range of other areas, including free movement of capital, data protection rules, competition and consumer policy, research and development, energy policy, environmental laws, agriculture and fisheries, and regional aid.
Of less direct impact on businesses, but also of importance, will be the implications for criminal and civil judicial co-operation, and foreign and defence policy.
Lucy Fergusson is a partner at Linklaters LLP.
Now the UK has voted to leave the EU, it could look to a number of other models on which to develop a new relationship with the EU, although the newly formed Department for Exiting the European Union is likely also to be considering various forms of bespoke arrangements.
The EEA, which encompasses the EU, Norway, Iceland and Liechtenstein, enables Norway, Iceland and Liechtenstein to enjoy the benefits of the EU’s single market and free movement of goods, services, people and capital without the full privileges and responsibilities of EU membership. The non-EU EEA member states are required to adopt much of EU law and contribute to the EU budget but do not have voting power or formal access to the decision-making process.
The Swiss model
Switzerland has concluded a large number of bilateral agreements with the EU to give it access to the single market. The agreements provide for the free movement of goods and people but not services. Swiss goods must meet EU regulatory requirements and Swiss law must be considered equivalent to corresponding relevant EU legislation.
The Swiss financial contribution to the EU is much lower than that of the non-EU EEA member states. The EU has concluded that the Swiss model is not viable in the longer term and has stated that a framework agreement along the lines of the EEA agreement will need to be agreed in the future with Switzerland.
Turkey is part of a customs union with the EU which allows for tariff-free access without quotas to the internal market for goods but not services. It has, to a large extent, control of its own trade policy and does not have to allow for the free movement of EU persons. It is required, however, to adopt a common tariff with the rest of the EU for third-country goods and is restricted in its ability to conclude agreements with other countries without EU consent. Turkey is required to harmonise its laws with those of the EU in relation to, among other things, competition, intellectual property and consumer protection.
Free trade agreement
A number of countries, for example, Singapore and Canada, have standalone free trade agreements with the EU. The ability to export services, in particular financial services, may not be easily achieved through a free trade arrangement, as these tend to be designed for trade in goods not services. This would be a disadvantage for the UK, which is a significant exporter of services, particularly financial services.
World Trade Organization
The UK is already a member of the World Trade Organization (WTO), although as with all the member states, the EU currently acts on its behalf at WTO level.
If the UK were to trade with the EU as a WTO member but not as an EU member state, it would control its own trade policy, it would not have to allow for free movement of persons and would not need to contribute to the EU budget. EU law would not apply in the UK. UK exports to the EU would, however, face tariffs and exporters would continue to need to meet EU product standards. The WTO offers little protection to exporters on an individual basis as there is limited ability to enforce its rules.
The WTO arrangements are of less benefit in the area of services so this would be a disadvantage for the UK.