Brexit: The fog is now clear – the UK is not extending the transition period

Until now, it was possible, but not very likely, that the UK would seek an extension of the Brexit transition period beyond the current deadline of 31 December 2020.

An extension would allow both sides some much-needed extra time to agree the complex and complicated arrangements which would govern the EU-UK relations after the transition period ends.

The transition period was already very short, it is only 11 months. This period was even shorter than originally envisaged because the UK left the EU later than the country had originally planned. Either way, 11 months to conclude a comprehensive agreement (including a trade agreement) is too short. For example, negotiations started on a much simpler EU-China trade agreement six years ago and those talks are still underway.

There was a possibility under Article 132 of the Withdrawal Agreement for the UK and the EU to agree that there would be an extension to the current EU-UK negotiations. Given the tragic COVID-19 Crisis, an extension would have seemed reasonable and justifiable to many observers. The deadline under the Withdrawal Agreement for agreeing an extension is 11pm UK time on 30 June 2020.

However, any expectation that there would have been an extension has been quashed – at least for now - by the UK. The UK has made it clear to the Joint EU-UK Committee meeting on 12 June 2020 that the country does not want the transition period to be extended.

The Joint EU-UK Committee is responsible for overseeing the implementation of the application of the existing Withdrawal Agreement. The Committee is co-chaired by the European Commission's Vice President Maroš Šefčovič and the UK's Chancellor of the Duchy of Lancaster Michael Gove.

The Joint Committee held its second meeting on 12 June 2020. It was a video conference call meeting but had it been a face to face meeting, the result would have been no different.

There is now less than six months left to agree the unprecedented and complex agreement between the EU and the UK. There is a real risk that mistakes will be made when agreements are rushed. It is ironic therefore that part of the Joint Committee's agenda for its second meeting was to correct ten mistakes (albeit minor) in the Withdrawal Agreement. The latter agreement had been in gestation for three and a half years – it is difficult to imagine any more elaborate and complex agreement hammered out over 11 months will be error-free.

It is always possible (though a new regime would have to be adopted) that an extension would be agreed outside the context of the Withdrawal Agreement but such a fudge could be challenging from a legal perspective.

On the implementation of the Ireland/Northern Ireland Protocol to the Withdrawal Agreement, the European Commission emphasised at the Joint Committee meeting that as of 1 January 2021, the UK must meet all the Protocol's requirements. While the EU welcomed the UK's paper of 20 May 2020 on its approach to implementation, the EU does not consider that the paper provided sufficient detail. Northern Ireland will remain a challenging issue.

Both the EU and the UK have now agreed to accelerate the implementation of the withdrawal agreement and to accelerate the work of the Joint Committee. In that context, the Joint Committee decided that it should meet again in early September 2020 – in three months' time. (One is tempted to ask when the Committee would have otherwise met had it not decided to accelerate its work.)

For more information on this topic please contact Dr Vincent Power, Partner or any member of A&L Goodbody's EU, Competition & Procurement team.

Date published: 15 June 2020