What has the EU Withdrawal Agreement done for us?

Overview

Despite leaving the EU on 31 January, the Withdrawal Agreement provides for the UK to remain in the single market until at least the end of the year as part of an agreed transitional period.  But since it is only a divorce settlement, the agreement itself does not address the future relationship between the UK and the EU.  That means that we could be faced with a no-deal scenario towards the end of this year.  That would have uncomfortable echoes of the deadlines the UK and the EU faced repeatedly in 2019, following Theresa May’s failure to win Parliamentary approval for her version of withdrawal agreement.

However, there are a number of enduring benefits of the Withdrawal Agreement, regardless of whether the UK is able to negotiate a new trade deal before the end of the transitional period. Some are more modest than others, but none should be overlooked entirely.

Clarity on the divorce bill

This is not the most popular element of the Withdrawal Agreement in the UK, but the absence of an agreement on the UK’s liabilities as an outgoing member state would have soured future negotiations with the EU, as well as making financial planning difficult on both sides of the Channel.

Certainty for citizens’ rights

The Withdrawal Agreement creates a robust framework to protect the rights of EU27 citizens settled in the UK by the end of the transitional period, and vice versa.  The absence of this bilateral framework would have made it particularly difficult for the UK to protect the accrued rights of its citizens settled elsewhere in the EU.

A framework for Northern Ireland

There are plenty of unresolved issues, but the Northern Ireland Protocol, which was substantially renegotiated by Boris Johnson, does at least set the direction of travel. Any customs checks required for goods passing between the UK and the Republic of Ireland will now take place in the Irish Sea, rather than on the UK’s land border with the Republic.

A political declaration

The Withdrawal Agreement annexes a political declaration about the future relationship between the UK and the EU which covers a wide range of matters, with both parties agreeing to use their “best endeavours” to negotiate the necessary agreements. It may be not be legally binding, but it is considerably better than starting the trade negotiations with a blank sheet of paper. 

Data Protection

A no-deal Brexit would have meant that some data transfers from the EU to the UK would have become unlawful. The Political Declaration includes a commitment on both sides to start the necessary data protection adequacy assessments as soon as possible, with the aim of completing the process by the end of 2020.  Assuming this can be achieved, it would mean that leaving the EU data protection regime at the end of the transitional period should not significantly interrupt the smooth flow of data between the EU and the UK.

Cross-border litigation

Without a withdrawal agreement, the status of proceedings that had begun, but had not been completed, at the point of the UK’s exit from the EU would have been unclear. Thanks to the Withdrawal Agreement, we know that the current EU-wide rules on enforcement of judgments will continue to apply if proceedings are commenced before the end of the transitional period. For proceedings started after that, in the absence of a new agreement with the EU, UK parties will have to fall back on the cross-border enforcement rules that apply in each individual EU jurisdiction.

Intellectual property rights

The Withdrawal Agreement also contains provisions to protect the rights of proprietors of trade marks and designs protected in the EU. A proprietor of an EU trade mark or Community design registered before the end of the transitional period will automatically gain a corresponding registered UK trade mark free of charge and without any application procedure.