It may seem tortuous to view the COVID-19 pandemic through the prism of European Union law at this time, but with the Brexit transition period due to expire on 31 December 2020 (article 126 of the Withdrawal Agreement), the two are inevitably linked. The unbelievable and dreaded twin economic consequences aside, is it in the UK's and EU's interests to stick to that deadline or to see it slip into 2021 and perhaps beyond?
COVID-19 offers a fascinating glimpse into what countries can and cannot do when faced with a life-defining crisis. The limitations on a country or a political union reacting nimbly will be exposed. In the UK, those limitations have been most keenly felt around the provision of personal protective equipment (PPE), testing kits and ventilators. In the EU, while member states share patients across borders and coordinate the public procurement of some equipment, one additional flashpoint concerns the role of the European Central Bank in propping up the fracturing EU economy.
Legacy of EU law
One thing that unites the UK and the EU, however, is that they share the same laws in some of the key areas that we are reliant on to combat the virus.
For example, getting PPE to market urgently is a matter regulated by EU law (Regulation (EU) 2016/425). If you are a distillery and want to turn your hand to making alcoholic based hand gels and sanitisers, it is likely to the Biocidal Products Regulation 528/2012 that you turn, specifically article 55(1) which expressly permits member states to derogate from the rules. Similarly, if you want to ramp up production of a new surgical mask which is intended to protect a patient or an NHS worker, Directive 93/42/EEC (soon to be replaced by Regulation (EU) 2017/745) will explain how you can do so as a matter of urgency.
The UK still has these rules and regulations on its statute book. The Health & Safety Executive is currently and actively relying on article 55, for example, to help get much needed alcohol-based sanitisers to market. Those rules will still be there up to and beyond 31 December 2020, as they will grandfathered over and it is unlikely that they will be subject to any significant change in the short term thereafter.
Barriers to extension
The live question is whether it is in the mutual interest of the UK and EU for the end of the transition period to be delayed. Even if politically the will exists, there are two procedural and legislative obstacles in the way.
An extension of no more than two years can be asked for once and only once. If it is, it must be agreed to by joint consent of the “Joint Committee” by 1 July 2020 (articles 132 and 166 of the Withdrawal Agreement). That decision would have to reflect agreement also on the UK’s financial contribution to the EU budget for the extended period. A decision can be taken electronically – there is no need for a physical meeting to take place (rule 4.2 of Annex VIII of the Withdrawal Agreement).
Before any decision agreeing to an extension of the transition period can be taken in the Joint Committee, s 15A of the EU (Withdrawal) Act 2018 (as amended) must be repealed by an Act of Parliament. That section prohibits UK ministers from agreeing to an extension. A repeal can now be enacted as the UK Parliament returns from its recess. However, electronic voting is yet to be facilitated and with COVID measures still in place, it is unclear how any Act would proceed through both Houses of the UK Parliament prior to 30 June.
If the date holds?
The alternative is to continue as we are and for the transition period to end on 31 December 2020. Again, whether we have sufficient time and capacity, given COVID, to reach an agreement (a comprehensive one?) on our future trading terms and other aspects of our relationship with the EU is not evident.
What is clear, though, from the perspective of combatting COVID, is that all the rules that we are currently dependent on to get emergency PPE, hand gels, ventilators etc to market will remain in place for the foreseeable (short term: one year) future.
That having been said, leaving the date at 31 December 2020 does raise a few questions, in particular if we face a second wave of COVID in the autumn/winter:
- If no comprehensive free trade deal is struck, will there be trade barriers including, for example, customs duties on PPE/hand sanitisers/ventilators (etc) that would otherwise have come in more cheaply and with less paperwork from the EU?
- Will we no longer be invited to take part in intra-EU collective projects such as on public procurement?
- Will the Health & Safety Executive (for biocides) and the Medicines & Healthcare Products Regulatory Authority (for medical products) really be fully functioning and budgeted and staffed by that time to cope with another influx of emergency applications in addition to the workload they will anyway have in replicating EU rules as per the Withdrawal Act of 2018 (as amended)?
Economics aside, at least we have the legal certainty of tried and tested EU law (whether as part of an extended transition period or as grandfathered).
And just as importantly, we have lawyers who know how to use those laws and work those procedures.
Peter Sellar, Belgian Bar, A List; non-practising advocate at Faculty of Advocates; partner, EU Regulatory team, Fieldfisher Belgium
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