Today is Brexit Day. The United Kingdom is leaving the European Union. It might be worth looking at what changes as of midnight today. Spoiler alert: Practically speaking, not much. Article 126 of the Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (Withdrawal Agreement; WA) is short and straightforward: “There shall be a transition or implementation period, which shall start on the date of entry into force of this Agreement and end on 31 December 2020.”
The Transition Period until 31 December 2020 – Plus ça change, plus c’est la même chose
Article 127 (1) WA is also sweet and simple: “Unless otherwise provided in this Agreement, Union law shall be applicable to and in the United Kingdom during the transition period.”
Article 127 (3) WA explains the concept: “During the transition period, the Union law applicable pursuant to paragraph 1 shall produce in respect of and in the United Kingdom the same legal effects as those which it produces within the Union and its Member States, and shall be interpreted and applied in accordance with the same methods and general principles as those applicable within the Union.”
And for the avoidance of doubt, paragraph 6 states what appears to be the obvious: “Unless otherwise provided in this Agreement, during the transition period, any reference to Member States in the Union law applicable pursuant to paragraph 1, including as implemented and applied by Member States, shall be understood as including the United Kingdom.” The German legislators have mirrored this provision both on federal level (see Gesetz für den Übergangszeitraum nach dem Austritt des Vereinigten Königreichs Großbritannien und Nordirland aus der Europäischen Union – BrexitÜG) and on the level of the federal states, see for example the Bavarian Bayerisches Brexit- Übergangsgesetz – BayBrexitÜG, to make sure that references in federal and state law to an EU member state is construed as including the United Kingdom.*
The remaining parts of Article 127 and Article 128 detail exceptions to these principles. But none of these appear to be relevant to the parts of Union law that concern us on this blog, that is, with respect to international civil procedural law and private international law.
After the End of the Transition Period – Pending Matters
Wirth respect to these areas of Union law, the Withdrawal Agreement contains transitional provisions. The guiding principle is that Union law shall continue to apply to matters that arose before the end of the Transition Period (that is, before 31 December 2020, unless the Transition Period is extended). In particular:
- The Rome I and Rome II Regulations (Regulations 593/2008 and 864/2007) will apply to determine the applicable law in contractual and non-contractual matters if the contracts were concluded, or the events giving rise to damage occurred before the end of the transition period (Article 66 WA).
- The Brussels Regulation will apply to proceedings that were commenced before the end of the transition period (Article 67 WA).
- The EU Service Regulation and Taking of Evidence Regulation will apply where the relevant document for service or request for the taking of evidence was received before the end of the transition period (Article 68 WA).
- Article 86 provides for the continuing jurisdiction of the European Court of Justice for the purposes of preliminary rulings on requests from United Kingdom courts made before the end of the transition period. Article 89 WA provides that those rulings will be binding in the United Kingdom.
After the End of the Transitional Period – New Matters
What rules will apply to new matters that arise after the end of the Transitional Period and are outside the scope of the transitional provisions will depend on the outcome of the negotiations between the European Union and the United Kingdom. It looks pretty much as if we will be kept in suspense until the cliff edge on 31 December 2020 to find out what Brexit really means. This is what we know today:
Private International Law
The United Kingdom has incorporated the content of the Rome I and Rome II Regulations into domestic law by virtue of the The Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc.) (EU Exit) Regulations 2019, which will take effect upon the expiry of the transition period. So at least initially, the United Kingdom and the European Union will apply the same rules. The two bodies of law could, however, start to diverge from their common starting point, be it by virtue of EU legislation that the United Kingdom does not mirror, or as a result of diverging interpretations of the law in the courts of the United Kingdom on the one hand and the European Court of Justice on the other hand, since the latter’s jurisprudence will no longer have binding effect in the United Kingdom.
This is from the Regulation’s Explanatory Note:
“Regulation 3 amends the Contracts (Applicable Law) Act 1990 (c. 36), which implemented the 1980 Rome Convention on the law applicable to contractual obligations, to which the United Kingdom will no longer be a contracting party after exit day. The amendments convert the rules in that Convention into domestic law. These rules continue to apply, in particular, to contracts entered into between 1st April 1991 and 16th December 2009. (…)
Part 3 amends various secondary legislation which give effect in England and Wales, Northern Ireland and Scotland to Regulation (EC) No 593/2008 on the law applicable to contractual obligations (“Rome I Regulation”) and Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations (“Rome II Regulation”). These amendments are consequential on the amendments being made to retained EU law by Part 4 of these Regulations.
Part 4 amends retained EU law consisting of the Rome I Regulation and Rome II Regulation, and revokes Regulation EC No 662/2009 which establishes a procedure for the negotiation and conclusion of agreements between EU Member States and third countries on the law applicable to contractual and non-contractual obligations.”
International Civil Procedure
Things are less clear as far as international civil procedure is concerned. If there is a “hard Brexit” after all at the end of the transition period, the fall-back position will be the various Hague Conventions to which the United Kingdom and the European Union or its member states are signatories, such as the Hague Service Convention, the Evidence Convention and – of particular relevance- the Choice of Court Convention. The scope of the Choice of Court Convention is, however, limited, and there is uncertainty as to the date from which it will apply, given that the UK currently is not a member in its own right, but only by virtue of its membership in te European Union. The United Kingdom’s accession to the Convention has been suspended until 1 February 2020.
In the meantime, practitioners will have to deal with the uncertainty. And they may want to revisit the Brexit-related case law that we have covered here before and that might be of even greater relevance, the closer we get to the end of the transition period.
A German version of this post can be found at zpoblog.de.
* This is virtually all there is in these German Brexit laws – the Federal BrexitÜG contains one additional provision to ease certain restrictions on British nationals wanting to become Germans and vice versa. As there are local elections in March 2020, the Bavarian BrexitÜG clarifies that UK nationals no longer can vote or stand in these elections.
Plus ça change, plus c’est la même chose is an epigram by Jean-Baptiste Alphonse Karr, a French writer and editor of Le Figaro, first published in the January 1849 issue of his journal Les Guêpes. “Get Ready for Brexit” is a screen shot taken from the Department for Exiting the European Union‘s website.
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