Could the Brexit transition period be extended due to coronavirus (COVID-19)?

Could the Brexit transition period be extended due to coronavirus (COVID-19)?

Responding to the coronavirus (COVID-19) pandemic is impacting government priorities across Europe and beyond.

In light of COVID-19 developments and associated guidance on social distancing, UK and EU negotiating teams involved in the talks on the future relationship and Withdrawal Agreement implementation are not meeting in person in accordance with the original terms of reference, but they remain in regular contact to find alternative ways of continuing the discussions. Both the EU chief negotiator, Michel Barnier, and UK chief negotiator, David Frost, have been in isolation due to COVID-19 and were reported to have not met since the first round of talks.

The UK government has acknowledged the impact of COVID-19 on immediate priorities, but still aims to review progress in the future relationship talks in June 2020 and is sticking to the December 2020 deadline for ending the transitional arrangements. The government has repeatedly restated its commitment to the current transition timetable and insists that it will not agree to any extension to the transition/implementation period under the Withdrawal Agreement, which is due to end on 31 December 2020 (IP completion day). This was confirmed in a statement issued by the Prime Minister’s Office: ‘The transition period ends on 31 December 2020. This is enshrined in UK law’.

There are questions over how long the Prime Minister can sustain this position, taking into account increasing calls for an extension and the particular pressure the COVID-19 pandemic has placed on the UK government. Commentators suggest that an extension request from the UK is likely to be accepted and that it is more a question of when, rather than whether this will happen. For analysis, see: Coronavirus (COVID-19) puts squeeze on UK to delay Brexit.

Reminder: The Withdrawal Agreement makes provision for a possible extension by allowing the Joint Committee under the Withdrawal Agreement to adopt a decision extending the transition period by a maximum of one or two years, subject to the UK agreeing to make appropriate contributions to the EU budget from 1 January 2021. Various provisions of the Withdrawal Agreement relating to the transitional arrangements would also need to be amended to reflect an extension to the transition period.

Decisions of the Joint Committee are to be made by mutual consent. This includes any decision to extend the transition period. However, in UK law, an extension is effectively prohibited under section 15A of the European Union (Withdrawal) Act 2018 (EU(W)A 2018), inserted by section 33 of the European Union (Withdrawal Agreement) Act 2020, which prohibits any government minister from agreeing to an extension in the Joint Committee. A decision to extend the transition period must be adopted before 1 July 2020.

For further reading, see Q&A: In the context of Brexit, what is meant by the ‘transition or implementation period’?

Note: The first meeting of the Joint Committee under the Withdrawal Agreement is due to take place on 30 March 2020. European Commission Vice-President Maroš Šefčovič and Cabinet Office Minister Michael Gove, co-chairs of the Joint Committee, confirmed that they are exploring ways to proceed with the meetings, which focus on the implementation of the Withdrawal Agreement, not on the future relationship between the UK and EU.

For further reading, see Practice Note: Brexit—introduction to the Withdrawal Agreement.

Both the EU and the UK are advising stakeholders that they will need to prepare for changes to take effect on 1 January 2021 in any event. Whether there is a deal in place or not, the transitional arrangements giving the UK continued access to the EU Single Market and Customs Union will end on IP completion day, unless there is an extension to the transition period. In order for this to happen there would need to be a drastic change in government policy and primary legislation would be required to amend EU(W)A 2018.

For updates as the situation develops, see: Brexit timeline.

Further reading

We will continue to monitor Brexit-related developments and keep our content under review during the implementation period. Meanwhile, for related further reading, see: Brexit Bulletin—key updates, research tips and resources.

For further reading and guidance on the impact of Brexit across a range of practice areas, see: Brexit toolkit.

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