Brexit: Is there anything beyond regulation?

Tue 26 September 2017, Philippe Ropenga

On 21 August 2017, the UK government released a position paper about Continuity in the availability of goods for the EU and the UK. It deals with circulation of goods and services sold with goods between the EU and the UK. Some of you may wonder why I chose to write a post on a position paper dealing with regulation after my posts on cross-border estates, successions, dispute resolution and legal practice. This is a very good question. Since in French law, trusts do not exist, a practitioner practising in this field has to master contract and property law. Hence, circulation of goods has something to do with contracts, property, and international law.

Furthermore, this position paper reflects the nature of the Brexit process. Some issues are addressed (1), while some are set aside for later consideration (2).

1 Issues addressed

The main idea seems to be business as usual. It indeed is important to avoid unnecessary administrative formalities (1.1), and to maintain the cooperation between the UK and the EU through Brexit (1.2).

1.1 The administrative intricacies

— Circulation of goods that are already on the market should not be altered¹. — Services that are being supplied with good should still be available². — No new administrative requirements should be imposed on good suppliers on top of the existing rules(3).

1.2 The cooperation between the UK and the EU

To achieve these objectives the UK and the EU should cooperate as they have done so far to ensure that goods comply with the relevant regulations⁴. It seems that, as far as good circulation is concerned, the UK wishes to reduce any effect that Brexit may have. This certainly is good for business. Crucial issues however still need to be addressed.

2 Questions unanswered

The Irish border is a thorny issue (2.1) since the future relationship between the UK and EU (2.2) has yet to be defined.

2.1 The spectral Irish border

As mentioned in the position paper, The UK shares only one land border with the EU, that of Northern Ireland⁵. A hard border would disrupt the bonds between the UK and Ireland as well as the relationship between the UK and the EU. Nevertheless, not restoring any border between the UK and Ireland could be perceived as a lack of consideration for the British people. Brexiters certainly are more concerned about borders and migration control than about trade and compliance. The only thing sure so far is that the UK Prime Minister does not want a hard border to be introduced⁶. The uncertainty about the Irish border does not only show that borders are a complex question that one tends to forget in a world where freedom of circulation prevails. It also shows that is easier to deal with highly technical issues than to define a common European project that satisfies the aspirations of peoples across Europe.

2.2 The relationship after Brexit

Brexit seems to be a transitional process aimed at preserving regulatory unity across Europe. It is a "starting point"⁷. No one can tell what will happen after Brexit. This is why practitioners and clients should focus on finding solutions by relying on ADR that provide tools to achieve effective justice in uncertain times.

In brief, when it comes to trade, the EU offers unparalleled opportunities that have to be preserved. The Brexit process therefore is focused on dealing with highly technical issues that are negative consequences of the UK withdrawal. This requires to spend a lot of time tackling thorny regulatory difficulties, but it does not allow to step back to consider the nature of the EU-UK relationship in the future. Practitioners therefore have to invent and implement solutions that are the most convenient for them under the Brexit perspective.

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