The Brexit Trade and Co-operation Agreement. Seeing through a glass darkly.
Written by Gillian Carrington
On Christmas Eve the UK and the EU announced the terms of the Free Trade Agreement which will govern trade relations between them after the end of the transition period on 31 December 2020. As the European Parliament is yet to ratify the agreement, at present it is in provisional application.
Some aspects of the TCA, such as the thin level of agreement in relation to the provision of services, were telegraphed in advance and should come as no surprise. Other elements, such as the low level of agreement in relation to civil justice co-operation, were less expected and should concern dispute resolution lawyers as well as anyone drafting jurisdiction and enforcement clauses.
Other provisions of note are the 4-6 month standstill agreed between the UK and EU in relation to data transfers to outside the EU (data flows from the EU to the UK will not be treated as third country transfers for this period) pending a decision on the adequacy of the UK as a third country recipient. While an adequacy decision is expected, a Schrems-style challenge before the CJEU cannot be ruled out.
Regulatory and trade lawyers will note that the Agreement allows, in principle at least, for managed divergence by the UK from EU regulation.
As the first effects of this unprecedented TCA are felt, it is clear that it will be a long time before we fully comprehend its consequences. Until then we are seeing through a glass darkly.