The EU Trade and Cooperation Agreement was agreed on 24th December 2020, eight days before the end of the Transition Period. It has been approved by the EU Commission and Council (representing the member state governments) and by the UK government.
The legislation to give effect to it has been passed into law by the UK Parliament. It has taken effect provisionally on 1 January 2021. Final approval is subject to the consent of the EU Parliament.
The EU Commission is of the view that the agreement deals only with matters within the powers of the European Union. It is of the view that it does not require approval by the individual EU parliaments.
The agreement sets up institutions made up of EU and UK representatives. Those institutions deal with ongoing issues by way of development closer cooperation and in relation to issues and disputes that may arise.
Prospectively greater enhanced cooperation may emerge over time. Future acts and decisions of the joint institutions may enhance and develop the degree of cooperation.
It is said that the agreement is “thin” or “shallow” because if relates to matters within the exclusive competence of the United European Union institutions itself. The EU institutions have exclusive competence in relation to customs matters and trade policies regarding third countries.
The European Union has extensive competence (i.e., powers in relation to the single market in goods although to some extent this is shared with member states. Therefore, the agreement deals comprehensively in with trade in goods.
The EU competence in relation to trade in service is less extensive. There are fundamental EU free rights to provide services cross-border and to establish a presence in another state. There are extensive rights for citizens to live and work in other states.
A surprising aspect of the agreement is the fact that there was no general lead in or grace period for goods’ trade. There are easements and lead ins on the UK side for at least six months. The full rules apply and the EU side immediately. This has meant that importers and exporters have had to deal with customs control since 1 January 2021.
The EU UK Trade and Cooperation agreement applies to the European Union and the territories to which the EU treaties apply and to the territory of the United Kingdom. It is also to apply to certain defined (relatively limited) extents to Guernsey, Jersey and the Isle of Man. Is not to apply to Gibraltar. It is not to apply to the overseas territories having special relations with United Kingdom
The relationship created by the EU UK Trade and Cooperation Agreement (TCA) is fundamentally different to that which applies between EU member states. Relative to European Union membership it is a step backwards and it a much more distant relationship. This follows as a consequence of the U.K.’s decision to leave the EU customs union and single market.
The Agreement is broadly similar to those between the European Union and Canada and the EU and Japan. It does go further by allowing for zero tariffs or all goods trade subject to the goods qualifying with the rules of origin. There are different provisions in relation to rebalancing and managing divergence under the level playing field provisions.
The Agreement is not a comprehensive arrangement covering all trade in goods and services between the EU and the UK. The most comprehensive coverage is in relation to goods, where the Agreement creates significant new barriers. There are general and some specific provisions in some areas. There is no comprehensive rulebook for trade between the EU and the UK.
States may enter comprehensive agreements which build on the WTO agreements. They may give enhance rights and have better enforcement mechanisms. The EU UK Trade and Cooperation Agreement builds on the basic World Trade Organisation agreements. It confirms many of the basic international trade rules. It adds to some of the core agreements.
The World Trade Organisation agreements apply between almost all states in the World. They apply in the absence of any trade agreement at all. There are both general and issue specific agreements to which most WTO members are party.
The general WTO agreement in relation to goods (GATT 1994) applies to most goods and most sectors. In contrast the WTO agreement in relation to services is (GATS) much more limited and applies only to this sectors and methods of supply that individual states themselves agree.
The rights granted by TCA are in in much less precise terms than those that apply between EU member States. There is a limited body of arbitration decisions which flesh them out and give definition to them. The permitted exceptions are themselves broad and general. Therefore, it can be much more difficult to clearly identify a breach of the rights.
In contrast, EU law create a very comprehensive detailed scheme of rights which underpins trade and business. The EU Treaties rights on trading are detailed and EU court decisions have given them real effect and substance over 60 years. In addition, there have been thousands of EU laws which give real effect to the EU single market.
The EU rights themselves are directly enforceable by individual businesses in all courts against both governments and in most cases other businesses. The extensive range of EU law automatically overrides domestic law and courts must give effect to this. States can be penalised for the commission for failure to implement EU law. Court may grant compensation were businesses suffered damage by reason of non-implementation of EU law.
The TCA is an agreement between states. It specifically confirms that in accordance with practice in treaties between states, it does not create direct rights on which citizens can arise other than where specifically stated. There are some but very few instances where the agreements create rights which are enforceable by private citizens or businesses.
If there is a breach the consequences and remedies lie largely in the area of retaliation and countermeasures. At most, a complaint is made to the EU Commission or the UK Trade Remedies Authority. There is a dispute mechanism under the TCA, but it does not involve compensation to traders and others for breach of the TCA guarantees.
The EU and UK agreed to assist each other with full mutual respect and good faith in carrying out tasks that arise from the TCA itself and further agreements. This commitment is commonly found in trade and other international agreements. Each is to take measures to fulfil their obligations were acquired under their domestic legal systems. They are not to do anything which jeopardises the attainment of the objectives of the agreement.
The EU UK Trade and Cooperation Agreement is potentially indefinite. The agreement as a whole is to be reviewed every five years. Some parts have time limits and are subject to earlier review.
Either side may terminate the agreement as a whole by 12 months’ notice. It is possible to terminate by shorter notice in relation to issues arising in certain areas in particular aviation, fishing and road transport. If the section on fisheries is terminated, it also automatically terminates the section on trade road transport and aviation.
There are provisions in the Agreement which could potentially allow greater access, improvement and development of mutual access over time, at least in some sectors.
The Agreement allows the UK to diverge from EU regulation subject to the general level playing field provisions. Breach could lead to withdrawal of some of the benefits of the Agreement.
The level playing field provisions apply to
- state aid
- competition law
- environmental compliance
- occupational health and safety
There are dispute resolution and safeguard provisions. There are special provisions as part of the level playing field rules. There is a rebalancing mechanism allowing for relatively speedy adjustment where there is divergence.
The rebalancing mechanism may be initiated where the EU or UK authorities believe that a significant divergence is impacting trade or investment between the EU and UK in a manner that changes the circumstances that formed the basis for the Agreement. Those divergences must be in the area of labour social standards environmental or sustainable development. In other areas the more general dispute resolution procedures in the agreement would apply.
The complainant party may take appropriate rebalancing measures. They must be proportionate. They may request a panel of experts to consider the matter. If they take unilateral measures to remedy the imbalance alleged by reason of the regulatory divergences, those measures may be challenged with reference to a panel of arbitrators. In this event the EU or UK as the side invoking such measures would be obliged to demonstrate that there was significant imbalance and that the unilateral measures taken in response were proportionate to remedy that imbalance.
Outside of the level playing field rebalancing provisions, the general dispute resolution provisions would apply. The dispute provisions provide for reference to a panel of arbitrators. If the panel decides that one or either the EU UK has breached its obligations and fails to comply the other party (EU UK may suspend some of its obligations, effectively withdrawing benefits of the agreement.
The safeguard provisions provide for suspension unilaterally of provisions of the agreement in response to serious economic societal or environmental difficulties of a sectoral or regional nature that are liable to persist. One month’s prior notice must be given of the intention to invoke these measures. They may be challenged by reference to arbitration. The other party may impose their own rebalancing measures provided they are proportionate.
Under the EU UK TCA is that customs duties are not to apply to goods originating in the other territory. That is to say there are to be no EU customs duties on goods originating in the United Kingdom and there are to be no UK customs duties on goods originating in the European Union. There are some exceptions in particular by way of sanction.
The requirement that the goods originating in the other territory is critical. The issue of origin is dealt with separately below and in other parts of this website. Origin has a very distinct meaning. It does not mean that the goods come from the other territory. They may be primary products from that country or manufactured products made there. They may contain a certain amount of products from other countries but there are defined limits of tolerance for those elements.
There are rules on cumulation of origin which allow a certain amount of EU or UK content to count as domestic content in the other territory for this purpose. However, certain defined minimal processing operations are not enough.
Discrimination against imported products is prohibited. Each of the EU and the UK is to afford national treatment to each other’s goods. The wording reinforces article 3 of the general agreement on trade and tariffs. Generally imported products must not be treated less favourably than similar domestic products provided the import product has entered the state of import home market.
This may of course require payment of customs duties and compliance with the conditions applicable to that category of goods in the tariff. Goods must comply with the regulations and standards of the state of import.
The EU and the UK declare freedom of transit to each other’s territory for traffic moving to and from the EU and UK or going to a third country.
Export duties and charges are prohibited. Export duties are very rare in practice.
Fees and charges (as opposed to customs duties) in relation to import and export services and formalities are limited to the actual value of services provided. Some limited categories of charges are permitted.
Import and export restrictions by way of quotas import export licences other measures are generally prohibited. This does not apply to regulations and controls on particular types of goods or other known trade -related reasons. There are also other exceptions by way of countermeasures and sanctions.
The EU and UK agree to cooperate in relation to enforcement of customs legislation. This is particularly important in the area of origin were the information about origin is certified by the seller in one state and may be relied on by the buyer to claim zero duty under the agreement.
The EU and UK are to seek to establish a single window to allow traders submit all documentation. This would be a single window dealing with customs regulatory and SPS matters. It is not a single window on both the EU and UK site. The TCA contemplates cooperation to facilitate high-volume roll-roll off traffic.
The Trade and Cooperation Agreement contemplates and provides for other cooperation between the EU and UK in relation to customs. This includes potentially allowing each other’s authorised economic operators of one, to be recognised in both jurisdictions. The TCA also contemplates cooperation on value-added tax issues.
“Origin” is a term which has a particular meaning under the EU UK Trade and Cooperation Agreement. It does not mean where the goods have last come from. Essentially it requires that the goods are primary products from the UK or the EU, have been manufactured, or at least have been subject to significant processing in the territory (EU or UK) of export.
There are many product-specific rules which depend on the tariff classification of the goods. They may require a particular type of processing or change in identity (tariff heading) or that the UK or EU originating content is less than a certain percentage of value or weight (often 50%).
The Agreement allows originating components and processing in the state / territory of import (UK or EU) to count in deciding whether goods are of origin in the state/ territory of export. However, at a minimum, there must be some processing in the place of export. Certain types of minimal processing, such as preservation operations, breaking up or assembly of packages, and simple mixing (along with other listed insufficient processes) are not enough.
The actual tariff which applies when the goods do not qualify for zero duties under the EU UK Agreement depends on the EU or GB Tariff. It may be zero in many cases so that the issue of origin will not matter. The UK has eliminated many low-level duties in the GB Tariff so that in many cases, there may be no additional duty for goods from outside the EU compared to the position in 2020.
Origin issues do not arise where goods merely pass though the GB “land bridge”, going from continental Europe to Ireland, where they have been placed under the customs transit procedure. There is no import at all and they remain EU goods at all times.
In some cases, GB distributors may be able to take advantage of rules on direct transport which allow goods to be temporarily warehoused or transhipped through a particular country without losing their origin status. Returned goods relief may be available for Irish importers. However, strict and narrow conditions apply and the rules are not primarily designed to provide relief for distributors in the state of export.
Where goods are imported from outside the EU, there is no credit for customs duties paid upon importation into Great Britain when the same goods are reimported into Ireland. There are customs procedures that UK distributors may be able to use to eliminate the double charge of duty. Once again, conditions apply.
In relation to goods regulations and standards, the EU and UK commit to using international standards as a basis for regulation, except where this would be inappropriate or ineffective for fulfilment of a legitimate objective. They are to ensure transparency.
The TCA provides an improved version of the World Trade Organisation Technical Barriers to Trade agreement system. Measures which may be a barrier to trade must be notified through the system. The other state / territory ay review comments and potentially object to the proposed measure. There are dispute resolution mechanisms by which the EU or UK can object to propose measures.
There are commitments not to discriminate. They are commitments to exchange information on product safety through the equivalent of the EU RAPEX system on dangerous products.
There is minimal easing of the burden in relation to cooperation on sanitary and phytosanitary matters. There is a Trade Specialised Committee on sanitary and phytosanitary measures which may adapt measures. There are some measures for cooperation in relation to animal health, sustainable food systems and antimicrobial resistance.
Broadly, the EU UK Trade and Cooperation Agreement does little more than build on the WTO SPS (sanitary and phytosanitary) agreement. The EU and UK commit to applying measures for achieving the appropriate level of protection based on risk assessment. They must not use SPS measures to create unjustified barriers to trade.
SPS measures and approvals are where applicable to be initiated and completed without due delay. They are not to be unduly burdensome or constitute arbitrary unjustifiable discrimination. They must be proportionate to the risks identified.
In common with most trade agreements the EU UK Trade and Cooperation Agreement provides limited guarantees only for service providers. Broadly speaking the EU and UK has granted each other’s businesses, a similar but enhanced degree of access relative to that enjoyed by businesses established in other non-EU states.
The exit of the UK from the EU brought an end to EU protected freedoms for providers in the EU and UK to provide cross-border services and establish in each other’s jurisdiction. The EU rights have been replaced by broader principles provided for under the EU Trade and Cooperation agreement. These principles are in much more general terms and are enforceable only on a state to state basis.
Existing EU systems of EU wide licensing so-called passporting is no longer available in respect of the United Kingdom for EU providers and EU providers within the European Union.
The TCA contains general principles in relation to the opening of service markets to businesses established in the other territory and antidiscrimination provisions. However, there are exceptions which apply in various member states under reservations made.
The automatic recognition of professional and other sectoral qualifications no longer applies to the United Kingdom nor to United Kingdom workers in the European Union. There are no specific provisions in the EU UK TCA requiring the mutual recognition of professional qualifications.
The TCA contemplates that professional bodies and regulators in the UK and in individual EU states may make recommendations to the Partnership Council for mutual recognition agreements which may be adopted. Previous experience, if it is anything to go by, has shown that it takes a number of years before such agreements or arrangements are implemented.
There is relatively little in the EU UK Agreement in relation to financial services. General high level provision only is made. The EU and UK agree to use best endeavours to ensure that internationally agreed standards in financial services are applied and implemented. These include Basel committee OECD other such standards bodies ‘ measures.
Either party (EU or UK) may adopt and maintain measures for the protection of investors, depositors, policyholders persons to whom duties are owed by the financial service provider to ensure the integrity and stability of its financial system. (Prudential measures). There is a non-binding joint declaration with a view to establishing a memorandum of understanding in relation to financial services regulatory cooperation by March 2021.
Financial service suppliers at have access to payment and clearing systems operated by public entities and of funding and reef financing facilities in the normal course of business. This does not apply to the lender of last resort facilities.
There are a number of EU wide financial services schemes of legislation which allow for the possibility of recognition of another state’s systems by way of an equivalence decision. These are unilateral decisions and not matters for negotiation. The UK offered and granted a package of unilateral equivalent assessments in some areas. The EU Commission is continuing its assessment of the U.K.’s regulatory framework.
The Agreement does not deal with the matter of equivalence, The EU and UK are to discuss how to move forward on both equivalence determinations between the EU and UK.
The EU and UK commit not to impose tariffs or customs duties on digital transmission or software downloads. Subject to some public policy based exceptions there are not to be requirements in relation to data localisation i.e. the data is not to be required to be located in a particular place.
In the area of data protection, the EU and UK extend the period for free access for data by at least four months with a further two-month extension likely up to 6 months in total. The intention is that during this period the EU Commission review of the UK data protection scheme will be finalised with a view to making a decision in relation to adequacy.
Provided this decision is made special additional contract will controls will not be required between businesses and entities sending personal data out of the UK and the counterpart recipients in the UK.
The EU UK Trade and Cooperation Agreement provides for investment in a similar manner to other EU trade agreements. Each of the EU and UK agree not to impose limits on foreign shareholdings, or requirements for its own nationals to be directors of companies.
Neither may treat the other’s investors, less favourably than its own investors in similar situations or in relation to third-party investors in relation to establishing a presence. There are certain exceptions. Some existing nonconforming measures listed in the agreement are excepted.
The EU UK Trade and Cooperation Agreement obliges the UK to have a system of state aid regulation based on similar principles to those in the current EU system. It is to apply to goods and services. Courts must have the power to enforce the measures and there is to be an independent regulator to oversee and enforce the arrangements. The UK government indicates it intends to consult and review its state aid regime in 2021.
There is a special dispute resolution procedure for alleged breaches of the state aid/subsidy provisions. The complaining side (EU or UK ) must first consult with the other about the measure. If there is no satisfactory response within a relatively short period it may take appropriate remedial measures unilaterally. They may be challenged through arbitration and can be nullified if improperly imposed. The requirement to have an adequate state aid mechanism is subject to the general dispute resolution as opposed to the special dispute resolution.
There is a commitment as part of the level playing field commitments to observe international standards in relation to tax policy. The dispute resolution mechanisms do not apply to them.
The EU and UK commit to certain consumer protection measures in the area of e-commerce, distance sales, consumer rights and air transport. In relation to aviation the provisions for guarding reimbursement and compensation for denied boarding and flight cancellation are confirmed.
The EU UK Trade and Cooperation agreement does not provide any rules regarding recognition and enforcement of judgements as between the EU and UK. There are provisions for ongoing proceedings. Certain earlier international Conventions on judgement enforcement and jurisdiction will apply instead of the EU provisions as between the EU and UK.
The EU UK Trade and Cooperation Agreement has relatively little about direct tax i.e. income and corporation tax. There is a commitment as part of the level playing field commitments to observe international standards in relation to tax policy. This is very limited in scope and the dispute resolution mechanisms do not apply to them.
The TCA prohibits customs duties and export duties provided goods comply with the requirements on origin. There are provisions for cooperation on customs and value-added tax.
There is a protocol on social security coordination which replaces many of the pre-existing EU rules as between the EU and UK. Each member state has until 1st February 2021 to decide if will adopt new rules in relation to own hosted workers.
The EU and UK agree to high standards of intellectual property rights protection in the TCA. These are similar to commitments made in other international agreements. In some contexts, specific guarantees on intellectual property rights continue.
Both the EU and UK are party to the WTO government procurement agreement. This guarantees a certain level of access to each other’s public sector and utilities contracts.
The EU and UK commit to the maintenance of certain international standards in relation to environmental protection and sustainable development. They commit to non-regression i.e., not weakening or reducing the overall the levels of protection in place as at the end of 2021. There is no obligation to follow each other’s policies or standards in the area of environment.
The EU and UK agree to have an effective system of carbon pricing and maintain it as an effective tool in the fight against climate change.
There is no obligation to keep pace with the others environmental standards. If one side believes a significant gap has opened, the level playing field rebalancing mechanism may be invoked. There must be significant divergence which is impacting trade or investment between the EU and UK in a manner that changes the circumstances that formed the basis for the agreement.
Free movement of people between the United Kingdom and European Union ended on 1 January 2021. The Common Travel Area preserves free movement of Irish and UK citizens between Ireland and the United Kingdom.
EU 26 nationals are subject to the UK immigration system in the same way as third country nationals. UK nationals are subject to the immigration systems in EU 26 (European countries) in the same way as third country nationals..
The EU UK Trade and Cooperation Agreement has some limited provisions regarding the temporary movement of persons carrying out business-related activity between United Kingdom and European Union.
Some European Union countries have chosen to retain further controls in these areas which are set out country by country in the Trade and Cooperation Agreement annex. In some cases the particular provisions need to be ratified into the domestic of the state concerned. so that they may apply in different terms when given effect.
The EU UK TCA defines a list of short-term business visitor activities which may be undertaken by UK and EU 26 nationals in each other’s territory. In general terms there is a 90 day rule for business travellers with a maximum 90 days in any rolling 180 day period.
The EU UK Trade and Cooperation agreement creates new institutions between the EU and UK. The TCA itself provides for the prospect of development within its terms by way of decisions within these institutions. It also provides for the possibility of further agreements which will be managed and developed to the same institutions
The Partnership Council comprising the European Union and the United Kingdom’s representatives is established under the trade and cooperation agreement. As with the council it may meet in different configurations depending on the matter under discussion. It might be expected therefore that could comprise a minister or Secretary of State of the United Kingdom government and the Commissioner or other appropriate official of the relevant European Union directorate depending on the particular subject matter.
The council is to be co-chaired by a representative of the EU and UK ministerial level. It is to meet at the request of either and in any event at least once a year. To set a meeting schedule and agenda by mutual consent. It might be expected that meetings will be far more frequent than yearly. Annually. The rules of procedure of the council and committees are set out in the annex to the trade and cooperation agreement. The Partnership Council may discuss matters in the areas covered by the agreements or supplemental agreements.
The Partnership Council may make decisions which are binding on both. They may establish the arbitration tribunal for the purpose of the dispute settlement procedures. It is to oversee the attainment of the objectives of the agreement and any supplemental agreements stop is this supervising facilitate implementation and application of the agreements.
The EU or UK may refer to the Partnership Council, an issue that has arisen relating to implementation application or interpretation of the TCA agreement or any supplemental agreement entered between the EU and UK under its scope.
The Partnership Council has powers to adopt decisions in relation to matters provided for under the agreement or supplemental agreements. May make recommendations regarding implementation and application of the agreements. It may adopt decisions or amendments to the agreement or supplemental agreements for this is provided for.
Within four years of the adoption of the agreement, it may adopt decisions amending the Agreement or any supplemental agreement as are necessary to correct errors or address omissions or other deficiencies.
The Partnership Council may delegate certain powers to the trade partnership committee or specialised committee. It may establish trade specialised committees and specialised committees in addition to those provided for below.
The TCA creates a number of specialised committees. This includes trade specialised committees on the following
- customs cooperation rules of origin
- sanitary and phytosanitary measures (animals plant and food health)
- technical barriers to trade (regulation)
- services investment in digital trade
- intellectual property
- cooperation on Customs, VAT and the recovery of taxes
- several in aspects of the energy sector
There are a number of specialised committees including
- Air transport
- aviation safety
- road transport
- social security coordination
- law enforcement and judicial cooperation
- union programs
Some of the functions and powers of the committees are set out in more detail. Generally trade specialised committees are to have power to
- monitor and review the implementation and ensure the proper functioning of the TCA and supplemental agreements
- assist the trade partnership committee in the performance of its functions and in particular report on, and carry out tasks assigned
- conduct preparatory technical work to support the functions of the Council and trade partnership committee including when those bodies make decisions
- discuss technical issues arising from the implementation of the Agreement and supplemental agreement
- provide a forum for parties to exchange information discuss best practice and limitation experience
The specialised committees have broadly similar functions including
- monitoring and reviewing the implementation and functioning of the agreement and supplemental agreement
- assisting the Partnership Council with its tasks and carry out tasks assigned to it
- adopt decisions including amendments and recommendations in relation to matters in the Agreement and supplemental agreements where so provided
- discuss technical issues arising from implementation of the agreement
- provide a forum for exchange of information
- discuss best practices and share implementation experience
- establish supervise coordinate and dissolve working groups
The committees shall be made up of representatives the EU and UK. The relevant representative is to have the requisite experience in relation to the matters concerned. The Trade Partnership committee is to be co-chaired by a senior representative of the EU and UK with responsibility for trade related matters or persons designated by them. There are to meet at least yearly and may meet considerably more often. They may made up their own procedures and rules.
A number of working groups are established under the agreement in particular areas where there are special provision in that regard. They relate in particular to enhanced cooperation in relation to regulatory standards in particular areas under the supervision of the trade specialised committee on technical barriers to trade
- working group and motor vehicle and parts
- working group on medicine products
- working group on Social Security coordination
- working group on organic products
Working groups work under the supervision of the committees and assist them in the performance of tasks in particular preparing the work of committees and carrying out tasks assigned to them. There co-chaired by EU and UK representatives. They set their own rules of procedure.
The Partnership Council may make decisions which are binding on both. They may establish the arbitration tribunal for the purpose of the dispute settlement procedures. The Partnership Councils and committees must act by mutual consent.
The European Parliament and UK Parliament may establish a Parliamentary partnership assembly consisting of members of the Parliament of each as a forum to exchange views on the partnership. The Partnership Assembly may request information regarding the implementation of the agreement and supplemental agreement from the Partnership Council. Shall be informed of decisions and recommendations of the council stop it may make recommendations to the council.
The EU and UK shall consult society civil society and the implementation of the agreement supplemental agreement particular through interaction with domestic advisory groups and civil society forum provided for. Each of the EU and UK are to consult on the issues covered by the agreement and supplemental agreement it may use newly created existing domestic advisory groups or groups comprising representations of independent civil society organisations including non-governmental organisations business employers organisations trade unions persons act of an economic sustain the ball development social human rights environmental and other matters.
Each of the EU or UK may convene its domestic advisory groups in different configurations to discuss the implementation of different provisions of the agreement. Each shall consider views a recommendation submitted by its domestic advisory group or groups. Representatives of each shall aim to consult with their respective domestic advisory groups at least once a year.
In order to promote public awareness of domestic advisory groups each shall endeavour to publish the list of organisations participating in its domestic advisory group groups as well as the contact point for that group. The y EU and the UK shall promote interaction between their respective domestic advisory groups.
The EU and UK shall facilitate the organisation of a civil society forum to conduct dialogue in the implementation of certain aspects of the agreement. They shall adopt operational guidelines for the conduct of the forum. Civil society form shall meet at least once a year unless otherwise agreed. Mainly virtually.
The civil society form shall be open for participation of independent civil society organisations in the territories of the EU and UK including members of domestic advisory groups above. Each of the EU and UK shall promote balanced representation including non-governmental organisations business employers organisations and trade unions active in economic sustainable development social human rights environmental and other matters.
Disputes between the EU and UK regarding compliance with the Trade and Cooperation Agreement are subject to special dispute resolution procedures which are set out in the agreement. They are not subject to the jurisdiction of the European courts. Some types of disputes are not subject to these provisions and require resolution by agreement off both sides in the Partnership Council.
Under the general dispute resolution procedure, the first step is that the complainant (i.e. the EU or UK) is to seek consultations with the other party (the UK or EU. Consultations are be undertaken in good faith and are confidential. If agreement is not reached within 30 days, the claimant’s state/territory (EU or UK) may initiate arbitration.
Arbitration is to be undertaken by a three members panel /tribunal. The arbitrators are to demonstrate expertise in law and international trade. The chairperson must be experienced in dispute settlement procedures. The deliberations of the arbitration body/ tribunal are confidential. Its decisions were made public.
There are time limits in relation to the arbitration process and mechanisms to ensure that it is not frustrated. Where there is a refusal to participate in the procedure, the claimant’s co-chair chooses an arbitrator by lot from a preestablished list.
The oral hearing is to take place in the territory of the respondent .Within 130 days of the establishment of the arbitration tribunal it must deliver its initial decision. This is referred to as its interim report. The deliberations of the arbitration body/ tribunal are confidential. Its decisions were made public.
The parties (EU UK) have 14 days to request the tribunal to review aspects of the decision. The other may comment on the request within six days. If there is no request to review, the interim report becomes the final decision . If there is one or more request to review, the arbitration tribunal must deliver its ruling within 10 days.
After the tribunal makes a ruling and there has been a finding of a breach of commitments under the Agreement, the respondent must take the necessary measures to comply immediately with the ruling of the arbitration panel in order to bring itself into in compliance with the relevant provisions. There is generally 30 days to inform the claimant (complaining side) of the proposals it has taken or intends to take to remedy that position.
The claimant, if it still has at least one complaint about the existence or the consistency of the measure with the decision, may request the arbitration tribunal to make a decision on the matter. It is taken by the same arbitration tribunal that decided the dispute.
If the tribunal agrees that the measures taken are non-existent or inconsistent with the decision, the claimant may use temporary remedies . It can request temporary compensation from the respondent (the other side EU and UK) or notify the respondent of its intention to suspend the application of its obligations. This implies imposition of tariffs or quotas by way of withdrawal of some of the benefits of the Trade and Cooperation agreement in a particular respect. It cannot undertake both remedies.
There is a procedure which may lead to termination of the remedy. The respondent may notify the claimant of new measures it is taken to comply with the initial ruling of the arbitration tribunal. If the parties dispute the respondent’s compliance still, the claimant may request another decision on the matter from the arbitration tribunal. This may be a final resolution, or it may continue as in the case of temporary remedies if the respondents are still in breach of its obligations. If this latter occurs, then the tribunal may adjust the level of suspension or compensation .
Not all disputes under the Agreement are subject to arbitration. In some cases, there is simply no remedy or there are special specific procedures where there is a breach. They include the provisions in relation to anti-dumping. In these cases one of the EU or UK may refer the dispute to the Partnership Council which consists of representatives of both the EU and UK. In this case, resolution is political in nature and requires an agreement of the EU and UK in the Partnership Council