The EU’s European Commission and Council, by their failure to acknowledge and respond fairly to the United Kingdom’s ‘grandfather’ or accrued rights has, metaphorically, swung a wrecking ball at an orderly Brexit process. Instead, through the management of the negotiations (culminating in the unequal Withdrawal Agreement) they have imposed their perceived rights without practical reciprocation in the UK’s favour, particularly on facilitating existing frictionless trade. This is potentially threatening to the UK’s national interest and ultimately likely to be counter-productive to trade, amicable future relations between the UK and the EU, and to the European Superstate Project.
What are Grandfather or Accrued Rights?
Grandfather rights (also known as accrued rights) are often used to continue an existing arrangement when legal, regulatory or product conformity requirements change. Commonly, appropriate wording is added to new or amended laws, regulations or contracts. Thus an existing (now non-compliant) product is allowed although there may be restrictive conditions imposed such as a time limit for non-compliance or use in existing applications, schemes or projects only. Some further information about the concept of grandfather rights, with examples, is provided here.
The EU often makes practical use of grandfather rights to accommodate existing products (that would suddenly cease to be saleable within the Single Market or usable) and to provide transitional arrangements. Such transitional arrangements can exist for several years until it becomes economic to implement the mandatory changes. Some requirements may never be implemented and national variations are included to accommodate this situation.
The Application of Grandfather Rights to Brexit
Brexit represents a change of relationship between the EU and the UK; mainly to serve political aims. However, nobody’s interests are served by altering or disrupting existing frictionless trading and other close working relationships. Some application of grandfather rights would, therefore, be appropriate with EU laws, even temporarily, amended to suit, see e.g. this article: How Legal Fictions can avoid a no-deal Brexit.
However, the EU has chosen not to do this. Rather than accept that Brexit is a unique event, requiring a pragmatic, dedicated and flexible response, the EU has chosen to uncompromisingly treat the UK just as it would any ‘third’ country where it doesn’t have any close prior relationship giving rise to accrued rights for both parties.
As can be seen in the EU’s Brexit preparedness notices ( see for example for industrial products or Customs and Indirect Taxation) in the event of a no-deal there are no UK grandfather or accrued rights. It is effectively a lose-lose situation and any transitional arrangements are for the EU’s benefit only.
Naturally, some acceptance of UK grandfather rights by the EU would have resulted in a very different and potentially much more politically acceptable Withdrawal Agreement! Also, such flexibility by the EU would have helped facilitate a more positive approach to negotiations on the future relationship.
The treatment of Notified Bodies (Nobos) and mutual recognition of standards and conformity assessment show how uncompromisingly inflexible is the EU’s approach. Notified Bodies are independent accredited organisations that carry out mandatory third party conformity assessment of a wide range of products to enable them to be placed in the Single Market.
Currently UK based Nobos are accredited with relevant competences, and are listed on the EU’s NANDO database. After Brexit, these Nobos cease to be accredited, meaning that they cannot carry on work within the Single Market or the wider European Economic Area (EEA) or on goods or products destined for there. Yet non-EU Nobos based in Norway (an EEA member), Switzerland and Turkey (non-EEA members) are accredited.
The free circulation of non-harmonised goods or products, (where there are no EU Regulations setting common standards) within the Single Market relies on the ‘mutual recognition principle’. In this case goods or products that can be legally sold (and used) in the producing country can be sold (and used) in other Member States, without applying local standards or further conformity assessment.
After Brexit, mutual recognition of UK sourced goods or products ceases and local regulations in each Member State apply. After Brexit, additional local requirements or regulations can also apply to EU regulated goods or products from the UK. For further analysis of the implications see this article: Brexit: mutually assured distraction.
Perhaps the UK negotiators did try to protect the UK’s interests and get some grandfather rights accepted by the EU, even for an interim period. However, to do so requires the EU to be helpful, perhaps involving some quid pro quo, and the UK negotiators to have relevant industry knowledge of working with EU regulations and World Trade Organisation principles.
Reading between the lines of the official guidance produced by our Government and the European Commission, it appears that little or no consideration has been given to the disruption, extra bureaucracy and costs involved to business here or in the EU, especially in the short term. In effect the ‘bread and butter’ of using grandfather rights relating to goods and products has been ignored.
The EU’s Approach is inconsistent, illogical and potentially unlawful
A no-deal outcome from Brexit represents a major failure by the EU to address grandfather or accrued rights in respect of the UK. Their use of rights in the Withdrawal Agreement is highly selective, illogical and inconsistent. Consequently the UK has been placed in the invidious position of having accepted the EU’s demands (for example on accrued EU Citizen rights) whilst being denied reasonable grandfather rights to achieve them through a continuation of frictionless trade.
The EU has in effect created special obligations for the UK after Brexit whilst ignoring and abolishing existing accrued UK national rights. Ultimately a no-deal Brexit would potentially remove all grandfather rights. The EU’s actions violate their own laws, treaty obligations and rules, and are far from those to be expected towards a long-standing friendly neighbour.
Yes indeed ! Although ‘Grandfather Rights’ is a new title to me, it boils down to mutual assistance between two parties, where one party is about to take a different course of action to the group. It would appear that the EU is being awkward in this, for no benefit to themselves, but simply because it gives no benefit to us either. If the EU were able to consider this fact for just one moment, they would be on the road to understanding why our referendum result of 2016 was as it turned out to be !
Now I am pained to agree with a Frenchman, but Charlie the Gaulle hit middle wicket when he said that the British were not Europeans, and should not join a European Union of Nations.- He was quite right when considering our legal system to theirs, and our history. Our People, and I include here myself, were sleep-walking into what Heath called Common Market and which very quickly morphed into something else. Trade was only a small part of it, but Heath fought hard to keep any notion of political union very much under wraps.
When someone makes something, or gives a better service, Trade will take place. It can only be messed up by rules and regulations from Politicos. With the EU, this is something that they excel at, and it is yet another reason why belatedly, we eventually said enough in the largest Democratic vote that our Nation has experienced. Over a million votes gave the result to leave. ….. When Politicos take a back seat, and let a full range of workers from UK/GB and France, get on with a project, we had Concorde ! No great profit maker, but an immense advance in aero and transport technology, which gave proof of advantage when political nonsense is absent.
The fact that now, after three years, we have still not left the EU, is due to PM Cameron not being man enough to see the problem through.- Then PM May, who was always out of her depth, tried to negotiate, rather than making straight declaration of intent.- Due to that foolishness, the losers were able to work an anti Democratic action, and to split this Nation. PM May will be quoted in history as the most useless leader of UK/GB, unless the next PM makes an even worse job of leadership, which is unlikely but possible.
If anything, the future looks good for this Nation when it is let loose upon World Trade, but the fear of this taking place, plus the inbuilt retard of the EU, can certainly make for difficulty. We have excelled in combat through history, so surely now that we are not killing our opponents, this Nation should be able to make good to our, and their advantage. All it takes is a little common sense, mixed with natural ability, rather than foolish protectionism tinged with envy !
Very interesting as the eu clearly does not intend us to leave but take direct control of the UK. The eu is also acting against their laws etc by not letting us leave in the WA.
Yes we legally leave so we no longer have a voice in the eu. Then a joint eu/Uk committee is formed that can overrule parliament. Any disagreement within this committee is arbitrated by the ECJ. This could last years and, with the backstop, as long as the eu survives. It won’t take the eu long to change the UK to their advatage and our MPs may as well stay at home. Does this sound anything like a legal WA?
However, why change eu habits of 40 years plus!
My own view is that for the EU to take the clear referendum result and morph it into the situation of control by an anonymous committee whose discussions are secret, whose decisions cannot be challenged can mean only that very heavy duty corruption has taken place. In days gone, investigative journalists would have been all over this, but now the vast majority are content to cheerlead from the touchlines.
I never expected ‘days gone’ to be gone so quickly or so thoroughly. It really does stench.
I’m, I think half understanding Nigel’s excellent exposition of why my Grandad who was a watchmaker went to Belgium to sell their invention of a pigeon clock and didn’t succeed, but I am not quite sure of the final para.
Does he mean if there is “No Deal” then because we become a Thrid Nation, they disappear? and since we are an unique Thrid nation, being the first EU with drawer, why should it be unreasonable to expect an extraneous agreement could not be promptly enacted on the day of departure – that’s an agreement to restore the status quo.
I believe a trade war with EU would leave us handsome winners… provided our politicians are NOT deployed on our behalf ( We are used to them not knowing ) ( Properly motivated and not secretive civil servants are essential to useful )
Does nothing get through.
IMHO
our exports to EU are much smaller than imports . So it doesnt matter. We can get new customers. NEW CUSTOMERS.
The ideal position for a country is for Exports = imports plus innovation minus resources dissipated..
At the same time GDP PER CAPITA ( GDP without the PER CAPITA is just bent and invented Polical nonsense.)
I believe that LSE should be helping those of us not economists, to understand instead of trying to form a protective guild
We’ll be having a guild or union of Charity volunteers next.
Please correct me if I am wrong .