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Brexit and Public Procurement: Transitioning into the Void?

Pedro Telles, Albert Sanchez-Graells, Pedro Telles Orcid Logo

SSRN Electronic Journal

Swansea University Author: Pedro Telles Orcid Logo

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DOI (Published version): 10.2139/ssrn.3166056

Abstract

On 29 March 2017, the UK notified its intention of leaving the EU. This activated the two-year disconnection period foreseen in Article 50 TEU, thus resulting in a default Brexit at the end of March 2019. The firming up of a draft agreement on a transition period to run until 31 December 2020 could...

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Published in: SSRN Electronic Journal
ISSN: 1556-5068
Published: Elsevier BV 2018
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URI: https://cronfa.swan.ac.uk/Record/cronfa43820
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The firming up of a draft agreement on a transition period to run until 31 December 2020 could provide a longer timescale for the Brexit disconnection, as well as some clarity on the process of disentanglement of the UK&#x2019;s and EU&#x2019;s legal systems. The draft transition agreement of 19 March 2018, updated on 19 June 2018 and still under negotiation at the time of writing (August 2018), provides explicit rules on public procurement bound to regulate &#x2018;internal&#x2019; procurement trade between the UK and the EU for a period of over 15 months. However, the uncertainty concerning the future EU-UK relationship remains, and the draft agreement does not provide any indication on the likely legal architecture for future EU-UK trade, including through public procurement. The draft agreement has thus not suppressed the risk of a &#x2018;cliff-edge&#x2019; disconnection post-Brexit, but rather solely deferred it. The transition is currently not into an alternative system of procurement regulation, but rather into the void. There have also been very limited developments concerning the UK&#x2019;s and EU&#x2019;s repositioning within the World Trade Organisation Government Procurement Agreement (WTO GPA), which creates additional legal uncertainty from the perspective of &#x2018;external&#x2019; trade in procurement markets due to the absence of a &#x2018;WTO rules&#x2019; default applicable to public procurement. Against the backdrop of this legal uncertainty, this paper critically assesses the implications of the 2018 draft transition agreement, both for the re-regulation of &#x2018;internal&#x2019; EU-UK procurement, and for the re-positioning of both the EU and the UK within the WTO GPA, as the basis for their &#x2018;external&#x2019; procurement trade with third countries. The paper concludes that it is in both the UK&#x2019;s and the EU&#x2019;s interest to reach a future EU-UK FTA that ensures continued collaboration and crystallises current compliance with EU rules, and to build on it to reach a jointly negotiated solution vis-a-vis the rest of WTO GPA parties. 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spelling 2022-12-21T15:53:01.4118546 v2 43820 2018-09-13 Brexit and Public Procurement: Transitioning into the Void? cbb9f02a4820888c1b6c3ce352009a0b 0000-0002-0666-6351 Pedro Telles Pedro Telles true false 2018-09-13 LAWD On 29 March 2017, the UK notified its intention of leaving the EU. This activated the two-year disconnection period foreseen in Article 50 TEU, thus resulting in a default Brexit at the end of March 2019. The firming up of a draft agreement on a transition period to run until 31 December 2020 could provide a longer timescale for the Brexit disconnection, as well as some clarity on the process of disentanglement of the UK’s and EU’s legal systems. The draft transition agreement of 19 March 2018, updated on 19 June 2018 and still under negotiation at the time of writing (August 2018), provides explicit rules on public procurement bound to regulate ‘internal’ procurement trade between the UK and the EU for a period of over 15 months. However, the uncertainty concerning the future EU-UK relationship remains, and the draft agreement does not provide any indication on the likely legal architecture for future EU-UK trade, including through public procurement. The draft agreement has thus not suppressed the risk of a ‘cliff-edge’ disconnection post-Brexit, but rather solely deferred it. The transition is currently not into an alternative system of procurement regulation, but rather into the void. There have also been very limited developments concerning the UK’s and EU’s repositioning within the World Trade Organisation Government Procurement Agreement (WTO GPA), which creates additional legal uncertainty from the perspective of ‘external’ trade in procurement markets due to the absence of a ‘WTO rules’ default applicable to public procurement. Against the backdrop of this legal uncertainty, this paper critically assesses the implications of the 2018 draft transition agreement, both for the re-regulation of ‘internal’ EU-UK procurement, and for the re-positioning of both the EU and the UK within the WTO GPA, as the basis for their ‘external’ procurement trade with third countries. The paper concludes that it is in both the UK’s and the EU’s interest to reach a future EU-UK FTA that ensures continued collaboration and crystallises current compliance with EU rules, and to build on it to reach a jointly negotiated solution vis-a-vis the rest of WTO GPA parties. The paper constitutes a detailed case study that provides insights applicable to other areas of Brexit-related trade re-regulation. Journal Article SSRN Electronic Journal Elsevier BV 1556-5068 Brexit, Public Procurement, Government Procurement Agreement, GPA, UK, EU, Regulatory Reform, International Trade, Free Trade Agreements, Liberalisation, Convergence, Technical Cooperation 31 12 2018 2018-12-31 10.2139/ssrn.3166056 Preprint COLLEGE NANME Law COLLEGE CODE LAWD Swansea University 2022-12-21T15:53:01.4118546 2018-09-13T11:45:14.6212973 Faculty of Humanities and Social Sciences Hilary Rodham Clinton School of Law Pedro Telles 1 Albert Sanchez-Graells 2 Pedro Telles 0000-0002-0666-6351 3 43820__11100__bc8ac99d829d4c2094043f64e317a503.pdf Brexitandpublicprocurement_transitioningintobigunknown(finalELRsubmission,14Aug2018).pdf 2018-09-13T11:55:32.9330000 Output 423636 application/pdf Pre-print true 2019-04-20T00:00:00.0000000 true eng
title Brexit and Public Procurement: Transitioning into the Void?
spellingShingle Brexit and Public Procurement: Transitioning into the Void?
Pedro Telles
title_short Brexit and Public Procurement: Transitioning into the Void?
title_full Brexit and Public Procurement: Transitioning into the Void?
title_fullStr Brexit and Public Procurement: Transitioning into the Void?
title_full_unstemmed Brexit and Public Procurement: Transitioning into the Void?
title_sort Brexit and Public Procurement: Transitioning into the Void?
author_id_str_mv cbb9f02a4820888c1b6c3ce352009a0b
author_id_fullname_str_mv cbb9f02a4820888c1b6c3ce352009a0b_***_Pedro Telles
author Pedro Telles
author2 Pedro Telles
Albert Sanchez-Graells
Pedro Telles
format Journal article
container_title SSRN Electronic Journal
publishDate 2018
institution Swansea University
issn 1556-5068
doi_str_mv 10.2139/ssrn.3166056
publisher Elsevier BV
college_str Faculty of Humanities and Social Sciences
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hierarchy_top_id facultyofhumanitiesandsocialsciences
hierarchy_top_title Faculty of Humanities and Social Sciences
hierarchy_parent_id facultyofhumanitiesandsocialsciences
hierarchy_parent_title Faculty of Humanities and Social Sciences
department_str Hilary Rodham Clinton School of Law{{{_:::_}}}Faculty of Humanities and Social Sciences{{{_:::_}}}Hilary Rodham Clinton School of Law
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description On 29 March 2017, the UK notified its intention of leaving the EU. This activated the two-year disconnection period foreseen in Article 50 TEU, thus resulting in a default Brexit at the end of March 2019. The firming up of a draft agreement on a transition period to run until 31 December 2020 could provide a longer timescale for the Brexit disconnection, as well as some clarity on the process of disentanglement of the UK’s and EU’s legal systems. The draft transition agreement of 19 March 2018, updated on 19 June 2018 and still under negotiation at the time of writing (August 2018), provides explicit rules on public procurement bound to regulate ‘internal’ procurement trade between the UK and the EU for a period of over 15 months. However, the uncertainty concerning the future EU-UK relationship remains, and the draft agreement does not provide any indication on the likely legal architecture for future EU-UK trade, including through public procurement. The draft agreement has thus not suppressed the risk of a ‘cliff-edge’ disconnection post-Brexit, but rather solely deferred it. The transition is currently not into an alternative system of procurement regulation, but rather into the void. There have also been very limited developments concerning the UK’s and EU’s repositioning within the World Trade Organisation Government Procurement Agreement (WTO GPA), which creates additional legal uncertainty from the perspective of ‘external’ trade in procurement markets due to the absence of a ‘WTO rules’ default applicable to public procurement. Against the backdrop of this legal uncertainty, this paper critically assesses the implications of the 2018 draft transition agreement, both for the re-regulation of ‘internal’ EU-UK procurement, and for the re-positioning of both the EU and the UK within the WTO GPA, as the basis for their ‘external’ procurement trade with third countries. The paper concludes that it is in both the UK’s and the EU’s interest to reach a future EU-UK FTA that ensures continued collaboration and crystallises current compliance with EU rules, and to build on it to reach a jointly negotiated solution vis-a-vis the rest of WTO GPA parties. The paper constitutes a detailed case study that provides insights applicable to other areas of Brexit-related trade re-regulation.
published_date 2018-12-31T03:55:10Z
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score 11.012678

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