Implications of Johnson’s Brexit deal on public procurement

In this blogpost, we highlight the impact of Brexit as of 1 February 2020. The UK leaves the EU on 31 January 2020, which affects public procurement for Belgian companies in the UK and for UK companies in Belgium. 

After much uncertainty about whether and how Brexit would go down, the dust settled in October 2019. UK Prime Minister Johnson agreed with the EU to amend the Draft Withdrawal Agreement that his predecessor May had negotiated. The UK Parliament endorsed this deal. This Revised Withdrawal Agreement differs from May’s version on Northern Ireland, but does not affect other areas, such as public procurement.  

The Revised Withdrawal Agreement determines the terms of the separation between the UK and the EU. Article 126 creates a transition period until the 31st December of 2020 – which can be extended for two years – during which EU law still applies in the UK. After this transition period, a new deal is required on the future relation between the EU and the UK. Without such new deal, the Revised Withdrawal Agreement only postpones the effects of a hard Brexit.

In a previous post, we discussed that such hard Brexit would render the WTO’s GPA rules applicable to EU-UK public procurement. However, until the end of 2020, the transitional rules of the Revised Withdrawal Agreement will apply, in particular Part Three (Separation provisions), Title VIII (Ongoing public procurement and similar procedures). 

Article 76 provides for an application of EU law to all procedures launched before the end of the transition period and not yet finalised on the last day of the transition period. EU law will also apply to framework agreements concluded before the end of the transition period that have neither expired nor been terminated. EU law governs these procedures until their completion.

The Revised Withdrawal Agreement stresses that these procedures must respect the general principles of EU law, including the non-discrimination principle. The Revised Withdrawal Agreement furthermore discusses several technical elements to assure the functioning of the transitional system, such as when a procedure is considered launched or finalised. The Revised Withdrawal Agreement is thus particularly important for procedures which find their starting point during or before the transition period. 

This publication was co-authored by David D'Hooghe in his capacity as partner at Stibbe and by Niels Tack in his capacity as Associate at Stibbe.