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An update on Brexit from a Belgian perspective

12/03/2019

On 29 March 2019 the United Kingdom should leave the EU. On 14 November 2018 the European Union and the United Kingdom concluded a draft withdrawal agreement as well as a political declaration setting out the framework for their future relations. On 15 January 2019, the British Parliament definitively rejected the withdrawal agreement. On the date on which the United Kingdom leaves the European Union without an agreement (the so-called 'no deal' scenario), it will become a third country to which all primary (treaties containing the basic and ground rules for all EU activities) and secondary (regulations, directives and decisions based on the basic principles of primary legislation) EU legislation will no longer apply. This means that UK nationals will be deemed third-country (i.e. non-EEA) nationals.

Belgian Brexit bill – status quo?

At a meeting of the (Belgian) Council of Ministers on 8 February 2019, a bill was approved which provides for adjustments to the federal legislation in order to provide for a transition phase should the United Kingdom leave the European Union without an agreement. The bill will therefore only enter into force if no agreement is reached between the European Union and the United Kingdom. It is intended to be a temporary solution to the main difficulties resulting from Brexit, for matters that fall within the powers of the federal government. The bill expressly states that the legislation is temporary in nature (in principle until 31 December 2020).

The bill is based on the principle of reciprocity, which means that the temporary legislation will only apply if the UK authorities make the same arrangements for Belgian residents in the United Kingdom. According to our UK colleagues this has already bee proposed to the UK parliament on a number of items, including free movement and social security.

Finally, it also stipulates that since it is not yet clear how negotiations with the United Kingdom will unfold, either in a coordinated manner led by the European Commission or bilaterally with Belgium, the application of certain provisions of the law can be terminated by royal decree before 31 December 2020 (for example these on the free movement of workers).

Social security

The bill provides for the continuity of the coordination of social security systems within the EU for mobile workers. The bill states that the provisions of the coordination regulations, in particular Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (and its Implementing Regulation 987/2009 of 16 September 2009,) shall remain applicable and continue to govern situations with international elements involving the United Kingdom. The United Kingdom will as such continue to be treated as a Member State of the European Union.

This is the case to (i) determine the applicable social security legislation as well as (ii) regarding social security benefits. There is a status quo on this level.

However, a number of areas within the material scope of Regulation 883/2004 no longer fall within the powers of the federal government, such as family allowances. It is therefore up to the Belgian regional authorities to take the necessary measures. Today the Flemish government is voting about an emergency Brexit Decree.

Freedom of movement and migration

The purpose of the bill is thus to safeguard, insofar as possible, the rights of UK nationals who have exercised their right to free movement and are thus entitled to reside and work in Belgium. The same goes for their family members who have a right to reside and work in Belgium.

It was therefore opted to maintain their right of residence and being employed after withdrawal of the United Kingdom from the European Union, until 31 December 2020.

Since the status quo is envisaged, all residency requests by UK nationals and their family members pending at the time of withdrawal will be handled in accordance with the conditions prevailing prior to withdrawal and thus prior to Brexit. In the event a residence document expires, the applicant can simply request renewal at his or her municipality. However, a British national who requests a residence permit after withdrawal of the UK from the European Union will no longer be able to rely on the conditions in effect at the time of withdrawal.

Entry into force

The bill includes specific provisions on energy policy, financial services, the economy and insurance. The law has now to go through the rest of the legislative process. The date of its entry into force is deemed to be determined by royal decree and before 29 March 2019.

We will keep you posted!

Information in this document is for general guidance and information purposes only and does not constitute legal advice. For advice, please contact us.

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