Brexit – the legal effects

Filed under : Business & Legal Partners, Civil Law

Like the many people who have lived and worked in Spain for many years I am disappointed by the outcome of the vote. However if Brexit does take place one can be optimistic about some aspects of the legal framework in Spain. Firstly there are likely to be a number of reciprocal arrangements between the UK and Spain in the future. At this stage nobody knows if these will continue but it should be borne in mind that there are more than 3 million Europeans living and working in the UK including many Spaniards and some countries will want to continue with existing arrangements.

On an optimistic note there are a number of Treaties and conventions that are not part of the legal framework of the EU. For example the most recent Double Taxation relief treaty between the UK and Spain came into force in June 2014 and is binding for 5 years. This means individuals and companies will not be taxed twice on their income. Property taxes are always payable in the country where the property is located with certain set offs. Some tax advantages currently open to EU residents may change but it will be some time before any changes are felt by the UK citizens currently in Spain.

Another Treaty which is important for families and to protect custody and visits rights for parents is the Hague Convention of 1996. Although this is largely known as the convention to prevent Child Abduction it also has provisions on visits, contact, cross border child protection and parental responsibility. Whilst the procedure under the more recent EU regulations, Brussels I & II can be swifter it is important that the basic rights of parents and children are protected by the Hague convention not an EU regulation. This convention also includes signatories such as the USA and Russia. There is also protection in the Hague Convention Maintenance Convention of 2007 for the payment of maintenance for children.

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There is a lot of debate about whether the Vienna Convention of 1969 will apply after Britain applies to leave the EU, if indeed it does. I have read well-argued articles stating that it will mean those Britons who have lived in Spain have “acquired rights” to remain and work and I have read equally well argued articles saying that it will not apply. Reciprocity of rights, sharing of rights, will be the key to this and subject to lengthy negotiations.

A lot of people are asking if Brexit would affect the more recent EU regulation on Succession 650/2012. The good news here is that ironically the UK did not sign this regulation in any event. However Spain is a signatory so applies its provisions to citizens from other countries including those outside of the EU. So for example an English person can ask for English law to be applied to their will, a Canadian can ask for Canadian law to be applied etc.

Spain’s own constitution protects the rights of anyone who is subject to discrimination on the grounds of race, gender or sexual orientation within the Kingdom of Spain. This is also enshrined in Spanish labour law and administrative law. Yes there will be more paperwork and possibly higher taxes for UK residents in some areas but perhaps a surprising number of bi-lateral and international agreements which affect our daily lives don´t depend solely on EU membership.

Finally it is important to remember that many thousands of property owners and workers in Spain are not from EU countries and they enjoy peaceful occupation of their properties and have the same protection as workers from Spain.

Sandra Wrightson – Partner at De Cotta Law

28th June 2016

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