Spain and EU Parliament: protecting workers' rights in case of no-deal Brexit

The Spanish government has issued Royal Decree-Law 5/2019 (the Brexit Law), on contingency measures dealing with the UK’s exit from the EU without an agreement under art. 50 of the EU Treaty.

The Brexit Law was published in the official gazette last Saturday (2 March), and will come into force the day that the EU Treaties stop being applicable to the UK in accordance with article 50.3 of the EU Treaty. If, by that date, there is an agreement between the EU and the UK on the exit of the UK, then this law will not come into force.

The law aims to (i) protect the interests of Spanish and British citizens who exercised their right to freedom of movement before the exit date; and (b) protect the regular development of commercial flow and economic interests of Spain.

The measures set out are transitory, until general rules on the relationship with the UK are adopted, and subject to reciprocity from the UK. Accordingly, if within 2 months from coming into force there is no reciprocity treatment by the UK, the measures set out in the Brexit Law will be suspended.

Other EU countries are implementing their own contingency measures on the occasion of Brexit. Spain is amongst the first EU countries to vote a contingency law which touches on workers’ rights specifically. Also, a EU Parliament Committee recently voted on a set of measures they would like the EU to adopt unilaterally in case of no deal Brexit and which aim at safeguarding EU and UK citizens’ existing entitlements to social security benefits based on insurance, employment or residence.

Citizenship

Residence and work in Spain of British nationals and their families

The Brexit Law governs residence and work in Spain of British nationals and their families.  The law sets out an ad-hoc system for these nationals to obtain the relevant documentation and avoid becoming irregular immigrants. Application for this new documentation must be done within 21 months from the exit of the UK without an agreement with the EU – it is necessary show evidence of being resident in Spain before the exit date. During the period until obtainment of the new documentation, they will continue to use existing documentation and shall be considered legal immigrants. The Brexit Law also governs obtainment of long-term residence for British nationals who have been residing in Spain for at least 5 years. There are also similar provisions to authorities British nationals who are border workers to keep on being authorized to work in Spain.

Access and exercise of a profession

The Brexit Law provides that those British nationals who have been exercising on a regular basis in Spain a profession or activity for which they obtained acknowledgement of their professional qualification may continue to do so in the same terms, provided they fulfill all other conditions that govern the exercise of that profession or activity according to Spanish law. The same goes for Spaniards or nationals of other member states who obtained their qualification in the UK (and are providing services in Spain further to the acknowledgement of their professional qualification).

Employment relationships

Those companies established in Spain who have workers posted to the UK under the Posting Directive (Directive 96/71/CE) shall continue to apply the relevant UK legislation implementing the Posting Directive. This will only apply provided the UK authorities grant reciprocal treatment to any employees posted to Spain by companies established in the UK.

European works councils

Those EWCs or alternative information procedures set out or agreed under the Spanish EWC Law before the exit of the UK by companies and company groups of European scale where employees or companies of the UK participate, and that have their central management in Spain, will continue to exist in the terms provided by the Spanish EWC Law until they are modified, also in accordance with the Spanish EWC Law.

Social Security

Subject to the prior adoption of any instrument to coordinate social security systems between the UK and Spain, the Brexit Law provides for a transitory regime, that will be in place for 21 months from exit by the UK, and aimed to protect the employees subject to the UK or Spanish social security systems.

Driving licence

For a 9 month period from the date of exit of the UK, those holding a UK driving licence that are now residents in Spain will be entitled to exchange such licence for a Spanish one, so that they can keep on driving in Spain. This is subject to the maintenance of the current verification system existing in the EU. Once the 9 months have lapsed, British driving licences will be as any third-country driving licence.

Raquel Flórez

Freshfields Bruckhaus Deringer – Madrid