And in the end, the Brexit agreement came. After a path that the negotiators on both sides defined as "tortuous", the European Union and the United Kingdom reached a negotiated agreement for the exit of the latter country from the Community space. The good news came on December 24, 2020, and was the realization that, although different, somehow the relationship will remain between the continent and the islands. However, there were many loose ends. Most of them related to the particular agreements that Britain will have to form with each EU country. And that is, of course, the case of Spain.
Thus, in response to this new context of legal vacuum, last December 29 the Council of Ministers of the Government of Spain approved the Royal Decree-Law 38/2020, which adopted "measures to adapt to the situation of third state of the United Kingdom of Great Britain and Northern Ireland after the end of the transitional period provided for in the previous Brexit agreement of January 31, 2020.
We will now try to explain some of the key points of this agreement, especially those affecting Spanish and British workers.
Article 2 of this Decree Law deals with the nature of the regulations and their temporality.
- To begin with, it states that, as of January 1, 2021, the regulations applicable to citizens of the United Kingdom will be those of citizens of a third state, except for the provisions of: a) the Withdrawal Agreement, b) in this Decree-Law, or, c) in future international agreements that may be entered into between the United Kingdom, Spain or the European Union.
- Furthermore, it confirms that the measures provided for in this legislation will be subject to a specific term of validity. And unless the Government proceeds to extend it, the termination date will be fixed.
Article 3 of the Decree Law deals with the reciprocity on which its application is based.
- In other words: that if, within a period of two months, the British authorities do not grant reciprocal treatment as set out here to natural or legal persons of Spanish nationality in the United Kingdom or in Gibraltar, this treatment will be terminated.
- The suspension will be made effective by agreement of the Council of Ministers, on the proposal of the holder of the Ministry of Foreign Affairs, European Union and Cooperation; following a report from the competent Ministry.
And now to the heart of the matter is Article 6, which deals with the transitional regime applicable to workers temporarily posted in the framework of the provision of services. Here, several cases could be highlighted:
- For example, companies based in Spain that on 1 January 2021 have workers temporarily posted to the United Kingdom or Gibraltar must continue to apply, on a temporary basis, the United Kingdom legislation that previously applied.
- This is subject to one condition: recognition by the competent authorities of the above-mentioned reciprocal treatment of workers temporarily posted to Spain by companies established in the United Kingdom or Gibraltar.
- For their part, employees of companies established in the United Kingdom or in Gibraltar who are posted to Spain in connection with the provision of services prior to December 31, 2020, may, as from January 1, 2021, remain in Spain until the planned completion of the service. For them it will not be necessary to obtain a prior residence and work authorization.
- If such a trip starts before December 31, 2020 but later wants to extend the initially planned duration of the trip, it will not be necessary to obtain a visa either. On the other hand, a previous residence and work authorization will be required, in accordance with the regulations on foreigners. This authorization will be requested by the company established in Spain in favor of the posted worker.
- Finally, employees of companies established in the United Kingdom or in Gibraltar who move to Spain after January 1, 2021, must obtain the required visas or residence and work permits specified in Spanish immigration regulations.
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