Avoiding the next Brexit Cliff-Edge: Extending the Transition Period for the UK after 1 July 2020

René Repasi, Associate Professor of EU Law at Erasmus University Rotterdam, Netherlands

After the elections in the UK and the clear majority of the Conservative Party under Prime Minister Boris Johnson in UK House of Commons the Withdrawal Agreement (WA) concerning the UK’s exit from the EU was promptly ratified, with the UK leaving the EU on 31 January 2020. This completes phase 1 of ‘Brexit’: Dealing with the legacy of the UK’s membership.

We are now entering phase 2: The negotiation of and the decision about the future relationship between the EU27 and the UK. Originally, phase 2 should be concluded during the transition period of the Withdrawal Agreement, during which the UK remains part of the internal market and subject to EU law. This transition period expires on 31 December 2020 (Article 126 WA). The Joint Committee (JC) of the WA (composed of officials of the European Commission and the UK Government and co-chaired by a Member of the European Commission and a Minister of the Crown) can adopt, by mutual consensus, a single decision extending the transition period for up to one or two years (Article 132(1) WA). Such decision can be requested from both the EU and the UK. The purpose of this prolongation possibility was originally (in March 2019) and still is to avoid an undesired ‘hard Brexit’ because of unfinished trade negotiations. The decision of the JC to extend the transition period must be taken before 1 July 2020.

The newly elected Prime Minister Johnson does not intend to make use of this prolongation possibility and wants to strike a trade deal with the EU before 31 December 2020. In order to emphasise this commitment, the Withdrawal Agreement Act includes a section 33, according to which ‘[a] Minister of the Crown may not agree in the Joint Committee to an extension of the implementation period’. This means that – in the event a trade agreement between the EU27 and the UK is not ratified on 31 December 2020 – there will be a ‘hard Brexit’ on 1 January 2021 if the deadline of 1 July 2020 elapses without any prolongation decision of the JC.

Extending the Transition Period after 1 July 2020 if there is a political will

This situation begs the question whether there are other possibilities – past 1 July 2020 – to prolong the transition period, during which the UK remains part of the EU’s internal market and subject to EU law, until a trade agreement is ratified, if there is a political will on both sides to do so. As a baseline, any prolongation of the transition period after 1 July 2020 is legally excluded because the WA does not provide for any other mechanism to do so. There are, however, two legal pathways to explore that might nevertheless lead to a prolongation of the transition period:

-          A new transition period could be established by a new and distinct agreement between the EU and the UK;

-          The ‘old’ transition period of the WA could be prolonged by replacing the original end date in Article 126 WA through amendment of the WA.

New and Distinct Agreement would Undermine EU Rules on Membership

A new and distinct agreement that includes a new transition period starting on 1 January 2021 would need, on the EU’s side, an explicit or at least implied competence to grant such a ‘status’ to a third country (Article 216(1) TFEU), which the UK will be after 31 January 2020. Article 50 TEU, being the legal base on the part of the EU for the establishment of the original transition period in the Withdrawal Agreement, would not serve as a legal basis for such an agreement as the new and distinct agreement would be concluded with a third country and not with ‘[a] Member State which decides to withdraw’. We may now think of a construct that the ‘transition’ equals some sort of a ‘temporary association arrangement’ of the UK with the EU so that Article 217 TFEU might suffice as a legal base. Yet, looking at previous instances when Article 217 TFEU was used, an association implies stability and permanency, which runs counter to the very idea of a transition period. Finally, Article 207(1) TFEU could also not be used on its own as rights and obligations that the ‘transition period’ implies go beyond the ‘common commercial policy’. The transition period prolongs, in substance, the EU membership beyond the official exit date of a Member State. The substance of EU membership covers more than the ‘common commercial policy’.

What remains, would be basing a new and distinct agreement that introduces a new transition period (for example, together with a future customs arrangement between the UK and the EU) on a combination of legal bases and Article 352(1) TFEU, as it was done previously when the EU joined the WTO agreements (cf. CJEU, Opinion 1/94). Whilst this construct certainly allows for quite a comprehensive scope of an agreement, triggering mixity so that also national Parliaments have to ratify it, it would not work for extending the transition period. This follows from the fact that Article 352(1) TFEU ‘cannot be used as a basis for the adoption of provisions whose effect would, in substance, be to amend the Treaty without following the procedure which it provides for that purpose’ (CJEU, Opinion 2/94, para 30).

If we were to apply Article 352(1) TFEU in order to introduce a new transition period, which would keep the UK in the internal market and keep it subject to EU law, we would create the legal possibility to grant (temporarily) EU membership (which is, in essence, being part of the internal market and subject to EU law) to any other third country. This would undermine Article 49 TEU and the necessity for being a formal Member State in order to have such a status. The Treaties only provide for one exception to deviate from this rule: a country that used to be a Member State can keep up its rights and obligations deriving from membership for a limited period of time after the withdrawal. The Treaties created with Article 50 TEU a special exclusive Union competence to grant such a status to a prospective third country.

For these reasons, a new and distinct agreement between the EU and the UK cannot introduce a new transition period starting as of 1 January 2021. It should be noted that this reasoning does not apply to any special arrangement that only includes a subset of previous EU rights and obligations and a partial access to the internal market. Such arrangement would, however, also not qualify as a ‘transition period’.

Extending the Transition Period by Amendment of the Withdrawal Agreement

The second pathway to prolong the transition period would be an amendment of the original Withdrawal Agreement itself by exchanging the end date in Article 126 WA. Some argue now that any other way to change the transition period than its prolongation by the JC is legally impossible. The argument is based on the reading of Article 50 TEU that its applicability to the Withdrawal Agreement ceases in the moment the UK has exited the EU and that besides Article 50 TEU there is no legal base in the EU Treaties that would allow the EU to amend the WA.

General Public International Law Allows for Amendments of the WA

Another reading of the legal situation is, however, supportable. The argument is built on general public international law. The Vienna Convention on the Law of the Treaties (VCLT), which is considered to codify customary international law when it comes to the law of the Treaties, provides in Article 39 for a general rule, according to which a ‘treaty may be amended by agreement between the parties. The rules laid down in Part II [on the conclusion and the entry into force of Treaties] apply to such an agreement except insofar as the treaty may otherwise provide’. The WA provides for a legal base for the JC to ‘adopt decisions amending this Agreement’ (Article 164(5)(d) WA) but excludes ‘Part Four’ from its scope, which contains the end date of the WA. Although this is a specific treaty rule that allows for amendments of the treaty text, it only covers parts of it. Drawing the conclusion from the presence of such a limited amendment rule that the treaty parties are deprived from amending the treaty text themselves seems stretched. Such clauses enable quick technical amendments in place of lengthy ratification procedures. But they cannot bar the treaty Parties from amending the treaty text between them. In other words, the WA is silent on the revision of its text by the treaty parties in general and, more specifically, of Part Four of the WA with the end date of the transition period.

This brings us back to the starting point, according to which general public international law allows for an amendment of the WA including the end date of the transition period after 1 July 2020. This leads to the follow-up question on the legal base and the procedure to follow for such an amendment. On the part of the UK, the legal base and the procedure to follow is to be found in domestic law. The capacity of the UK to conclude treaties includes the capacity to amend them. Provided that domestic law does not prescribe any special rules for the amendment of the WA, the traditional rules on treaty ratification apply.

In Search of The Union Competence to Amend the Withdrawal Agreement

On the part of the EU, the situation is more complicated. The EU may only act if it is at least implicitly empowered to act. There must hence be a legal base for amending the WA. A literal reading of the original legal base for the conclusion of the WA excludes the use of Article 50(2) TEU. This article requires an agreement with a ‘Member State which decides to withdraw’. Once the other Treaty party involved in the WA is no more a Member State, Article 50(2) TEU seems to cease to apply. Besides Article 50(2) TEU, once again, Article 207 TFEU or Article 217 TFEU could be considered as possible legal bases, given that the amendment of an agreement is formally just another agreement. Yet, the WA exceeds the scope of Article 207 TFEU as its content covers more than ‘common commercial policy’. Also, Article 217 TFEU seems to be a rather weak legal base as it would require the establishment of an ‘association’. Although it is not completely unimaginable to qualify the ‘reciprocal rights and obligations’ in the WA as the creation of some sort of association between the UK and the EU, the entire purpose of the WA (except for the Protocol on Ireland/Northern Ireland) is not meant to create an association that lasts but to deal with legacy issues of the former membership of the UK in the EU.

A further thought would be to consider Article 352(1) TFEU. For the same reasons as mentioned above, Article 352(1) TFEU cannot serve as a legal base to extend the transition period of the WA by means of Treaty amendment. This leads us to the (interim) conclusion that EU law does not provide for any legal base to enter into an agreement that amends the WA so that any amendments of the WA are ruled out by EU law.

This understanding of EU Law makes the WA a ‘fossilised’ international agreement that could never be changed. Such treaties (especially bilateral ones such as the WA) are unknown to public international law. The existence of such treaties would run counter the general international law principle (which is even considered to have the quality of ius cogens) enshrined in Article 6 VCLT, according to which the legal capacity to conclude Treaties cannot be limited by Treaties. Violation of treaty obligations because of the conclusion of another treaty may be sanctioned according to the principles of state responsibility but the capacity to enter into other treaties may not be limited by treaty obligations. This finding holds also true for the EU. On this basis, it is valid to state, that as a matter of principle, whenever the EU enters into an international agreement, it must also have the competence to amend this agreement or to suspend it in accordance with either the procedures foreseen by the agreement or general public international law.

Analogous Application of Article 50 TEU

Against this background, EU law seems to have a lacuna in the case of Withdrawal Agreements if the legal basis for concluding such agreements ceases to apply at the moment of their entry into force. The existence of such a lacuna paves the way for an analogous application of Article 50(2) TEU. This provision must then be read as including a former Member State in its capacity as Treaty party to a Withdrawal Agreement with the EU. Such analogous application is not barred by an understanding that Article 50 TEU expires upon the withdrawal of a Member States. The article remains the source of existence of the WA and can be invoked for implementing measures of the WA as well as for amendments of the original Treaty text. Only for the conclusion and ratification of a new and distinct agreement with a former Member State of the EU, Article 50 TEU ceases to apply.

The decision-making procedure for amendments of a Withdrawal Agreement is hence also defined by Article 50 TEU: a qualified majority voting in Council of the EU27 upon consent of the European Parliament.

If therefore the deadline of 1 July 2020 elapses unused and it turns out in November 2020 that a ‘hard Brexit’ on 1 January 2021 can only be avoided by extending the transition period of the WA in its Article 126, general public international law says that this is legally possible and an analogous application to Article 50 TEU provides for the necessary legal base on the part of the EU.

*An earlier version of this post was published on Verfassungsblog

Barnard & Peers: chapter 27

Photo credit: Tobias Helfrich via Wikicommons

The Withdrawal Agreement Implementation Bill

Professor Steve Peers, University of Essex

After months of anticipation, we finally know the shape of the law which would govern the UK’s ratification of the revised withdrawal agreement: the EU withdrawal agreement bill. (See also the explanatory notes on the bill, and further documents) The government wants this to be fast tracked in a few days, in order to meet its deadline of October 31. This is an absurdly hasty approach to parliamentary scrutiny of a bill which runs to 115 pages, with 40 clauses and six schedules – especially given that the government has in the meantime been compelled to request an extension of EU membership pursuant to the Benn Act (discussed here).  

It’s a complex bill, and this blog post does not aim to be comprehensive: it’s a compilation of selected first impressions (see also my Twitter thread of initial reactions). Since the bill is closely related to the revised withdrawal agreement, my earlier analyses of that agreement (overview; transition period; dispute settlement; and citizens’ rights) may be relevant.   

Approval of the withdrawal agreement

First: the bill switches off both the specific rules for approval of the withdrawal agreement in the EU Withdrawal Act (the so-called ‘meaningful vote’), and the general rules for approval of international treaties in the Constitutional Reform and Governance Act (CRAGA). The effect of this is that as soon as the bill is passed, the government can ratify the withdrawal agreement without holding a further vote.

The transition period

As I noted in my earlier analyses of the revised withdrawal agreement, the agreement in effect creates a deferred no deal outcome – shifted from end October 2019 to end December 2020. That’s because the transition period set up in the agreement (which ensures the continued application of EU law to the UK) ends in December 2020. Note, however, that the provisions in the withdrawal agreement on citizens’ rights, the financial settlement and Northern Ireland will not expire at the end of the transition period. (In fact, for the most part that’s when the provisions on citizens’ rights and Northern Ireland kick in).

The possible deferred no deal outcome in December 2020 is therefore better described as a ‘no trade deal’ outcome. Can it be avoided, in the event that the UK and the EU have not negotiated a further relationship treaty on trade by that time (as seems highly likely)? Yes: it’s possible to extend that period by a period of one or two years, subject to the agreement of both sides in the Joint Committee set up to implement the agreement.

However, the circumstances are somewhat different from the extension of EU membership by the UK. There’s no underlying power to revoke the notification to leave any more. The decision can’t be taken at the last minute, like the membership extension decisions, because the withdrawal agreement requires the transition period extension decision to be taken by 1 July 2020. Moreover, the transition period extension decision requires a difficult negotiation on further UK contributions to the EU budget (the scheduled end-2020 to terminate the transition period coincides with the end of the EU multi-annual budget cycle).

In the bill, Parliament has a role in extension of the transition period. It must approve any government decision to extend it (as agreed with the EU). But there's no power for Parliament to require the government to make a request for an extension – and it’s government policy to leave at the end of 2020. (In the event that an extension is agreed, the bill would give effect to it by secondary legislation, similar to the EU Withdrawal Act provisions on extension of EU membership.) There’s already one proposed amendment by an MP to increase Parliament’s role; it will be important to see if an amendment like this passes.

During the transition period, the European Communities Act, loathed by Eurosceptics because it's the main domestic law basis for EU membership, comes back to life under the bill. The withdrawal agreement says that the UK has to apply new EU measures (other than those covered by UK opt outs) during the transition period, and there's provision in the EU for parliamentary scrutiny of such new EU measures. But needless to say, debating a motion on new EU measures in Westminster will have no impact on the EU side – given that the UK will not have MEPs or ministers at the negotiating table.

As a further measure to pacify Eurosceptics, there’s a parliamentary sovereignty clause. which is presumably intended to assert that Article 4 of the withdrawal agreement, which insists on the supremacy of the agreement in domestic law, doesn't overturn the basic principles of the UK constitution. There’s no small irony here, given that the Eurosceptics in question rejoiced when the government recently unlawfully suspended Parliament. In light of the Eurosceptics’ behaviour, Brexiting for parliamentary sovereignty makes as much sense as dieting for obesity.  

Implementing the withdrawal agreement

There's a general clause giving domestic legal effect to the rest of the withdrawal agreement other than the transition period. This includes the citizens’ rights provisions. I’ll focus on two aspects in more detail: citizens’ rights and workers’ rights.

Citizens’ rights

The citizens’ rights provision of the withdrawal agreement aim to preserve most of the same status that EU27 citizens in the UK, and UK citizens in the EU27, have on the basis of EU free movement law, if they moved before the end of the transition period in the withdrawal agreement. The specific provisions in the main part of the bill set out further powers for the government to implement it as regards: the application deadline for EU27 citizens; frontier workers; restrictions of entry and residence; grounds for deportation; appeals and judicial review; recognition of professional qualifications; social security; non-discrimination; and workers’ rights (in the context of free movement). All of these provisions refer back to the withdrawal agreement; they are not general power to do anything the government likes, even in breach of it.

The clause on the application deadline would be a good place to insert an amendment to ensure that EU citizens are not deported or subjected to any other detriment due purely to missing the deadline. Furthermore the bill should be amended to protect the position of those whom the UK is only protecting on a discretionary basis (for instance, the non-EU family members of UK citizens who return to the UK from an EU Member State, and those who are not working but whom the UK considers do not have ‘comprehensive sickness insurance’ because they rely on the NHS.

In addition, the withdrawal agreement requires the UK to set up an independent monitoring authority for EU27 citizens’ rights. This is established in a schedule to the bill. EU27 citizens can complain to this body about their treatment, and it can launch inquiries or court proceedings as a follow-up. However, it might be questioned whether the body is really independent, given the influence which the Bill gives the Home Secretary over appointments. A better approach would be appointments by an independent body or a parliamentary committee, or perhaps adapting the model for judicial appointments.

Workers’ rights

Some Labour MPs have brought themselves to support the withdrawal agreement based on promises for protection of worker’s rights. How substantial are these – in light of the removal from the withdrawal agreement of the protection for such standards (forming part of the UK-wide customs union backstop) in the earlier version of the agreement?

According to the bill, the government must release a statement as to whether a new bill goes below EU standards on employment law or not. But it can still propose a bill even if it drops below those standards. As for new EU legislation on workers’ rights, the government must report on whether they are higher than UK standards, and if so whether they intend to match them.

This leaves obvious gaps: what about secondary legislation related to workers’ rights? What about gaps between UK courts’ interpretation and the CJEU? And even the core commitments are not very impressive – a sort of Potemkin village of apparently solid promises which are actually empty facades. If Labour MPs fall for this, I have a red flag in Florida I’d like to sell to them.

A more genuine commitment would: rule out reduction of EU standards by means of secondary legislation; require the UK courts to keep to any minimum standard set by the CJEU unless an Act of Parliament requires otherwise, with the power for the courts to go above that standard; and match new EU legislation on workers’ rights unless Parliament votes against it (or at least, leave to Parliament the choice whether to match the new legislation nor not).  

Future relationship

The bill regulates the future relationship between the UK and the EU too. The government's negotiating strategy must be approved by Parliament (it’s not explicit whether Parliament could amend that strategy), and ratification of the resulting treaties must be approved by Parliament, in much the same way as approval of the withdrawal agreement under the EU Withdrawal Act. So we are promised more ‘meaningful votes’ in future – assuming that there are any treaties with the EU to approve.

But there’s a catch: any negotiating guidelines have to be ‘consistent with the political declaration’ on the future relationship, which suggests that this non-binding agreement between the UK and the EU attains a sort of binding effect in domestic law. But this declaration rules certain things out, such as a customs union or single market relationship. So, to paraphrase Henry Ford, the government is telling Parliament that it can vote for any negotiation strategy it likes – as long as it’s blue.

We can expect amendments to the bill on this issue, including on the question of a customs union. It has been argued that the opposition parties who want a different relationship with the EU should just roll over on this point and wait to win an election. But we had an election in 2017 – in which the future relationship with the EU was an issue. Those who voted for the opposition parties then voted for manifestos promising to support a close relationship with the EU; so why shouldn’t the opposition parties try to amend the bill to give effect to these preferences? After all, the government chose to hold an early election on the issue of Brexit, and lost its majority.

This goes back to underlying themes in the Brexit debate. Supporters of the government’s notion of One True Brexit gloss over that at various times this One True Brexit – which ‘everyone knew they were voting for’ – has constituted the first withdrawal agreement, the revised withdrawal agreement, and no deal at all. The government blames its likely inability to achieve its Brexit objectives by the end of October on judges judging, Remainers moaning, Parliament legislating, and the EU parking the bus in the Irish Sea. But at the root here is voters voting: depriving the government of its majority in an election in which they were asked about Brexit policy.  

Barnard & Peers: chapter 27

Photo credit: Jonathan Joseph Bondhus

Analysis 2 of the Revised Brexit Withdrawal Agreement: Transition Period

Professor Steve Peers, University of Essex

With a revised version of the Brexit withdrawal agreement now on the table, this is an opportune time to update my previous blog posts on the first version of the withdrawal agreement. The first analysis was an overview of the revised agreement, and this blog post (updating my spring 2018 post) concerns the transition period in the agreement. (The revised deal comprises a revised Protocol on the Irish border – for a full text of the revised withdrawal agreement following this change, see here – and a revised political declaration on the future relationship.) Update: Subsequent blog posts analyse the provisions in the revised withdrawal agreement on dispute settlement, citizens' rights and the revised political declaration on the future relationship between the UK and the EU.

This blog post explains the overall context of the transition period and then annotates the text. I have not repeated some of my analysis of the drafting history, but that can be found in the 2018 version of this post.  

The basic idea of the transition period is that substantive EU law (including newly adopted measures) continues to apply to the UK until the end of 2020 – although this date could be extended by one or two years. However, there are exceptions to this general rule, as explained below. After the end of that period, the relationship between the EU and UK ceases, unless new treaties have been negotiated (with the exception of Northern Ireland, which is subject to special rules). 

Structure of the withdrawal agreement

Part One of the withdrawal agreement sets out the “Common Provisions”. These deal with basic issues like definitions and territorial scope.

Part Two of the withdrawal agreement deals with citizens’ rights. It will mostly not apply until the end of the transition period, and free movement law will continue to apply during the transition period.

Part Three of the agreement sets out “separation provisions”. These deal with issues like what happens to European Arrest Warrants pending at the end of the transition period. This part will largely apply as from the end of that period.

Next, Part Four sets out the rules on the transition period as such. These provisions are annotated below.

Part Five concerns the financial settlement. It incorporates the earlier agreement that the UK is takes part in the EU’s financial rules until the end of the transition period. (The end-2020 cut-off date of the transition period matches the end of the current EU budget cycle).

Part Six sets out “Final Provisions”. Some of this applies immediately from Brexit Day, and some from the end of the transition period. For instance, the rules on ECJ jurisdiction over EU citizens apply, for the most part, from eight years after the end of the transition period.  So does the clause on a new authority to help guarantee EU citizens’ rights, which might be shut down at the end of that same eight-year period. 

There will also be Protocols on Irish border issues and UK bases in Cyprus, both of which would mostly apply from the end of the transition period; the former was revised as part of this week’s ‘deal’.

I aim to update my other blog posts on the previous version of the withdrawal agreement (on citizens’ rights and dispute settlement) and on the related political declaration shortly.

Barnard & Peers: chapter 27

Photo credit: Der Speigel

PART FOUR

TRANSITION

Article 126

Transition period

There shall be a transition or implementation period, which shall start on the date of entry into force of this Agreement and end on 31 December 2020.

Comments: The EU preferred the term ‘transition’, while the UK preferred ‘implementation’. As a compromise, both terms are used here, although the withdrawal agreement refers solely to a ‘transition’ period in all other Articles of the withdrawal agreement.

The key issues are how the transition period relates to the rest of the agreement, and whether it can be extended. See the discussion above on the first issue, and Article 132 below on the latter issue.

The end date is convenient for the EU27 side as it corresponds with the end of the current multi-annual EU budget cycle. In the revised withdrawal agreement, the ‘backstop’ for the entire UK is removed, creating a ‘cliff edge’ at the end of the period except as regards Northern Ireland.

Note that Article 127(2), discussed below, provides conversely for the transition period to be potentially curtailed early as regards foreign policy issues.

Article 127

Scope of the transition

1. Unless otherwise provided in this Agreement, Union law shall be applicable to and in the United Kingdom during the transition period.

However, the following provisions of the Treaties and acts adopted by the institutions, bodies, offices or agencies of the Union shall not be applicable to and in the United Kingdom during the transition period:

(a) provisions of the Treaties and acts which, pursuant to Protocol (No 15) on certain provisions relating to the United Kingdom of Great Britain and Northern Ireland, Protocol (No 19) on the Schengen acquis integrated into the framework of the European Union or Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, or pursuant to the provisions of the Treaties on enhanced cooperation, were not binding upon and in the United Kingdom before the date of entry into force of this Agreement as well as acts amending such acts;

(b)  Article 11(4) TEU, point (b) of Articles 20(2), Article 22 and the first paragraph of Article 24 TFEU, Articles 39 and 40 of the Charter of Fundamental Rights of the European Union, and acts adopted on the basis of those provisions. 

Comments: Union law is defined in Article 2. Sub-paragraph 1(a) keeps the UK’s existing opt outs from the single currency, Schengen, Justice and Home Affairs (JHA) law and enhanced cooperation (a system where some Member States go ahead and adopt EU law without the others), except where the UK opted in to EU laws in these areas before Brexit day. Paragraph 4 says more about enhanced cooperation, while para 5 says more about JHA.

Sub-paragraph 1(b) excludes the Treaty rules and legislation related to the European citizens’ initiative (on that process, see the case law discussed here) and also voting and standing for office in the European Parliament and local government. There is no transitional clause on the situation of those EU27 citizens who were elected to local government in the UK (and vice versa) before Brexit day, even in the “Separation Provisions” of Part Three of the withdrawal agreement. Conversely other EU citizenship provisions will logically still apply. This includes the “Ruiz Zambrano” case law on UK citizen children with non-EU parents, which I discussed here.

2. In the event that the Union and the United Kingdom reach an agreement governing their future relationship in the area of the Common Foreign and Security Policy and the Common Security and Defence Policy which becomes applicable during the transition period, Chapter 2 of Title V of the TEU and the acts adopted on the basis of those provisions shall cease to apply to the United Kingdom from the date of application of that agreement.  

Comments: There are also provisions on foreign policy in paragraph 7 and in Article 129(6) and (7).

This is the only area where the transition period contemplates a potential early end to the transitional period. By contrast, Theresa May’s Florence speech referred to the possibility of ending the transition period early for a number of issues at different times. An early end to the transition period in this field would avoid the awkward situation where the UK becomes bound by foreign policy measures which it could have vetoed if it were a Member State, although note that Article 129(6) preserves that possibility in certain circumstances. It would also end a possibility for linking defence issues to trade issues, although the UK policy in the Florence speech (and since) was not to insist upon such a link. A later speech by Theresa May (discussed here) went into more detail on what a “future relationship” treaty in this area might include.

Legally it is questionable whether the UK and EU would actually be constrained by the withdrawal agreement if they wanted to sign a treaty replacing these rules in other fields of EU law during the transition period.

3. During the transition period, the Union law applicable pursuant to paragraph 1 shall produce in respect of and in the United Kingdom the same legal effects as those which it produces within the Union and its Member States, and shall be interpreted and applied in accordance with the same methods and general principles as those applicable within the Union.

4. The United Kingdom shall not participate in any enhanced cooperation:

(a)  in relation to which authorisation has been granted after the date of entry into force of this Agreement; or

(b)  within the framework of which no acts were adopted before the date of entry into force of this Agreement.

Comments: On “enhanced cooperation”, see also para 1(b) of this Article, discussed above. This clause is particularly relevant to the proposal on the financial transaction tax, which is subject to the enhanced cooperation process (without UK participation) but where there is no agreement yet (see more on the background to the tax proposal here). In light of this provision, the suggestion that the UK might somehow become bound as such by the tax during the transition period is frankly scaremongering. There is a risk that the tax would have some extraterritorial effect upon the City of London, but that risk would equally exist if the UK were still a Member State, since it could not veto an enhanced cooperation measure that it was not participating in. It could also have such an effect if the UK were no longer even a “transition” ex-Member State.

5. During the transition period, in relation to measures which amend, build upon or replace an existing measure adopted pursuant to Title V of Part Three of the TFEU by which the United Kingdom is bound before the date of entry into force of this Agreement, Article 5 of Protocol (No 19) on the Schengen acquis integrated into the framework of the European Union and Article 4a of Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice shall continue to apply mutatis mutandis. The United Kingdom shall not, however, have the right to notify its wish to take part in the application of new measures pursuant to Title V of Part Three of the TFEU other than those referred to in Article 4a of Protocol No 21. 

In order to support continuing cooperation between the Union and the United Kingdom, under the conditions set out for cooperation with third countries in the relevant measures, the Union may invite the United Kingdom to cooperate in relation to new measures adopted under Title V of Part III TFEU.

Comment: This issue is also the subject of a speech by Theresa May. For an analysis of the speech and a proposed “future relationship” treaty in this area, see here.

This provision means that the UK can opt in to new JHA laws amending JHA laws which it is already bound by. Note that the UK has already opted out of the ‘Dublin IV’ proposal on allocation of asylum seekers, so the suggestion that it could be bound by that law during the transitional period is pure scaremongering. On the other hand, it cannot opt in to new JHA measures which do not amend JHA laws which it is already bound by. At most it can seek to cooperate with the EU in those measures as a non-EU country, on the same basis as other non-EU countries.

At the end of the transition period, the winding up of cooperation in this field is dealt with by the separation provisions in the agreement, on criminal law and civil litigation. There is no provision for how to deal with pending proposals to transfer responsibility for asylum seekers (the “Dublin III” Regulation) at the end of that period.   

One provision relevant to this field appears in Article 185 of the treaty. It provides for the possibility, as from Brexit Day, of refusing to surrender a State’s own citizens under the European Arrest Warrant (EAW) law:

When making the written notification referred to in the first paragraph, the Union, in respect of any Member State which has raised reasons related to fundamental principles of national law of that Member State, may declare that, during the transition period, in addition to grounds for non-execution of a European arrest warrant referred to in Framework Decision 2002/584/JHA, the executing judicial authorities of that Member State may refuse to surrender its nationals to the United Kingdom pursuant to a European arrest warrant. In such a case, the United Kingdom may declare, no later than 1 month after the receipt of the Union's declaration that its executing judicial authorities may refuse to surrender its nationals to that Member State.

This provision raises some key questions, in particular what separation rule will apply to a European Arrest Warrant pending on Brexit Day which is covered by this declaration, and whether some other obligation applies instead of surrender (extradition treaties often contain an “extradite or prosecute” rule, although the EAW law also applies to those who have been convicted already; in that case the obvious course would be to transfer the sentence using the applicable EU rules). Note that the majority of those surrendered are not nationals of the State surrendering them; Germany could still return UK citizens to the UK, for instance.

6. Unless otherwise provided in this Agreement, during the transition period, any reference to Member States in the Union law applicable pursuant to paragraph 1, including as implemented and applied by Member States, shall be understood as including the United Kingdom.

7. By way of derogation from paragraph 6:

(a) for the purposes of Articles 42(6) and 46 TEU and of Protocol (No 10) on permanent structured cooperation established by Article 42 of the Treaty on European Union, any references to Member States shall be understood as not including the United Kingdom. This shall not preclude the possibility for the United Kingdom to be invited to participate as a third country in individual projects under the conditions set out in Council Decision (CFSP) 2017/2315 on an exceptional basis, or in any other form of cooperation to the extent allowed and under the conditions set out by future Union acts adopted on the basis of Articles 42(6) and 46 TEU;

(b) where acts of the Union provide for the participation of Member States, nationals of Member States or natural or legal persons residing or established in a Member State in an information exchange, procedure or programme which continues to be implemented or starts after the end of the transition period, and where such participation would grant access to security related sensitive information that only Member States (or nationals of Member States, or natural or legal persons residing or established in a Member State) are to have knowledge of, in such exceptional circumstances the references to Member States in such Union acts shall be understood as not including the United Kingdom. The Union shall notify the United Kingdom of the application of this derogation;

(c) for the purposes of the recruitment of officials and other servants of the institutions, bodies, offices or agencies of the Union, any references to Member States in Articles 27 and 28(a) of the Staff Regulations and in Article 1 of Annex X thereto and in Articles 12, 82 and 128 of the Conditions of Employment of Other Servants of the European Union, or in the relevant provisions of other staff rules applicable to those institutions, bodies, offices or agencies, shall be understood as not including the United Kingdom. 

Comments: Paragraph 7(a) concerns “permanent structured cooperation” in the area of defence, from which the UK decided to opt out when most Member States decided to trigger that process recently (in the 2017 Council Decision referred to in the text of para 7(a)). The text sets out a compromise: the UK continues its opt out but, like JHA measures, can cooperate as a non-EU country in this and other future defence measures. Note that following paragraph 2 there may be an early EU/UK treaty in this area which would likely address this issue.

It is often falsely claimed that the withdrawal agreement ties the UK into an “EU army”: this provision makes clear that this is not the case.

Article 128

Institutional arrangements

1. Notwithstanding Article 127, during the transition period Article 7 shall apply. 

Comments: Article 7 states that the UK should be regarded as a Member State when Union law (defined in Article 2(a)), refers to Member States, except as regards EU institutions, governance of agencies, or voting in the committees that oversee the adoption of implementing measures by the Commission.

In effect, although Article 2(b) implicitly defines the UK as not a Member State, the UK will remain a de facto Member State during the transition period for the purposes of substantive EU law, but not institutional EU law.

Note that paragraph 5 is an express derogation from paragraph 1, and that Articles 129 and 130 lay out specific rules on external action and fisheries.

2. For the purposes of the Treaties, during the transition period, the parliament of the United Kingdom shall not be considered to be a national parliament of a Member State, except as regards Article 1 of Protocol (No 1) on the role of national parliaments in the European Union and, in respect of proposals which are in the public domain, Article 2 of that Protocol.

Comments: The exception for Articles 1 and 2 of the Protocol on national parliaments means that consultation documents and proposals for EU legislation will still be sent to the UK parliament. However, the rest of that Protocol will no longer apply to the UK parliament: it concerns national parliament objections (Article 3); a waiting period (Article 4); Council agendas (Article 5); simplified Treaty amendments (Article 6); the Court of Auditors (Article 7); bicameral parliaments (Article 8); and COSAC, the joint EP/national parliament body (Title II).

It arguably is implicit that if the UK is not part of the EU institutions, there is no requirement to consult the UK’s national parliament on proposed EU measures. But even if there is no longer a legal obligation to do so, it is hard to see what harm would be caused by consulting the UK parliament, or what legal rule would prevent the EU agreeing to do so outside the context of the formal role for national parliaments of Member States set out in the Treaties. Ultimately it seems that there was a compromise which partly accepts the case for a continued link with the UK parliament during the transition period.

3. During the transition period, provisions of the Treaties which grant institutional rights to Member States enabling them to submit proposals, initiatives or requests to the institutions shall be understood as not including the United Kingdom.

Comments: A footnote here states “This should in particular concern Articles 7, 30, 42(4), 48(2) – (6) and 49 TEU and Articles 25, 76(b), 82(3), 83(3), 86(1), 87(3), 135, 218(8), 223(1), 262, 311 and 341 TFEU.”  This exclusion follows from the removal of the UK from the institutional law of the EU.

4. For the purposes of participation in the institutional arrangements laid down in Articles 282 and 283 TFEU and in Protocol (No 4) on the Statute of the European system of central banks and of the European Central Bank with the exception of Article 21(2) of that Protocol, during the transition period, the Bank of England shall not be considered to be a national central bank of a Member State.

Comments: The exception for Article 21(2) of the ECB Protocol means that the Bank of England can still act as a fiscal agent for those buying government debt without this violating the Treaties’ no-bailout clause. Arguably it’s implicit that if the UK is not part of the EU institutions, it follows that the Bank of England does not have the status of a national central bank in its relations with the ECB.

5. By way of derogation from paragraph 1 and from Article 6, during the transition period, representatives or experts of the United Kingdom, or experts designated by the United Kingdom, may, upon invitation, exceptionally attend meetings or parts of meetings of the committees referred to in Article 3(2) of Regulation (EU) No 182/2011, of Commission expert groups, of other similar entities, or of bodies, offices or agencies where and when representatives or experts of the Member States or experts designated by Member States take part, provided that one the following conditions is fulfilled:

(a) the discussion concerns individual acts to be addressed during the transition period to the United Kingdom or to natural or legal persons residing or established in the United Kingdom;

(b)  the presence of the United Kingdom is necessary and in the interest of the Union, in particular for the effective implementation of Union law during the transition period.

During such meetings or parts of meetings, the representatives or experts of the United Kingdom or experts designated by it shall have no voting rights and their presence shall be limited to the specific agenda items that fulfil the conditions set out in point (a) or (b).  

Comments: Note that a statement by the Commission commits itself to issue a guidance document on how to apply this rule consistently in practice. Regulation 182/2011 sets out general rules for Member States’ participation in committees which govern the Commission’s use of implementing powers.

As in many other aspects of the transition period rules, it is questionable whether it is really necessary to limit the UK’s purely consultative role to this extent. Certainly there is only a weak argument that it is legally required.

6. During the transition period, the United Kingdom shall not act as leading authority for risk assessments, examinations, approvals or authorisations at the level of the Union or at the level of Member States acting jointly as referred to in the acts and provisions listed in Annex VII.

Comments: It is not so obviously implicit that the UK’s exclusion from the EU institutions means that it cannot have a role as lead authority in risk assessment et al. Put another way, this is arguably an issue of EU substantive law – where the UK will in effect remain a Member State during the transition period – rather than EU institutional law, where it will not. If the EU can trust the UK to implement EU law, why not accept that it can have a role in risk assessment, et al?

7. During the transition period, where draft Union acts identify or refer directly to specific Member State authorities, procedures, or documents, the United Kingdom shall be consulted by the Union on such drafts with a view to ensuring the proper implementation and application of that act by and in the United Kingdom.

Article 129

Specific arrangements relating to the Union's external action

1. Without prejudice to Article 127(2), during the transition period, the United Kingdom shall be bound by the obligations stemming from the international agreements concluded by the Union, or by Member States acting on its behalf, or by the Union and its Member States acting jointly as referred to in point (a)(iv) of Article 2.* 

Comments: A footnote states that: “The Union will notify the other parties to these agreements that during the transition period, the United Kingdom is to be treated as a Member State for the purposes of these agreements.”  For the text of the notification which would be issued, see here.

The UK will still be bound to the EU as regards treaties with non-EU states. Logically this applies vice versa and it would have been preferable to spell that out directly. It should follow that individuals can still invoke the direct effect of such treaties (where it exists) in the UK during the transition period (for instance, Turkish citizens with rights under the EU/Turkey association agreement framework).

However, the UK is not bound to non-EU countries to apply such treaties; neither can non-EU countries directly invoke such treaties against the UK.  Since this could in particular affect UK exports, it makes sense for the UK to focus on replicating such treaties: see para 4 below.

The assumption seems to be to hope that a unilateral notification by the EU regarding its customs territory (and other issues) will suffice for non-EU countries, legally and politically. Time will tell if this assumption is correct.

2. During the transition period, representatives of the United Kingdom shall not participate in the work of any bodies set up by international agreements concluded by the Union, or by Member States acting on its behalf, or by the Union and its Member States acting jointly, unless:

(a)  the United Kingdom participates in its own right; or 

(b) the Union exceptionally invites the United Kingdom to attend, as part of the Union's delegation, meetings or parts of meetings of such bodies, where the Union considers that the presence of the United Kingdom is necessary and in the interest of the Union, in particular for the effective implementation of those agreements during the transition period; such presence shall only be allowed where Member States participation is permitted under the applicable agreements.

3. In accordance with the principle of sincere cooperation, the United Kingdom shall refrain, during the transition period, from any action or initiative which is likely to be prejudicial to the Union's interests, in particular in the framework of any international organisation, agency, conference or forum of which the United Kingdom is a party in its own right. 

 Comments: This para explicitly sets out the obligation that would anyway arguably still apply implicitly, since other EU Treaty provisions on sincere cooperation would still be applicable to the UK. The particular relevance of the “sincere cooperation” principle in EU external relations law is that it limits Member States from negotiating treaties; but that issue is explicitly addressed by para 4. Note that the UK would presumably have more freedom to act once any early post-Brexit treaty on EU/UK security and defence cooperation came into force (see Article 127(2) above).

4. Notwithstanding paragraph 3, during the transition period, the United Kingdom may negotiate, sign and ratify international agreements entered into in its own capacity in the areas of exclusive competence of the Union, provided those agreements do not enter into force or apply during the transition period, unless so authorised by the Union.

Comments: This para only applies to “exclusive” competence of the EU, which narrows the limits on the UK’s external action. Note that the exact extent of exclusivity of EU external competence is often disputed and even litigated.

There is no mention of the process of approval of the UK becoming bound by treaties. Note that one of the statements attached to the Council negotiation Directives says that the Council will approve the UK becoming bound by such treaties, in accordance with the usual Treaty rules. 

5. Without prejudice to Article 127(2), whenever there is a need for coordination, the United Kingdom may be consulted, on a case-by-case basis. 

Comments: This paragraph takes account of the UK’s significant foreign policy rule, in particular regarding sanctions, although there is ultimately no specific reference to them. As with para 3, in the foreign policy context the UK would presumably have more freedom to act once any early post-Brexit treaty on EU/UK security and defence cooperation came into force (see Article 127(2) above).

6. Following a decision of the Council falling under Chapter 2 of Title V TEU, the United Kingdom may make a formal declaration to the High Representative of the Union for Foreign Affairs and Security Policy, indicating that, for vital and stated reasons of national policy, in those exceptional cases it will not apply the decision. In a spirit of mutual solidarity, the United Kingdom shall refrain from any action likely to conflict with or impede Union action based on that decision, and the Member States shall respect the position of the United Kingdom.

Comment: This is a significant possibility for the UK not to be bound by an EU measure in this field during the transition period. It reinforces the absurdity of the false claims that the withdrawal agreement would bind the UK to a future “EU army”.

The wording is adapted from two different rules on foreign policy decision-making in Article 31 TEU, although note that the consequence of a UK government declaration here would not be exactly the same as the provisions in the EU Treaty. This would not be a veto as such – since the EU could still adopt the planned act. Rather it would be what the EU calls a “constructive abstention” – the UK would not be bound by what the EU does, but would have to avoid frustrating it.

Note that since Union law applies to the UK during the transition period, this must include Article 275 TFEU, which limits Court of Justice jurisdiction over EU foreign policy measures to cases about sanctions and disputes over EU competence.

The future relationship treaty foreseen in Article 127(2) may make this provision redundant.  

7. During the transition period, the United Kingdom shall not provide commanders of civilian operations, heads of mission, operation commanders or force commanders for missions or operations conducted under Articles 42, 43 and 44 TEU, nor shall it provide the operational headquarters for such missions or operations or serve as framework nation for Union battlegroups. During the transition period, the United Kingdom shall not provide the head of any operational actions under Article 28 TEU.

Comments: The future relationship treaty foreseen in Article 127(2) may make this provision redundant. While this para is consistent with the overall thrust of removing the UK from roles in EU bodies, it is liable to make it harder to run an effective EU defence policy, given the extent of the contribution by the UK military. 

                                                        

Article 130

Specific arrangements relating to fishing opportunities

1. As regards the fixing of fishing opportunities within the meaning of Article 43(3) TFEU for any period falling within the transition period, the United Kingdom shall be consulted in respect of the fishing opportunities related to the United Kingdom, including in the context of the preparation of relevant international consultations and negotiations. 

2. For the purposes of paragraph 1, the Union shall offer the opportunity to the United Kingdom to provide comments on the Annual Communication from the European Commission on fishing opportunities, the scientific advice from the relevant scientific bodies and the proposals from the European Commission for fishing opportunities for any period falling within the transition period.

3. Notwithstanding point (b) of Article 129(2), with a view to allowing the United Kingdom to prepare its future membership in relevant international fora, the Union may exceptionally invite the United Kingdom to attend, as part of the Union's delegation, international consultations and negotiations referred to in paragraph 1 of this Article, to the extent allowed for Member States and permitted by the specific forum.

4. Without prejudice to Article 122(1), the relative stability keys for the allocation of fishing opportunities referred to in paragraph 1 of this Article shall be maintained. 

Comments: Fisheries was a controversial issue during the negotiations on a transition period, although it should also be noted that the deal equally preserves full market access for UK fisheries’ main export market during that period. The catch allocation/market access trade off is going to be central to the future relationship talks with the EU, given the EU’s intention to link these two issues.

If the transition period ends as proposed at the end of 2020, this provision would only be relevant for one year. It could continue for longer if the transition period is extended.

Paras 2 and 3 elaborate further upon the consultations and international negotiations points referred to in para 1, but para 4 is separate: it freezes the catch allocations existing on Brexit day. As such it is a compromise which prevents a possible “grab” of the UK fisheries catch by EU countries during the transition period. 

  

Article 131

Supervision and enforcement

During the transition period, the institutions, bodies, offices and agencies of the Union shall have the powers conferred upon them by Union law in relation to the United Kingdom and to natural and legal persons residing or established in the United Kingdom. In particular, the Court of Justice of the European Union shall have jurisdiction as provided for in the Treaties.

The first paragraph shall also apply during the transition period as regards the interpretation and application of this Agreement.  

Comments: As noted already, “Union law” is defined in Article 2 of the agreement.

ARTICLE 132

Extension of the transition period

1. Notwithstanding Article 126, the Joint Committee may, before 1 July 2020, adopt a single decision extending the transition period for up to 1 or 2 years.*

Comment: Note the requirement that the UK and EU both agree to an extension, and that there is only a single extension permitted. The footnote reads: * “In case of extension, the Union will notify other parties to international agreements thereof.”

2. In the event that the Joint Committee adopts a decision under paragraph 1, the following shall apply:

(a) by way of derogation from Article 127(6), the United Kingdom shall be considered as a third country for the purposes of the implementation of the Union programmes and activities committed under the multiannual financial framework applying as from the year 2021;

(b) by way of derogation from Article 127(1) and without prejudice to Part Five of this Agreement, the applicable Union law concerning the Union's own resources relating to the financial years covered by the extension of the transition period shall not apply to the United Kingdom after 31 December 2020;

(c) by way of derogation from Article 127(1) of this Agreement, Articles 107, 108 and 109 TFEU shall not apply to measures of the United Kingdom authorities, including on rural development, supporting the production of and trade in agricultural products in the United Kingdom up to an annual level of support which shall not be more than the total amount of expenditure incurred in the United Kingdom under the Common Agricultural Policy in 2019, and provided that a minimum percentage of that exempted support complies with the provisions of Annex 2 to the WTO Agreement on Agriculture. Such minimum percentage shall be determined on the basis of the last available percentage by which the overall expenditure under the Common Agricultural Policy in the Union complied with the provisions of Annex 2 to the WTO Agreement on Agriculture. In the event that the period by which the transition period is extended is not a multiple of 12 months, the maximum annual level of exempted support in the year for which the extended transition period covers less than 12 months shall be reduced pro rata;

(d) for the period from 1 January 2021 to the end of the transition period, the United Kingdom shall make a contribution to the Union budget, as determined in accordance with paragraph 3;

(e) subject to point (d) of paragraph 3, Part Five of this Agreement shall not be affected.

3. A decision of the Joint Committee under paragraph 1 shall:

(a) establish the appropriate amount of the contribution of the United Kingdom to the Union budget for the period from 1 January 2021 to the end of the transition period, taking into account the status of the United Kingdom during that period, as well as the modalities of payment of that amount;

(b) specify the maximum level of exempted support, as well as the minimum percentage thereof that shall comply with the provisions of Annex 2 to the WTO Agreement on Agriculture, as referred to in point (c) of paragraph 2;

(c) lay down any other measure necessary for the implementation of paragraph 2;

(d) adapt the dates or periods referred to in Articles 51, 62, 63, 84, 96, 125, 141, 156, 157 and Annexes IV and V to reflect the extension of the transition period.

Comments: EU budget law will not as such apply to the UK in event of an extension, but ad hoc contributions would be negotiated instead. This would likely be a difficult negotiation.