Professor Steve Peers, University of Essex
Recent weeks have seen significant progress in the Brexit negotiations. The EU27 and the UK reached an agreement on a substantial portion of the withdrawal agreement, including a transition period from March 2019 to the end of 2020, a key concern for the UK. This agreement follows earlier drafts and sets the stage for defining the future relationship between the UK and the EU, to be formalized in separate treaties.
One focal point of the agreement, and a source of debate, is the transition period, especially regarding fisheries and trade. While the UK secured some concessions, like the ability to negotiate trade deals with non-EU countries and a degree of influence over foreign policy, it conceded on extending acquired rights to EU27 citizens arriving during the transition period and keeping fisheries management within the transition framework.
Although avoiding the immediate economic impact of a no-deal Brexit, the transition period is just one piece of the puzzle. Other contentious parts of the withdrawal agreement are yet to be finalized and ratified, leaving the implementation of the transition period uncertain.
Critics labeling the transition period as making the UK a “vassal state” are reminded of previous Leaver proposals for an EEA-based interim period, which would have granted the UK more autonomy. This begs the question why such an approach was not pursued and why no credible alternative was presented.
This analysis delves into the details of the agreed-upon transition period within the broader context of the withdrawal agreement, examining its structure and potential extension beyond 2020, considering the complexities of negotiating the future EU-UK relationship within the given timeframe.
Structure of the withdrawal agreement
Understanding the transition period necessitates understanding the broader withdrawal agreement. The agreement is divided into several parts: common provisions (definitions, territorial scope), citizens’ rights, separation provisions (handling ongoing legal and administrative matters), the transition period, the financial settlement, and final provisions (dispute resolution, the role of the ECJ).
While a significant portion of the agreement has been agreed upon, key issues remain, particularly regarding some separation provisions, dispute settlement procedures, and the Irish border. Notably, aspects concerning citizens’ rights, the transition period, and the financial settlement have been largely agreed upon.
Extending the transition period?
Extending the transition period beyond 2020 is considered likely due to the complexity of the future EU-UK relationship negotiations. This raises legal questions regarding the amendment of the withdrawal agreement post-Brexit.
While the treaty is not explicit on post-Brexit amendments, using Article 218(11) TFEU to involve the ECJ in interpreting the agreement pre-emptively could provide clarity. The ECJ could clarify whether amending the withdrawal agreement is possible and under what conditions.
Amending the agreement post-Brexit using other EU treaty provisions is theoretically possible, but potentially more cumbersome than under Article 50. However, the Vienna Convention on the Law of Treaties doesn’t explicitly prevent amendments, and EU practice suggests flexibility in such matters.
The withdrawal agreement’s dynamic nature necessitates adjustments as new legal issues arise. The possibility of an indefinite extension within the agreement raises questions about exceeding Article 50’s scope regarding a permanent relationship. Alternatively, a new EU-UK treaty post-Brexit could incorporate and potentially supersede the transition period rules.
Denunciation of the withdrawal agreement, particularly concerning citizens’ rights and the Irish border, is bound by Article 56 of the Vienna Convention. The agreement lacks explicit denunciation clauses, and its indefinite nature, especially regarding citizens’ rights and the Irish Protocol, suggests denunciation is not straightforward.
Alternatives like extending EU membership or adjusting the withdrawal agreement’s entry into force date are possibilities, though politically challenging, particularly regarding UK participation in future European Parliament elections. Rejoining the EU during the transition period would fall under standard accession rules, raising questions about the UK’s previous opt-outs and budget rebate.
(The remainder of the text provides a detailed, clause-by-clause annotation of the transition period rules (Part Four) of the withdrawal agreement.)