Professor Steve Peers*

In a recent speech outlining the UK’s post-Brexit plans, Prime Minister Theresa May’s approach resembled Machiavelli’s strategies more than Leonardo da Vinci’s artistry. Nonetheless, her speech provided a glimpse into the legal structure the UK government envisions for its relationship with the EU during a transitional period after Brexit. While the main points of the Florence speech have been previously discussed, this piece delves deeper into the legal framework and its implications for EU27 citizens in the UK during this transition.

Legal framework

A key question arises: is a transitional period after Brexit legally feasible? If so, which EU laws would govern it?

Article 50 TEU, outlining the rules for Member State withdrawal, doesn’t mention a transitional period. However, Article 49 TEU, addressing accession, similarly omits transitional periods for joining the EU, yet such periods are standard practice.

The European Council, representing EU27 leaders, indicated a willingness to explore transitional arrangements in their Brexit negotiation guidelines. These arrangements must be well-defined, time-limited, and enforceable. They suggest that any extension of existing EU laws would necessitate the continued application of current regulatory, budgetary, supervisory, judicial, and enforcement mechanisms.

These principles are reiterated in the negotiation directives from the Council to the European Commission. Further directives are expected once “sufficient progress” is made on key issues like citizens’ rights, finances, and Northern Ireland.

May’s speech proposed that the UK would withdraw from EU political institutions on Brexit Day, with a “strictly time-limited” transition period of approximately two years. Aspects like a new dispute settlement system could be expedited, implying continued ECJ jurisdiction until then.

During this transition, market access would remain unchanged, the UK would participate in existing security measures, and the current EU rules and regulations would form the framework. Financial obligations would continue until the 2020 funding cycle ends.

EU citizens’ right to live and work in the UK would continue, albeit with mandatory registration, a provision permitted under the EU citizens’ Directive. However, the UK would conduct its own trade negotiations, forgoing the benefits of EU negotiations.

May also addressed maintaining EU27 citizens’ rights, potentially relevant to transition issues. She committed to integrating the agreement into UK law, allowing UK courts direct referral and consideration of ECJ case law.

Both sides broadly agree on a time-limited transitional period bridging the present and future UK/EU relationship. Defining the future relationship isn’t mandatory within the withdrawal agreement, as Article 50 only requires a “framework.”

Challenges may arise concerning post-Brexit EU legislation and EU law’s legal effect. Currently, the European Communities Act integrates new EU law into UK law, granting it direct effect and supremacy, and recognizing ECJ rulings. However, the proposed EU Withdrawal Bill would replace these provisions, retaining pre-Brexit EU rules and ECJ judgments, allowing amendments by the UK government or Parliament. It would also remove the principle of damages liability for breaching EU law and exclude the EU Charter of Fundamental Rights from retained EU law.

Technically, the UK government can incorporate any Withdrawal Agreement provision into UK law due to the broad amending powers granted by the Withdrawal Bill. Therefore, the issue isn’t capability but willingness to negotiate.

While the Prime Minister avoided confirming the application of post-Brexit EU law during the transition, deeming it negotiable, Cabinet members have opposed it. The EU27’s stance remains flexible on this point.

Less flexibility exists regarding EU law’s legal effect. The EU27 advocates for the continued application of “existing EU regulatory, budgetary, supervisory, judiciary and enforcement instruments and structures,” suggesting the ECJ’s ongoing jurisdiction and EU law’s current legal effect in the UK. While May alluded to the ECJ, she expressed a desire for an early termination of its role. Extending the UK’s stance on EU27 citizens’ rights (no ECJ role, optional consideration of ECJ rulings, incorporation of the Withdrawal Agreement without special status) to transitional rules would fall short of the EU27’s position. Additionally, the EU27 might advocate for the EU Charter’s continued application during the transition, particularly when implementing EU law.

Three additional points warrant consideration. First, the status of non-EU countries concerning the UK during the transition needs clarification, considering treaties involving the EU alone or the EU and its Member States.

Second, the post-transition period requires planning, particularly if extending the arrangement is deemed desirable. The Article 50 decision-making rule would expire, requiring adherence to standard EU law procedures. Depending on the content, unanimous voting and ratification by all Member States might be necessary, although provisional treaty application pending national ratification is an option.

Finally, a fundamental question remains: can a transitional deal be incorporated into Article 50? The EU27’s “legally possible” wording suggests potential doubts, possibly arguing that Article 50 cannot govern post-Brexit legal relationships but only regulate existing ones. However, this interpretation appears narrow, given Article 50’s reference to the framework for future relations and Article 8 TEU’s emphasis on strong relationships with neighboring non-EU countries. A time-limited transitional deal linked to the future framework should be legally sound. Notably, Article 50 doesn’t mandate ECJ jurisdiction over the withdrawal agreement beyond the general rule of ECJ’s authority on interpreting EU law for Member States.

This is crucial as the Article 50 agreement requires only a qualified majority vote from the EU27, bypassing national ratification. However, a “Plan B” is necessary should a legal challenge arise. In such a scenario, the ECJ might temporarily uphold contested treaty elements based on legal certainty, prompting the UK and EU to agree upon and provisionally apply the disputed parts based on appropriate legal grounds.

Extension of the Article 50 period

Extending the negotiation period, as permitted by Article 50, has been suggested as an alternative to a transition phase. Legally, this requires only a unanimous vote from the EU27 and the UK government, without European Parliament involvement. Domestically, an Act of Parliament might be required.

Politically, however, extending negotiations would be challenging. Unanimous EU27 consent is uncertain, especially considering the UK’s potential participation in the 2019 European Parliament elections. In the UK, a Brexit delay could weaken May’s political standing and bolster support for figures like Nigel Farage.

Moreover, equating negotiation extension with a transition period is misleading. First, during an extension, the UK would remain involved in EU political institutions. Second, an extension guarantees the unchanged application of EU law in the UK, including new legislation and ECJ judgments, while these aspects might be addressed differently during a transition.

Third, if the UK reconsiders Brexit, remaining within the EU through negotiation extension differs from rejoining after leaving. This hinges on resolving legal uncertainties surrounding Article 50 (withdrawal notice revocation, EU consent, potential conditions, indefinite extension) and the terms of potential rejoining (existing opt-outs, budget rebates).

EU27 citizens

The UK government’s plan to register EU citizens during the transition aligns with the EU citizens’ Directive, allowing registration for stays exceeding three months. However, penalties for non-registration must be proportionate, excluding expulsion or detention. Member States can maintain databases on EU citizens solely for administering EU free movement law. Information in criminal databases necessitates treating EU citizens equally to nationals.

Registration certificates cannot be the only proof of residency or other rights, and penalties for not carrying them are allowed only if applied to nationals lacking ID cards. Consequently, lacking an ID card system, the UK cannot penalize EU citizens for not carrying registration certificates.

While EU citizen registration is permissible, the legislation and case law limitations raise broader “transition law” questions. Demanding a complete ban on registration by the UK would be unrealistic, given similar practices in other EU states. However, will these limitations be upheld? This is crucial considering the UK Home Office’s history of creating a “hostile environment” for both EU and non-EU citizens. Without EU law and case law safeguards, unregistered EU citizens or those lacking certificates could face fines, detention, expulsion, or rights infringements. (These concerns also extend to potentially applying registration requirements to EU citizens present before Brexit Day.)

Continued application of existing EU law and pre-Brexit ECJ case law, as agreed upon, would resolve the issue during the transition. However, uncertainties remain regarding potential UK breaches, implementation inconsistencies, or new ECJ case law. Key questions arise about the availability of existing EU law remedies, UK courts’ ability to consult the ECJ, and their obligation to follow post-Brexit ECJ case law.

While significant for EU citizens in the UK, this issue represents a small part of the legal complexities surrounding the transition period. It’s crucial for both the UK and EU27 to thoroughly address these complexities in due course.

Barnard & Peers: chapter 27

Photo credit: Thousand Wonders

* *This blog post was supported by an ESRC Priority Brexit Grant on ‘Brexit and UK and EU Immigration Policy’