René Repasi, Associate Professor of EU Law at Erasmus University Rotterdam, Netherlands
The UK’s departure from the EU on January 31st, 2020, marked the completion of the initial “Brexit” phase, focused on resolving the implications of the UK’s past membership. This followed the UK general election, which saw Prime Minister Boris Johnson’s Conservative Party secure a significant majority in the House of Commons, leading to the swift ratification of the Withdrawal Agreement (WA).
Currently, we find ourselves in the second phase, dedicated to negotiating and determining the future relationship between the remaining EU27 and the UK. Initially, this phase was intended to conclude within the transition period stipulated in the WA. During this period, the UK would maintain its participation in the internal market and adherence to EU law. This period, as per Article 126 of the WA, is set to expire on December 31st, 2020. The WA’s Joint Committee (JC), comprising officials from the European Commission and the UK government, and jointly chaired by a European Commission Member and a UK Minister, has the authority to mutually agree upon a single decision to extend the transition period for a maximum of one or two years, as outlined in Article 132(1) of the WA. Either the EU or the UK can request this extension. The primary objective of this extension provision, both initially in March 2019 and presently, remains to prevent an undesirable “hard Brexit” scenario resulting from incomplete trade negotiations. A decision from the JC regarding an extension to the transition period must be reached before July 1st, 2020.
However, newly elected Prime Minister Johnson has indicated his intention to forgo this extension option, aiming to secure a trade deal with the EU before December 31st, 2020. To underscore this commitment, the Withdrawal Agreement Act incorporates Section 33, which explicitly prohibits any UK Minister from agreeing to an extension of the implementation period within the Joint Committee. Consequently, if a trade agreement between the EU27 and the UK remains unratified by December 31st, 2020, and the July 1st, 2020 deadline for a JC extension decision passes without action, a “hard Brexit” will take effect on January 1st, 2021.
Exploring Options for Extending the Transition Period Beyond July 1st, 2020
This situation raises a critical question: are there any alternative avenues, beyond July 1st, 2020, to extend the transition period – during which the UK would retain its place within the EU’s internal market and remain subject to EU law – until a trade agreement is successfully ratified, assuming there is mutual political will to do so? As a starting point, it’s crucial to acknowledge that any extension of the transition period beyond July 1st, 2020, is legally impossible based on the current WA, as it doesn’t offer alternative mechanisms for such action. However, there are two potential legal pathways worth exploring that might still lead to a transition period extension:
Establishing a new transition period under a separate and distinct agreement between the EU and the UK.
Extending the existing “old” transition period of the WA by amending Article 126 to replace the original end date.
Challenges with a New and Distinct Agreement
A new and distinct agreement encompassing a new transition period commencing on January 1st, 2021 would necessitate, from the EU’s perspective, an explicit or at least implicit competence to grant such a “status” to a third country, a status the UK will assume after January 31st, 2020, as per Article 216(1) TFEU. Article 50 TEU, serving as the EU’s legal basis for establishing the original transition period within the Withdrawal Agreement, would not be applicable in this context. This is because the new agreement would be forged with a third country, not with “[a] Member State which decides to withdraw.” One might consider structuring the “transition” as a temporary “association arrangement” between the UK and the EU, potentially utilizing Article 217 TFEU as legal grounding. However, historical instances where Article 217 TFEU was invoked suggest that association implies a degree of stability and permanence, a concept at odds with the temporary nature of a transition period. Furthermore, Article 207(1) TFEU cannot solely serve as the legal basis, as the rights and obligations associated with the “transition period” extend beyond the scope of the “common commercial policy.” Essentially, the transition period prolongs, in substance, the UK’s EU membership beyond its formal exit date. The essence of EU membership encompasses a broader spectrum than just the “common commercial policy.”
One remaining option could involve grounding a new and distinct agreement, potentially combined with a future customs arrangement between the UK and the EU, on a combination of legal bases, including Article 352(1) TFEU. This approach mirrors the one used when the EU became party to the WTO agreements (see CJEU, Opinion 1/94). While this construct allows for a comprehensive agreement scope, requiring ratification by national parliaments due to its mixed nature, it wouldn’t be suitable for extending the transition period. This is because 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,” as stated in CJEU, Opinion 2/94, para 30.
Employing Article 352(1) TFEU to introduce a new transition period, thereby maintaining the UK within the internal market and under EU law, would essentially create a legal avenue for granting temporary EU membership (which boils down to participation in the internal market and adherence to EU law) to any third country. This would undermine the spirit of Article 49 TEU and the principle that formal EU membership is a prerequisite for such a status. The Treaties offer only one exception to this rule: a former Member State can retain its rights and obligations derived from membership for a limited period after withdrawal. With Article 50 TEU, the Treaties established a special and exclusive competence for the Union to grant such a status to a prospective third country.
Therefore, a new and distinct agreement between the EU and the UK cannot establish a new transition period beginning on January 1st, 2021. It’s important to note that this reasoning doesn’t apply to specific arrangements encompassing a limited set of previous EU rights and obligations and partial access to the internal market. However, such arrangements wouldn’t qualify as a “transition period” in the true sense.
Extending the Transition Period by Amending the Withdrawal Agreement: Exploring the Possibilities
The second potential route to extend the transition period involves amending the original Withdrawal Agreement itself by modifying the end date specified in Article 126. Some argue that any method of altering the transition period other than through an extension agreed upon by the JC is legally untenable. This stance is rooted in the interpretation that Article 50 TEU ceases to be applicable to the Withdrawal Agreement once the UK exits the EU. Moreover, it posits that beyond Article 50 TEU, no legal basis within the EU Treaties allows the EU to amend the WA.
General Public International Law and Amendments to the WA
However, an alternative interpretation of the legal landscape is worth considering, one grounded in the principles of general public international law. The Vienna Convention on the Law of Treaties (VCLT), widely regarded as codifying customary international law pertaining to treaties, sets forth a general rule in Article 39: “A treaty may be amended by agreement between the parties. The rules laid down in Part II [on the conclusion and entry into force of treaties] apply to such an agreement except insofar as the treaty may otherwise provide.” The WA, in Article 164(5)(d), grants the JC the legal basis to “adopt decisions amending this Agreement.” However, this excludes “Part Four,” which contains the WA’s end date. Although this constitutes a specific treaty rule allowing for amendments to the treaty text, it covers only certain parts of it. Concluding from the presence of such a limited amendment rule that the treaty parties are barred from amending the treaty text themselves seems like a stretch. These clauses are designed to facilitate quick technical amendments, circumventing lengthy ratification processes. However, they cannot restrict the treaty parties from mutually agreeing upon amendments to the treaty text. In essence, the WA is silent on the revision of its text by the treaty parties in general, and more specifically, regarding Part Four and the end date of the transition period.
This brings us back to the initial point, where general public international law permits an amendment to the WA, including the end date of the transition period after July 1st, 2020. This leads to subsequent questions concerning the legal basis and the procedure for such an amendment. From the UK’s standpoint, its domestic law provides the legal basis and outlines the procedure. The UK’s capacity to enter into treaties inherently encompasses the capacity to amend them. Unless domestic law stipulates specific rules for amending the WA, the established rules governing treaty ratification would apply.
Identifying the Union Competence to Amend the Withdrawal Agreement
For the EU, the situation is more complex. The EU can only act if it possesses, at a minimum, implicit authority to do so. Hence, there must be a legal basis for amending the WA. A strict interpretation of the original legal basis for concluding the WA precludes the use of Article 50(2) TEU. This article mandates an agreement with a “Member State which decides to withdraw.” Once the other party to the WA ceases to be a Member State, Article 50(2) TEU seemingly becomes inapplicable. Apart from Article 50(2) TEU, Article 207 TFEU or Article 217 TFEU could potentially serve as legal bases, considering that an amendment to an agreement is technically just another agreement. However, the WA’s scope extends beyond that of Article 207 TFEU, as its content covers more than just “common commercial policy.” Similarly, Article 217 TFEU appears weak as a legal basis, as it would necessitate the establishment of an “association.” While it’s not inconceivable to categorize the “reciprocal rights and obligations” within the WA as some form of association between the UK and the EU, the overarching purpose of the WA (excluding the Protocol on Ireland/Northern Ireland) is not to create a lasting association. Instead, it aims to address legacy issues stemming from the UK’s former EU membership.
Another consideration could be Article 352(1) TFEU. However, for the same reasons outlined earlier, it cannot serve as a legal basis for extending the WA’s transition period through a treaty amendment. This leads us to the (temporary) conclusion that EU law doesn’t offer a legal foundation for an agreement to amend the WA, effectively ruling out any WA amendments under EU law.
This interpretation of EU law renders the WA a “fossilized” international agreement incapable of change. Such treaties, particularly bilateral ones like the WA, are unheard of in public international law. Their existence contradicts the fundamental principle of international law (potentially even holding the status of ius cogens) enshrined in Article 6 of the VCLT. This principle states that the legal capacity to conclude treaties cannot be restricted by treaties themselves. While breaches of treaty obligations due to entering into another treaty may be subject to sanctions under the principles of state responsibility, the capacity to enter into other treaties cannot be curtailed by existing treaty obligations. This principle applies equally to the EU. Therefore, it’s reasonable to assert that whenever the EU enters into an international agreement, it must inherently possess the competence to amend or suspend that agreement following the procedures outlined in the agreement itself or under general public international law.
Analogous Application of Article 50 TEU: A Potential Solution
Given this context, EU law appears to have a gap concerning Withdrawal Agreements when the legal basis for concluding such agreements becomes void upon their entry into force. This gap creates an opportunity for the analogous application of Article 50(2) TEU. This provision should then be interpreted to include a former Member State in its capacity as a party to a Withdrawal Agreement with the EU. Such an analogous application isn’t precluded by the understanding that Article 50 TEU expires upon a Member State’s withdrawal. The article remains the foundation for the WA’s existence and can be invoked for implementing measures related to the WA, as well as for amending the original treaty text. It is only in the context of concluding and ratifying a new and separate agreement with a former EU Member State that Article 50 TEU ceases to apply.
Consequently, the decision-making procedure for amending a Withdrawal Agreement would also be governed by Article 50 TEU: a qualified majority vote within the Council of the EU27, with the consent of the European Parliament.
Therefore, if the July 1st, 2020 deadline passes without action and it becomes apparent in November 2020 that a “hard Brexit” on January 1st, 2021, can only be averted by extending the transition period stipulated in Article 126 of the WA, general public international law permits such action. Additionally, an analogous application of Article 50 TEU provides the necessary legal basis from the EU’s perspective.
*An earlier version of this post was published on Verfassungsblog
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Photo credit: Tobias Helfrich via Wikicommons