Professor Steve Peers, University of Essex
Now that a revised Brexit withdrawal agreement is available, it’s a good time to revisit my prior analyses of the initial agreement. This post, updating my spring 2018 analysis, focuses on the transition period outlined in the agreement. (The revised agreement includes changes to the Irish border protocol and the political declaration on the future relationship.) This post will provide context for the transition period and then break down the text. I won’t repeat all of my analysis of the drafting history, as that’s available in the 2018 post.
The transition period is essentially designed to keep substantive EU law, including new measures, applicable to the UK until the end of 2020, with the possibility of a one- or two-year extension. However, there are exceptions to this rule. After this period, the EU-UK relationship ends unless new treaties are negotiated, with the exception of Northern Ireland, which has unique rules.
Structure of the withdrawal agreement
The withdrawal agreement starts with “Common Provisions” in Part One, covering fundamental aspects like definitions and territorial scope.
Part Two addresses citizens’ rights, which primarily come into effect after the transition period. Free movement law remains in effect during the transition.
“Separation provisions” are outlined in Part Three, dealing with issues like the handling of European Arrest Warrants at the transition period’s end. This section largely takes effect once the transition period concludes.
Part Four specifically details the transition period rules, which are annotated below.
Part Five covers the financial settlement, incorporating the prior agreement that the UK participates in EU financial rules until the transition period ends. The end-2020 date aligns with the current EU budget cycle’s conclusion.
“Final Provisions” are contained in Part Six, with some taking effect immediately on Brexit Day and others after the transition period. For instance, rules on ECJ jurisdiction over EU citizens mostly apply eight years post-transition, as does the provision for a new authority protecting EU citizens’ rights, which may dissolve after that eight-year span.
Protocols on Irish border matters and UK bases in Cyprus are also included, mostly applying post-transition; the former was updated in this recent ‘deal’.
I plan to soon update my other posts covering citizens’ rights, dispute settlement, and the political declaration on the future EU-UK relationship.
Barnard & Peers: chapter 27
Photo credit: Der Speigel
PART FOUR
TRANSITION
Article 126
Transition period
A transition or implementation period will be in effect, beginning on the date this Agreement enters into force and ending on December 31, 2020.
Comments: While the EU favored “transition” and the UK “implementation”, both terms are used here as a compromise. However, the rest of the withdrawal agreement consistently uses “transition” period.
Key points include how the transition period interacts with the rest of the agreement and the possibility of extension. The former is discussed above, and the latter is covered in Article 132.
The end date aligns with the current EU budget cycle, making it convenient for the EU27. The revised agreement eliminates the UK-wide ‘backstop’, creating a ‘cliff edge’ at the period’s end, except for Northern Ireland.
Article 127(2) allows for the potential early termination of the transition period concerning foreign policy matters.
Article 127
Scope of the transition
1. Unless specified otherwise, EU law applies to and within the United Kingdom throughout the transition period.
However, the following provisions of the Treaties and acts adopted by the Union’s institutions, bodies, offices, or agencies are not applicable to and in the United Kingdom during this time:
(a) Provisions of the Treaties and acts that, according to Protocol (No 15) on certain provisions relating to the United Kingdom, Protocol (No 19) on the Schengen acquis integrated into the EU framework, or Protocol (No 21) on the position of the United Kingdom and Ireland regarding the area of freedom, security and justice, or under enhanced cooperation provisions, were not binding upon the UK before this Agreement’s entry into force, as well as any amendments to these acts;
(b) Article 11(4) TEU, Articles 20(2)(b), 22, the first paragraph of Article 24 TFEU, Articles 39 and 40 of the Charter of Fundamental Rights of the European Union, and acts based on those provisions.
Comments: Union law is defined in Article 2. Sub-paragraph 1(a) maintains the UK’s existing opt-outs from the single currency, Schengen, Justice and Home Affairs (JHA) law, and enhanced cooperation, except where the UK opted into EU laws within these areas before Brexit. Paragraph 4 elaborates on enhanced cooperation, and paragraph 5 discusses JHA.
Sub-paragraph 1(b) excludes Treaty rules and legislation related to the European citizens’ initiative and participating in European Parliament and local government elections. The agreement lacks a transitional clause addressing EU27 citizens elected to UK local governments (and vice versa) before Brexit, even in Part Three’s “Separation Provisions”. However, other EU citizenship provisions logically remain applicable. This encompasses the “Ruiz Zambrano” case law regarding UK citizen children with non-EU parents.
2. If the EU and UK reach an agreement on their future relationship concerning Common Foreign and Security Policy and Common Security and Defence Policy, taking effect during the transition period, Chapter 2 of Title V of the TEU and related acts cease to apply to the UK from that agreement’s application date.
Comments: Foreign policy provisions also appear in paragraph 7 and Article 129(6) and (7).
This is the sole instance where an early end to the transition period is envisioned. Theresa May’s Florence speech suggested the possibility of ending it early for various issues at different points. Ending it early in this area would prevent the UK from being bound by foreign policy decisions it could have vetoed as a Member State, though Article 129(6) preserves that ability in certain situations. It would also decouple defense and trade issues, although the UK policy since the Florence speech hasn’t insisted on such a link. A subsequent speech by Theresa May provided more detail on a potential “future relationship” treaty in this field.
Legally, it’s debatable whether the withdrawal agreement could actually prevent the UK and EU from signing a treaty replacing these rules in other EU law areas during the transition.
3. During the transition period, applicable EU law under paragraph 1 has the same legal effect in the UK as within the EU and its Member States, with interpretation and application following the same methods and general principles.
4. The United Kingdom cannot participate in any enhanced cooperation:
(a) Authorized after this Agreement’s entry into force; or
(b) For which no acts were adopted before this Agreement’s entry into force.
Comments: See also paragraph 1(b) of this Article regarding “enhanced cooperation”. This clause is especially relevant to the financial transaction tax proposal, currently under the enhanced cooperation process without UK involvement but lacking a final agreement. Therefore, claims that the UK might be bound by this tax during the transition are unfounded. While there’s a risk of extraterritorial effects on London’s financial sector, that risk would exist even if the UK remained a Member State, as it couldn’t veto enhanced cooperation measures it wasn’t part of. The risk would persist even after the transition period.
5. During the transition period, Article 5 of Protocol (No 19) on the Schengen acquis and Article 4a of Protocol (No 21) on the area of freedom, security, and justice continue to apply, with necessary adjustments, concerning measures amending, building upon, or replacing an existing measure adopted under Title V of Part Three of the TFEU that bound the UK before this Agreement’s entry into force. However, the UK cannot express its desire to participate in applying new measures under Title V of Part Three of the TFEU beyond those in Article 4a of Protocol No 21.
To maintain cooperation, the EU may invite the UK, under the conditions for third-country cooperation outlined in relevant measures, to cooperate on new measures adopted under Title V of Part III TFEU.
Comment: This provision allows the UK to opt into new JHA laws that amend existing binding JHA laws. Since the UK opted out of the ‘Dublin IV’ proposal on asylum seeker allocation, claims of it being bound by that law during the transition are baseless. However, it cannot opt into new JHA measures not amending pre-existing laws; it can only seek cooperation as a non-EU country, similar to other non-EU countries.
_At the transition’s end, the termination of cooperation in this area is handled by separation provisions on criminal law and civil litigation. There’s no provision for handling pending proposals to transfer responsibility for asylum seekers (“Dublin III” Regulation) at that point. _
Article 185 addresses this area, allowing, from Brexit Day, refusal to surrender a State’s own citizens under 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 raises questions about the separation rule for EAWs pending on Brexit Day covered by this declaration and whether other obligations, like “extradite or prosecute” rules often found in extradition treaties, apply instead of surrender. Note that most surrendered individuals aren’t nationals of the surrendering state; for example, Germany could still return UK citizens to the UK.
6. Unless stated otherwise, references to Member States in EU law applicable under paragraph 1, including implementation and application by Member States, include the UK during the transition period.
7. Despite paragraph 6:
(a) For Articles 42(6) and 46 TEU and Protocol (No 10) on permanent structured cooperation established by Article 42 of the Treaty on European Union, references to Member States exclude the UK. This doesn’t prevent the UK from being invited to participate as a third country in specific projects under Council Decision (CFSP) 2017/2315 on an exceptional basis or other cooperation forms allowed and under conditions outlined in future EU acts based on Articles 42(6) and 46 TEU;
(b) Regarding EU acts allowing participation of Member States, their nationals, or natural/legal persons residing or established in a Member State in information exchange, procedures, or programs continuing or starting after the transition, where participation grants access to security-related sensitive information restricted to Member States (or their nationals or residents), references to Member States in such acts exclude the UK in these exceptional circumstances. The EU will notify the UK when applying this exception;
(c) For recruiting officials and other servants of the EU institutions, bodies, offices, or agencies, references to Member States in Articles 27 and 28(a) of the Staff Regulations, Article 1 of Annex X thereto, Articles 12, 82, and 128 of the Conditions of Employment of Other Servants of the European Union, or similar provisions in other applicable staff rules, exclude the UK.
Comments: Paragraph 7(a) addresses “permanent structured cooperation” in defense, which the UK opted out of when most Member States triggered that process. The text represents a compromise: the UK maintains its opt-out but can cooperate as a non-EU country in this and future defense measures, much like with JHA measures. An early EU/UK treaty on security and defense cooperation under Article 127(2) might address this.
Claims of the withdrawal agreement tying the UK into an “EU army” are demonstrably false, as this provision makes clear.
Article 128
Institutional arrangements
1. Despite Article 127, Article 7 applies during the transition period.
Comments: Article 7 states that the UK should be considered a Member State when Union law (defined in Article 2(a)) refers to Member States, with exceptions for EU institutions, agency governance, or voting in committees overseeing the Commission’s implementing measures.
Effectively, while Article 2(b) implicitly designates the UK as a non-Member State, it functions as a de facto Member State during the transition concerning substantive EU law, but not institutional EU law.
Note that paragraph 5 is an express exception to paragraph 1, and Articles 129 and 130 set specific rules for external action and fisheries.
2. Under the Treaties, the UK Parliament is not considered a national parliament of a Member State during the transition, except for Article 1 of the Protocol (No 1) on national parliaments’ role in the EU and, for publicly available proposals, Article 2 of that Protocol.
Comments: The exception for Articles 1 and 2 of the Protocol on national parliaments means the UK Parliament still receives consultation documents and EU legislation proposals. However, the rest of the Protocol, covering national parliament objections, a waiting period, Council agendas, simplified Treaty amendments, the Court of Auditors, bicameral parliaments, and COSAC (the joint EP/national parliament body), no longer applies.
While it’s implied that excluding the UK from EU institutions removes the requirement to consult its Parliament on EU measures, there’s little harm in continuing consultations. The compromise acknowledges the case for continued engagement with the UK Parliament during the transition.
3. During the transition period, Treaty provisions granting Member States the right to submit proposals, initiatives, or requests to institutions don’t include the UK.
Comments: A footnote clarifies that this applies to “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 stems from the UK’s removal from EU institutional law.
4. Concerning participation in the institutional arrangements of Articles 282 and 283 TFEU and Protocol (No 4) on the Statute of the European system of central banks and of the European Central Bank, excluding Article 21(2), the Bank of England is not considered a national central bank of a Member State during the transition period.
Comments: The exception for Article 21(2) of the ECB Protocol allows the Bank of England to act as a fiscal agent for government debt purchasers without violating the Treaties’ no-bailout clause. It’s implied that since the UK isn’t part of the EU institutions, the Bank of England doesn’t have national central bank status in its dealings with the ECB.
5. Despite paragraph 1 and Article 6, during the transition period, UK representatives or experts, upon invitation, may exceptionally attend meetings or parts of meetings of committees (as per Article 3(2) of Regulation (EU) No 182/2011), Commission expert groups, similar entities, or bodies, offices, or agencies where Member State representatives or experts participate, provided one of these conditions is met:
(a) The discussion involves individual acts addressed to the UK or its residents/establishments during the transition;
(b) The UK’s presence is necessary and in the EU’s interest, particularly for effective EU law implementation during the transition.
In such meetings, UK representatives or experts have no voting rights, and their presence is limited to specific agenda items meeting the conditions above.
Comments: The Commission has committed to issuing guidance on consistent application of this rule. Regulation 182/2011 outlines general rules for Member State participation in committees overseeing the Commission’s implementing powers.
As with many transition period aspects, the necessity of limiting the UK’s consultative role to this extent is questionable, and there’s weak legal justification for it.
6. During the transition, the UK cannot act as the leading authority for risk assessments, examinations, approvals, or authorizations at the EU level or for joint Member State actions outlined in Annex VII.
Comments: It’s not inherently obvious that excluding the UK from EU institutions prevents it from being a lead authority in risk assessment. This could be considered a matter of EU substantive law, where the UK effectively remains a Member State, rather than EU institutional law, where it doesn’t. If the UK can be trusted to implement EU law, why not allow its involvement in risk assessment?
7. If, during the transition period, draft EU acts mention or directly reference specific Member State authorities, procedures, or documents, the EU will consult with the UK to ensure proper implementation and application of that act within the UK.
Article 129
Specific arrangements relating to the Union’s external action
1. Without prejudice to Article 127(2), the UK is bound by obligations arising from international agreements concluded by the EU, Member States acting on its behalf, or the EU and its Member States jointly, as described in Article 2(a)(iv) during the transition period.*
Comments: A footnote states that: “The EU will notify other parties to these agreements that during the transition period, the UK is to be treated as a Member State for the purposes of these agreements.”
The UK remains bound by treaties with non-EU states during the transition period. Logically, this applies reciprocally, though it would have been beneficial to state it directly. It follows that individuals can still invoke the direct effect of such treaties in the UK (e.g., Turkish citizens with rights under the EU/Turkey association agreement framework).
However, the UK isn’t obligated to enforce such treaties towards non-EU countries, nor can those countries directly invoke such treaties against the UK. As this could impact UK exports, replicating such treaties is a sensible focus for the UK (see para 4).
The assumption seems to be that a unilateral EU notification regarding its customs territory (and other issues) will suffice legally and politically for non-EU countries. Only time will tell if this holds true.
2. During the transition period, UK representatives are excluded from participating in bodies established by international agreements concluded by the EU, Member States acting on its behalf, or jointly, unless:
(a) The UK participates in its own right; or
(b) The EU, on an exceptional basis, invites the UK to participate as part of the EU delegation in meetings or parts of meetings where the UK’s presence is deemed necessary and in the EU’s interest, particularly for effective implementation of those agreements during the transition. This is only permitted if Member State participation is allowed under the specific agreement.
3. In line with the principle of sincere cooperation, the UK refrains from actions or initiatives potentially detrimental to EU interests during the transition, particularly within international organizations, agencies, conferences, or forums where the UK is a party in its own right.
Comments: This paragraph explicitly states the obligation likely still applicable implicitly, as other EU Treaty provisions on sincere cooperation would still apply to the UK. The “sincere cooperation” principle in EU external relations law primarily limits Member States from negotiating treaties, which paragraph 4 directly addresses. The UK would presumably have greater freedom to act once an early post-Brexit treaty on EU/UK security and defense cooperation comes into force (see Article 127(2)).
4. Despite paragraph 3, the UK can negotiate, sign, and ratify international agreements in its own capacity within areas of exclusive EU competence during the transition, provided those agreements don’t take effect or apply during that period unless authorized by the EU.
Comments: Applying only to areas of “exclusive” EU competence limits the restrictions on the UK’s external actions. The precise scope of exclusive EU external competence is often debated and even litigated.
_The process for approving the UK becoming bound by treaties isn’t mentioned. One of the statements attached to the Council negotiation Directives states that the Council will approve the UK becoming bound by such treaties according to the usual Treaty rules. _
5. Without prejudice to Article 127(2), the UK may be consulted on a case-by-case basis when coordination is needed.
Comments: This addresses the UK’s significant foreign policy role, particularly regarding sanctions, without explicitly mentioning them. Similar to paragraph 3, in the foreign policy context, the UK would likely have more freedom after an early post-Brexit treaty on EU/UK security and defense cooperation (Article 127(2)).
6. Following a Council decision under Chapter 2 of Title V TEU, the UK can formally declare to the High Representative of the Union for Foreign Affairs and Security Policy that it won’t apply the decision in exceptional cases for vital and stated reasons of national policy. Maintaining mutual solidarity, the UK must refrain from actions conflicting with or hindering EU action based on that decision, and Member States must respect the UK’s position.
Comment: This offers the UK a significant opportunity to avoid being bound by an EU measure in this area during the transition. It further underscores the absurdity of claims that the withdrawal agreement binds the UK to a future “EU army”.
The language draws from two rules on foreign policy decision-making in Article 31 TEU. However, a UK government declaration here wouldn’t have the same effect as the EU Treaty provisions. Rather than a veto, it’d be a “constructive abstention” – the UK wouldn’t be bound by the EU decision but would have to avoid hindering it.
Since EU law applies to the UK during the transition, this must include Article 275 TFEU, limiting Court of Justice jurisdiction over EU foreign policy measures to sanctions cases and disputes over EU competence.
_The future relationship treaty envisioned in Article 127(2) may supersede this provision. _
7. During the transition period, the UK cannot provide commanders for civilian operations, heads of mission, operation or force commanders for missions or operations under Articles 42, 43, and 44 TEU. It also can’t provide operational headquarters for such missions or operations or serve as framework nation for Union battlegroups. The UK also can’t provide the head of any operational actions under Article 28 TEU.
_Comments: The future relationship treaty envisaged in Article 127(2) may supersede this provision. While aligning with the goal of removing the UK from EU bodies, this provision might hinder effective EU defense policy due to the UK military’s significant contributions. _
Article 130
Specific arrangements relating to fishing opportunities
1. Regarding the setting of fishing opportunities as defined in Article 43(3) TFEU for any period within the transition, the UK will be consulted on fishing opportunities related to its waters, including international consultations and negotiations.
2. Paragraph 1 ensures the EU offers the UK the chance to comment on the European Commission’s Annual Communication on fishing opportunities, scientific advice from relevant bodies, and Commission proposals for fishing opportunities during the transition.
3. Despite Article 129(2)(b), to help the UK prepare for future membership in relevant international bodies, the EU may, exceptionally, invite the UK to participate in its delegation for international consultations and negotiations mentioned in paragraph 1, within the limits allowed for Member States and permitted by the specific forum.
4. Without prejudice to Article 122(1), the relative stability keys for allocating fishing opportunities mentioned in paragraph 1 are maintained.
Comments: Fisheries were contentious during the transition period negotiations, but the agreement ensures full market access for UK fisheries’ primary export market during this time. The catch allocation/market access trade-off will be central to future EU relationship talks, given the EU’s intention to link them.
If the transition period ends as planned in 2020, this provision is only relevant for one year. It could last longer if the transition period is extended.
_Paras 2 and 3 elaborate on the consultations and negotiations from para 1, but para 4 stands alone, freezing catch allocations at their Brexit Day levels. This compromise prevents a potential “grab” of UK fisheries catch by EU countries during the transition. _
Article 131
Supervision and enforcement
During the transition period, EU institutions, bodies, offices, and agencies retain the powers granted to them by EU law in relation to the UK and its residents and establishments. Specifically, the Court of Justice of the European Union retains jurisdiction as outlined in the Treaties.
This also applies during the transition period regarding the interpretation and application of this Agreement.
Comments: As mentioned earlier, “Union law” is defined in Article 2.
ARTICLE 132
Extension of the transition period
1. Despite Article 126, the Joint Committee may, before July 1, 2020, mutually agree to extend the transition period by one or two years.*
Comment: Only a single extension is permitted, requiring both the UK and EU’s consent. The footnote states: “In case of extension, the Union will notify other parties to international agreements thereof.”
2. If the Joint Committee decides to extend the transition period:
(a) Despite Article 127(6), the UK is considered a third country for implementing EU programs and activities under the multiannual financial framework from 2021 onwards;
(b) Despite Article 127(1) and without prejudice to Part Five of this Agreement, EU law on own resources concerning the financial years covered by the extension will not apply to the UK after December 31, 2020;
(c) Despite Article 127(1), Articles 107, 108, and 109 TFEU will not apply to UK measures, including those on rural development, supporting agricultural production and trade within the UK up to an annual support level not exceeding the total 2019 UK expenditure under the Common Agricultural Policy. This is conditional on a minimum percentage of that exempted support complying with Annex 2 of the WTO Agreement on Agriculture. This minimum percentage is determined based on the latest available percentage of overall EU expenditure under the Common Agricultural Policy that complied with Annex 2. If the extension isn’t a multiple of 12 months, the maximum annual exempted support for the year with less than 12 months covered is reduced proportionally;
(d) From January 1, 2021, until the transition period ends, the UK will contribute to the EU budget as determined under paragraph 3;
(e) Subject to point (d) of paragraph 3, Part Five of this Agreement remains unaffected.
3. A Joint Committee decision to extend the transition period will:
(a) Determine the appropriate UK contribution to the EU budget for the extension, considering the UK’s status and payment modalities;
(b) Specify the maximum level of exempted support and the minimum percentage compliant with WTO Agreement on Agriculture Annex 2 provisions, as mentioned in point (c) of paragraph 2;
(c) Establish any other measures necessary to implement paragraph 2;
(d) Adjust the dates or periods in Articles 51, 62, 63, 84, 96, 125, 141, 156, 157 and Annexes IV and V to reflect the extension.
Comments: While EU budget law wouldn’t automatically apply to the UK during an extension, ad hoc contributions would be negotiated, likely resulting in complex discussions.