Article 50 reloaded? Amending the Withdrawal Agreement to extend the Brexit transition period

This blog post, written by Alfred Artley of Monckton Chambers, explores whether there is a viable legal basis in the EU treaties which would allow the EU and UK to extend the transition period outside the already-agreed mechanisms in the Withdrawal Agreement.

In a blog post last week, Jack Williams helpfully set out the current legal position as regards extending the transition period in accordance with the Withdrawal Agreement (“the WA”) as it stands and domestic law. In short, if the Joint Committee fails to agree an extension by 1 July 2020 in accordance with Articles 126 and 132 of the WA, the transition period will end on 31 December 2020 – heralding the cliff-edge of ‘no deal’ unless a full new trade agreement has been ratified.

But might there yet be some flexibility for the parties to extend the transition period later on in the year once the deadline for Articles 126 and 132 of the WA has passed? Leaving aside the domestic obstacles (both political and legal) to this, as discussed by Jack, this blog post examines some of the legal difficulties on the EU side: in particular, is there even a viable legal basis in the EU treaties that would permit the EU to revisit the terms of the WA in this way?

Whence the power?

The original WA was of course negotiated and ratified in accordance with Article 50 TEU, which confers on the Union the power to negotiate and conclude an agreement with a departing Member State, setting out the arrangements for its withdrawal. But can Article 50 also be used to amend such an agreement subsequent to ratification?

European lawyers have so far been divided on this question. Jean-Claude Piris stresses the principle of conferral, by which the EU only has competence to act in those specific areas where Member States have granted it the power to do so. As such, he adopts a narrow view of Article 50; now that the WA has been concluded and the UK is officially a third country, that ship has sailed, and in his view the EU has no power to negotiate further with the UK on this basis.

Réné Repasi takes the opposite view, however, emphasising that general considerations of public international law (in particular the Vienna Convention on the Law of Treaties) point in favour of the EU continuing to have the power to amend an agreement where it was empowered to conclude that agreement in the first place.

Article 50: the purposive approach

In my view, the broader view of Article 50 is to be preferred, albeit for slightly different reasons.

First, one can conclude that EU Member States intended to confer upon the Union a power to amend withdrawal agreements concluded under Article 50 simply on the basis of construing that Article under the conventional interpretive principles of EU law, without needing to pray in aid the Vienna Convention. As such, it may be said that the purpose of Article 50 is to ensure an orderly transition when a Member State notifies its intention to depart; this is achieved by granting the EU competence to conclude the withdrawal agreement and thereby avoid the need for multilateral negotiations involving all Member States. Thus if the purpose of Article 50 is to grant the Union power to settle matters relating to the departing state’s exit, then it follows that the Union should also have the power to agree necessary amendments to the original agreement if that is what is required to secure an orderly departure. To hold otherwise risks undermining the very objectives that Article 50 seeks to achieve.

Second, simply because the WA itself provides an internal means of extending the transition – agreement by the Joint Committee under Articles 126 and 132 – need not preclude the original contracting parties from amending the agreement ‘externally’. On this view, July 1 may be the deadline for the extension within the terms of the existing agreement, but a treaty amendment achieving the same effect might subsequently be agreed by direct bilateral negotiation between the EU and the UK outside the framework of the Joint Committee. Putting the point another way, Articles 126 and 132 simply provide the means by which the transition period could be extended via the mechanism of the Joint Committee; the parties need not be taken to have agreed that this should be the only means by which the transition period could ever be extended.

Third, it is worth remembering that the final arbiter of the scope of Article 50 will be the Court of Justice in Luxembourg, whose recent jurisprudence has taken a pragmatic approach to Brexit-related matters. Notably, in the Wightman ruling delivered at end of 2018, the Court has already taken an expansive view of Article 50, holding that a Member State who had signalled its intention to leave might yet revoke that notification unilaterally at any time before a withdrawal agreement had entered into force or the two-year window for negotiation had expired – notwithstanding that Article 50 itself was wholly silent about any such right to revoke. This was widely seen as the Court offering a lifeline to the UK to avoid a disorderly no-deal exit that would also damage the EU. If later this year the two sides were minded to extend the transition period, then, it would seem likely that the Court would not stand in the way of this by insisting on a narrow literalist interpretation of Article 50 instead; to do so would risk a disorderly legal cliff-edge as all the existing treaty arrangements expired overnight and would threaten to compromise the very EU legal order that the Court was created to protect.

Conclusion

As long as the political refusal on the UK side to entertain an extension persists, debates about the scope of Article 50 are likely to remain little more than an interpretive parlour game for EU lawyers and academics. Yet politics always remains ‘the art of the possible’, so as the various political actors on both sides of the Channel consider their options in the months come, it is at least helpful for them to understand the legal possibilities that remain open. 

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