Brexit: In Transition
On Friday 31 January 2020 at 12a.m. CET the United Kingdom will become the first Member State to withdraw from the European Union. In accordance with Article 50(3) of the Treaty on European Union the ‘treaties will cease to apply’ and the Withdrawal Agreement will come into force. Paradoxically, however, Article 127 of this Agreement ensures that the treaties, and all EU law, will continue to apply to and within the United Kingdom until 31 December 2020.
This means that the seismic effects of Brexit will be staggered. The most immediate consequences will be institutional. Members of the European Parliament elected by UK citizens will lose their seats (and bring down their flags). The United Kingdom’s Judges at the Court of Justice and the General Court have issued their final judgments.(2). The empty seat in the Commission, following Boris Johnson’s refusal to nominate a new Commissioner, will be removed. The rotating Presidents of the Council will no longer be required to pull double-duty through the exercise of the United Kingdom’s proxy vote following the government’s decision to only send Ministers for meetings on matters of national interest.
These deconstructions will be accompanied by a new institutional innovation. The Joint Committee, which has authority over the implementation of the Withdrawal Agreement, will begin to function in 2020. The decision-making authority delegated to his institution by the new Protocol on Northern Ireland means that the Joint Committee may become subject to considerable controversy.
For individuals away from high-politics, however, the effects of Brexit will not be felt until the end of the year. Goods, capital, services, and people will continue to move freely across the English Channel, and despite the symbolic return of blue passports, UK citizens will still be able to travel freely to the coasts and capitals of the continent. Within the UK, the passage of the EU (Withdrawal Agreement) Act 2020 means that the European Communities Act 1972 has been granted an after-life as the conduit pipe whereby all ‘retained’ EU law will continue in force within the UK’s legal orders.
Brexit day does not, however, mark the end of the European Union’s voyage into uncharted territory. The first withdrawal of a Member State will be immediately followed by the first attempt to negotiate an international agreement with a ‘third country’ which is a former constituent partner in European integration. The new ‘Political Declaration’ will be the only map available to chart the breakneck 11 month course.
The EU’s international agreements usually mean the removal of barriers to economic, legal, and social integration. The negotiations with the UK will mean their construction. The intimate connection between the UK and the EU that has developed over five decades also means that this process will go far beyond the conclusion of a treaty in international law. It represents the construction of a new transnational legal order. This new voyage will continue to produce the juridical conundrums that have excited and exhausted the legal community since 23 June 2016. The European Law Blog will remain committed to providing our readers with timely and informed analysis throughout the next leg of the journey.
2 comments
I guess Mr. Garner must know this, but the new ‘Political Declaration’ will not be “the only map available to chart the breakneck 11 month course.” It is the only common map.However, on February 3rd Barnier will present the draft directives for negotiations with the UK to the Council, as the Commission does at the start of any (trade) negotiation with a 3rd country. It is likely that that there will be a comparable document with instructions to the negotiators on the UK side. My guess is that the Commission will publish these directives for negotiations, as it has done in many recent negotiations, such as those on CETA with Canada. It will be interesting to see whether there will be equal transparency on the UK side.