Understandably, Brexit is hardly top of the agenda at present. The devotion of all institutional energy required to combat COVID-19 places the UK-EU future relationship negotiations in a new political landscape. However, those negotiations have not gone away and the cliff edge of the end of the transition period on 31 December 2020 looms. Faced with the COVID-19 crisis, an extension to the transition period is the pragmatic solution offered by the Withdrawal Agreement and has been called for by the EPP Group in the European Parliament.
Whilst the EU would welcome an extension, the UK Government remains adamantly against the idea, even making it unlawful. I argue that this is imprudent and reckless. As the clock continues to tick, I consider the salient issues of EU law in the Withdrawal Agreement and the pivotal role of the Joint Committee to explore a potential route to an extension of the transition period in these uncertain times.
Article 132 of the Withdrawal Agreement and the Joint Committee
The Withdrawal Agreement agreed between the EU and the UK entered into force on 1 February 2020. Article 126 of the Withdrawal Agreement establishes a transition period starting on 1 February 2020 and ending on 31 December 2020. During the transition period, the UK and the EU have an obligation to use their ‘best endeavours’ in ‘good faith’ to take the ‘necessary steps’ to negotiate their future relationship as referred to in the Political Declaration of 17 October 2019 (Article 184). This is in addition to the general ‘good faith’ obligation on the EU and UK created by Article 5.
A Joint Committee is established by Article 164 of the Withdrawal Agreement, which is co-chaired by the EU and the UK. It supervises and facilitates the implementation and application of the Withdrawal Agreement and has the power to adopt decisions, which are binding on both the EU and the UK and have the same legal effect as the Withdrawal Agreement. Such decisions are adopted by mutual consent (Article 166).
Article 132 of the Withdrawal Agreement enables the Joint Committee to adopt a single decision extending the transition period for a period of up to 1 or 2 years. Article 132 does not speak in terms of the UK or the EU ‘requesting’ an extension, only that the Joint Committee may adopt a decision to extend the transition period by mutual consent.
However, the ability of the Joint Committee to extend the transition period is time sensitive: a decision under Article 132 can only be made before 1 July 2020 and the Joint Committee is not due to meet again until June. But what would stop the Joint Committee adopting a decision after 1 July 2020 to extend the transition period if the UK and EU mutually consented to disapply the time limit in Article 132? Nothing in Article 166 setting out the powers of the Joint Committee contains a provision prohibiting this. Indeed, I argue such action would be facilitating the implementation and application of the provisions of the Withdrawal Agreement on mutual consent, best endeavours and good faith in reaching a future relationship.
It could be argued that the Joint Committee deciding to extend after 1 July 2020 would be contra legem in public international law. By contrast, would the Vienna Convention on the Law of Treaties permit amendment of the Withdrawal Agreement to enable a decision to extend the transition after 1 July 2020? The general rule in Article 39 of the Vienna Convention is that a treaty may be amended by ‘agreement’ between the parties.
In his Commentary on the Vienna Convention, Philippe Sands described Article 39 as a ‘general and open-ended rule’ (Commentary, para 15) and treaties have been amended on the basis of Article 39 by ministerial verbal agreements, exchange of diplomatic notes and resolutions (Commentary, para 33). On this basis, I argue that a decision by mutual consent in the Joint Committee constitutes an agreement for the purposes of Article 39 of the Vienna Convention and is sufficient to amend the Withdrawal Agreement to enable an extension of the transition period after 1 July 2020.
Even if an extension to the transition period were on the cards, it would not be plain sailing politically and legally. Firstly, Council Decision (EU) 2020/135 states that the EU is represented in the Joint Committee by the European Commission and refers to the exercise of the Council’s decision-making functions in accordance with the Treaties as including the establishment of the EU position to be taken in the Joint Committee (Article 2(2)). Therefore, the Commission can only act within the parameters of the EU position as established by the Council—this means the agreement of the Member States. Moreover, the Council Decision states that the European Parliament shall be ‘put in a position to exercise fully its institutional prerogatives throughout the process’ (Article 2(3)). . One prerogative is the ability of the Parliament to ‘address questions or make recommendations’ to the Council and the High Representative (Article 36 TEU). Secondly, an extension of the transition period will have terms. Would the extension be for 1 or 2 years? When would be the end point and what would determine it? Of course, in the event of an international law amendment enabling an extension of the transition period after 1 July 2020, a decision of the Joint Committee could also remove the ‘1 or 2 years’ constraints.
As always, the two major sticking points for any extension will be (1) the continuing obligation of the UK to apply EU law, and (2) further financial obligations. The obligation of the UK to apply EU law during the transition period stems from the general obligation to give effect to, and implement, the provisions of EU law made applicable by the Withdrawal Agreement in Article 2 and the provision in Article 7 of the Withdrawal Agreement that references to Member States in EU law (made applicable by the Withdrawal Agreement) are deemed to include the UK, with the exception of participating and decision making in the EU institutions.
Where a Joint Committee decision is made under Article 132(1) of the Withdrawal Agreement, a further Joint Committee decision under Article 132(3) must determine the amount of the British contribution to the EU budget. Politically, this will be a hard sell for the UK Government.
Alas, whereas EU law at least provides a route to extending the transition period, albeit in a tight timeframe, UK law does exactly the opposite.
Section 15A of the European Union (Withdrawal) Act 2018
Not only has the UK Government made its policy of refusing to extend the transition period crystal clear, it has made it unlawful for a Minister of the Crown to agree in the Joint Committee to an extension of the transition period (in UK law referred to as the implementation period). The prohibition on agreeing an extension is contained in section 15A of the European Union (Withdrawal) Act 2018 as inserted by section 33 of the European Union (Withdrawal Agreement) Act 2020—the legislation required to give effect in UK law to the Withdrawal Agreement. It was not included in the original Bill but added in the wake of the Conservative Party’s landslide election victory on 12 December 2019.
The UK Government could not lawfully agree to extend the transition period unless section 15A of the European Union (Withdrawal) Act 2018 were repealed. This is perfectly possible and would require a very short Bill. However, it also requires the UK Government to take a more pragmatic approach and realise the necessity of extending the transition period to fight the COVID-19 pandemic.
Is the prohibition in UK law on agreeing to extend the transition period incompatible with the Withdrawal Agreement?
Policy aspirations aside, the Withdrawal Agreement itself is UK law insofar as given effect by the European Union (Withdrawal Agreement) Act 2020. Article 132 of the Withdrawal Agreement appears to be the only part of the Withdrawal Agreement which UK law explicitly contradicts. Although I do not argue that the UK is obliged to agree to an extension of the transition period (nor could I, as the Withdrawal Agreement does not contain such an obligation), I argue that the prohibition is incompatible with two provisions of the Withdrawal Agreement: (1) the good faith obligation in Article 5, and (2) the best endeavours obligation in Article 184.
The good faith obligation in Article 5 of the Withdrawal Agreement replicates word for word the principle of sincere cooperation in Article 4(3) of the Treaty on the Functioning of the European Union. One element of the good faith obligation is to ‘refrain from any measures which could jeopardise the attainment of the objectives of this Agreement. ’ The CJEU alludes to the principle of sincere cooperation when referring to ’good faith’ (C-217/88 Tafelwein).
Following this logic, the good faith obligation in the Withdrawal Agreement should be interpreted synonymously with the principle of sincere cooperation in order to achieve the objectives of the Withdrawal Agreement. One such objective is the negotiation of a future relationship. Moreover, the specific objective of negotiating a future relationship in line with the Political Declaration has its own good faith obligation in Article 184, that is the obligation to use best endeavours in good faith to negotiate a future relationship.
In the context of COVID-19 and taking these two obligations combined, I argue that the provision of UK law prohibiting the UK from agreeing a Joint Committee decision to extend the transition period constitutes bad faith as a measure which jeopardises the attainment of the objectives of the Withdrawal Agreement. If the Commission were to request an extension in the Joint Committee, but the UK Minister was legally barred from agreeing, the available remedies for this bad faith would be a financial penalty and, ultimately, the suspension of the EU’s obligations in the Withdrawal Agreement. Both remedies would only be available in the event of non-compliance with an arbitration panel ruling (Articles 170-181). As the dispute may raises the question of interpretation of a provision of EU law referred to in the Withdrawal Agreement, the CJEU could have jurisdiction to give a ruling binding on the arbitration panel (Article 174).
Brexit and COVID-19 is a tale of two crises. Both are pressing, but the latter is undoubtedly the priority. Therefore, it is logical for the UK Government to accept the need to extend the transition period and enable energy to be focused on the COVID-19 pandemic. It is regrettable that the UK Government has stuck to its inflexible mantra on refusing to extend. Although contributions to the EU Budget and continued application of EU law are political hard sells for a government which was elected to ‘Get Brexit Done’, we are not living politics as usual. Now is not the time for short-sightedness or ideological purity, but pragmatism. In the context of COVID-19, I argue that the prohibition in UK law on a Minister from agreeing in the Joint Committee to an extension to the transition period breaches the good faith provisions of the Withdrawal Agreement as it jeopardises the objective of the Withdrawal Agreement to negotiate a future EU-UK relationship.