Kill Brexit Now: Is a so-called "Interim Agreement" legally possible?
In the last few weeks the UK media has been filled with discussion about a so-called Interim Agreement between the UK and the EU27.
In this post I want to explore two questions:
It seems to me that there are two possible meanings that the term "Interim Agreement" might consist of.
Legally and politically the possible meanings of the term "Interim Agreement" are very different and create different problems in achieving them.
The first meaning is what I will call a Deferred Exit Agreement.
That is legally straightforward but politically less than straightforward.
In paragraph 3 of Article 50 of the Treaty on European Union we read the following:
Legally, as far as I can see, that is straightforward.
Politically it is somewhat demanding at an EU Level since all 27 Member States in the EU27 must vote for it.
Politically it will likely be controversial in the UK since Brexiteers may object strongly if the UK simply continues as a Member State of the European Union on 1st April 2019.
The second possible meaning of the term "Interim Agreement" is what I will call a Phased Exit Agreement.
This is, I think, politically widely acceptable but legally fraught with difficulty.
At the moment my view is that a Phased Exit Agreement is legally impossible, at least in the context of the Article 50 process.
It seems to me that any Phased Exit Agreement would require a new Treaty.
Such a new Treaty would be similar to an Accession Treaty but with specific provision for a Member State leaving, explicit provision for which obligations cease and at which dates they cease together with explicit provision for necessary Treaty adjustments in the Treaty on European Union and the Treaty on the Functioning of the European Union.
Creating the Treaty necessary for a Phased Withdrawal Agreement is legally impossible under the Article 50 process.
The Article 50 process is between the Departing State on the one side and the EU27, speaking via the European Council, on the other side.
The required Treaty has different parties to it - (presumably 28) individual Member States. Ratification of that Treaty would be in accordance with the requirements of the constitution of each of the (presumably 28) Member States.
I'd welcome any feedback on this analysis either via email to killbrexitnow@gmail.com or by means of a Comment on this post.
In this post I want to explore two questions:
- What does the term "Interim Agreement" mean?
- Is an "Interim Agreement" legally possible?
It seems to me that there are two possible meanings that the term "Interim Agreement" might consist of.
Legally and politically the possible meanings of the term "Interim Agreement" are very different and create different problems in achieving them.
The first meaning is what I will call a Deferred Exit Agreement.
That is legally straightforward but politically less than straightforward.
In paragraph 3 of Article 50 of the Treaty on European Union we read the following:
The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.To arrive at a Deferred Exit Agreement it is necessary that all 28 of the current EU Member States agree to extending the period for negotiation.
Legally, as far as I can see, that is straightforward.
Politically it is somewhat demanding at an EU Level since all 27 Member States in the EU27 must vote for it.
Politically it will likely be controversial in the UK since Brexiteers may object strongly if the UK simply continues as a Member State of the European Union on 1st April 2019.
The second possible meaning of the term "Interim Agreement" is what I will call a Phased Exit Agreement.
This is, I think, politically widely acceptable but legally fraught with difficulty.
At the moment my view is that a Phased Exit Agreement is legally impossible, at least in the context of the Article 50 process.
It seems to me that any Phased Exit Agreement would require a new Treaty.
Such a new Treaty would be similar to an Accession Treaty but with specific provision for a Member State leaving, explicit provision for which obligations cease and at which dates they cease together with explicit provision for necessary Treaty adjustments in the Treaty on European Union and the Treaty on the Functioning of the European Union.
Creating the Treaty necessary for a Phased Withdrawal Agreement is legally impossible under the Article 50 process.
The Article 50 process is between the Departing State on the one side and the EU27, speaking via the European Council, on the other side.
The required Treaty has different parties to it - (presumably 28) individual Member States. Ratification of that Treaty would be in accordance with the requirements of the constitution of each of the (presumably 28) Member States.
I'd welcome any feedback on this analysis either via email to killbrexitnow@gmail.com or by means of a Comment on this post.
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