"ReDCE núm. 40. Julio-Diciembre de 2023"
"ReDCE núm. 40. Julio-Diciembre de 2023"
|
|
The Treaty of Lisbon of 2009, with its introduction of Article 50 of the Treaty on European Union (TEU) on withdrawal from the European Union (EU), took away any potential remaining doubt about the possibility of a Member State to leave the EU. As its first application in the case of the withdrawal of the United Kingdom (UK) from the EU (hereafter: Brexit) has shown, the text of article 50 TEU, however, does not provide an explicit answer to many of the constitutional and institutional questions that its application raises. In fact, the provision leaves significant room for interpretation to the political institutions involved, and its first application has also led to further interpretation by the European Court of Justice (CJEU). As a result, there is now a plethora of additional constitutional sources regarding withdrawal from the EU, including case law and practice.[01]
This article will discuss the main new EU constitutional sources, grouping them around some of the main issues concerning withdrawal from the EU: the notification of the intention to withdraw (section 2), negotiations about withdrawal (section 3), the future relationship between the EU and the withdrawing Member State (section 4), and the constitutional effects of actual withdrawal (section 5).
We will see that the additional constitutional sources confirm and can generally be understood in light of the dual constitutional objective of article 50 TEU: first, to enshrine a sovereign right of each Member State to leave the Union and thus confirm the voluntary nature of EU membership; and second, to enable an orderly withdrawal from the EU.[02] While the essence of an orderly withdrawal concerns substantive issues such as citizens’ rights, the finalization of ongoing procedures and, in the case of the UK, a solution to the delicate position of Northern Ireland, the perspective taken in this article is an institutional one. As will be illustrated, quite a number of the institutional choices made during the first application of article 50 TEU in the case of Brexit can be understood through a comparison with ‘normal’ EU external relations law.
The main conditions enshrined in EU law qualifying the sovereign right of a Member State to withdraw from the Union relate to the element of notification. In order to withdraw from the Union, a Member State will have to notify the European Council, after a decision is taken in accordance with the Member State’s own constitutional requirements (section 2.1). Moreover, as an analysis of the effects of a notification shows there is no right to an immediate withdrawal (section 2.2). These and other issues relating to a notification, such as the possibility to revoke it (section 2.3), will now be discussed including what they illustrate about the constitutional interpretation of article 50 TEU.
2.1. National constitutional requirements.
Article 50 TEU provides that any Member State can notify its intention to withdraw from the EU to the European Council,[03] after it has decided to withdraw from the Union in accordance with its own constitutional requirements.[04] This immediately shows that the issue of notification needs to be looked at from two, related perspectives: a first perspective is that of the withdrawing Member State, which has to decide in conformity with its national constitutional requirements. A second perspective is that of the European Union, since the European Council has to interpret whether a specific act of a Member State amounts to a ‘notification’ in the sense of Article 50(2) TEU or not.
With regard to the national perspective, obviously the requirements can differ from one Member State to another. Also, Brexit has illustrated that the national constitutional norms regarding notification are not necessarily clear at the moment in which the political dynamics leading to such a notification take a decisive turn (in this case, the UK referendum of 23 June 2016). Thus, only seven months after the referendum, clarity was obtained on a fundamental aspect of the national constitutional requirements in the UK. The UK Supreme Court on 24 January 2017 determined in the ‘Miller I’ case that the UK government cannot notify an intention to withdraw without prior approval of the UK Parliament.[05] Only since then we know with certainty that, different from what the UK government had itself argued, the Prerogative does not include the power to notify an intention to withdraw from the EU, but that this is part of the sovereignty of the UK Parliament. Finally, the debate about the constitutional requirements in Italy – discussed in some of the other articles in this issue – illustrates that the constitutional requirements are not necessarily clear either in the current EU Member States.[06]
With regard to the EU perspective, it is obviously not for the European Council to determine what the national constitutional requirements of a specific Member State are. It is, however, for the European Council to interpret when to consider an act of a Member State to constitute a notification under article 50(2) TEU. Soon after the UK referendum, the European Council made it clear that the referendum itself (or the act of the UK Prime Minister informing the European Council of the outcome) was not going to be considered an implicit notification by the UK, as was suggested by some, but that instead an explicit communication by the government to the European Council is needed: “It is up to the British government to notify the European Council of the UK's intention to withdraw from the Union.”[07] And in fact, immediately after the UK government submitted its notification, the European Council in its article 50 TEU configuration (hereafter: European Council Art. 50) confirmed receipt.[08]
After the Wightman judgment of the European Court of Justice, in which the Court made an explicit parallel between notification and revocation,[09] it can be assumed that not only a revocation of a notification, but also the original notification itself must “first, be submitted in writing to the European Council and, secondly, be unequivocal and unconditional”.[10] In fact, it is not likely that the European Council (Art. 50) would have settled for less. Even with these conditions, however, one cannot fully exclude controversy after a national government has submitted a notification.[11]
Eeckhout and Frantziou argue that the EU’s obligation to show “deep and genuine” respect for the national constitutional requirements has consequences that go beyond the moment of notification.[12] They argue that it means that the EU must adopt a “non-punishing approach towards withdrawal”.[13] In the case of the UK, with parliamentary sovereignty as a key constitutional requirement, it also means that the EU should respect that “the ultimate withdrawal decision can only be taken once the terms of the withdrawal agreement and of the future relations between the withdrawing State and the EU are fully known”.[14] It is obviously not for the EU to decide whether under national constitutional law there is a final call to be made by Parliament, or how it should be organized.[15] Should the result of a withdrawing Member State’s final call, in light of the terms of the withdrawal agreement and of the future relations, be that it favors remaining, we know that it can unilaterally revoke its notification (see section 2.3). The EU would have to respect this.
2.2. Effects of a notification.
The Heads of State and Government of the 27 remaining Member States, together with the Presidents of the European Council and Commission, soon after the UK referendum made clear that: “There can be no negotiations of any kind before this notification has taken place.”[16] The main political effect of the UK notification of 29 March 2017 therefore was that it allowed for the start of negotiations between the EU and the UK on withdrawal arrangements.[17] This does not mean that no preparations for Brexit were made before the notification. Most importantly, immediately after the referendum the Union started preparing itself internally for the withdrawal negotiations. But also, and although no notification had yet been received from the UK, since after the referendum “a Member State ha[d] made it known publicly that it will withdraw from the Union”, the Council already one month after the referendum decided to amend the order of presidencies of the Council to take account of that circumstance.[18]
The main legal effect of a notification is the start of a two year period after which the withdrawal will take effect and the Treaties are to cease to apply to that Member State, unless actively decided otherwise. Together with the above discussed qualification that a decision to withdraw shall be taken in accordance with the own constitutional requirements, this seems to be the most relevant legal qualification of withdrawal following from article 50 TEU: there is no right to an immediate withdrawal.[19] The length of this two year period has been criticized as too short,[20] although compared to other examples – of admittedly much less complex international organizations – it could actually be considered long.[21] The two year period can be understood as striking a balance between the two objectives of enabling an orderly withdrawal through the negotiation of a withdrawal agreement on the one hand, and safeguarding the sovereign right of a Member State to end its membership rights and obligations even in the absence of such an agreement on the other hand. Importantly, the two year period can be shortened – if the entry into force of a withdrawal agreement comes sooner – but can also be extended, as happened three times in the case of Brexit.
A notification of an intention to withdraw does not fundamentally change the status of the Member State concerned. The European Council (Art. 50) was keen to point this out, and to remind the UK in particular of the principle of sincere cooperation: “Until it leaves the Union, the United Kingdom remains a full Member of the European Union, subject to all rights and obligations set out in the Treaties and under EU law, including the principle of sincere cooperation.”[22] Also the Court of Justice confirmed in RO that “a notification does not have the effect of suspending the application of EU law in the Member State that has given notice”[23] and in “Wightman” that the status of a Member State “is not suspended or altered by that notification”[24] and that it “enjoys, subject to Article 50(4) TEU, all of the rights and remains bound by all of the obligations laid down in the Treaties.”[25]
The only exception to this rule is provided in Article 50(4) TEU, which excludes the member of the (European) Council representing the withdrawing Member State from participation in the discussions of the (European) Council or in decisions concerning it under article 50(2) and (3) TEU. In the period between the referendum and the notification, this provision was not triggered yet, and so the EU27 had to find a modus operandi to organize and prepare itself. The solution found was that on 29 June 2016,[26] six days after the UK referendum, and on 15 December 2016,[27] it were the 27 Heads of State and Government that met together with the Presidents of the European Council and the European Commission. Hillion rightfully speaks of a European Council (Art. 50) “avant la lettre”.[28] Only after the UK notification of 29 March 2017, it was formally possible to operate in the Article 50-formation of the European Council and the Council – so without the UK – and the European Council (Art. 50) swiftly, on 29 April 2017, adopted guidelines endorsing the earlier statements.[29]
Later during the Brexit negotiations, the observance by the UK of the rights and obligations coming with the status of EU Member State would be seriously tested. When the UK on 20 March 2019 asked for an extension of the two year period until 30 June 2019,[30] this posed serious challenges to the EU, in which European Parliament (EP) elections were to be held in each Member State from 23-26 May. The European Council on 22 March therefore – in agreement with the UK – only granted an extension until April 12, the last date by which the UK had to organize the holding of EP elections.[31] When the UK government on 5 April asked for a second extension until 30 June,[32] the European Council – again in agreement with the UK – granted an extension until 31 October maximum, but on the condition that the UK would in time hold elections for the 9th EP parliamentary term: if not, the extension would automatically end on 1 June.[33] This was not a new membership condition created by the European Council, but an illustration of the necessity of observing key constitutional obligations to protect the functioning of an EU institution and avoiding the risks of an irregularly composed Parliament. The UK in the end did hold EP elections, but in the Summer decided – notwithstanding the obligations following from article 17(5) and (7) TEU – not to suggest a candidate UK Commissioner for the new Commission.[34] After the UK on 19 October 2019 asked for a third extension of EU membership until 31 January 2020, this time the European Council (Art. 50) did not insist on a “guillotine clause”. The UK did, however, explicitly agree that it was under “the obligation to suggest a candidate for appointment as a member of the Commission.”[35] Despite several further invitations by the Commission President-elect, and even the start of infringement proceedings by the Commission against the UK on 14 November, the UK failed to suggest a candidate. The (regular!) European Council nonetheless on 28 November decided that such failure “cannot undermine the regular functioning of the Union and its institutions and thus cannot constitute an obstacle to the appointment of the next Commission in order for it to start exercising the full range of its power under the Treaties as soon as possible.”[36]
2.3. Revocation of a notification.
One of the issues that the drafters of article 50 TEU left unaddressed is that of the possibility to revoke a notification. Before the issue was settled by the European Court of Justice in the “Wightman” case,[37] two main positions were found in the debate. According to a first position, defended by several academics, article 50 TEU should be read as allowing for a unilateral revocation.[38] According to a second position, notably the one defended by the Council and Commission before the Court, a notification under article 50 TEU can be revoked, but only with the unanimous consent of the European Council.[39] The UK government itself did not take a position on the matter.
The gap in article 50 TEU was filled on 10 December 2018 by the Court in its “Wightman” judgment, in which it made clear that for as long as a withdrawing Member State has not left it “retains the ability to revoke unilaterally the notification of its intention to withdraw from the European Union, in accordance with its constitutional requirements.”[40]
A central element in the Court’s reasoning relates to the meaning of the word “intention” in article 50(2) TEU: “(…) it follows from the wording of Article 50(2) TEU that a Member State which decides to withdraw is to notify the European Council of its ‘intention’. An intention is, by its nature, neither definitive nor irrevocable.”[41] This reading of “intention” has found support from academics,[42] but has also been heavily criticized. Vidmar e.g. argues that “the Court’s interpretation of the word intention in Wightman is not compatible with the ordinary meaning of that term in the theory and practice of both contract and treaty law.”[43]
The most important element in the Court’s reasoning however is arguably the sovereignty of Member States. According to the Court: “the sovereign nature of the right of withdrawal enshrined in Article 50(1) TEU supports the conclusion that the Member State concerned has a right to revoke the notification.”[44] No Member State can be forced to withdraw from the EU against its will.[45] In other words, it is in light of one of the two constitutional objectives of article 50 TEU, the sovereign right of a Member State, that we should understand the way the Court filled the gap in this provision (Cuyvers speaks of a “seemingly absolute sovereign right” to remain and to revoke)[46].
In the negotiations about the withdrawal agreement, important institutional choices have been made in applying article 50 TEU, that can be understood through the objective of safeguarding an orderly withdrawal. In fact, it has been considered that an orderly withdrawal needs unity, both politically and in legal form. This has led the remaining 27 Member States to choose to approach the negotiations with the UK exclusively through the EU, with no bilateral negotiations between the UK and Member State capitals, with the Commission as the sole negotiator and a steering role for the European Council (section 3.1). It has also led them to consider article 50 TEU as an exceptional horizontal legal basis, enabling an EU-only (withdrawal) agreement – to which only the EU and the UK are a party – with an exceptionally broad scope (section 3.2). Moreover, it has led to a phased approach towards the withdrawal negotiations (section 3.3).
3.1. The role of EU institutions.
The main institutional choices by the EU as to how to organize itself for the Brexit negotiations were already made before the UK notification.[47] One important choice was expressly mandated by article 50 TEU, namely to have the European Council (Art. 50) adopt guidelines in the light of which the EU shall negotiate the withdrawal agreement. Different from international agreements with third countries concluded by the European Union under article 218 of the Treaty on the Functioning of the European Union (TFEU), a prominent role is thus prescribed for the European Council in the case of a withdrawal agreement. As Hillion puts it: “The enhanced position of the European Council compensates for the formal absence of Member States in the withdrawal procedure since its activation.”[48] In fact, a withdrawal agreement is different from accession agreements as it does not require ratification by all Member States for it to enter into force.[49]
Many of the other institutional choices made in organizing the withdrawal negotiations, or in other words in the interpretation of article 50 TEU given by the relevant constitutional actors, were deliberate choices made within the discretion that the provision arguably provides. Most of these can be understood through a wish to safeguard an orderly Brexit through political unity among the EU institutions and the remaining Member States.[50] Some of these can further be understood through a comparison with the institutional law of “regular” EU external relations.
The role of the European Council (Art. 50) was not limited to establishing guidelines for the negotiations at the start. It decided to “remain permanently seized of the matter”,[51] updating its guidelines in the course of the negotiations as necessary, and it was responsible for deciding when to move to a next phase in the negotiations (see section 3.3). The outcome of the negotiations on the withdrawal agreement was endorsed by it,[52] illustrating that the consensus norm at the highest political level applied also at the end of the process. Moreover, whereas Dougan rightly notes that article 50 TEU is silent about the way the framework for the future relationship is to be negotiated and approved,[53] on the EU side it was the European Council (Art. 50) that, first, decided what form it would take (a political declaration),[54] and eventually approved it after negotiations by the Commission.[55] As Laffan points out, one particular effect of the dominance of the European Council was securing unity in the sense that it “contained sectoral interest within the overall EU goals and preferences.”[56]
Another institutional choice made with the objective of safeguarding unity was that of the Commission as negotiator of the withdrawal agreement. It can be argued that article 50 TEU leaves room also for a different choice,[57] but it was nonetheless an obvious one. Laffan argues that Juncker’s choice for Michel Barnier was a statement of intent: “President Juncker's judgement was that the Brexit process had to be steered by a politician rather than a senior Commission official because of the need to gain the trust of the member states and bring political judgement to bear.”[58] Part of the cooperation between Barnier and the 27 Member States, was a unique four week rhythm of preparing, conducting and reporting back on negotiations with the UK and a unique level of transparency. The Commission moreover closely cooperated with the EP’s Brexit steering group.
Less visible to the general public, but still interesting from a constitutional perspective, are several elements not mentioned in article 50 TEU that have been added to the procedure through institutional choice. These are elements of constitutional practice that do not follow strictly from the text of article 50(2) TEU, nor from article 218(3) TFEU to which it refers. Thus, the provision does not prescribe a Council decision for the signing of the withdrawal agreement, nor does it prescribe a Commission proposal for the Council decision on conclusion (or a Commission proposal for a Council decision on signing). Article 50 TEU also does not foresee the adoption of detailed negotiating directives by the Council, nor the designation of a special committee in consultation with which the negotiations must be conducted. And yet, all these additional elements can be considered logical in light of regular external relations practice under article 218 TFEU.[59]
Take for example the element of additional detailed negotiating directives by the Council. A regular practice under article 218 TFEU is to include negotiating directives as an Annex to the Council decision authorizing opening of negotiations. Normally, that Council decision will then refer to both article 218(3) TFEU for the authorization and article 218(4) TFEU for the negotiating directives (and the designation of the special committee).[60] In the case of the Council (Art. 50) decision authorizing negotiations on the withdrawal agreement, although in line with the text of article 50 TEU a reference was included only to article 218(3) TFEU, negotiating directives were nonetheless incorporated by way of Annex.[61] This interpretation of article 50 TEU, as allowing the Council (Art. 50) to adopt negotiating directives in practice, is logical and in line also with the invitation of the European Council (Art. 50) to the Council to adopt negotiating directives on substance,[62] and to update them.[63]
It was also logical for the Commission to present a proposal for a Council decision on the conclusion of the withdrawal agreement.[64] As this is, however, not a proposal “pursuant to the Treaties”, the Council in theory did not need unanimity to amend it.[65] And the qualified majority that is prescribed by article 50(4) TEU for this Council decision is indeed the one that always applies when the Council does not decide on the basis of a Commission proposal, namely a reinforced qualified majority.[66] It must be admitted though that in the case of Brexit these formalities did not play an important role, as it was never considered not to find a consensus on the Council (Art. 50) decision on conclusion of the withdrawal agreement (remember the consensus endorsement by the European Council (Art. 50)).
After Brexit, one question still remains as to how far the analogy with article 218 TFEU goes. This relates to the role of the European Court of Justice: can an opinion under article 218(11) TFEU be asked from the Court as to whether an envisaged withdrawal agreement is compatible with the Treaties? In academic literature it is generally assumed that this is possible.[67] Bradley highlights the benefits of the preventive effect of ex ante review by the Court,[68] but argues it would have to “be willing to depart from the literal interpretation of the relevant provisions”.[69] It is in any event clear that the two year period of article 50 TEU can pose a relevant practical constraint.[70] And it is beyond doubt that the validity of a (Council decision on the conclusion of a) withdrawal agreement can be checked by the Court ex post through a preliminary reference (as was done in “Préfet du Gers”,[71] on which see section 5 below) and through an action for annulment (although it may not be easy for applicants to show that they have an interest in bringing proceedings as well as locus standi, as was seen in the various cases brought against the withdrawal agreement).[72]
3.2. An exceptional horizontal competence.
In dealing with Brexit, the EU has chosen not only for political unity in the organization of the negotiations, but also for unity in the legal form that the agreement has taken. The EU has opted for a single EU-only agreement with an exceptionally broad scope, avoiding national ratification procedures.
In order to facilitate this, an important institutional choice was made by the Council (Art. 50) early in the withdrawal procedure: article 50 TEU is considered a special legal basis when it comes to competences, and the exceptional exercise of competences under article 50 TEU is a one-off without consequences for the distribution of competences for any other future agreement.[73]
To appreciate how exceptional this is, it is useful to have a closer look at the issue of the division of competences between the Union and its Member States. In the area of EU external relations this is normally a sensitive political issue. When a matter falls under the exclusive competence of the Union in the sense of article 3(1) TFEU, it is clear that only the Union can exercise the competence. When a matter falls under shared competence (both the Union and the Member States are competent) and there is also no exclusive external competence as a consequence of article 3(2) TFEU,[74] a political choice has to be made as to whether the Union or the Member States are to exercise the competence when a specific international agreement is concluded. Traditionally, many Member States will prefer to have the Member States exercise such competences, leading to a mixed agreement. Different from what Craig claims,[75] going beyond exclusive EU competence in an international agreement does not automatically require a mixed agreement, as the Court has made clear in its “OTIF” judgement.[76] But still, in view of the “normal” external relations practice, it was not at all evident that Member States would be willing to go beyond exclusive Union competences in an EU-only withdrawal agreement.
In fact, in light of the division of competences between the EU and the Member States the exceptional nature of the withdrawal agreement can be illustrated with two examples. One example is the inclusion of a transition period through which almost the entire acquis became temporarily applicable to the UK as a third country, so including topics such as air traffic rights and non-direct investments (see section 4.2 on transition).[77] A second example, situated outside the part of the withdrawal agreement that deals with the transition period, is the special category of plurilateral agreements, concluded by the Member States of the Union in that specific capacity, also covered by the withdrawal agreement.[78]
3.3. A phased approach to the withdrawal negotiations.
There is a further important element of constitutional practice in the application of article 50 TEU that can be explained through the objective of managing Brexit in an orderly manner: the institutional choice made on 29 April 2017 by the European Council (Art. 50) of splitting the negotiations in two main phases.[79] In a first phase “sufficient progress” had to be achieved on the most important separation issues of the withdrawal agreement: people, money and borders. The UK initially insisted that the negotiations about withdrawal and the future relations take place in parallel,[80] but eventually had to accept the phased approach. The European Council (Art. 50) on 15 December 2017 decided that the progress achieved during the first phase of the negotiations was sufficient to move to the second phase related to transition and the framework for the future relationship.[81]
The institutional choice for sequencing and conditionality was made early on by the European Council (Art. 50) and is not mentioned in or mandated by article 50 TEU. It is however in line with the objective of article 50 TEU of safeguarding an orderly withdrawal.
The phased approach was heavily criticized by e.g. Weiler: “The Union insisted on divorce first – we know who won that one, at huge cost to both parties because of a wasted one and a half years of negotiations, with the inevitable appalling time crunch in the last set of the match. I do not think anyone can come up with a rational explanation for that Union insistence.”[82] The explanation is well-captured by Hillion who argues that the phased approach “increased the EU leverage in the negotiations, and enhanced the probability of a deal being in line with its initial ambitions”,[83] by Craig who found the institutional choice “unsurprising” as it put pressure on the UK,[84] and by Laffan who sees it as “an example of the EU using process as power to structure the negotiations in a way that gave it maximum advantage”.[85] In fact, the approach cannot be seen in isolation from the level of trust on the EU27 side in a good outcome of the withdrawal agreement negotiations. Looking back, Dougan comes to the conclusion that “(…) subsequent events undoubtedly proved the European Council’s initial political evaluation to be entirely sound.”[86]
The EU political institution’s reading of the EU Treaties has been strict with regard to the (im)possibility of finalizing and concluding an agreement about the future relationship with the UK while it was still a Member State (section 4.1). At the same time its reading of the substantive scope of article 50 TEU has been broad, allowing for transitional arrangement to phase out membership but also potentially to phase in a future relationship (section 4.2). The latter can be understood in light of the objective of safeguarding not only an orderly withdrawal in the (arguably primary) sense of dealing with separation issues, but also in the (one could say secondary) sense of an orderly transition to the future relationship.
4.1 No agreement on the future relationship (yet).
A fundamental question that needed to be answered after the UK notification is how article 50 TEU relates to the future relationship between the EU and the withdrawing Member State. Can it be used to determine the future relationship? Different from what has been argued by e.g. Lazowski,[87] who is aware that his interpretation of article 50 TEU is a maximalist one,[88] the provision is not available as a legal basis for concluding an agreement about the future relationship with the withdrawing Member State. By referring to the “framework for the future relationship”, article 50 TEU does presuppose negotiations about this before withdrawal. But that is not the same as concluding an agreement about the future relationship.
That is not to say that a withdrawal agreement cannot be understood as dealing with future relations. The withdrawal agreement expressly deals with only a very specific aspect of the relationship post-withdrawal though, namely with conditions that need to credibly relate to the withdrawal itself. This is obviously the case for grandfathering citizens’ rights, arrangements about ongoing procedures of all kinds and the financial settlement. In the specific case of the UK it is also clearly the case for arrangements concerning the delicate border with Ireland. These conditions do not necessarily have to be expressly limited in time, as illustrated by the Protocol on Ireland/Northern Ireland. But a withdrawal agreement cannot constitute a permanent agreement on the future relationship.
If article 50 TEU itself cannot be used for concluding an agreement on the future relationship, the question becomes relevant how to (orderly) come to such an agreement. Can it be concluded in parallel with the withdrawal agreement – so while the UK is still a Member State – using other legal bases in the EU Treaties, for example a combination of article 218 TFEU (as a procedural legal basis) and article 217 TFEU (as a substantive legal basis for an association agreement)? In the academic literature, support for this can be found. A flexible reading was advocated by Eeckhout and Frantziou who argue that the same withdrawal agreement could use multiple legal bases: “In terms of EU legal principle, we do not see any significant barriers to a withdrawal agreement which also regulates the future relationship on a legal basis different from Article 50 TEU.”[89] Craig similarly argues that a withdrawal agreement and an agreement on the future relationship “might be negotiated and concluded at the same time, but it is nonetheless unlikely”.[90]
The answer to the question (“No”) was given early on in the withdrawal process by the European Council (Art. 50): “an agreement on a future relationship between the Union and the United Kingdom as such can only be finalised and concluded once the United Kingdom has become a third country”.[91] This strict approach was later complemented by the position expressed in the European Council (Art. 50) decisions extending UK membership which – with the agreement of the UK – stated that the “extension cannot be used to start negotiations on the future relationship.”[92]
Hillion agrees with the position taken by the EU: “The EU cannot negotiate, let alone conclude, an external agreement with a Member State which, under EU law, does not formally have the authority to act, at least as long as it remains a Member State, viz. in areas of EU exclusive competence such as trade.”[93] In addition to the issue of EU exclusive competence – which could in theory be solved by providing a Member State with an authorization to act under article 2(1) TFEU – it seems that relevant legal hurdles are the wording of article 218(1) TFEU, which determines that the procedure is available for agreements with “third” countries,[94] and the fact that a withdrawing Member State is excluded from decision making in the Council only for the purpose of article 50(2) and (3) TEU. In other words, the UK could not be excluded from participating in a Council decision – and the relevant deliberations – about the EU negotiating directives concerning negotiations with the UK itself.
An impossibility to finalize and conclude an agreement does not however mean that nothing can be done. In fact, above we have seen that article 50 TEU presupposes negotiations between the EU and the withdrawing Member State about a framework for their future relationship. Also, preparatory steps towards an agreement are not excluded. Already pre-Brexit, the EU has made intensive internal preparations, for example through frequent and intensive discussions between the Commission and the EU27 in the Article-50 Working Party about many aspects of the future relationship. These preparations, together with the agreed framework for the future relationship, made it possible for the European Commission to publish its recommendation for the authorization to start negotiations on the future relationship already on 3 February 2020, so only three days after withdrawal, and for the Council to adopt the relevant decision only three weeks later.[95] Moreover, it seems fair to say that the limits of what is possible in terms of preparatory steps in parallel with article 50 TEU have not been fully tested yet, due to the specific political circumstances of Brexit with great uncertainty until the very last moment whether the UK would ratify the withdrawal agreement.
4.2 The withdrawal agreement and an orderly transition to the future relationship.
Interestingly, the strict interpretation that has been given that no agreement on the future relationship can be finalized and concluded before withdrawal, seems to ask for some form of transitional measures if an orderly withdrawal is aimed at that also includes an orderly transition to the new relationship. On the EU side, this was acknowledged when the European Council (Art. 50) already early on demonstrated a willingness to discuss transitional measures as a bridge to the future relationship, albeit under strict conditions: “To the extent necessary and legally possible, the negotiations may also seek to determine transitional arrangements which are in the interest of the Union and, as appropriate, to provide for bridges towards the foreseeable framework for the future relationship in the light of the progress made.”[96]
Concerns that the wording of article 50(3) TEU (“The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement”) could “be construed as prohibiting interim and grandfathering provisions in a withdrawal implementation agreement” have thus turned out to be unjustified.[97] In fact, in the text of article 50 TEU, which prescribes that in concluding the withdrawal agreement the EU must take account of the framework for the future relationship, clear support can be found for transitional arrangements.[98]
However, in order to construct a bridge, you need to have a clear and detailed shared understanding of where you are going. Notwithstanding the fact that an agreement was eventually found on a framework for the future relationship, in the case of Brexit the political conditions for constructing a bridge and “phasing in” the new relationship were clearly not present. In other words, the possibilities for, and limits to constructing such a bridge have not been tested.
Rather, in the case of Brexit, the transition that was agreed as part of the withdrawal agreement took the form of a unique situation in which, for a limited period of time and with some notable exceptions,[99] the UK was to be treated as a Member State without being one.[100] A combination of various circumstances has led to this particular type of transition and discussing them goes beyond the scope of this article.[101] Among them were the UK request for what it called an implementation period, the fact that this transition period was politically more acceptable (or less unacceptable) than a further extension of EU membership, combined with a need to create the conditions for not only formal negotiations, but also the finalization and conclusion of an agreement on the future relationship.[102]
Concerns have been raised about the legality of a transition period that entails the continued application of Union law to the UK. Dougan argues that it “is not only difficult to square with the explicit text of Article 50 TEU itself. It could also sit uneasily with myriad other provisions of EU law.”[103] A first concern, relating to potential threats to the autonomy of Union law,[104] can be argued not to have materialized because of the insistence of the EU on strict conditions, e.g. by excluding the UK from the EU institutions during the transition period. A second concern is that such a transition period can be considered problematic because Article 50 TEU provides that the Treaties cease to apply to the Member State from the date when the withdrawal agreement enters into force.[105] Here, the distinction between application directly on the basis of the EU Treaties (in the case of membership) and application through an international agreement and as a third country (in the case of the withdrawal agreement) becomes relevant. It can be argued that article 50 TEU prescribes that through withdrawal the Treaties cease to apply by themselves, but does not prohibit limited (in time and/or in substance) continued application on the basis of a new agreement (including the withdrawal agreement). A further concern is that it can be seen as a circumvention of the unanimity requirement that applies to an extension beyond the two-year period (article 50(3) TEU).[106] Considering that three extensions of membership have been agreed, and this specific transition arrangement was credibly considered necessary by both parties to safeguard an orderly withdrawal, it seems hard to consider the agreed transition a case of abuse. And although it seems fair to say that the agreed transition period tested our “normal constitutional expectations”,[107] the concerns “might now appear more theoretical than real.”[108]
Former UK Prime Minister Theresa May made “Brexit means Brexit” into her slogan. What Brexit actually means in terms of constitutional effects can be explained through some of the interpretations given by the EU political institutions. One example is that Brexit leads to an automatic loss of Union citizenship.[109]
In Préfet du Gers the Court of Justice has confirmed that Brexit means the automatic loss of Union citizenship for persons holding the nationality of the UK.[110] There is an “inseparable and exclusive link between possession of the nationality of a Member State and not only the acquisition, but also the retention, of the status of citizen of the Union.”[111] The loss of the status of citizen of the Union, and consequently the loss of rights attached to it are an automatic consequence of the sole sovereign decision taken by the UK to withdraw from the EU, by virtue of Article 50(1) TEU.[112] There is no requirement to carry out an individual examination of the consequences of the loss of the status of citizen of the Union for the person concerned, in the light of the principle of proportionality.[113]
With its judgment, the Court confirmed the reading that was given by the EU institutions and the UK, and which was the basis for agreeing on citizens’ rights in the withdrawal agreement. In fact, the answer to the legal question was obvious to many. Van den Brink and Kochenov speak of “a case in which the law is so crystal clear”;[114] Eeckhout and Frantziou stated that “it is impossible to argue that the status of citizenship must be retained for UK citizens”.[115] Still, the judgment has been criticized, e.g. by Shuibhne who argues that, although the Court gave the right answer to the preliminary questions,[116] “recourse was had too easily and too thinly to the political discretion built into the conduct of EU external relations”.[117] Lashyn even goes as far as to state that “the Court sacrificed the fundamental nature of Union citizenship and its prospects of further evolution for the sake of Brexit.”[118]
The first application of article 50 TEU in the case of Brexit has led to additional constitutional sources that can be understood in light of the dual constitutional objective of article 50 TEU: first, to enshrine a sovereign right of each Member State to leave the Union; and second, to enable an orderly withdrawal from the EU.
The main actors responsible for interpreting article 50 TEU have arguably been the European Council (Art. 50) and the European Court of Justice. The EU political institutions have made important institutional choices in order to safeguard the objective of an orderly withdrawal, including political unity in the negotiations with the UK, unity in the legal form of the EU-only withdrawal agreement through interpreting article 50 TEU as an exceptional horizontal competence, a phased approach to the negotiations, and a broad interpretation of the competence to adopt transitional arrangements. The Court of Justice has been instrumental in safeguarding the sovereign right of a Member State to not only withdraw from the EU but also to change its mind, and in confirming the full effects of Brexit when it comes to Union citizenship: Brexit means Brexit.
Resumen: Este artículo analiza el Brexit, agrupando el análisis en torno a algunas de las principales cuestiones relativas a la retirada de la UE: la notificación de la intención de retirarse, las negociaciones sobre la retirada, la futura relación entre la UE y el Estado miembro que se retira, y los efectos constitucionales de la retirada efectiva. El proceso de retirada del Reino Unido puede entenderse en general a la luz del doble objetivo constitucional del artículo 50 TUE: en primer lugar, consagrar un derecho soberano de cada Estado miembro a abandonar la Unión y confirmar así el carácter voluntario de la pertenencia a la UE; y, en segundo lugar, permitir una retirada ordenada de la UE.
Palabras claves: Brexit, retirada de la Unión, artículo 50.
Abstract: This article discusses the main new EU constitutional sources, grouping them around some of the main issues concerning withdrawal from the EU: the notification of the intention to withdraw, negotiations about withdrawal, the future relationship between the EU and the withdrawing Member State, and the constitutional effects of actual withdrawal. We will determine that the additional constitutional sources confirm and can generally be understood in light of the dual constitutional objective of article 50 TEU: first, to enshrine a sovereign right of each Member State to leave the Union and thus confirm the voluntary nature of EU membership; and second, to enable an orderly withdrawal from the EU.
Key words: Brexit, withdrawal from the EU, article 50.
Recibido: 2 de octubre de 2023
Aceptado: 2 de octubre de 2023
______________________________________
[*] The views expressed by the author are personal and do not necessarily reflect those of the Ministry.
[01] This contribution will not discuss the distinction between primary and secondary sources of the constitution; case law of constitutional courts is generally considered an example of the latter. It will also not discuss the question to what extent constitutional practices can be considered part of the EU legal constitution. HILLION suggests that they can, as in reference to issues including the phased negotiation – on which see section 3.3 below - he argues that “the ongoing elaboration of Article 50 TEU is tantamount to a nascent EU withdrawal law.”, C. HILLION, “Withdrawal under Article 50 TEU: An Integration-Friendly Process”, Common market law review, 2018, p. 29-56 at 49.
[02] Compare CJEU, 10 December 2018, Case C‑621/18, Wightman, § 56.
[03] Article 50(2) TEU.
[04] Article 50(1) TEU.
[05] R (Miller) v Secretary of State for Exiting the European Union (2017) United Kingdom Supreme Court, 5.
[06] See the contributions by BIN and LUPO. See also R. BIN, “Italexit? Come si potrebbe fare, se si può fare”, Quaderni Costituzionali, 2018, p. 813-830; N. LUPO, “L’art. 11 come “chiave di volta” della Costituzione vigente”, Rassegna Parlamentare, 2021, p. 379-418.
[07] Informal meeting at 27, Brussels, 29 June 2016, Statement, point 2.
[08] Statement by the European Council (Art. 50) on the UK notification, 29 March 2017.
[09] Wightman, cit., § 58.
[10] These are the conditions explicitly attached by the Court to a revocation of a notification, see Wightman, cit., § 74.
[11] In his opinion in the Wightman case, Advocate General M. CAMPOS SANCHEZ-BORDONA with regard to a notification hints at the possibility that a “body having authority (ordinarily the highest courts of each State) holds that that decision was not adopted in accordance with the constitutional requirements”, arguing it should be possible to then revoke the notification, see Opinion of 4 December 2018, C-621/18, Wightman, § 104. HOFMEISTER is confident that “There is no risk of the ECJ becoming a final arbiter over national constitutional law.”, see H. HOFMEISTER, “Should I Stay or Should I Go? A Critical Analysis of the Right to Withdraw from the EU”, European Law Journal, vol. 16, no 5, 2010, p. 589–603 at 599.
[12] P. EECKHOUT and E. FRANTZIOU, “Brexit and Article 50 TEU: A Constitutionalist Reading”, Common market law review, 2017, p. 695-734 at 710.
[13] Ibidem, p. 696.
[14] Ibidem, p. 710.
[15] See for a discussion in relation to the UK, P. CRAIG, “Brexit. A Drama in Six Acts”, European Law Review, vol. 41, no 4, 2016, p. 447-468 at 465-467.
[16] Informal meeting at 27, Brussels, 29 June 2016, Statement, point 2.
[17] After the European Council (Art. 50) had adopted guidelines on 29 April 2017 and the Council (Art. 50) on 22 May 2017 had mandated the Commission to start these negotiations.
[18] Council Decision (EU) 2016/1316 of 26 July 2016 amending Decision 2009/908/EU, laying down measures for the implementation of the European Council Decision on the exercise of the Presidency of the Council, and on the chairmanship of preparatory bodies of the Council (OJ L 208, 2.8.2016, p. 42).
[19] Some hard Brexiteers argued differently, namely that the UK could leave the EU without going through the process laid down in Article 50 TEU and that a simple repeal of the European Communities Act 1972 would be sufficient. See P. CRAIG, Brexit, A Drama: The Interregnum, Yearbook of European Law, vol. 36, 2017, p. 3-45 at 8.
[20] WEILER even speaks of a “laughable time frame”, J. WEILER, “Brexit – Apportioning the Blame”, Blog of the European Journal of International Law, no 17, April 2020; HERBST is convinced that the period is “far too short for negotiating and concluding a withdrawal implementation agreement”, J. HERBST, “Observations on the Right to Withdraw from the European Union: Who are the ‘Masters of the Treaties’?”, German Law Journal, vol. 6, 2005, p. 1757-58.
[21] In the case of the Energy Charter Treaty e.g. the period is one year, see article 47(2) ECT; in the case of the European Convention on Human Rights it is six months, see article 58(1) ECHR.
[22] European Council (Art. 50) guidelines for Brexit negotiations, 29 April 2017, point 25.
[23] CJEU, 19 September 2018, Case C‑327/18 PPU, RO, § 45.
[24] Wightman, cit., § 59.
[25] Ibidem, § 73.
[26] Informal meeting at 27, Brussels, 29 June 2016, Statement.
[27] Informal meeting of the Heads of State or Government of 27 Member States, as well as the Presidents of the European Council and the European Commission Brussels, 15 December 2016.
[28] C. HILLION, op. cit., p. 37.
[29] In fact, the European Council later endorsed the arrangements set out in the statement of 27 Heads of State or Government on 15 December 2016, see European Council (Art. 50) guidelines for Brexit negotiations, point 28.
[30] Prime Minister Theresa May, Letter to European Council President Donald Tusk, 20 March 2019.
[31] European Council Decision (EU) 2019/476 taken in agreement with the United Kingdom of 22 March 2019 extending the period under Article 50(3) TEU (OJ L 80 I, 22.3.2019, p. 1).
[32] Prime Minister Theresa May, Letter to European Council President Donald Tusk, 5 April 2019.
[33] European Council Decision (EU) 2019/584 taken in agreement with the United Kingdom of 11 April 2019 extending the period under Article 50(3) TEU (OJ L 101, 11.4.2019, p. 1).
[34] Letter from the UK Permanent Representative of 23 August 2019 to the European Commission and the Council.
[35] European Council Decision (EU) 2019/1810 taken in agreement with the United Kingdom of 29 October 2019 extending the period under Article 50(3)TEU (OJ L 278 I, 30.10.2019, p. 1), preamble 11.
[36] European Council Decision (EU) 2019/1989 of 28 November 2019 appointing the European Commission (OJ L 308, 29.11.2019, p. 100).
[37] Wightman, cit.
[38] P. CRAIG, “Brexit. A Drama in Six Acts...cit.”, p. 464. See P. EECKHOUT and E. FRANTZIOU, op. cit., p. 711-714.
[39] Wightman, cit., § 42.
[40] Ibidem, § 73.
[41] Ibidem, § 49.
[42] See e.g. with regard to the Advocate General’s opinion, S. PEERS, “Revoking the notice to withdraw from the EU? The opinion in Wightman”, EU Law Analysis Blog, 4 December 2018.
[43] J. VIDMAR, “Unilateral Revocability in Wightman: Fixing Article 50 with Constitutional Tools”, EuConst, 2019, p. 359-375 at 368.
[44] Wightman, cit., § 57.
[45] Ibidem, § 65.
[46] A. CUYVERS, “Wightman, Brexit, and the sovereign right to remain”, Common market law review, vol. 56, 2019, p. 1303-1332 at 1303 and 1312.
[47] See already the procedural arrangements decided at the Informal meeting of the Heads of State or Government of 27 Member States, as well as the Presidents of the European Council and the European Commission Brussels, 15 December 2016.
[48] C. HILLION, op. cit., p. 38.
[49] On accession agreements see article 49 TEU.
[50] See in this sense also, B. LAFFAN, “Brexit: What Role did Process Play?”, Global Policy, vol. 13, 2022, p. 79-88.
[51] European Council (Art. 50) guidelines for Brexit negotiations, 29 April 2017; already reflected in: Informal meeting of the Heads of State or Government of 27 Member States, as well as the Presidents of the European Council and the European Commission Brussels, 15 December, point 1.
[52] Special meeting of the European Council (Art. 50), 25 November 2018, Conclusions, point 1; European Council (Art. 50), Conclusions, 21 March 2019, point 2; Special meeting of the European Council (Art. 50), 17 October 2019, Conclusions, point 1.
[53] M. DOUGAN, The UK’s Withdrawal from the EU: A Legal Analysis, Oxford University Press, 2021, p. 52.
[54] See European Council (Art. 50) meeting, 15 December 2017, Guidelines, point 6.
[55] Special meeting of the European Council (Art. 50), 25 November 2018, Conclusions, point 1; European Council (Art. 50), Conclusions, 21 March 2019, point 2; Special meeting of the European Council (Art. 50), 17 October 2019, Conclusions, point 2.
[56] B. LAFFAN, op. cit., p. 82.
[57] Since it does not prescribe nominating the Commission as negotiator as article 207 TFEU does for trade agreements.
[58] B. LAFFAN, op. cit, p. 82.
[59] C. HILLION, op. cit., p. 32, further suggests understanding the role assigned to the European Parliament during the withdrawal negotiations as “reflecting the terms of Article 218(10) TFEU”.
[60] Cfr. Council Decision (EU) 2022/2349 of 21 November 2022 authorising the opening of negotiations on behalf of the European Union for a Council of Europe convention on artificial intelligence, human rights, democracy and the rule of law (OJ L 311, 2.12.2022, p. 138).
[61] Council Decision of 22 May 2017 authorising the opening of negotiations with the United Kingdom of Great Britain and Northern Ireland for an agreement setting out the arrangements for its withdrawal from the European Union.
[62] First incorporated in the statement of the Heads of State and Government of 15 December 2017, point 2, and later endorsed by the European Council guidelines of 29 April 2017, point 28.
[63] European Council (Art. 50), Conclusions, 15 December 2017, point 5.
[64] The European Council (Art. 50) on 25 November 2018 and later again on 17 October 2019 invited the European Commission “to take the necessary steps to ensure that the agreement can enter into force”; see Special meeting of the European Council (Art. 50), 17 October 2019, Conclusions, point 1.
[65] See article 293(1) TFEU: “Where, pursuant to the Treaties, the Council acts on a proposal from the Commission, it may amend that proposal only by acting unanimously (…)”.
[66] In this case the reinforced qualified majority that is applicable when not all members of the Council participate in the vote; for the definition see article 238(3)(b) TFEU.
[67] See e.g. A. LAZOWSKI, “Withdrawal from the European Union and alternatives to membership”, European Law Review, vol. 37, 2012, p. 523-540 at 528; C. HILLION, op. cit., p. 33.
[68] K. BRADLEY, “Agreeing to Disagree: The European Union and the United Kingdom after Brexit”, EuConst, vol. 16, 2020, p. 379-416 at 392.
[69] Ibidem, p. 392.
[70] P. EECKHOUT and E. FRANTZIOU, op. cit., p. 732, even argue that if an opinion is asked from the CJEU “respect for the rule of law would require that the withdrawal process is suspended, again if necessary beyond the two-year period.”
[71] CJEU, 9 June 2022, Case C‑673/20, Préfet du Gers.
[72] With regard to locus standi of natural and legal persons in relation to the withdrawal agreement, see the General Court of the EU, 8 June 2021, Case T‑252/20, Silver and Others v Council; 8 June 2021, Case T-198/20, Shindler v Council; 8 June 2021, Case T‑231/20, Price v Council. With regard to an interest in bringing proceedings, see CJEU, 15 June 2023, Case C-499/21 P, Silver et al; 15 June 2023, Case C-521/21 P, Shindler; 15 June 2023, Case C-502/21 P, Price.
[73] This choice was reflected in para. 5 of the Council (Art. 50) negotiating directives, see ANNEX to Council decision (EU, Euratom) of 22 May 2017 authorising the opening of negotiations with the United Kingdom of Great Britain and Northern Ireland for an agreement setting out the arrangements for its withdrawal from the European Union, point 5.
[74] The Commission and the Council not seldomly disagree in their assessment on this point.
[75] See P. CRAIG, “Brexit, A Drama: The Interregnum… cit.”, p. 43: “There are also issues as to whether detailed transitional provisions smoothing future trade relations would fall within the EU’s exclusive competence. If they did not, then ratification by all Member States as well as the EU would be required.”
[76] CJEU, 5 December 2017, C-600/14, Germany v Council (OTIF), in particular §§ 49-51.
[77] On the transition period see articles 126-132 (Part four) of the withdrawal agreement. The same willingness to have the Union exercise shared competences was shown in the contingency Regulation (EU) 2019/502 of 25 March 2019 on basic air connectivity, see OJ L 85, 27.3.2019, p. 49-59, and of course also in the EU-only Trade and Cooperation Agreement between the EU and the UK (OJ L 149, 30.4.2021, p. 10–2539).
[78] See article 2(a)(v) of the withdrawal agreement in general. See in particular article 63(1)(b) withdrawal agreement for the “Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on mutual assistance and cooperation between customs administrations”, and article 152(1) withdrawal agreement for the “European Development Fund” (EDF) and the “11th EDF Internal Agreement”.
[79] European Council (Art. 50) guidelines for Brexit negotiations, 29 April 2017, point 4-5.
[80] See also the UK notification letter of 29 March 2017: “We therefore believe it is necessary to agree the terms of our future partnership alongside those of our withdrawal from the European Union”.
[81] European Council (Art. 50), 15 December 2017, Guidelines, point 1.
[82] J. WEILER, “Brexit, the Irish Protocol and the ‘Versailles Effect’”, Blog of the European Journal of International Law, 8 September 2021. LAZOWSKI is also critical arguing that: “One could even contemplate if such an approach were not in breach of the principle of loyal co-operation.” See A. LAZOWSKI, “Exercises in Legal Acrobatics: The Brexit Transitional Period”, European Papers, 2017, p. 845-862 at 849.
[83] C. HILLION, op. cit., p. 45.
[84] P. CRAIG, Brexit, A Drama: The Interregnum… cit.”, p. 32.
[85] B. LAFFAN, op. cit., p. 83.
[86] M. DOUGAN, “So Long, Farewell, Auf Wiedersehen, Goodbye: The UK’s Withdrawal Package”, Common market law review, 2020, p. 631-704 at 648.
[87] A. LAZOWSKI, Withdrawal… cit.”, p. 529.
[88] A. LAZOWSKI, “Mind the Fog, Stand Clear of the Cliff! From the Political Declaration to the Post-Brexit EU-UK Legal Framework – Part I”, European Papers, 2020, p. 1105-1141 at 1108.
[89] See P. EECKHOUT and E. FRANTZIOU, op. cit., p. 715-716.
[90] P. CRAIG, “Brexit. A Drama in Six Acts…cit.”, p. 465.
[91] European Council (Art. 50) guidelines for Brexit negotiations, 29 April 2017, point 5.
[92] See European Council Decision (EU) 2019/584, op. cit., preamble 12.
[93] C. HILLION, op. cit., p. 34.
[94] In this sense, see also M. DOUGAN, “So Long…cit.”, p. 649.
[95] Council Decision (EU, Euratom) 2020/266 of 25 February 2020 authorising the opening of negotiations with the United Kingdom of Great Britain and Northern Ireland for a new partnership agreement (OJ L 58, 27.2.2020, p. 53–54).
[96] European Council (Art. 50) guidelines for Brexit negotiations, 29 April 2017, point 6.
[97] J. HERBST, “Observations…cit.”, p. 1757; H. HOFMEISTER, “Should I Stay…cit.”, p. 598.
[98] Cfr. about the possibility to include transitional arrangements: P. CRAIG, “Brexit, A Drama: The Interregnum…cit.”, p. 43; A. LAZOWSKI, “Exercises…cit.”, p. 851; M. DOUGAN, “An Airbag for the Crash Test Dummies? EU-UK Negotiations for a Post-Withdrawal “Status Quo” Transitional Regime under Article 50 TEU”, Common market law review, vol. 55, 2019, p. 57-100 at 84.
[99] Articles 126-132 Withdrawal Agreement.
[100] Ibidem, Article 127(1).
[101] See e.g. M. DOUGAN, “So Long…cit.”; K. ARMSTRONG, “After EU Membership: The United Kingdom in Transition”, European Journal of Legal Studies, 2019, p. 59-86.
[102] K. ARMSTRONG, “After EU Membership…cit.”, p. 66: “Most obviously, one of the central functions of a transition period is to give the Union and the UK time to negotiate a new future relationship.”
[103] M. DOUGAN, “An Airbag…cit.”, p. 91.
[104] Ibidem, p. 87-90.
[105] Ibidem, p. 84 and 90-91; P. CRAIG, “Brexit, A Drama: The Interregnum…cit.”, p. 44.
[106] M. DOUGAN, “So Long…cit.”, p. 664-5; P. CRAIG, “Brexit, A Drama: The Interregnum…cit.”, p. 44.
[107] M. DOUGAN, “An Airbag…cit.”, p. 59.
[108] M. DOUGAN, “So Long…cit.”, p. 665.
[109] Another example, not discussed here, is the automatic end of ongoing mandates of members of institutions, bodies, offices and agencies of the Union nominated, appointed or elected in relation to the United Kingdom´s membership of the Union.
[110] Préfet du Gers, cit.
[111] Ibidem, § 48.
[112] Ibidem, § 59.
[113] Ibidem, § 61.
[114] M. VAN DEN BRINK and D. KOCHENOV, “Claiming ‘We are out but I am in’ post-Brexit”, in Verfassungsblog, 25 February 2022.
[115] See P. EECKHOUT and E. FRANTZIOU, op. cit., p. 715-716, 728.
[116] N. NIC SHUIBHNE, “Protecting the legal heritage of former Union citizens: EP v. Préfet du Gers”,Common market law review, 2023, p. 475–516 at 477.
[117] Ibidem, p. 515.
[118] S. LASHYN, “Sacrificing EU citizenship on the altar of Brexit”, Maastricht Journal of European and Comparative Law, 2022, p. 736-744 at 743.
