To be published in Federico Fabbrini (ed.), The Law and Politics of Brexit, Vol. II – The Withdrawal Agreement (Oxford University Press, 2020 Forthcoming)
28 Pages Posted: 19 May 2020
Date Written: May 5, 2020
On 1 February 2020, and ten months later than scheduled, the European Union (EU) and the United Kingdom (UK) entered into a period of “transition”; a time between formal membership of the EU and the beginning of a new relationship.
At one level, there is a certain taken-for-granted simplicity to the idea of managing not just an orderly exit of the UK from the EU but also the provision of continuity and certainty while the parties negotiate and decide their future relationship. But at another level the formal terminology and indeed the metaphors used to describe this interim legal framework disclose some deeper tensions around the sequencing and organisation of the withdrawal process as well as the direction of travel of the parties. Even the temporal dimension – the specification of the duration of this temporary legal framework and the mechanism created to extend it, apparently settled during the Article 50 TEU negotiations – forms the stage upon which fundamental political choices are made about what the UK and EU want from their future relationship . If the ambition of negotiators during the Article 50 TEU process was to secure a transition period to avoid a “No Deal” Brexit on 31 January 2020, then the choices made during the transition period determine whether a “Real Deal, No Deal” would occur on 31 December 2020 or alternatively a new legal framework would govern EU-UK relations at the end of the transition period.
The analysis presented here develops in three steps. Section 2 begins with the terminology used to describe the interim legal framework established by Part IV of the Withdrawal Agreement between the EU and the UK.1 Next, section 3 focuses on the metaphor of the transition period as some form of “bridge” between EU membership and a future relationship. Section 4 evaluates the politics surrounding the length of the transition period and the legal issues implicated in determining the duration of transition. Section 5, finally discusses the exercise of the mechanism created by the Withdrawal Agreement for the extension of the transition period.
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