In a move calculated to focus minds on both sides of the Channel, a former Director General of the EU’s legal services department has delivered a stark warning, one that will echo particularly strongly in Whitehall. Unless an extension to the transition period is agreed by 30 June, there is no possible legal mechanism to avoid a cliff edge at the end of the year.
Those who think there will be some sort of fudge at the eleventh hour in December, which could see the EU stepping in to save Johnson and Britain from the consequences of Brexit, will be disappointed and perhaps fearful.
Jean Claude Piris, in a considered legal opinion recently published in the European online magazine Encompass, dismisses the idea of a last minute reprieve if no agreement is reached on the future relationship. There will be no such reprieve simply because there is no legal mechanism to provide one.
Brexit will become serious in less than fifty days’ time.
The warning comes as the Road Haulage Association yet again called on the government to extend the transition period because of the “impossible amount of work to be done” by the end of December.
If we do not request an extension by midnight on 30 June, we are in effect making an irrevocable decision to go over the cliff edge six months later. The implications for our country – for Boris Johnson, the Tory party, industry, agriculture and fishing – could not be greater and will come as we are still fighting the coronavirus pandemic, with huge consequences for the national finances.
Piris, a respected consultant on EU law, looked at four possible alternative options for extending the transition at some point in the second half of 2020 and outside the Withdrawal Agreement (WA):
- A decision of the Joint Committee
- An amendment to the WA on the basis of Article 50 of the Treaty on European Union
- An amendment to the WA on the basis of Article 352 of the Treaty on the Functioning of the European Union
- An amendment to the WA on the basis of international law.
In the first case, he argues the Joint Committee have no such legal powers under the WA. In the second case, the Article 50 negotiations are complete, Britain is now a third country and the EU no longer has any power to use Article 50 in connection with a non-member.
In the third case, he gives several grounds for suggesting negotiations under Article 352 cannot be initiated, including one under the German constitution which prevents it being used if it is not allowed under German law. This would entail lengthy legal arguments and a judgment in a German court.
Finally, he says that some lawyers have argued it is a principle of international law that any international treaty can be amended if its parties agree. They refer to Article 39(1) of the 1969 Convention on the Law of Treaties, which mostly reflects customary international law, and provides that “A treaty may be amended by agreement between the parties”.
Piris squashes this idea. He says the Convention concerns the treaties between states and cannot apply to the EU, which is not a state – something that Brexiters are always surprised to learn – but an international organisation (IO).
He points to another Convention from 1986, which deals with the law of treaties when at least one of the parties to a treaty is an IO, but he says the Convention is not in force and the EU did not sign it anyway. Even if it were in force, he points out that Article 39 of that Convention provides that “the consent of an IO to an agreement (…) shall be governed by the rules of that organization”.
Piris therefore concludes that there is no legal mechanism for extending the transition after 30 June. He states:
“Institutional and horizontal provisions of the WA, including articles 126 and 132, are frozen as they are written now. The only possibility to decide on an extension of the TP is to do it before the end of June 2020.”
In other words, after 30 June we could be set on course for a cliff edge and the only way of avoiding it is to sign a trade deal that limits, as far as possible, the inevitable damage and disruption. Without such a deal Britain will become the only nation in Europe trading with its closest and most important market on the worst possible terms.
The two sides will soon be eyeball to eyeball. Who will blink first? The pressure on Johnson is growing by the day.