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The Brexit Withdrawal Agreement – All Signed and Sealed?

After nearly one and a half years of complicated negotiations between the United Kingdom and the European Union, a major step towards finalizing Brexit has been taken. On November 25, the European Council endorsed the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (“Withdrawal Agreement”) and the Political Declaration setting out the framework for the future relationship between the European Union and the United Kingdom (“Political Declaration”).[1] The Withdrawal Agreement sets out the terms on which the UK will leave the EU and initiates a transition period scheduled to close at the end of 2020.[2] Now it is up to the United Kingdom to agree on the proposed deal.

Why the need for a transition period? As decided by the 2016 non-binding referendum, the United Kingdom will leave the European Union on March 29, 2019.[3] The day after,  the Withdrawal Agreement will be put in place to govern the EU-UK relationship.[4] The EU has made it clear that the time frame of Article 50 of the Treaty on European Union is too short to agree on a meaningful trade agreement.[5] Thus, all negotiations so far have been about the withdrawal terms and the transition period. It is during this transition period that negotiations about the future relationship between the EU and the UK will take place.[6]

What is in the Withdrawal Agreement?  

The 585-page Withdrawal Agreement is composed of six parts and three separate protocols.[7] The three protocols, which have the same legal power as the whole agreement, deal respectively with the Irish border, the UK presence in Cyprus, and Gibraltar.[8]

The first striking point of the Withdrawal Agreement lies in Article 4, which sets out the principles of direct effect, as well as supremacy of the Withdrawal Agreement. Consequently, the Withdrawal Agreement has the same legal force as the Treaties of the European Union.[9] “Direct effect” is an autonomous concept of European Union law, which entails that legal provisions of the Treaties are directly invocable for individuals in national courts. Moreover, the “supremacy” of the agreement entails that any national laws which contradict provisions of the agreement will be set aside.[10] One can thus expect a litany of legal challenges relating to national provisions that might be in conflict with the Withdrawal Agreement, which in turn would likely require an involvement of the European Court of Justice.

The Irish border backstop option

Turning now to the protocol on Irish border issues, the so-called backstop option has become a primary target of Brexiteer criticism.[11] The backstop option provides for Northern Ireland to be held inside the European Union Customs Union if the EU and the UK fail to agree on a deal. If an agreement on the future EU-UK relationship is not reached by December 31, 2020, the backstop option would apply to Northern Ireland until a subsequent agreement is in place.[12]

The jurisdiction of the Court of Justice of the European Union (“CJEU”)

The jurisdiction of the CJEU was a crucial point of contention in the referendum, since Brexiteers campaigned for freedom from international judicial supremacy.[13] The Withdrawal Agreement sets out that CJEU jurisdiction will apply during the transition period. Professor Steve Peers has stated that, when it comes to the application of CJEU precedent, “references to EU law must be ‘interpreted in conformity with’ CJEU case law delivered before the end of the transition period.”[14] The CJEU's jurisdiction will cease with the end of the transition period in 2021, albeit not entirely.[15] Some cases will still be under the jurisdiction of the CJEU in the future. As Professor Peers rightly noted, “[t]he CJEU will have jurisdiction to rule on how the rules apply to EU27 citizens in the UK, on the basis of requests from UK courts, for eight years after the transitional period ends.”[16]

The future relationship

Regarding the future relationship, which is set to be in place by 2021, the parties have so far issued only a political declaration.[17] As part of the “meaningful vote” (see section infra) the British parliament will potentially endorse the political declaration. The relationship will be determined during the transition period when EU and UK counterparts have to meet to negotiate the terms. An important fact to keep in mind is that the political declaration is not binding; this means a hard Brexit will be still possible in 2021.[18]

Political figures, such as the European Union’s Brexit negotiator Michel Barnier, have already talked about extending the transition period, if a deal on the future relationship cannot be reached by 2021.[19] The Withdrawal Agreement foresees such an option, as a Joint Committee will be set up to decide, by July 2020, whether or not the transition period may be extended.[20]

Some commentators have pointed out that the EU could trigger an ‘empty chair crisis’ to stalemate the Joint Committee. Through Article 171 of the Withdrawal Agreement, the EU could block the arbitration procedure within the Joint Committee by refusing to accept any of the proposed candidates for the position of chairperson.[21] However, this would violate the spirit of Article 5 of the Withdrawal Agreement, which pledges the mutual trust and respect of both parties.[22]

The “meaningful vote”

British Prime Minister Theresa May faces tough obstacles before the Withdrawal Agreement can become a reality. Including, a heavy debate in the British parliament, a scheduled TV debate with her opponent Jeremy Corbyn, leader of the Labour party and finally, the vote on the deal in the House of Commons, which will be starting on the 11th December.[23] The vote, which has been dubbed as the ‘meaningful vote’, will be the hardest and the most important in her political career so far.

A close examination of the House of Commons reveals that she can only win this vote by a very small margin. The House of Commons has 650 members.[24] Of these, the Speaker and his three deputies do not vote.[25] The seven members of Sinn Fein (Irish republican party) do not take their seats.[26] That leaves 639 MPs if everyone votes, Theresa May needs 320 votes to secure a majority for her deal. Supposedly, there are between ten and sixty-five Members of her own party who might vote against her. These intraparty opponents are called the European Research Group and are led by Brexiteer Jacob Rees-Mogg and former Foreign Secretary  Boris Johnson.[27]

Finally, there is a case pending in front of the CJEU concerning the revocability of Article 50 of the Treaty on European Union, sent by the Scottish Court of Session.[28] The Advocate General’s opinion was rendered on December 4, in which he proposes that the Court of Justice should declare Article 50 TEU unilaterally revocable.[29] An actual revocation of Article 50 of the Treaty on European Union thus appears unlikely to have political support, in the UK parliament, but could have judicial support, in the form of a judgment of the CJEU. However, the last page of the Brexit saga is still to be written.

Niels Kirst is an LLM-Candidate in European Law at Université Paris II Panthéon-Assas. He previously worked at the British think tank Open Europe in Brussels.

This post is a student blog post and in no way represents the views of the Fordham International Law Journal.

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[1] European Council Conclusion 695/18, European Council (Art. 50) conclusions (Nov. 25, 2018) (https://www.consilium.europa.eu/en/press/press-releases/2018/11/25/european-council-art-50-conclusions-25-november-2018/).

[2] Department for Exiting the European Union, Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, Article 126, (UK) [Hereinafter “Withdrawal Agreement”] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/759019/25_November_Agreement_on_the_withdrawal_of_the_United_Kingdom_of_Great_Britain_and_Northern_Ireland_from_the_European_Union_and_the_European_Atomic_Energy_Community.pdf.

[3] Ben Kelly, Brexit key dates: When is the UK leaving the EU?, Independent (Sept. 27, 2018, 10:37 AM),

(https://www.independent.co.uk/news/uk/politics/brexit-key-dates-when-uk-leave-eu-transition-period-theresa-may-a8501371.html.

[4] Withdrawal Agreement, supra note 2, Article 185.

[5] Barnier open to extending Brexit transition by one year to 2021, Financial Times (Oct 17, 2018) , (https://www.ft.com/content/6582b8ce-d175-11e8-a9f2-7574db66bcd5)

[6]https://www.independent.co.uk/news/uk/politics/brexit-legal-advice-theresa-may-negotiations-eu-government-irish-border-backstop-a8668876.html

[7] Withdrawal Agreement, supra note 2.

[8] Id. at Article 182.

[9] Id. at Article 4.

[10] “Principle of Supremacy and Direct Effect,” Digestible Notes, https://digestiblenotes.com/law/eu/supremacy.php (last visited Dec. 4, 2018).

[11] Jayne McCormack, Brexit: Boris Johnson says UK must 'junk the backstop', BBC (Nov. 24, 2018), https://www.bbc.co.uk/news/uk-northern-ireland-46328864.

[12] European Commission Fact Sheet MEMO/18/6423, Protocol on Ireland and Northern Ireland: Questions & Answers (Nov. 14, 2018), http://europa.eu/rapid/press-release_MEMO-18-6423_en.htm.

[13] “Why Vote Leave,” Vote Leave Campaign (Last accessed Dec. 3, 2018), http://www.voteleavetakecontrol.org/why_vote_leave.html

[14] Steve Peers, The Brexit Withdrawal Agreement: Overview and First Observations, EU LAW ANALYSIS (Nov. 22, 2017), http://eulawanalysis.blogspot.com/2018/11/the-brexit-withdrawal-agreement.html.

[15] European Commission Fact Sheet MEMO/18/6422, What is in the Withdrawal Agreement: Questions & Answers (Nov. 14, 2018), http://europa.eu/rapid/press-release_MEMO-18-6423_en.htm.(http://europa.eu/rapid/press-release_MEMO-18-6422_en.htm.

[16] Peers, supra note 13.

[17] European Commission Speech SPEECH/18/6426, Statement by Michel Barnier (Nov. 14, 2018), http://europa.eu/rapid/press-release_SPEECH-18-6426_en.htm.

[18] European Council endorsed Brexit Deal and approves the Political Declaration, THE FAST MAIL (Nov. 25, 2018), (http://www.thefastmail.com/page/detailnews/european-council-endorsed-brexit-deal-and-approves-the-political-declaration/70861

[19] Financial Times, supra note 5, (https://www.ft.com/content/6582b8ce-d175-11e8-a9f2-7574db66bcd5)

[20] Peers, supra note 13.

[21] Pieter Cleppe, The Brexit deal needs to be renegotiated: Here’s how, CAPX (Nov. 21, 2018), (https://capx.co/the-brexit-deal-needs-to-be-renegotiated-heres-how/.

[22] Withdrawal Agreement, supra note 2, at Article. 5.

[23] Robert Hutton et al., Cross-Party MPs Support Amendment to May's Plan: Brexit Update, BLOOMBERG (Nov. 29, 2018),  (https://www.bloomberg.com/news/articles/2018-11-29/may-warns-u-k-to-ready-for-no-deal-if-she-loses-brexit-update.)

[24] Robert Hutton, You Do the Math: Can May Get Her Brexit Deal Through Parliament?, BLOOMBERG (Nov. 19, 2018), https://www.bloomberg.com/news/articles/2018-11-18/you-do-the-math-can-may-get-her-brexit-deal-through-parliament,

[25] Id.

[26] Id.

[27] Id.  

[28] Alan S. Reid, Scotching Brexit? Background to the Wightman case about reversing the Article 50 notification unilaterally, EU Law Analysis (Nov. 16, 2018), http://eulawanalysis.blogspot.com/2018/11/scotching-brexit-background-to-wightman.html.

[29] Opinion of Advocate General Campos Sánchez-Bordona, Wightman and Others v Secretary of State for Exiting the European Union, Case C‐621/18 (http://curia.europa.eu/juris/document/document.jsf?text=&docid=208385&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=422935)