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So.. I've been thinking a lot about this. Possible but wd be unprecedented for 2 reasons:
1) First time (to my knowledge) that an EU-only deal wd require provisional application (PA)
2) First time (to my knowledge) Council wd authorise PA before EU Parliament has voted.
*Thread* https://twitter.com/tconnellyRTE/status/1329741204464967680
1) First time (to my knowledge) that an EU-only deal wd require provisional application (PA)
2) First time (to my knowledge) Council wd authorise PA before EU Parliament has voted.
*Thread* https://twitter.com/tconnellyRTE/status/1329741204464967680
1. Cd a UK-EU FTA be provisionally applied if EU cannot complete ratification by the end of the year? Yes. Article 25 of the Vienna Convention of the Law of Treaties (VCLT) allows for it. As @StevePeers notes, political declaration also mentions it.
2. But PA wd not be straightforward for 3 reasons:
a. Timing: Can only happen after legal scrubbing & translation
b. Legal call: EU only vs. “mixed agreement”
c. EU Parliament ratification
Bear with me.
a. Timing: Can only happen after legal scrubbing & translation
b. Legal call: EU only vs. “mixed agreement”
c. EU Parliament ratification
Bear with me.
3. Timing: EU can’t agree to PA until there is (i) a deal and (ii) lawyers have reviewed it. EU must also translate deal in EU official languages. As @JamesCrisp6 notes, they don’t want to rush this step.
4. Legal call: Is UK-EU deal:
(i) “EU-only” deal (areas of EU law only): then approval is needed at EU level (Council & EU Parliament)
(ii) OR a “mixed agreement” (areas of EU & member-state law, like aviation): then approval at EU level *&* in MS (though MS can vote after 2020)
(i) “EU-only” deal (areas of EU law only): then approval is needed at EU level (Council & EU Parliament)
(ii) OR a “mixed agreement” (areas of EU & member-state law, like aviation): then approval at EU level *&* in MS (though MS can vote after 2020)
5. What about UK-EU deal? If it covers aviation & social security, it’s usually a mixed agreement. *But* EU cd decide it's an EU-only deal like they did for EU-Japan. But politically, this won’t be an easy decision. (Legally also dubious - @jameskkane can tell you more).
6. MS cd agree to "EU-only" - but will be reluctant to: Why? Cos MS jealously guard their powers & don't want to give EU more powers than it already has! If they go for "EU-only" there will be *lots* of caveats ("this is exceptional"; "won't be repeated"; "aviation still MS law")
7. So what does this mean for PA: “EU-only” deals don't usually require PA. Deal comes into force as soon as it has been ratified by Council & EU Parliament. So if ratification is complete by 31 Dec, then there is no need for PA.
8. But…. UK-EU talks are really running out of time. So what happens if there is an EU-only deal, but EP has no time to ratify? Can it be provisionally applied? This is where it gets complicated.
9. Legally speaking, Council (EU27) can consent to PA *before* EU Parliament vote. But it never does. In last yrs, EP has asked Council not to agree to PA until EP has had time to review & vote on deal. Doing this now cd cause tension between Council & EP.
9.bis [Which is terrible timing given all the other things the EU has on its plate: budget, Covid recovery fund, etc. Good relations between Council & EP will be key].
10. If political hurdles can be overcome (big IF), no time to be complacent. PA not straightforward:
1) PA terms must be discussed inside EU & with UK
2) Not a permanent state
3) Can be withdrawn unilaterally. END.
1) PA terms must be discussed inside EU & with UK
2) Not a permanent state
3) Can be withdrawn unilaterally. END.
