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I love the smell of a leaked legal service opinion in the morning
The conclusion: the EU Council legal service says that it's OK for the Brexit deal to be concluded with the UK by the EU only, not needing Member States' participation
The reasoning: the legal service distinguishes between competences reserved to Member States, and competences shared with the EU. For the latter, the EU has the choice of concluding an EU-only treaty.
The legal service summarises the prior case law backing up its interpretation.
It refers to the Weddell case, concerning competence to conclude a treaty on the Antarctic environment, where Member States *could* be involved. But that was based on the particular legal features of the Antarctic treaty; and the UK is not Antarctica.
Applying this reasoning to the UK deal, the legal service says that there's nothing in it which involves exclusive Member State competence. Therefore the EU can choose to conclude it as an EU-only treaty.
In particular competence is shared as regards the social security and aviation parts of the treaty. But again: this means that there's a choice to conclude the treaty as an EU-only treaty, or also with Member States as parties.
The legal service also notes that the UK and individual Member States can sign bilateral agreements within the scope of the Brexit deal - subject to the limits set out in the agreement.
Just thinking of all the times people argued that the treaty would *have* to be ratified by all the Member States - and all the times I replied that we would have to wait and see.
An initial reaction to the legal service opinion from the Walloon Parliament...
Full text of the Council legal service opinion on the Brexit deal now here - http://eulawanalysis.blogspot.com/2021/01/the-brexit-deal-council-legal-service.html
