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Does A50 allow for the backstop? Some EU lawyers so not 👇
As an EU lawyer I disagree. Thread. 1/
As an EU lawyer I disagree. Thread. 1/
The EU can only make agreements (eg with non EU states) if the Treaties give it power to do so. Article 50 of the Treaty on European Union is the legal basis for EU to make the Withdrawal Agreement with EU. 2/
A50 says the Withdrawal Agreement is for “setting out the arrangements for [the state’s] withdrawal, taking account of the framework for its future relationship with the Union.” 3/ 
HerbertSmith say that this language in A50 doesn’t allow for the Withdrawal Agreement to include any indefinite or permanent provisions. 4/
Why do Herbert Smith say that? Because the EU Council and Commission have said A50 doesn’t allow an agreement about the future relationship. 5/
“But they said” isn’t a great *legal* argument. As HerbertSmith accept, the meaning of the EU treaties isn’t decided by agreement between the political institutions of the EU - it’s a decision for the Court of Justice. 6/
So let’s look at A50. It’s explicitly limited to “the arrangements for withdrawal” and these are to be decided “taking account of the framework for its future relationship with the Union.” 7/
A50 does not state that the “arrangements for withdrawal” must be “transitional”. There’s no reason they can’t include “final” terms, say allocation of property, or lump sum payments. 8/
On the other hand, A50 is unlikely to be a power to make a “tariff or trade agreement”. EU power to do that is Article 207 of Treaty on the Functioning of the EU - which has a different procedure. 9/
The CJEU would read article 50 in the light of the Treaties as a whole. Not so large that it overlaps with A209. Not so small that it means EU & the leaving state can’t agree to “arranging the withdrawal”. 10/
What’s the backstop? IMO it’s capable of being part of the arrangement for withdrawal (literally). So what if it’s indefinite? It’s there to arrange he withdrawal. 11/
Is the backstop also a “trade or tariff agreement”? It has some qualities of that - it’s an agreement to *continue* an existing trade and tariff arrangement.
But so is the rest of the withdrawal agreement. 12/
But so is the rest of the withdrawal agreement. 12/
In the end, the only real objection to the backstop being an A50 competence and not A209 seems to be its indefinite character. 13/
But the backstop isn’t expressed to be *permanent* nor does the Withdrawal Agreement imply it is. It’s a temporary measure of undefined lifetime.
Like a pension arrangement - which is includes without controversy for existing UK & EU workers in the WA. 14/
Like a pension arrangement - which is includes without controversy for existing UK & EU workers in the WA. 14/
And nor is the backstop a *new* trade & tariff agreement - its a continuation of an EU arrangement, as an arrangement for withdrawal. 15/
As someone whose watched the EU courts for a couple of decades, it seems unlikely the backstop would be found outside the EU competence under A50.
If the EU Council ever asked the Court. Which seems really unlikely. 16/16
If the EU Council ever asked the Court. Which seems really unlikely. 16/16
