Thread by @hhesterm

Some home truths about the time left to negotiate an EU-UK FTA if we want one in place by January. Or in short: Why we're reaching the end of the road. (Thread)

Any deal - to come into force - must either be ratified or enter into force provisionally. @GeorginaEWright has written a very good overview, so I can focus on "as fast as possible". instituteforgovernment.org.uk/blog/ratifying…

Ratification takes time. So let's go with provisional application. How does that work?

Provisional application of a treaty is a well-established international tool. You'll find it described in Art. 25 of the VCLT. What is described there is pretty much the customary international law standard.

Provisional application basically means for our purposes: we agree to apply the treaty immediately, we ratify later. It'll be applied before it is in force.
No. That's not illegal, it happens a lot. But it comes with problems. As we shall see.

So let's say Team Frost and Team Barnier agree: time's up, only provisional application can help us get the deal to apply on January 1. WHAT NOW?

On the EU side it is the Council that decides on provisional application. That's Art. 218(5) TFEU.

That's not uncommon. Here's the decision with regard to the EU-South Korea FTA eur-lex.europa.eu/legal-content/…

BUT there are three issues here:
1) the legal powers of the EU
2) what about the European Parliament
3) remember: the COUNCIL decides.

The legal powers of the EU: there's of course some discussion here (we are lawyers. We discuss about everything). But likely provisional application is limited to stuff for which the EU has a competence. OK. That should not be too bad. Still good.

The European Parliament. Here there's real trouble ahead. Without approval by the Parliament there's NO ratification. Period. It's in the treaty. Parliament says no, we're done here. However, legally, you don't need the EP for provisional application. So...

... there's been a longstanding fight about this. With promises not to provisionally apply without the EP, some sort of consultation at least etc. etc. for some cases for all. Thing is: This is a problem. Because an EP vote takes time. How much?

Well, you need them to read the agreement, talk to stakeholders, other people, write a report etc. etc. So: we are saying weeks. Unless you think they'll rubber-stamp. Side-note: a lot of people use this argument these days: "But they would never vote an agreement down"

Put a pin in that argument. We'll get there again.

But the point here: the Commission needs the EP for its other policies too, so it might not want to bypass it though it legally could. Notice in that regard (h/t to @IngmarVon ) that the EP is penciling in an extraordinary plenary for 28 December.

OK. So that's the EP. But now the bummer: the Council absolutely categorically has to approve provisional application because, well, that's the body that does that. And that means: the EU 27.

They will want to read the agreement. The real text. Yes, they've been informed to some extent, but still. The real text is the real text.

Worse: some countries don't just say: ok, the executive decides. They let their Parliament have a say. And tie the executive to that.

Some of these can be quite contested. Don't forget: the UK is not the only country where MPs were skeptical of EU overreach. Here's the German Bundestag on the matter of Bundestag involvement in provisional application bundestag.de/resource/blob/…

(Allow me to summarise that report with the words "it's complex").

So from "does the EP have time to analyze the text and go through its procedures" - don't bother they'll rubber-stamp. We are moving to "do the 27 Executives have time to analyze the text, including some national parliaments, and horror - did I forget possibly regional ones"

What complicates the matter is that there is not a fixed amount of time that allows us to say "X days are sufficient" or "X-1 days are not".

But it brings us back to "who will vote against this deal if we've gone through the pain and negotiated it - the damage is too large, it's all too important".

Let me rephrase this: Do we expect that all 27 Member States and (if applicable) parliaments will rubber-stamp an important trade agreement with the UK that they did not have a sufficient amount of time to look at?

And to get back to the panned question: which Parliament would ever vote against an important agreement negotiated by the executive? Well, the UK one, for starters. And in the UK the executive is defined by a parliamentary majority. Which is not true everywhere.

In short, the time for a Jan 1 application date is running out.

And the prize for getting to the end of this very optimistic thread: And so here I am, at the end of the road

And how embarrassing - another little detail: Yes. No country would be able to go without translation. And checking the translation. Which actually will be fully authoritative. So the UK would not want to go without checking the translations, either...

https://twitter.com/AnnaStellinger/status/1333432897680908288?s=20