The thread by @davidallengreen shows there's a need to talk legal basis again. Forget "it appears" and "it seems". We need to face some uncomfortable hard truths on the construction of the transition agreement (short thread)
1) The EU has a constitution - its treaties. The EU can only act when it has a competence. That is called the principle of conferral. It may not, it cannot act outside of those competences. The UK and other Member States wanted it so.
2) What happens when it acts outside its competences? Who can check that? First of all: the Court of Justice. And second of all: some member state constitutional courts insist they can do that to (I am looking at you, Karlsruhe).
3) This is difficult to understand from a sovereignty of parliament perspective. But it is not a common law thing, it's a written constitution-judicial review thing: In the USA, Mexico, Brazil, Germany and the EU (and...) the central system may not act outside of its competences.
4) And again: this is non-optional, non-political. Now. Most of these systems have some competences that can be read very broadly. The EU has them to. We'll get to the content of the competences next.
5) The competence at issue here is Art. 50 TEU:"…In the light of the guidelines …, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union."
6) You might say "huh? That doesn't mention transition!" And you are right. This mentions a withdrawal agreement, not a transition. The transition will be part of the withdrawal agreement.
7) So that's the shocker: there clearly is a competence for the withdrawal agreement. We hope that a transition falls under it, because a transition seems sort of necessary. We make it time limited and status quo and hope we're safe.
8) But a transition without the withdrawal agreement? Go and look up EU competences. The bits that are in the press a lot are trade, so maybe under the EU's exclusive competences for trade agreements?
9) Fortunately the CJEU interpreted that widely in its decision on the Singapore FTA. Unfortunately by far not widely enough to cover a largely status quo transition. And then?
10) Well, then the transition would be in areas of EU competences AND in area of member state competences. You would have to do that as a so-called mixed agreement. EVERY MEMBER STATE would have to ratify.
11) Which would mean: no transition when we would actually need it. The irony is: the stumbling block here is that the EU's competences are limited.
