Thread by @Usherwood

I'm bored, so I've dug around some legal texts on why extending Art.50 transition is a problem

1/

First up, we need to start w Art.50 itself: much mentioned, less often read

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Key point to take from it is that there's no mention of transition at all: a state leaves, that's it

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An argument can (and has) been made that parties can agree to have a transition period, as part of the package on withdrawal, but it's not a given

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However, everyone's on board with it in UK and EU, so let's say that's locked in.

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But there's a problem.

At least two, actually

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First up, the EU already has lots of formal relations w third parties, as we know.

And it does that because it's been given the competence to do that

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That competence lies in Art.212 TFEU

8/

Note the 'w/o prejudice' bit at the start, which is what gives Art.50 its wiggle-room: COM can argue that withdrawal can't work properly w/o a bit of transition, even though that infringes on Art.212

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The problem comes if anyone tries to extend transition. That starts to look less like handling withdrawal and more like building a de facto relationship w a third state, the UK

10/

I'll have clocked that 212 has a different decision-making procedure to 50, so that's clear grounds for a referral to the CJEU, esp if an extension is anything more than a v.short & fixed one

11/

But maybe space could be found to argue the toss on this, given the novelty of the situation and the potential infringement of rights in the case of cliff-edging from a judgement

12/

The difficulty lies in the second problem, which might render the first one moot: the WTO rules

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(I'll note here that finding the text of GATT 1994 is a pain, so apologies if I've not got it correctly)

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Art.XXIV allows WTO members to have preferential regional arrangements (like the EU's), under certain conditions

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That includes provisional arrangements as parties deal with ratification, which can drag on

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Key bit for us is XXIV.5

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That sets out some of the conditions that have to be met to be allowed this exemption from general WTO rules.

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You'll see that basically, all the main options on the table for EU-UK future relationship fail to meet these tests, as barriers will increase, not decrease

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That means if a WTO party is so inclined, a case could be brought to the body's dispute settlement that the transition isn't compliant and can't stand as is

20/

We'll stop there, but the short point is that legal barriers to extending transition exist and aren't under the control of either the UK or the EU

/end

cc @Sime0nStylites @rafaelbehr @UKandEU @pmdfoster