Jean-Claude Piris / May 2020
In conformity with article 126 of the Withdrawal Agreement (WA), the transition period (TP) “shall start on the date of entry into force of this Agreement and end on 31 December 2020”. According to article 132, “the Joint Committee may, before 1 July 2020, adopt a single decision extending the TP for up to 1 or 2 years”. On the side of the EU, a condition to agree on a TP was that it would be limited in time. This is why the WA provides only the possibility to extend it once and before 1 July.
But what would happen if the Joint Committee (JC) did not do it on time, but that the Parties wish to do it later, during the second semester of 2020? Would it be legally correct to do so and how? Four options could be examined.
1) A decision of the Joint Committee
The decisions the JC may take are only those enumerated in the WA, as stated in articles 164 (4e) and 166(1) WA. The only basis for changing the duration of the TP is article 132, and it must be used before 1 July 2020. It is true that, in some cases, the JC may amend the WA itself: could it modify either article 126 or 132? This is not possible, because article 164 (4, f) limits its power to amend the WA only “in the cases provided for in this Agreement”, and articles 126 and 132 are not among these cases.
2) An amendment to the WA on the basis of article 50 TEU
In order to deal with a request for withdrawal of a member state, the EU Treaties do not provide any other substantive legal base than article 50 TEU. According to article 50 (3), the EU Treaties ceased to apply to the UK on 1 February 2020, the day when the UK withdrew from the EU. The EU does not have the power to use article 50 again in the case of the UK, which is now a third country. Substantive agreements between both Parties shall be possible on specific issues, but the EU does not have the power to modify the institutional provisions of the WA, even if the UK wanted to do so. The Lisbon Treaty insists on “the principle of conferral” more than any past EU Treaty. Sometimes it is repetitive, such as in article 4 (1) and 5 (1 and 2) TEU. The authors of the Lisbon Treaty did not want Article 50 to be used as a legal base after the member state concerned had left the EU.
3) An amendment to the WA on the basis of article 352 TFEU
-a) Article 352 TFEU can be used only if the action envisaged “should prove necessary, within the policies defined in the Treaties, to attain one of the objectives set out in the Treaties and the Treaties have not provided the necessary powers (…)”. The withdrawal of a member State is not one of the policies or objectives of the EU (see article 3 TEU) and article 50 does provide the necessary powers for the EU to confront that situation.
-b) Declarations 41 and 42 on article 352 TFEU were unanimously agreed by the Lisbon Conference. Declaration 41 stresses that “the reference in Article 352(1) to objectives of the Union refers to the objectives as set out in Article 3(2) and (3) of the TEU (…)”. Declaration 42 recalls that Article 352, “being an integral part of an institutional system based on the principle of conferred powers, cannot serve as a basis for widening the scope of Union powers beyond the general framework created by the provisions of the Treaties as a whole and, in particular, by those that define the tasks and the activities of the Union”.
-c) In addition, on 30 June 2009, point 328 of the judgment of the German Constitutional Court regarding the Lisbon Treaty says that Germany should not agree any use of article 352 if not allowed by a German law, which would entail discussions and delays.
4) An amendment to the WA on the basis of international law
Some international lawyers argue that it is a principle of international law that any international treaty may be amended if its parties agree. They stress that article 39(1) of the 1969 Convention on the Law of Treaties, which mostly reflects customary international law, provides that “A treaty may be amended by agreement between the parties”.
However, this Convention concerns the treaties between states. It is not applicable to the EU, which is not a state. Actually, there is a Convention (1986), which deals with the law of treaties when at least one of the parties is an international organisation (IO), but it is not in force and the EU did not sign it. In any case, the corresponding article 39 of that Convention provides that “The consent of an IO to an agreement (…) shall be governed by the rules of that organization”.
In the current case:
-the WA expressly limits the possibilities to amend its text in article 164 (4) and no provision gives such a power to the JC with regard to the duration of the TP;
-as already stressed, contrary to states, the EU does not have an unlimited treaty-making power, despite having a legal personality. Its powers are only those conferred upon it by the member states in the Treaties and there is no article in these which could be used in that case.
Institutional and horizontal provisions of the WA, including articles 126 and 132, are frozen as they are written now. The only possibility to decide on an extension of the TP is to do it before the end of June 2020.
 See article 4 TEU: “In accordance with article 5, competences not conferred upon the Union in the Treaties remain with the member States”.
"...With a view to the undetermined nature of future cases of application of the flexibility clause (ie article 352 TFEU), its use constitutionally requires ratification by the German Bundestag and Bundesrat on the basis of article 23.1 sentences 2 and 3 of the Fundamental Law."