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When the Court Has Its Say About Brexit Day…

On 30 January 2020, the Council of the European Union (Council) voted to adopt the agreement on the withdrawal of the UK and Northern Ireland from the EU (withdrawal agreement). This followed the approval of the agreement by the European Parliament (EP) on 29 January 2020. The withdrawal agreement enters into force at midnight on 31 January 2020.

For the UK Government and for most of the major institutions of the EU - EP, Council, European Council (EC) - the entry into force of the withdrawal agreement marks the end of the UK’s membership of the EU. In short, all parties involved in the almost three year period of negotiations since the UK notified the EC of its intention to withdraw from the EU are in agreement that Brexit Day has (at last!) arrived.

Notwithstanding the ceremony that has attended the conclusion of the withdrawal agreement, and its profound impact on citizens’ rights and trade, it is much like any other “contract” in the sense that the parties involved are free to decide collectively what it is they want the agreement to achieve. It is now clear that all major parties involved in the construction and/or the execution of the withdrawal agreement have agreed that Brexit Day is signalled from the first day of the UK’s entry into a transitional period during which the UK will be bound to the EU Treaty framework. Their agreement holds in spite of the fact that nowhere in the text of Article 50 is there mention of the possibility of a transitional period, and (more pertinently) in spite of the clear wording of Article 50 (3) to the effect that exit of a member state from the EU is marked by the fact that “[t]he Treaties... cease to apply to the State in question from the date of entry into force of the withdrawal agreement…” (my emphasis).

So, it has been agreed that the UK can leave the EU without there being exact compliance with the terms of Article 50. And, in general, I would say that it is entirely right that the views and intentions of the parties to an agreement should be decisive as regards that agreement’s scope and meaning - the pace of public and commercial life would be intolerably slow if such were not the case. But there are times when it is legitimate to upset the designs and expectations of the parties to an agreement; and never more so than when that agreement impacts the lives of millions of people.

On “Brexit Day” we would all do well to remember that the question of whether a State is or is not a member of the EU is a question of law on which only the Court of Justice of the European Union (CJEU) is competent to decide.

The Court will have its say about Brexit Day, and that day will be a memorable one!

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