In a blog post published today in the Oxford Business Law Blog, ‘How to Make a Transitional Brexit Arrangement’, Francis Taylor Building barrister Pavlos Eleftheriadis proposes a novel way for constructing the transitional arrangement between the EU and the UK.
It is widely understood that agreeing a binding transitional agreement between the EU and the UK may become a major obstacle to the UK’s orderly withdrawal. Neither an amendment of the EU treaties to accommodate a reduced status for the UK, nor an entirely new international treaty between the EU and the UK are realistic possibilities, given the available two year deadline.
Pavlos Eleftheriadis, who is also a fellow in law at Mansfield College, Oxford, suggests a third alternative. He proposes that the EU could set out the transitional agreement in an EU Regulation, which will be made as secondary EU legislation under Article 114 TFEU and will be directly applicable to all EU member states. This will bind the remaining 27. At the same time the UK will introduce effectively the same text of the agreement in an Act of Parliament. This way the transitional agreement will have two entirely separate sources, EU law and UK law, but may have exactly the same substance. This can be done within the available time frame, if there is political agreement.
He admits that ‘it will not be an elegant or complete solution’ but suggests that ‘it could just work for a short period of time’.