Faculty of Law and Criminology Academic Year 2018-2019 Exam Session [1]
Accession of Third Countries to the European Union vs. Brexit: A Comparison of the Transitional Agreements and Their Implication for the EU Internal Market
LLM Paper by FAUVE BEX Student number: 01810919
Promotor: Prof. Dr. Inge GOVAERE Supervisor: Ms. Joyce DE CONINCK
ACKNOWLEDGEMENTS
I would first like to express my sincere gratitude to Professor Doctor Inge Govaere who accepted to mentor me in the redaction of this study and, more specifically, accepted that I would partly work on Brexit, a subject which I have aspired to delve into since quite some time.
I am further grateful to Professor Doctor Ellen Desmet, Ms. Joyce De Coninck, Ms. Laurence Lambert and Ms. Birte Scorpion who made me grow intellectually and taught me to be as critical as possible in the analysis of subjects, efficient, have self-confidence and persevere and this, through their moot court coaching.
Lastly, I would like to thank my dad, Elyse and Matthias for their thorough proofreading, my moot court team mates, without whom courage would have failed to stay with me until the submission, and my family and friends to always support my endeavours.
TABLE OF CONTENTS
ACKNOWLEDGEMENTS ......
INTRODUCTION ...... 1
CHAPTER 1. ACCESSION VS. WITHDRAWAL: THE BASICS ...... 3
A. LEGAL FRAMEWORK ...... 3 1. Article 49 TEU...... 3 2. Article 50 TEU...... 5 B. ACCESSION VS. WITHDRAWAL: GENERAL COMPARISON ...... 9 1. Referendums: An interplay between exit and voice...... 9 2. Competences ...... 12 3. European integration ...... 15 4. Duty of loyal cooperation ...... 17
CHAPTER 2. TRANSITIONAL MEASURES AND THEIR RATIONALE...... 20
A. DEFINITION AND SCOPE OF TRANSITIONAL ARRANGEMENTS ...... 21 1. Definition...... 21 2. Scope ...... 22 Scope ratione temporis ...... 22 Scope ratione materiae ...... 23 i. Accession ...... 23 ii. Withdrawal ...... 25 Analysis of Article 127 Draft Withdrawal Agreement ...... 25 Other transitional arrangements...... 27 iii. Comparison ...... 28 B. RATIONALE FOR TRANSITIONAL MEASURES ...... 30 1. Accession...... 30 2. Withdrawal ...... 32
CHAPTER 3. ACCESSION VS. WITHDRAWAL: HOW IS THE FREEDOM OF MOVEMENT FOR WORKERS? ...... 35
A. FREE MOVEMENT OF WORKERS IN ACCESSION ...... 36 1. Safeguard clauses ...... 36 2. Additional protections ...... 38 3. Results ...... 40 Different rationales for the transition on the free movement of workers ...... 40 Results ...... 41 B. STATE OF THE ART: WORKERS IN THE DRAFT WITHDRAWAL AGREEMENT ...... 42
CONCLUSION ...... 45
BIBLIOGRAPHY ...... 48
ANNEX ...... 58
INTRODUCTION
The European Union (“EU”) is generally synonym of integration, growth and removal of barriers, namely through its enlargement. Since the United Kingdom (“UK”) electorate voted to leave the EU on 23 June 2016, antonyms such as disentanglement or disintegration could rather be deemed more prominent. However, what might seem as a drawback for the Union, may very well be another step towards an “ever closer union”. As such a step is also placed during accession to the EU, the first seeds of a comparison between the two dynamics of accession to and withdrawal from the EU can be sowed. This premise leads to question whether and to what extent the two movements are comparable.
Accession to and withdrawal from the Union seem prima facie to be antagonist movements. The first allows Member States to enter the EU, whereas the second entails the departure of a Member State, should the procedure under Article 50 of the Treaty on European Union1 (“TEU”) be fulfilled. Nevertheless, the two dynamics inevitably have one common point: the EU. The Union and its legal system entail that areas of convergence might exist between accession and withdrawal, such as the duty of loyal cooperation and the division of competences. It will thus be analysed how, in these processes, the principle of cooperation enshrined in Article 4(3) TEU comes into play and how the competences of the Union are attributed. Therefore, the analysis of EU enlargements since 2004 onwards, leaving aside future enlargements, and Brexit will shed light on the possible comparison as they are the translation of the application of Articles 49 and 50 TEU and illustrate the most recent use of transitional measures. It will be sought to assess whether Brexit can be qualified as an accession in reverse.
Different perspectives and opposing sources will guide this study as objectively as possible through the comparison, taking into account the stand of all stakeholders, i.e. the States acceding to the EU, the European institutions, the present Member States and the withdrawing State. Bearing this method in mind, the comparison between the transitional arrangements in accession and withdrawal will be approached through three chapters.
First, in order to set the scene and to analyse the transitional arrangements that the two dynamics have brought along: a detour will have to be made to understand the intricacies and lay down
1 Treaty on European Union, signed in Lisbon on 13 December 2007 (entered into force on 1 December 2009); see latest version: Consolidated version of the Treaty on European Union [2016] OJ C 202/1 [“TEU”].
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the essential elements covered in accession and withdrawal of Member States (Chapter 1). In this chapter, the accession and withdrawal provisions found in Articles 49 and 50 TEU will be analysed. This will pave the way for a first general comparison and briefly introduce the implication for transitional arrangements.
Second, the transitional arrangements will further be the basis for the comparison, although the rationale for their implementation will have to be challenged (Chapter 2). Accession necessarily entails transitional arrangements, which are enshrined in the Annexes of the Accession Acts. However, the same cannot be said for Brexit as the negotiations are still ongoing. Nevertheless, the last Brexit Draft Withdrawal Agreement embeds a transition period, which will have to be taken as a basis for the analysis. Concurrently, an attempt will be made to define the contours of the duty of loyal cooperation in transition.
Third, the comparative table contained in the Annex shows which areas for the 2004, 2007 and 2013 accessions are predominant in the transition agreements. Some of these areas concern the internal market and more specifically the freedom of movement for persons. In this last chapter, attention will be drawn to the impact of these transitional measures, specifically concerning the access of workers to the EU, in the case of accession. It will then have to be seen whether Brexit transitional measures are similarly implemented in that area and what their implication is in case of withdrawal. This last analysis will aim to see whether transitional measures provide for guarantees of one of the four fundamental freedom of the single market (Chapter 3). In the same train of thought, specific measures respectively drafted for accession and withdrawal will be compared.
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CHAPTER 1. ACCESSION VS. WITHDRAWAL: THE BASICS
As transitional arrangements essentially originate from the accession and withdrawal provisions respectively embedded in Article 49 and 50 TEU, this first chapter will examine the foundational elements contained in these provisions (A). From the outset, such an analysis will provide general points of comparison between accession and withdrawal (B), which will set the scene before delving into transitional arrangements themselves.
A. Legal Framework
The rudiments of accession to and withdrawal from the EU are found respectively in Articles 49 and 50 TEU. These provisions will respectively be analysed and exemplified (1-2).
1. Article 49 TEU
A European State complying with the 1993 Copenhagen criteria can trigger the procedure of accession to the EU.2 Since their introduction, these criteria have been partly constitutionalised,3 codified and refined in Article 49 TEU, first with the Amsterdam Treaty, then with the Lisbon Treaty.4
Article 49 TEU is an integral part of the process of third-country accession to the EU. It lays down the eligibility conditions to meet and procedures to follow to become a member state.5 Accession conditions help the future Members to be as prepared as possible for their entry.6 They require, inter alia, to have national institutions guaranteeing democracy, the capacity to compete in the EU market economy and to take on the acquis communautaire.7 From the enlargement negotiations of 2003 onwards, the conditions on the acquis were strengthened. This led the acquis to rarely be modified during accession and reinforced the fact that the
2 Christophe Hillion, “The Copenhagen Criteria and their Progenity”, in Hillion C. (Ed.) EU enlargement: A legal approach (Hart publishing, Oxford 2004) 1-2. 3 Kirstyn Inglis, Evolving Practice in EU enlargement – With Case Studies in Agri-Food and Environmental Law (Martinus Nijhoff Publishers, Leiden 2010) 43-44. 4 Christophe Hillion, “The Copenhagen Criteria and their Progenity” (note 2) 3-4; see also: Christophe Hillion, “Accession and withdrawal in the law of the European Union”, in Arnull A., Chalmers D. (eds.) The Oxford Handbook of European Law (OUP, Oxford 2015) 129. 5 Christophe Hillion, “The Copenhagen Criteria and their Progenity” (note 2) 22. 6 Ibid. 7 European Commission, “The European Union explained: Enlargement” (2015)
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acceding countries are the ones which have to adapt and not the Union itself.8 Some flexibility can be found towards the acquis through the adoption of transitional arrangements but this, only for a limited period.9
The accession procedure involves a formal application to the Council which, after having consulted the Commission and received the consent of the European Parliament, shall decide unanimously.10 It is only after this step has been fulfilled and negotiations have fruitfully been brought to an end that an Accession Treaty may be signed.11 The unanimous character of the vote already shows the important role the current Member States will have in the accession procedure. This is further evidenced by Article 49(2) TEU which contains two elements. On the one hand, an agreement on the admissibility conditions must be reached between the Member States and the applicant State. On the other hand, each of the contracting States must ratify the agreement according to its constitutional law, which can imply national referendums on the accession of new members.12
Once Article 49 TEU is triggered, a series of additional arrangements,13 including negotiations between current and acceding Member States and the EU institutions, will lead to the signature of the Accession Treaty.14 The latter will then enter the realm of EU primary law.15 The Court of Justice of the European Union (“CJEU”) also clarified that the Annexes of Accession Acts, providing inter alia for transitional arrangements, form an integral part thereof and also belong to primary law.16 This means that the CJEU will only be empowered to interpret and/or enforce Accession Treaties, Acts and Annexes but not to annul them under Article 263 of the Treaty on
8 Kirstyn Inglis, Evolving Practice in EU enlargement… (note 3) 29. 9 Ibid. 29. 10 Article 49(1) TEU. 11 Kirstyn Inglis, Evolving Practice in EU enlargement… (note 3) 37-38. 12 Ibid.; Christophe Hillion, “Accession and withdrawal in the law of the European Union” (note 4) 137; See Chapter 1(B)(1). 13 Christophe Hillion, “Accession and withdrawal in the law of the European Union” (note 4) 127-139. 14 Ibid. 127-139. 15 CJEU, Joined Cases 194/85 and 241/85 Commission v. Greece [1988] ECR 1037. 16 CJEU, Joined Cases 31/86 and 35/86 LAISA and CPC España v. Council [1988] ECR 2285, para. 12; CJEU, Case C-413/04 Parliament v. Council [2006] ECR I-1122, para. 43.
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the functioning of the European Union17 (“TFEU”).18 Such acts can thus only be reviewed through the ordinary procedure of treaty revision provided for in Article 48 TEU.19
2. Article 50 TEU
Before the introduction of Article 50 TEU with the Treaty of Lisbon,20 numerous authors agreed to say that Member States have always had a way out of the EU, despite the fact that EU law itself did not embed such a provision.21 Any member intending to secede could potentially invoke public international law22 and, more specifically, the Vienna Convention on the Law of Treaties.23
The introduction of Article 50 TEU played a fundamental role in withdrawal as it set the framework for the negotiations and procedures to be followed in order for a Member State to be able to leave the Union and this, according to EU primary law. This provision had never been triggered until the UK was officially set to withdraw through the notification of 29 March 2017.24 Brexit, as it is commonly referred to, could be seen as a laboratory of European withdrawal. This can best be illustrated through a brief analysis of the five paragraphs contained in Article 50 TEU.
17 Treaty on the Functioning of the European Union, signed in Lisbon on 13 December 2007 (entered into force 1 December 2009); see the latest version: Consolidated version of the Treaty on the Functioning of the European Union [2016] OJ C 202/47, [“TFEU”]. 18 CJEU, Joined Case 31 and 35/86, LAISA et al. v. Council [1988], ECR 2285, para. 12; CJEU, Joined Cases 194/85 and 241/85, Commission v. Greece [1988] ECR 1037. 19 CJEU, Joined Case 31 and 35/86, LAISA et al. v. Council [1988], ECR 2285, para. 12. 20 Treaty of Lisbon Amending the Treaty on the European Union and the Treaty Establishing the European Community, 12 December 2007 (entered into force on 1 December 2009), OJ C 306, 1. 21 Christophe Hillion, “Accession and withdrawal in the law of the European Union” (note 4) 153-154; Robert McCorquodale, Jean-Pierre Gauci and Lady-Gené Waszkewitz, “Brexit transitional arrangements and Public International Law” (2016), British Institute of International and comparative law, 2-14; Erik Lagerlof, “The British withdrawal from the European Union and the Construction of a new relationship” (2018), 53 Tex. Int’l L.J. 110-111. 22 See in this respect: Robert McCorquodale et al. (note 21) 2-14. 23 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 [“VCLT”]; see in particular: Article 54 VCLT on the “Termination of or withdrawal from a treaty under its provisions or by consent of the parties”, Article 56 VCLT on “Denunciation of or withdrawal from a treaty containing no provision regarding termination, denunciation or withdrawal” and Article 62 VCLT referring to “A fundamental change of circumstances” as referred to by: Christophe Hillion, “This way, Please! A legal appraisal of the EU withdrawal clause”, in Closa C. (ed.) Secession from a Member State: Troubled membership (CUP, Cambridge 2017) 226-227; Adam Łazowski, “Withdrawal from the European Union and Alternatives to Membership” (2012) 37 ELRev 525; Robert McCorquodale et al. (note 21) 2-14. 24 European Council, “United Kingdom notification under Article 50 TEU” (Brussels, 29 March 2017), XT 20001/17.
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First, it follows from the wording of Article 50(1) TEU that Member States have a unilateral right to withdraw, i.e. any member wishing to leave the EU can proceed without prior consultation with the EU or other Member States.25 However, the use of the term “Member States” and not “High Contracting Parties”, as it is found in Article 1 TEU, hints towards the fact that it is only the decision to withdraw which will be unilateral, whereas withdrawal itself will be regulated according to EU law.26 The informal meeting held by the European Council on 29 June 2016,27 after the Brexit referendum, evidences the two elements found in Article 50(1) TEU. On the one hand, the European Council confirmed that negotiations could not start until the UK officially communicated the results of the referendum through a notification.28 On the other hand, the institution emphasised that the UK remained bound “both when it comes to rights and obligations”29 by EU law and that “Article 50 TEU provides the legal basis for this [withdrawal] process”.30 Accordingly, although withdrawal is a unilateral right of Member States, EU law is further the point of reference for the Brexit negotiations and withdrawal agreement.
Second, Article 50(2) TEU requires a formal and unequivocal31 notification of withdrawal to the European Council. It is noteworthy that the notification also shows a unilateral character. In the Whiteman case,32 after having declared the admissibility of the preliminary ruling referred to it by the Scottish Court of Session,33 the CJEU ruled upon the UK’s right to revoke the notification of withdrawal. The Court declared that this right is of a unilateral character, similarly to the unilateral right of withdrawal contained in Article 50(1) TEU.34 The CJEU ruling completes Article 50(2) TEU as the latter did not provide for the possibility to revoke the notification.35 The same judgment also seems to give a dual character to Article 50 as the first part, which was analysed above, enshrines the “sovereign right of a Member State to
25 CJEU, C-621/18, Whiteman and others v. Secretary of State for exiting the European Union [2018], ECLI:EU:C:2018:999, paras. 37, 50 [“Whiteman case”]; see also: Elsa Bernard and Christophe Hillion, “La préparation européenne du Brexit: le cadre des négociations”, in Bahurel C., Bernard E. and Ho-Dac M. (eds.) Le Brexit: enjeux régionaux, nationaux et internationaux (Bruylant, Bruxelles 2017) 41-42. 26 Christophe Hillion, “Accession and withdrawal in the law of the European Union” (note 4) 141-142. 27 European Council, “Statement of the informal meeting at 27 held on 29 June 2016”, Brussels. 28 Ibid. para. 2. 29 Ibid. para. 1. 30 European Council, “Statement of the informal meeting at 27 held on 29 June 2016”, Brussels, para. 2. 31 Christophe Hillion, “This way, Please! A legal appraisal of the EU withdrawal clause” (note 23) 219. 32 Whiteman case. 33 Ibid. paras. 20-36. 34 Ibid. para. 37. 35 Ibid. paras. 37, 48.
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withdraw from the European Union”;36 and, the second part establishes “a procedure to enable such a withdrawal to take place in an orderly fashion”.37
This procedure starts with Article 50(2) which provides that negotiations will be conducted between the institutions and the seceding State to reach an agreement. Interestingly, negotiations must follow the procedure of Article 218(3) TFEU which requires the Commission’s involvement. On the Union’s end, the Council will, with the consent of the European Parliament, act by a qualified majority.38 Three elements can be deduced from this procedural step.
The first element is that a withdrawal agreement emerging from an Article 50 procedure should concern the withdrawing procedure itself and, it should only “take account of the framework for the future relationship with the Union”39. Therefore, an agreement on a future relationship can only be concluded once the UK has become a third country,40 following the procedure laid down in Article 218 TFEU.41 Piet EECKHOUT and Eleni FRANTZIOU have cast doubts on this matter.42 They argued that it is unlikely the Brexit agreement could solely concern the arrangements for withdrawal without addressing future policy, if not through Article 50 TEU, at least in a parallel agreement.43 However, it seems the European Council did not share this view as it provided, in its 2017 Brexit Guidelines, that only an “overall understanding of the framework for the future relationship”44 could be identified. Whereas, an agreement as such on a future relationship could only be concluded once the UK has become a third country.45 Moreover, the European Council sees the transitional arrangements as a bridge towards that relationship.46 The second procedural element lies in the reference to Article 218(3) TFEU which reveals that the agreement will be an EU agreement concluded through an institutional,
36 Whiteman case, para. 56. 37 Ibid., para. 56. 38 Article 50(2) TEU. 39 Ibid. 40 European Council, “Special meeting of the European Council (Article 50) – Guidelines” (29 April 2017), para. II(5). 41 Adam Łazowski, “Exercises in Legal Acrobatics: Brexit Transitional Arrangements” (2017), 2(3) European Papers 849. 42 Piet Eeckhout and Eleni Frantziou, “Brexit and Article 50 TEU: A Constitutional reading” (December 2016), Working paper series, UCL European Institute 23-25. 43 Ibid.; see also: Christophe Hillion, “Leaving the European Union, the Union way – A legal analysis of Article 50 TEU” (August 2016), 8 European Policy analysis 6-7. 44 European Council, “Special meeting of the European Council (Article 50) – Guidelines” (29 April 2017), para. II(5). 45 Ibid. para. II(5). 46 Ibid. para. II(6).
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rather than a state-driven process.47 This has been confirmed through the ongoing Brexit negotiations.48 The last element concerns the fact that this same renvoi to Article 218(3) TFEU means that the CJEU could annul decisions based on Article 50 TEU.49 This stands in stark contrast to Accession Treaties, which the CJEU cannot annul.50
Third, Article 50(3) TEU provides that an extension of the negotiations can be agreed upon between the Member State and the European Council which will act by a unanimous vote. This extension implies that the Treaties would still apply to the State and this, either “until the entry into force of the agreement or, failing that”51, until the end of the extension period. This is without prejudice to any transitional arrangements.52 After several proposals on a Withdrawal Agreement, as the UK Prime Minister could not find the support of the House of Commons, this provision was triggered to request for an extension. An extension was granted by the European Council and this, until 31 October 2019.53
Fourth, as Article 50(4) sets out, triggering paragraphs 2 and 3 prevents the withdrawing State from “[participating] in the discussions of the European Council or Council or in decisions concerning it”. To fill this gap, a qualified majority requiring 72% of the remaining Member States representing 65% of their population in accordance with Article 238(3)(b) TFEU must be met in order to conclude new decisions.54 Consequently, this means that the same majority must be met for the decision on a Withdrawal Agreement to be taken.55
Lastly, should the procedure under Article 50(1-4) TEU be completed, the State which will have withdrawn and wanting to accede again to the EU will have to go back to square one, i.e. retriggering the procedure under Article 49 TEU.56
47 Elsa Bernard and Christophe Hillion (note 25) 44-45. 48 Council of the European Union, “ANNEX to Council decision (EU, Euratom) 2017/... authorising the opening of negotiations with the United Kingdom of Great Britain and Northern Ireland for an agreement setting out the arrangements for its withdrawal from the European Union” (22 May 2017), XT 21016/17, para. 5. 49 Christophe Hillion, “Leaving the European Union, the Union way…” (note 43) 7. 50 See Chapter 1(A)(1). 51 Article 50(3) TEU. 52 See Chapter 2. 53 European Council decision taken in agreement with the United Kingdom extending the period under Article 50(3) TEU (11 April 2019), Brussels, EUCO XT 20013/19, para. 10. 54 Article 50(4) TEU. 55 Christophe Hillion, “Leaving the European Union, the Union way…” (note 43) 6. 56 Article 50(5) TEU.
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B. Accession vs. Withdrawal: General comparison
This section will sow the seeds of a comparison of accession and withdrawal in general and study the similarities which can be found between the two movements. The analysis of four common points will guide the reader through this general comparison. First, the use of referendums and their implication in terms of exit and voice will be studied (1); second, the competences in each movement will be confronted (2); third, it will be seen what accession and withdrawal imply for European integration (3); fourth, the duty of loyal cooperation will be analysed in the context of both these movements (4).
1. Referendums: An interplay between exit and voice
The theory of exit and voice was first introduced by Albert HIRSCHMAN who attributed exit to economists leaving a certain system and, voice to political scientists as a correcting mechanism in an intricate discipline.57 This theory was extended and applied by Joseph WEILER to the legal and political fields, particularly for the European Community.58 He considered exit as a “mechanism of organisation abandonment in the face of unsatisfactory performance”59 and voice rather as a “mechanism of intraorganisational correction and recuperation”60. As the use of referendums puts the role of citizens into perspective, it is argued in the present study that referendums in accession and withdrawal bring the balance between exit and voice into play and this, in three ways.
First, Accession Treaties have been subject to referendums in the past enlargements. They usually strengthened the position towards accession, be it of the acceding States or the receiving Member States.61 The Central and Eastern European countries (“CEECs”), Malta and Cyprus are known to often have recourse to referendums as their recent constitutions all emphasise sovereignty, both of the people and of the State in international relations.62 These countries conditioned their accession to the EU in 2004 to a referendum and, constrained any amendment having an impact on their respective constitutions to a referendum.63 Referendums have the
57 Albert O. Hirschman, Exit, Voice and loyalty – Responses to decline in firms, organizations and States (Harvard University Press, Cambridge 1970). 58 Joseph H. H. Weiler, “The transformation of Europe” (1991), 100(8) The Yale Journal 2403-2483. 59 Ibid. 2411. 60 Ibid. 61 Kirstyn Inglis, Evolving Practice in EU enlargement… (note 3) 38-39. 62 Anneli Albi, “Referendums in the CEE Candidate Countries: Implications for the EU treaty Amendment Procedures”, in C. Hillion (ed.) EU Enlargement: a legal approach (Hart publishing, Oxford 2004) 58-62. 63 Anneli Albi (note 62) 58-62; Kirstyn Inglis, Evolving Practice in EU enlargement… (note 3) 39-40.
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potential to be used in the future “as a pre-condition to ratification of an accession treaty”.64 Therefore, they could be seen as a first step towards allowing voice to be developed.
Second and conversely, referendums have also been used to impede accession and withdrawal from the EU. On the one hand, in 1994, Norway saw the referendum as a tool to escape accession. Norwegians chose exit before voice as they voted against the negotiated Accession Treaty, compromising its further ratification.65 On the other hand, in 2015, a referendum was held in Greece concerning the bailout conditions in the government-dept crisis.66 At that time, withdrawal was considered not from the EU itself but, from the eurozone.67 Despite Greek citizens’ rejection of the bailout conditions, additional measures were taken to assist Greece. Grexit did not happen because exit was foreclosed due to, inter alia, a lack of financial means.68
Following Joseph WEILER’s theory, closure of exit led to an enhanced voice in the latter case,69 as a result of the three bailouts granted to Greece and its continued participation in the eurozone.70
Third, the Brexit referendum set the withdrawal from the EU in motion, contrary to Grexit. Before the referendum, the position of the UK in the EU was characterised by a set of opt-outs, such as the non-participation in the Schengen acquis71 or the maintenance of the British pound.72 These opt-outs could be seen through the lens of Joseph WEILER’s notion of selective exits which characterise Member States retaining membership in the EU but avoiding certain treaty obligations.73 The existing opt-outs proving to be unsatisfactory to the UK, Former Prime
Minister David CAMERON managed to obtain additional concessions from the European
64 Kirstyn Inglis, Evolving Practice in EU enlargement… (note 3) 39-40. 65 Pierre Gerbet, “The Accession of Austria, Finland and Sweden to the European Union”,
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Council concerning a New Settlement for the UK in the EU,74 which further developed the UK’s voice in the EU. The Brexit referendum was part of the UK’s own constitutional requirement to be able to withdraw from the Union.75 Despite the UK’s extensive voice in the EU, the referendum, although it was legally qualified as an advisory referendum,76 politically, in any event, resulted in Article 50 TEU to be triggered for the first time.
Nevertheless, it could be wondered whether the citizens’ vote through the referendum was not flawed and could be overturned. This is put forward considering the recent practice of the Swiss Federal Tribunal.77 By its decisions of 10 April 2019, the Swiss Federal Tribunal has annulled a 2016 popular vote on the ground that the information shared by the Federal Council was incomplete and lacked transparency.78 This ultimately violated the citizen’s freedom to vote,79 as it potentially had an influence on the outcome of the vote.80 The results of the Brexit referendum were highly debated and it was often advocated that the misinformation brought by some politicians led the citizens to the 51,9%81 decision to leave the EU.82 A case has recently been opened against Boris JOHNSON, one of the leading political figures in the Brexit campaign ahead of the referendum, for allegedly misleading the British citizens of EU membership.83 However, this case has already been closed.84 In any event, the Brexit referendum as well as
74 European Council, “Draft decision of the Heads of State or Government, meeting within the European Council, concerning a New Settlement for the United Kingdom within the European Union” (2 February 2016), EUCO 4/16; European Council meeting (18 and 19 February 2016) – Conclusions (19 February 2016), EUCO 1/16. 75 Schindler v Chancellor of the Duchy of Lancaster [2016] EWCA Civ 469, [207] QB 226 paras. 13 and 19. 76 Susan Wilson and others v. The Prime Minister and Others [2018] EWHC 3520 (Admin) paras. 7 and 8. 77 Tribunal Fédéral Suisse, “Communiqué de Presse du Tribunal Fédéral – Initiative populaire ‘Pour le couple et la famille – Non à la pénalisation du mariage’ : votation annulée” (10 April 2019), Lausanne, File No. 11.5.2/15_2019; see also: Julien Bangerter, “La votation sur la ‘pénalisation du mariage’ est annulée, une première en Suisse” RTS (10 April 2019),
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the activation of Article 50 TEU brought the UK’s extensive voice, first, to be limited85 and then, to be used as an exit.
Accordingly, referendums seem to have an important place in (quasi-)accession and (quasi- )withdrawal situations and illustrate an interplay between exit and voice. In accession and quasi- withdrawal, referendums could be seen as the exercise of voice not only as an intraorganisational correction mechanism86 but also respectively as an accession mechanism and an improvement of voice. In the quasi-accession of Norway and withdrawal of the UK, it is seen that exit is chosen over voice. It will be seen that this dynamic of exit and voice can be further applied to safeguard clauses found in transitional arrangements of Accession treaties.87
2. Competences
The wording of Articles 49 and 50 TEU reveals that the division of competences between the EU and its Member States is different in accession and withdrawal. Despite this difference, two consequences derive from it: first, on the role the institutions will play in the negotiations; second, on the nature itself of the legal instruments resulting from the negotiations.
Although it is on a different scale, the role the institutions have in the accession and withdrawal processes is influenced by the division of competences. The analysis of Article 49 TEU showed from the outset that, in the process of accession, the Member States play a significant role.88 Negotiations are held between the Member States and the candidate countries. Although the European institutions have progressively seen their participation in accession negotiations increase,89 it ultimately belongs to the Member States to ratify the outcoming agreement.90
Conversely, in the process of withdrawal, the procedure is not of an inter-state nature such as in accession. It stems from both the letter of Article 50 TEU91 and its practical implementation with Brexit92 that from a legal and institutional standpoint, the emphasis in withdrawal is put
85 Carlos Closa (note 69) 213-214. 86 Joseph H. H. Weiler (note 58) 2411. 87 See Chapter 3(1). 88 See Chapter 1(A)(1). 89 Christophe Hillion, “Accession and withdrawal in the law of the European Union” (note 4) 131-135. 90 Article 49(2) TEU; Ibid. 131-135. 91 See Chapter 1(A)(2). 92 European Council, “Special meeting of the European Council (Article 50) – Guidelines” (29 April 2017), para. I(2); Council of the European Union, “ANNEX to Council decision (EU, Euratom) 2017/... authorising the opening of negotiations with the United Kingdom of Great Britain and Northern Ireland for an agreement setting out the arrangements for its withdrawal from the European Union” (22 May 2017), XT 21016/17, para. 5.
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on the Union on the one side and the withdrawing State on the other, i.e. not on the Member States. However, it is true that politically the discourse is quite different as negotiations involve the European Council, by definition being of intergovernmental nature as it is composed of Heads of States and government.
As will be studied, the fact that the EU acts with one voice tends to show its willingness to preserve European unity.93 The negotiation of the Agreement under Article 50 TEU is an institution-driven process which gives an exceptional horizontal competence to the EU.94 As the Council emphasised, this competence is of a one-off nature and will not influence in any way the distribution of competences in relation to other EU matters.95
It follows from the institutions’ role and the division of competences, that the nature of the legal instruments resulting from the accession and withdrawal negotiations diverges. The former will be qualified as an international agreement.96 Moreover, the ratification process required by Article 49 TEU in national law inevitably entails that Member States have a veto right in accession.97 Although being international agreements, these legal instruments cannot, by definition,98 be considered as mixed agreements as they are only ratified by the Member States and not concurrently by the Member States and the EU.99
In contrast, in the exercise of the exceptional horizontal competence, Article 50(2) TEU requires the Council to act by qualified majority. Contrary to accession, Member States do not have the possibility to oppose the conclusion of the agreement by posing their veto.100 As Brexit
93 See Chapter 1(B)(4). 94 Council of the European Union, “ANNEX to Council decision (EU, Euratom) 2017/... authorising the opening of negotiations with the United Kingdom of Great Britain and Northern Ireland for an agreement setting out the arrangements for its withdrawal from the European Union” (22 May 2017), XT 21016/17, para. 5; Adam Łazowski and Ramses A. Wessel, “The external dimension of the withdrawal from the European Union” (2017), 2016(4) Revue des Affaires européennes 628-630; Christophe Hillion, “Withdrawal under Article 50 TEU: An integration- friendly process” (2018), 55(2/3) Common Market Law Review 39-44. 95 Council of the European Union, “ANNEX to Council decision (EU, Euratom) 2017/... authorising the opening of negotiations with the United Kingdom of Great Britain and Northern Ireland for an agreement setting out the arrangements for its withdrawal from the European Union” (22 May 2017), XT 21016/17, para. 5. 96 Christophe Hillion, “Accession and withdrawal in the law of the European Union” (note 4) 131-135. 97 Ibid. 144. 98 Guillaume Van der Loo and Ramses A. Wessel, “The non-ratification of mixed agreements: Legal consequences and solutions” (2017) 54(3) Common Law Market Review 2, 11. 99 Treaty concerning the accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union [2003] OJ L 236/17, Article 2(1) [“Accession Treaty 2003”]; Treaty concerning the accession of the Republic of Bulgaria and Romania to the European Union [2005] OJ L 157/3, Article 4(1) [“Accession Treaty 2005”]; Treaty concerning the accession of the Republic of Croatia to the European Union [2012] OJ L 112/10, Article 3(1) [“Accession Treaty 2012”]. 100 Christophe Hillion, “Accession and withdrawal in the law of the European Union” (note 4) 144-145.
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negotiations would in principle result in an EU external agreement, the absence of internal ratification by the Member States puts into question whether this agreement could be mixed.
Adam ŁAZOWSKI argued that mixity could be envisaged considering the scope of the agreement which would touch upon an extensive list of areas where either exclusive, shared, coordinated or supporting competences of the EU apply.101 However, and joining Elsa BERNARD and
Christophe HILLION’s position,102 it is submitted mixity should also be excluded for a withdrawal agreement and this, for three reasons.
First, Article 50 TEU only refers to the competence of the institutions and Article 218(3) TFEU.103 It does not address any internal ratification by the Member States.104 Second, in its guidelines105 and directives on Brexit,106 the European Council has consistently referred to an orderly withdrawal.107 Concluding a mixed agreement in this matter would make this objective more difficult to attain as the Member States could prevent the agreement’s entry into force.108 Third, it is argued that the fact that the Agreement should not concern the future relations between the UK and the EU, only take them into account, and that it grants an exceptional horizontal competence to the EU further evidences that mixity should be excluded in practice.109 It is only if the UK would become a third-country that a further agreement could be concluded, i.e. such an agreement could entail the ratification by the Member States according to the areas concerned. Moreover, the exceptional horizontal competence of the EU in the Brexit negotiations will not affect the “distribution of competences between the Union and the
101 Adam Łazowski, “Be careful what you wish for: Procedural Parameters of EU Withdrawal”, in Closa C. (ed.) Secession from a Member State: Troubled membership (CUP, Cambridge 2017) 237-238. 102 Elsa Bernard and Christophe Hillion (note 25) 45-46; Christophe Hillion, “Accession and withdrawal in the law of the European Union” (note 4) 146. 103 Article 50(2) TEU. 104 Christophe Hillion, “Accession and withdrawal in the law of the European Union” (note 4) 147. 105 European Council, “Special meeting of the European Council (Article 50) – Guidelines” (29 April 2017). 106 Council of the European Union, “ANNEX to Council decision (EU, Euratom) 2017/... authorising the opening of negotiations with the United Kingdom of Great Britain and Northern Ireland for an agreement setting out the arrangements for its withdrawal from the European Union” (22 May 2017), XT 21016/17. 107 Ibid. paras. I(3), III(10)-(12); European Council, “Special meeting of the European Council (Article 50) – Guidelines” (29 April 2017), paras. I(3), II(4-5), III. 108 Christophe Hillion, “Accession and withdrawal in the law of the European Union” (note 4) 144-145; Michael Dougan, “An Airbag for the crash test dummies? EU-UK Negotiations for a Post-withdrawal ‘Status quo’ transitional regime under Article 50 TEU” (2018), 55(2/3) Common Market Law Review 73-74. 109 See Chapter 1(A)(2); European Council, “Special meeting of the European Council (Article 50) – Guidelines” (29 April 2017), para. 5; Council of the European Union, “ANNEX to Council decision (EU, Euratom) 2017/... authorising the opening of negotiations with the United Kingdom of Great Britain and Northern Ireland for an agreement setting out the arrangements for its withdrawal from the European Union” (22 May 2017), XT 21016/17, para. 5.
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Member States as regards the adoption of any future instrument in the areas concerned”.110 This implies that the EU’s competences are exceptionally extended during the Brexit negotiations and can go beyond areas of the EU’s exclusive competence. Therefore, it is argued that the withdrawal agreement will not be mixed.
Accordingly, as a matter of competences, accession and withdrawal diverge in that they respectively entail an intergovernmental versus an institutional approach, resulting in an international agreement on the one hand and, an EU external agreement on the other. Nevertheless, both instruments should not be concluded as mixed agreement.
3. European integration
One of the Union’s primary objectives, in addition to those contained in Article 2 TEU, is to pursue an ever closer union as is provided for by Article 1(2) TEU. In the present study, it is argued that, while further integration is a great challenge, both accession and withdrawal contribute to that goal.
Enlargement is sometimes qualified as undermining integration, especially when ten countries join the EU at once, but it also tends to complement and strengthen integration. Indeed, EU enlargement calls for more integration111 and “reinforces peace, democracy and stability in Europe”112, which is ultimately the vocation of the Union113 and the rationale for its existence. Nevertheless, since the introduction of the Copenhagen criteria, balance needs to be found between accession of European countries to the EU and the capacity of the Union to integrate new members,114 having in mind not only the interest of the Union and the institutions’ effective action115 but also the interest of the acceding states.116 Therefore, the existence of Article 8 TEU
110 Council of the European Union, “ANNEX to Council decision (EU, Euratom) 2017/... authorising the opening of negotiations with the United Kingdom of Great Britain and Northern Ireland for an agreement setting out the arrangements for its withdrawal from the European Union” (22 May 2017), XT 21016/17, para. 5. 111 Allan Tatham, Enlargement of the European Union (Kluwer Law International, The Netherlands 2009) 1. 112 Council meeting No 3060, “General affairs” (Brussels, 14 December 2010) 11. 113 Marc Maresceau, “The EU Pre-accession Strategies: A political and legal Analysis”, in Maresceau M. and Lannon E. (eds.) The EU’s enlargement and Mediterranean Strategies – A comparative analysis (Palgrave MacMillan, London 2001) 3. 114 European Council, “Conclusions of the Presidency” (Copenhagen, 21-22 June 1993) 13. 115 European Parliament, “Stubb Report on the institutional aspects of the European Union’s capacity to integrate new Member States”, A6-0393/2006 (16 November 2006) as referred to by: Christophe Hillion, “Accession and withdrawal in the law of the European Union” (note 4) 154. 116 European Council, “Conclusions of the Presidency” (Copenhagen, 21-22 June 1993) 13.
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helps to achieve this balance as it obliges the EU to engage with neighbouring countries but not necessarily to open enlargement under Article 49 TEU if it does not have the capacity to do so.
Christophe HILLION has put forward that even withdrawal contributes to an increased European integration.117 He started from the premise that, as many authors contend,118 withdrawal was conceivable before the introduction of Article I-60 of the Treaty establishing a Constitution for Europe, now Article 50 TEU. In his opinion, it is the existence of the possibility to withdraw in EU law itself that leads to more integration.119 It entails that instead of slowing down the integration process, a Member State could decide to withdraw and avoid a multi-speed Europe. Additionally, such an exit provision brings the withdrawal procedure in the EU legal order, rather than being subject to international law.120 Consequently, a Member State intending to withdraw is confined in the large framework of EU law and principles, including the principle of sincere cooperation enshrined in Article 4(3) TEU.121 And, contrary to accession, the EU institutions, and not the Member States, lead the negotiations which in a way represents a shield for the acquis.122 A reference can also be made at this stage to Article 8 TEU as it constrains the EU and the UK to maintain relations after withdrawal.123 However, it should be nuanced that while withdrawal does not prevent integration, Brexit still sets a threatening precedent for other Member States who would question their membership in the future.124 Moreover, the current Brexit situation shows that while the EU acts as a united front, it does not mean it is immune from crisis once the UK has officially withdrawn.
It will be further elaborated upon that transitional arrangements in the accession process contribute to assuring that all parties have the capacity and interest in the EU’s enlargement and further integration. The same could be said for Brexit provided the Withdrawal Agreement
117 Christophe Hillion, “Withdrawal under Article 50 TEU…” (note 94) 29. 118 See Chapter 1(A)(2): Adam Łazowski, “Withdrawal from the European Union and Alternatives to Membership” (note 23) 525; Robert McCorquodale et al. (note 21) 2-14; Erik Lagerlof (note 21) 110-111. 119 Christophe Hillion, “Withdrawal under Article 50 TEU…” (note 4) 29. 120 Christophe Hillion, “Accession and withdrawal in the law of the European Union” (note 4) 150 referring to Rostane Medhi, “Brèves observations sur la consecration constitutionnelle d’un droit de retrait volontaire”, in Demaret P., Govaere I. and Hanf D. (eds.) 30 Years of European legal Studies at the College of Europe (Peter Lang, Oxford 2005). 121 Christophe Hillion, “Accession and withdrawal in the law of the European Union” (note 4) 158; See Chapter 1(B)(4). 122 See Chapter 1(B)(2). 123 Christophe Hillion, “Accession and withdrawal in the law of the European Union” (note 4) 158. 124 Raymond J. Friel, “Providing a Constitutional framework for withdrawal from the EU: Article 59 of the Draft European Constitution” (2004) 53 ICLQ 427.
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containing the transitional measures enters into force and a “no-deal” scenario is set aside, and the Union can continue to pursue integration.125
4. Duty of loyal cooperation
The comparison between accession and withdrawal could be further stretched in light of the Member States and the EU’s respective duty of loyal cooperation. In accession, the present and acceding Member States’ position will be analysed regarding this principle. In withdrawal, the position of the withdrawing Member State and the Union will be taken.
The duty of loyal cooperation is a fundamental principle in the EU legal order126 found in Article 4(3) which provides, inter alia, that “the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties (…) Member States shall (…) refrain from any measure which could jeopardise the attainment of the Union’s objectives”. This is separate from Article 13(2) TEU which contains a similar principle at the inter-institutional level.127
In accession, the present Member States should respect the duty of loyal cooperation as they should not make it more difficult for candidate countries to enter the EU.128 For the acceding countries, this principle is seen through the legal instrument of accession. In this study, it is argued that before accession and before the application of transitional arrangements, the acceding countries are rather bound by the general principle of good faith found in international law.129 Transitional arrangements could be seen as an application of the duty of loyal cooperation by the present Member States as they help the acceding States to blend in and abide by the acquis more easily.
There is a consensus amongst authors to say that the principle of loyal cooperation would apply to a withdrawing country until it is officially set to leave the EU.130 This is seen not only through
125 See Chapter 3. 126 Peter Van Elsuwege, “The Duty of Sincere Cooperation and its Implications for Autonomous Member State action in the Field of External Relations”, in Varju M. (ed.) Between Compliance and Particularism (Springer, Cham 2019) 286. 127 The CJEU notably referred to the principle in CJEU, Case C-204/86, Greece v. Council [1988] ECR I-5354 and C-65/93, Parliament v Council (GSP) [1995] ECR I-643, para. 23; This principle is then codified with the Treaty of Lisbon in Article 13(2) TEU. 128 Marcus Klamert, The principle of Loyalty in EU Law (OUP, Oxford 2014) 9-29. 129 Tariq Hassan “Good Faith in Treaty Formation” (1980) 21(3) Virginia Journal of International Law 444-481. 130 Authors referring to the duty of loyal cooperation in withdrawal: Adam Łazowski and Ramses A. Wessel (note 94) 628-630; Christophe Hillion, “Accession and withdrawal in the law of the European Union” (note 4) 142-143; Elsa Bernard and Christophe Hillion (note 25) 45-46; Adam Łazowski, “Be careful what you wish for: Procedural
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Article 50 TEU and its reference to the application ratione temporis of the Treaties,131 but also through the Council’s guidelines on Brexit which further emphasise that the UK must “respect its obligations and remain loyal to the Union’s interests while still a Member State”132. Although these guidelines are of a rather political nature,133 they should be accorded due weight as they express the Council’s strategy ahead of Brexit.134
Nonetheless, in the present study, it is argued that this principle has been challenged in two ways during the ongoing Brexit negotiations. First, the Union itself could be seen as overriding the principle as the institutions are focussing on adopting an agreement on the framework of withdrawal, rather than on the future relations with the UK. As the duty of loyal cooperation also lies on the EU,135 it requires the EU to loyally carry out its obligations which follow from the Treaties. Failing to engage in negotiations on the future relationship with the UK seems to jeopardise the Union’s own obligation and potentially even compromise its objective of integration. Flexibility should be granted to the UK in order to browse future deals.136 Nevertheless, as will be further elaborated upon, the transitional arrangements seem to create a bridge to allow a smooth withdrawal and to ensure the Union is abiding by its duty to cooperate.137 Therefore, should the Withdrawal Agreement enter into force, transitional measures would arguably create a safety net for the UK towards a future relation with the EU.138 However, the fact that the UK published notes on the future trade relationship with third countries before the entry into force of the Withdrawal Agreement139 could be seen as lying just at the edge of the compliance with the duty of loyal cooperation.
Second, the fact that the UK citizens are called to vote on the Union’s parliamentary elections of 2019 puts into question the UK’s ability to abide by Article 4(3) TEU. This participation
Parameters of EU Withdrawal” (note 101) 236, 244; Carlos Closa (note 69) 197; Michael Dougan, “An Airbag for the crash test dummies?...” (note 108) 61-62. 131 Article 50(3) TEU. 132 European Council, “Special meeting of the European Council (Article 50) – Guidelines” (29 April 2017), para. V. 133 X., “Brexit and Ireland”,
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may cause legal uncertainties within the core democratic representation of the EU.140 In light of this uncertainty and the numerous loopholes remaining in the Brexit negotiations, the question arises whether the UK should have renounced to its participation in the European elections, just as it did by relinquishing the Council presidency in 2017.141 As was discovered on 23 May 2019, a majority of the votes for the EU parliament elections went to the Brexit party, amounting for 29 seats in the European Parliament.142 It remains to be seen what influence this will have in the European Parliament’s future decisions and whether it will challenge the duty of loyal cooperation.
140 See Silvia Amaro, “Brexit chaos drags European Parliament elections into legal confusion” CNBC (16 April 2019),
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CHAPTER 2. TRANSITIONAL MEASURES AND THEIR RATIONALE
The previous chapter hinted towards the fact that although both Articles 49 and 50 TEU are silent about their adoption, the incorporation of transitional measures in accession and withdrawal agreements is an inherent part of these provisions.143 It is argued that without them “they [transitional measures] would be devoid of purpose”.144
The Accession Treaties leading to the enlargements of 2004145, 2007146 and 2013147 refer to the acts, protocols and annexes, which contain the transitional arrangements or references thereto,148 as forming an integral part of these Treaties.149 The latest Draft Withdrawal Agreement for Brexit of 11 April 2019 also provides in Part IV measures for a transition period, although reference is made to the transition throughout the entire agreement.150 The analysis in this chapter will be based upon these legislative measures.
Hence, transitional measures will first be examined through their definition and scope and it will be analysed whether there is an overlap between accession and withdrawal transition measures (A); this will lead, in a second step, to understand the rationale for the introduction of transitional arrangements and their purpose (B).
143 House of Commons Treasury Committee, “Transitional arrangements for exiting the European Union”, Fourth Report of Session 2017-19 (12 December 2017) 33-34; Christophe Hillion, “Withdrawal under Article 50 TEU…” (note 94) 43-44; Adam Łazowski, “Exercises in Legal acrobatics: Brexit transitional arrangements” (note 41) 848. 144 See Chapter 1; Christophe Hillion, “Withdrawal under Article 50 TEU…” (note 94) 43-44. 145 Accession Treaty 2003. 146 Accession Treaty 2005. 147 Accession Treaty 2012. 148 Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded [2003] OJ L 236/33, Article 24, [“Accession Act 2003”]; Protocol concerning the conditions and arrangements for admission of the Republic of Bulgaria and Romania to the European Union [2005] OJ L 157/29, Article 20, [“Accession Protocol 2005”]; Act concerning the conditions of accession of the Republic of Croatia and the adjustments to the Treaty on European Union, the Treaty on the Functioning of the European Union and the Treaty establishing the European Atomic Energy Community [2012] OJ L 112/21, Article 18, [“Accession Act 2012”]. 149 Article 1(2) Accession Treaty 2003; Article 1(3) Accession Treaty 2005; Article 1(3) Accession Treaty 2012. 150 Draft agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (Brussels, 11 April 2019) XT 21028/19 [“Draft Withdrawal Agreement”].
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A. Definition and scope of transitional arrangements
In order to address transitional arrangements comprehensively, a definition of the term and distinction between its use in Accession Treaties and the Brexit Draft Withdrawal Agreement need to be pointed out (1); and, the scope of these measures, evaluated (2).
1. Definition
Transitional measures in accession have been used in all EU enlargements.151 In this paper, only the provisional measures contained in the Annexes of the Accession Acts will be analysed, addressing only briefly the general safeguard clauses provided for in the Accession Acts themselves.152 Although their purpose, which will be studied infra,153 stayed the same, the scope of transitional measures has widened with every enlargement due to the ever-increasing Union acquis and the economic and political situations of the acceding countries. Despite this evolution, transitional arrangements in Accession Treaties and acts can be defined as “temporary technical amendments and/or derogations from the acquis, which are fixed in time and scope”154 and benefit acceding and receiving countries as well as EU institutions.155 It is noteworthy that the transitional measures contained in the Annexes were mostly imposed by the old Member States on the new Member States as a shield to protect their economic markets.156
Following the communication of the Commission157 and the Joint report from the Brexit negotiators,158 the Council reaffirmed in further guidelines that the second phase of the Brexit negotiations which had to address the transition and the overall understanding of the framework
151 Kirstyn Inglis, “The accession Treaty and its Transitional Arrangements: A twilight zone for the New Members of the Union”, in C. Hillion (Ed.) EU Enlargement: a legal approach (Hart publishing, Oxford 2004) 77. 152 See for example: Article 38 Accession Act 2003, Article 37 Accession Protocol 2005, Article 37 Accession Act 2012 all providing a safeguard clause for the Internal Market. 153 See Chapter 2(B). 154 Kirstyn Inglis, European Union Englarment: an analysis of pre-accession and transitional arrangements with cases studies on agri-food and environmental law (Ghent University 2006) 121; see also: Willem F. van Eekelen, “Transitional Arrangements as milestones towards EU enlargement” (March 2009), 10(1) Turkish Studies 38-39. 155 Ibid.; Adam Łazowski, “It works! The European Union in the wake of 2004 and 2007 enlargements”, in Łazowski A. (ed.) The Application of EU Law in the New Members States – Brave New World (The Hague, T.M.C. Asser Press 2010) 15-19; Christophe Hillion, “Withdrawal under Article 50 TEU…” (note 94) 43. 156 Lendita Memeti-Kamberi, L’Etat candidat à l’Union Européenne (L’Harmatan, Paris 2012) 297-298. 157 European Commission, “Communication from the Commission to the European Council (Article 50) on the state of progress of the negotiations with the United Kingdom under Article 50 of the Treaty on European Union”, COM(2017) 784 final. 158 Joint report from the negotiators of the European Union and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 TEU on the United Kingdom's orderly withdrawal from the European Union, TF50(2017) 19.
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for a future relationship should be set in motion.159 The definition of transitional arrangements has the same general characteristics than in accession, although, instead of bringing a derogation to the acquis, transitional arrangements in casu rather provide for a prolongation of its application, comprising amongst others the Internal Market, the Customs Union and Union policies.160 Therefore, transitional measures in withdrawal can be understood as temporary measures allowing for an extension of the acquis, fixed in time and scope161 and, similarly to accession measures, benefiting the country exiting the Union, remaining Members States and EU institutions.162 However, although the Union and the UK agree on the benefits of such measures, they fail to see eye to eye on their purpose.163
2. Scope
The scope of transitional measures allows to determine further similarities or discrepancies between the two movements of accession and withdrawal. On the one hand, the period covered by such instruments differs (a); on the other, their scope ratione materiae converges to a certain extent (b).
Scope ratione temporis
The scope ratione temporis of transitional measures in accession differs from the scope in withdrawal. The latter, although still uncertain, should cover a shorter period.
Transitional measures provided for since the fifth enlargement onwards allow derogations to the acquis for a maximum of seven years.164 The Court has reinforced in its case-law that such derogations cannot be extended through the introduction of Directives.165 In Parliament v.
159 European Council, “European Council (Art. 50) meeting – Guidelines” (15 December 2017), paras. 1-2. 160 Christophe Hillion, “Withdrawal under Article 50 TEU…” (note 94) 43; European Commission, “Press statement by Michel Barnier following the General Affairs Council (Article 50) on the adoption of negotiating directives on transitional arrangements” (Brussels, 29 January 2018). 161 European Commission, “Press release – Brexit: European Commission recommends draft negotiating directives for next phase of the Article 50 negotiations” (Brussels, 20 December 2017). 162 European Council, “Special meeting of the European Council (Article 50) – Guidelines” (29 April 2017), para. 6; House of Commons Treasury Committee, “Transitional arrangements for exiting the European Union”, Fourth Report of Session 2017-19 (12 December 2017) 3. 163 House of Commons Treasury Committee, “Transitional arrangements for exiting the European Union”, Fourth Report of Session 2017-19 (12 December 2017) 6-8; 10. 164 Article 24, Accession Act 2003; Article 20, Accession Protocol 2005; Article 18, Accession Act 2012. 165 Julia Laffranque, “‘Community, identity, stability’: Ideals and practice in building a bridge between the legal systems of the European Union and one of the smallest of the ‘Brave New World’”, in Łazowski A. (ed.) The Application of EU Law in the New Members States – Brave New World (The Hague, T.M.C. Asser Press 2010) 185-186; CJEU, Case C-413/04 Parliament v. Council [2006] ECR I-1122.
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Council,166 the CJEU annulled a Council Directive granting Estonia a derogation based on Article 57 Accession Act 2003 concerning common rules for the internal market in electricity beyond 31 December 2008,167 ultimate date provided for the application of transitional measures by Annex VI Accession Act 2003.168
The Council guidelines on Brexit also shed light on the application of transitional measures. Paragraph 6 of the Guidelines states they “must be clearly defined, limited in time, and subject to effective enforcement mechanisms”. A prolongation of the acquis’s application can also be considered provided it is limited in time.169 As is stands, this led to Article 126 of the Brexit Draft Withdrawal Agreement which provides that the transitional period should last until 31 December 2020, i.e. less than two years after the entry into force of the Agreement. This questions whether withdrawal from the Union is easier than accession as the latter can entail a transition of up to seven years whereas, the former should not take more than two. Nevertheless, an extension of the transition in withdrawal is envisaged under Article 132 Draft Withdrawal Agreement. Such an extension would modulate the scope ratione materiae of the transitional arrangements which will be developed in the next point.
Scope ratione materiae
This section will address the scope ratione materiae of transitional measures in order to grasp the scope of the derogations brought to the Union acquis in accession (1); and, to what extent the UK enjoys the right to continue applying it (2); lastly, a comparison of the two types of transitions will be needed (3).
i. Accession
As the comparative table contained in the Annex shows, the transitional measures in enlargements from 2004 onwards covered a broad range of chapters of the acquis. The chapters concerned are: the four freedoms of movement respectively, the competition policy, agriculture, fisheries, transport policy, taxation, social policy and employment, energy, telecommunication and information technologies, the environment, the Customs Union, industrial pollution and
166 CJEU, Case C-413/04 Parliament v. Council [2006] ECR I-1122. 167 Ibid. para. 93. 168 Ibid. para. 82. 169 European Council, “Special meeting of the European Council (Article 50) – Guidelines” (29 April 2017), para. 6.
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risk management, food safety, veterinary and phytosanitary policy, freedom, security and justice.
It is noteworthy that although transitional measures ought to be exceptional,170 they still cover fifteen chapters out of the thirty-one the EU acquis counted at the time of the 2004 enlargement.171 This can be justified as the measures concern specific EU directives or regulations despite the many general areas of Union law being touched upon. This is also due to the fact that transitional arrangement requests are classified and only allowed under specific conditions. The EU institutions also try to limit the resort to provisional measures as the EU wants to incentivise the new Member States to align as much as possible with the acquis during pre-accession.172 Therefore, the transitional measures can concern provisions of a technical nature which can be accepted provided “they are limited in time and scope, and are considered not to have a significant impact on competition or the functioning of the internal market”.173 However, measures having a more significant impact can be accepted through quid pro quo negotiations.174 This does not assure the new member in being granted a transition on the matter but initiates the discussion with the Commission which states that “a solution may be found under certain conditions”.175 It could be seen as a sign of further conditionality imposed by the Union to ensure the pre-accession strategy is completed.
It follows from the definition of accession transitional arrangements that temporary derogations are applied to the acquis. However, such derogations can only be allowed if they are contained in the Accession Treaties176 and entail a restrictive interpretation.177
170 European Commission, “Enlargement Strategy Paper – Report on the progress towards accession by each of the candidate countries”, COM(2000) 700 Final 26. 171 Lendita Memeti-Kamberi (note 156) 289. 172 Ibid. 289. 173 European Commission, “Enlargement Strategy Paper – Report on the progress towards accession by each of the candidate countries”, COM(2000) 700 Final 26. 174 Ibid. 175 Ibid. 176 CJEU, Case C-258/81 Metallurgiki Halyps A.E. v Commission of the European Communities [1982] ECR 4261, para. 8; CJEU, Case C-233/97 KappAhl Oy [1998] ECR I-8069, para. 15; CJEU, Case C-420/07 Apostolides [2009] ECR I-3571, para. 33; CJEU, Case C-350/08 Commission v. Lithuania [2010] ECR I-10525, para. 55. 177 CJEU, Case C-77/82 Anastasia Peskeloglou v. Bundesanstalt Für Arbeit [1983] ECR 1085, paras. 11-12; CJEU, Case C-385/08 Commission v. Poland [2010] ECR I-00178, para. 62; Christophe Hillion, “The European Union is dead. Long live the European Union… A commentary on the Treaty of accession 2003” (2004), 29 European Law Review 590.
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ii. Withdrawal
The scope ratione materiae of the transition is much broader for withdrawal than for accession as it covers – or should cover – all existing Union laws and policies.178 Negotiations between the EU and the UK led to Part IV of the Draft Withdrawal Agreement, more precisely Article 127 which specifies the scope of a transitional period. In order to grasp the scope of the transitional arrangements in Brexit, an analysis of Article 127 is required. Moreover, the scope of the transition extends even beyond Article 127. In the interest of clarity, a brief commentary will be given on the relevant provisions contained in Part IV Draft Withdrawal Agreement.
Analysis of Article 127 Draft Withdrawal Agreement
From the outset, Article 127(1) first indent evidences that the application of Union law during the transition period is the rule. Any exception thereto needs to be provided in the Agreement. The first clarification concerns the opt-outs granted to the UK through Protocols Nos 15, 19 and 21.179 Although it seems formulated as an exception, it can be concluded that the UK’s opt- outs remain applicable. The complexity of this formulation could be seen as the translation of difficult negotiations. Additional exceptions concern the citizens’ initiative,180 the right to vote and to stand as a candidate in Parliament elections,181 the right to vote and to stand as a candidate in the national municipal elections182 and European parliament elections for a Member States from which the person is not a national.183
It is further clarified in Article 127(2) that, in the event an agreement governing the future relations between the UK and the EU is found on the Common Foreign and Security Policy (“CFSP”) and the Common Security and Defence Policy (“CSDP”), such agreement can start to apply during transition itself. This means that, from the date of implementation of such an
178 European Council, “Special meeting of the European Council (Article 50) – Guidelines” (29 April 2017), para. 4; Council of the European Union, “Annex to the Council decision supplementing the Council decision of 22 May 2017 authorising the opening of the negotiations with the United Kingdom of Great Britain and Northern Ireland setting out the arrangements for its withdrawal from the European Union – Supplementary directives” (29 January 2018) XT 21004/18, para. 13; Michael Dougan, “An Airbag for the crash test dummies?…” (note 108) 67. 179 Protocol (No 15) on certain provision relating to the United Kingdom of Great Britain and Northern Ireland, OC C 202/284, 7 June 2016, (1); Protocol (No 19) on the Schengen acquis integrated into the framework of the European Union, OJ C 202/290, 7 June 2016; Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, OJ C 202/295, 7 June 2016. 180 Article 11(4) TEU; Article 24 TFEU. 181 Article 20(2)(b) TFEU; Charter of Fundamental Rights of the European Union, OJ C 326/391, 26 October 2012, Article 39 [“CFR”]. 182 Article 22 TFEU; Article 40 CFR. 183 Article 22 TFEU.
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agreement, the UK will no longer be bound by Chapter II of Title V TEU and will be able to treat questions relating to CFSP and CSDP at the national level. The inclusion of such a provision in the transitional period leads to the following two observations. First, it confirms the special status of CFSP in the Union as the UK has the possibility to depart from Union policy on CFSP during the transition itself.184 Second, it is argued that the Union ensures the fulfilment of its duty of loyal cooperation towards the UK as it facilitates the orderly withdrawal under Article 50 TEU.185 Additionally, Article 127(3) states that all Union principles and legal effects of Union rules shall continue to apply to the UK. This confirms that the duty of loyal cooperation is applicable during transition and also that the CJEU has competence despite the debate on the latter element.
Furthermore, the UK is exempted from enhanced cooperation triggered after the entry into force of the Withdrawal Agreement or any acts entailing such cooperation which were not adopted before the entry into force.186 This means that the UK could still be bound to participate in enhanced cooperation during the transition period if such acts were adopted before the entry into force. It is put forward that, in practice, it would put the UK in a difficult position. The UK would have to commit to enhanced cooperation which might go against its national interests, rendering its position after withdrawal more troublesome. Moreover, the UK could still be affected by measures of enhanced cooperation in which it did not even wish to participate.187 For instance, the implementation of the financial transaction tax,188 which the House of Lords had opposed because of its potential extra-territorial effects and costs for non-participating Member States,189 might have financial repercussion on the City of London.190 Nevertheless, the formulation of Article 127(4) seems again to illustrate difficult negotiations and to have resulted in a balance between the “Union’s way” and the “UK’s way”, as the non-participation
184 HM Government, “Explainer for the agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union” (14 November 2018) 26, para. 115. 185 See Chapter 1(B)(4). 186 Article 127(4) Draft Withdrawal Agreement. 187 Steve Peers, “The running commentary begins: Annotation of the proposed Withdrawal Agreement” (8 February 2018),
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in new measures of enhanced cooperation can ease the disentanglement of the UK from the Union.
Article 127(5) is a translation of the Council negotiating Directives on Brexit which provide that “the UK should however no longer be allowed to opt-in to measures in this Area [Justice and Home Affairs] other than those amending, replacing or building upon”191 Article 4a Protocol (No 21). Nevertheless, the Union may allow the UK to cooperate under the conditions set out for third countries to any new measures adopted upon Title V Part III TFEU on freedom, security and justice.192 Therefore, should the EU invite the UK to such cooperation, the UK would have to be considered as a third-country during the transitional period in this matter.
Article 127(6) clarifies that except in the case of the previous paragraph and where it is explicitly provided for, “any reference to Member States in the Union law applicable pursuant to paragraph 1” has to be read as encompassing the UK. It derives from this provision that for the cited measures, the UK remains to be considered as a Member State. Article 127(7) further contains three derogations to this rule where the UK will be considered as a third-country.
Other transitional arrangements
Institutional arrangements are laid down in Article 128 which specifies when the UK will be considered as being part of the institutions or not and when its experts can be invited to participate in meetings. This provision sidelines the UK in a certain way from any future decision in Union law and policy. Interestingly, despite the shrinking reference to the UK as a member of the institutions or a Member State tout court, Article 129 states that the UK remains “bound by the obligations stemming from the international agreements concluded by the Union, by Member States acting on its behalf, or by the Union and its Member States acting jointly”. Moreover, the provision specifies that the UK should refrain from going against the Union’s interests, explicitly mentioning the principle of sincere cooperation.193 It is recalled that the
191 Council of the European Union, “Annex to the Council decision supplementing the Council decision of 22 May 2017 authorising the opening of the negotiations with the United Kingdom of Great Britain and Northern Ireland setting out the arrangements for its withdrawal from the European Union – Supplementary directives” (29 January 2018) XT 21004/18, para. 13. 192 Article 127(5) second indent Draft Withdrawal Agreement. 193 Article 129(3) Draft Withdrawal Agreement.
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discussion on a Trade Bill released by the UK on 7 November 2017,194 i.e. before any Withdrawal Agreement entered into force, already questioned the principle’s fulfilment.195
The explicit reference to the principle in Article 129(3) further challenges the publication of the Trade Bill as it could be seen as the UK had already tried to persuade third countries before the Agreement’s entry into force.196 However, Article 129(4) lifts these doubts as the UK is allowed to “negotiate, sign and ratify international agreements entered in its own capacity in the areas of exclusive competence of the Union, provided that those agreements do not enter into force or apply during the transition period […]”. As long as the UK is not bound by such agreements during the transition period, the duty of loyal cooperation should not be considered as breached, especially under Article 129(3). The Union’s interests would still be preserved. During transition, the UK would not yet be bound by a bilateral agreement with a third-country of the Union. However, if the statement given by President Trump during his latest State visit proves to be true, the United States will start negotiating a bilateral trade deal with the UK.197 Negotiating is thus allowed198 but the UK will have to be cautious not to go against the Union’s interest, even during transition, as the United States is the most important trade partner of the EU.199 After transition, the UK would stand independent from the Union, not having to ensure the Union’s interests any longer.200
iii. Comparison
As a result from the Brexit negotiations and through the analysis of the provisional arrangements,201 the scope of such arrangements is meant to extend inter alia to the Internal Market, the general principles of EU law and the enforcement mechanisms. Bearing in mind
194 House of Commons, “Trade Bill and Explanatory Notes” (published on 7 November 2017)
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that, during accession, countries move towards integration whereas in Brexit, the UK pursues disentanglement, transition can somehow be seen as a meeting ground between accession and withdrawal.
First, in Brexit, the single market acquis would continue to apply under transitional arrangements until effective withdrawal.202 The UK would have to preserve the integrity of the single market during transition.203 This should be understood as implying that the duty of loyal cooperation enshrined in Article 4(3) TEU would continue to apply during that period.204 Considering that the UK will no longer be regarded as a Member States nor entitled to participate in the institution although it remains bound by the acquis, the duty of loyal cooperation will have to be respected by the Union as well.205 In principle, accession would entail the acceding countries gradually adhere to the acquis, which continues to apply to the UK under the transition, unless safeguard clauses are triggered concerning the Internal Market206 or Justice and Home Affairs for example.207 From their entry on and the application of transitional measures, the new Member States will also have to respect the duty of loyal cooperation.208
Second, the European Council has confirmed that the CJEU would be competent should any dispute arise during the Brexit transitional period.209 This is further evidenced by the inclusion of Article 131 Draft Withdrawal Agreement on supervision and enforcement mechanisms in the transitional period. As was seen earlier, this also flows from Article 50 TEU itself as the CJEU is competent to annul decisions based on this provision.210 Transitional arrangements do not either preclude the enforcement mechanisms of the Commission to be used.211 Similarly,
202 European Council, “Special meeting of the European Council (Article 50) – Guidelines” (29 April 2017), para. 4-7. 203 Council of the European Union, “Annex to the Council decision supplementing the Council decision of 22 May 2017 authorising the opening of the negotiations with the United Kingdom of Great Britain and Northern Ireland setting out the arrangements for its withdrawal from the European Union – Supplementary directives” (29 January 2018) XT 21004/18, para. 16. 204 Michael Dougan, “An Airbag for the crash test dummies?…” (note 108) 71; See Chapter 1(B)(4). 205 Michael Dougan, “An Airbag for the crash test dummies?…” (note 108) 73. 206 Article 38 Accession Act 2003; Article 37 Accession Protocol 2005; Article 37 Accession Act 2012. 207 Article 39 Accession Act 2003; Article 38 Accession Protocol 2005; Article 39 Accession Act 2012. 208 See Chapter 1(B)(4) and Chapter 2(A)(2)(b)(i). 209 European Council, “European Council (Art. 50) meeting – Guidelines” (15 December 2017), para. 4; Council of the European Union, “Annex to the Council decision supplementing the Council decision of 22 May 2017 authorising the opening of the negotiations with the United Kingdom of Great Britain and Northern Ireland setting out the arrangements for its withdrawal from the European Union – Supplementary directives” (29 January 2018) XT 21004/18, para. 18. 210 See Chapter 1(A)(2). 211 Michael Dougan, “An Airbag for the crash test dummies?…” (note 108) 71.
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the Commission can also intervene in accession in the event safeguard measures would be triggered by the new or old Member States.212
A difference however is found in the way negotiations are handled and their outcome. In accession, the Union and its Member States are the ones imposing their way to the acceding countries.213 However, in Brexit, it can be observed that the difficult negotiations have led, to a certain extent, to a balance between the Union’s way and the UK’s way although this was not the primary purpose of the Union.
Transitional arrangements in accession and withdrawal further meet in that in accession, these measures are considered as a derogation to the immediate application of the acquis.214 Similarly, in withdrawal, although the application of the acquis is considered as the rule during the transition period, the transitional adjustments nevertheless bring a few derogations to that rule. It is thus wondered whether withdrawal could be deemed as an accession in reverse.
B. Rationale for transitional measures
From their definition and scope, the rationale for transitional measures can be determined and compared taking into account the point of view of the different stakeholders (1-2).
1. Accession
The introduction of transitional measures in Accession Treaties might seem necessary to ease the approximation of laws between acceding and receiving states.
Accession always involves risks both for receiving and acceding Member States. These risks are usually related to economic integration or regional economic disturbances.215 Moreover, countries acceding to the EU have to adapt, modulate and approximate their legislation in order to integrate and harmonise progressively the bulk of the EU acquis in their national legal system.216 It is seen through CJEU case-law that transitional arrangements can protect the
212 Lendita Memeti-Kamberi (note 156) 290-291. 213 Ibid. 273-275. 214 Ibid. 273-275; Kirstyn Inglis, Evolving Practice in EU enlargement… (note 3) 141-143. 215 Ibid. 289; Kirstyn Inglis, Evolving Practice in EU enlargement… (note 3) 154. 216 Ibid. 259.
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internal market and avoid as much as possible such economic or financial disturbances in the Union.217
The inclusion of transitional arrangements in Accession Treaties also allows some flexibility to both receiving and acceding States and guarantees a smooth entry and adjustment of the acceding State in the Union.218 Not all countries need the same adjustments and granting transitional measures to one State does not ipso facto mean that others will benefit or need similar measures.219 For instance, Cyprus did not benefit from transitional arrangements concerning the freedom of movement for workers, contrary to all other countries having acceded since 2004.220
Transitional measures can include safeguard clauses which range from a delay in the application of the acquis, a derogation thereto, to a protection of national economies.221 Safeguard clauses contained in the Accession Acts themselves have also as their rationale the protection of the Internal Market and represent a guarantee that no gap is created in its application by new Member States.222 It is only with the fifth enlargement that transition became more complex as, before these enlargements, the Union acquis was far less developed. Thus, the acceding States could adapt more easily to transition.223
Nevertheless, for the fifth, sixth and seventh enlargements the EU wanted a full approximation before accession.224 The new transition arrangement introduced with the 2004 enlargements onwards maintained pressure to ensure continued compliance with the acquis on the Internal Market and Justice and Home Affairs.225 While indeed such a mechanism pushes the candidate to pursue efforts towards full integration, transitional measures could also be seen as a way to further impose conditionality on the new members comforting the EU that enlargement is not
217 CJEU, Joined Cases C-194/85 and 241/85 Commission v. Greece [1988] ECR 1037, para. 18 218 Ibid. 19. 219 Kirtyn Inglis, European Union Englarment: an analysis of pre-accession and transitional arrangements with cases studies on agri-food and environmental law (Ghent University 2006) 114. 220 Annex VII Accession Act 2003. 221 Kirstyn Inglis, European Union Englarment: an analysis of pre-accession and transitional arrangements with cases studies on agri-food and environmental law (Ghent University 2006) 104; Adam Łazowski, “It works! The European Union in the wake of 2004 and 2007 enlargements” (note 155) 15-19. 222 Lendita Memeti-Kamberi (note 156) 292. 223 Kirtyn Inglis, European Union Englarment: an analysis of pre-accession and transitional arrangements with cases studies on agri-food and environmental law (Ghent University 2006) 106. 224 Ibid. 115 225 Ibid. 118.
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in fact jeopardising integration.226 This also allows acceding countries to participate in the decision-making process on all other matters which are not covered by transitional measures.227 Paradoxically, this seems to subject acceding States to a multi-speed Europe from their entry on, whereas European integration seeks to obtain the same involvement from all Member States. However, it is argued that, with the completion of the transition period, the paradox comes to an end as acceding Member States should in principle have equalised their speed to the old Member States’. Accordingly, transitional measures created a bridge between enlargement and full integration and tend to facilitate the entry into force of the Accession agreement.228
As will be further elaborated upon, the rationale of transitional measures concerning the freedom of movement for workers should also be mentioned at this stage. Their inclusion was spurred on by present Member States as their population feared excessive and deregulatory migration of workers.229
2. Withdrawal
Article 50 TEU does not provide or hint towards any inclusion of transitional arrangements in a withdrawal agreement. Nevertheless, it is argued that, at least in the Brexit negotiations, they form an integral part of the withdrawal procedure which they may even facilitate, assuming a no-deal Brexit scenario is set aside. As stated earlier,230 would this be the case, transitional arrangements would become obsolete as they form part of the withdrawal agreement itself.231
On the Union’s end, the Council guidelines on Brexit confirm that the inclusion of transitional arrangements can be envisaged in the withdrawal agreement.232 According to the Council, these measures would have to be in the Union’s interest and create a bridge between the framework for withdrawal and the foreseeable framework for the future relationship between the EU and
226 Kirstyn Inglis, “The accession Treaty and its Transitional arrangements: A twilight zone for the New Members of the Union” (note 151) 78; See Chapter 1(B)(3). 227 Lendita Memeti-Kamberi (note 156) 259. 228 Christophe Hillion, “Withdrawal under Article 50 TEU…” (note 94) 43. 229 Kirtyn Inglis, European Union Englarment: an analysis of pre-accession and transitional arrangements with cases studies on agri-food and environmental law (Ghent University 2006) 133. 230 See Chapter 2. 231 House of Commons Treasury Committee, “Transitional arrangements for exiting the European Union”, Fourth Report of Session 2017-19 (12 December 2017) 33-34; Christophe Hillion, “Withdrawal under Article 50 TEU…” (note 94) 43-44. 232 European Council, “Special meeting of the European Council (Article 50) – Guidelines” (29 April 2017), para. 6.
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the UK.233 It is noteworthy that from this first step in Brexit negotiations, the Union referred to its own interest, showing again that the exit process does not necessarily bring EU integration in jeopardy. However, at first, the UK did not seem to share the “Union’s way” as it referred solely to an implementation period, implying that a real partnership would already be concluded by the time the UK leaves.234 As was seen, this scenario cannot be envisaged as the EU maintains that the negotiations until withdrawal should only concern the framework for withdrawal, containing measures on the transition period.235 It is likely that, when this step is set, negotiations on a future relationship ought to start. The time limit of the transition, which should not go beyond two years, is explained on the one hand because of the multi-annual financial term of the Union.236 On the other hand, it comforts the UK in its transition.237 From a practical perspective, it ensures that the citizens do not go through different regulatory changes but only one.238 Additionally, read in light of the duty of loyal cooperation, the lack of transitional arrangements would also leave the UK in a legal vacuum and causing economic, political chaos until an agreement on future relations is signed and entered into force.239
On the UK’s end, the House of Commons Treasury Committee stated that “a core purpose of transitional arrangements is to allow planning for the UK’s future outside the EU to take place in an environment of stability and certainty”240.
It appears as though an issue for transitional arrangements in withdrawal is that the mere objective of negotiations is still unknown as Brexit negotiations have yet to provide for any agreement on the framework for the future relationship between the UK and the EU. At present, the transition period thus concerns the Union rules which should remain applicable, but it is difficult to see where this will lead and what framework the UK should adapt to during a potential transition. On the contrary, in accession, the objective is well-known as it ensures that acceding Member States gradually integrate and adapt to the EU legal order. Accordingly, it
233 European Council, “Special meeting of the European Council (Article 50) – Guidelines” (29 April 2017), para. 6. 234 Christophe Hillion, “Brexit means Br(EEA)xit: The UK withdrawal from the EU and its implications for the EEA” (January 2018), 55(1) Common Market Law Review 149. 235 See Chapter 1(A)(2). 236 European Commission, “Déclaration de presse par Michel Barnier suite à l’adoption d’une recommandation visant à entamer les discussions relatives à la phase suivante du retrait ordonnée du Royaume-Uni de l’Union européenne” (Brussels, 20 December 2017). 237 Michael Dougan, “An Airbag for the crash test dummies?...” (note 108) 75. 238 Michael Dougan, “An Airbag for the crash test dummies?...” (note 108) 75. 239 Adam Łazowski, “Exercises in Legal acrobatics: Brexit transitional arrangements” (note 41) 850. 240 House of Commons Treasury Committee, “Transitional arrangements for exiting the European Union”, Fourth Report of Session 2017-19 (12 December 2017) 39.
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can be understood that transitional measures have opposite purposes in accession and withdrawal as in accession they are introduced in order to ensure a swift integration of new Member States, whereas in withdrawal it is primarily to smoothen the disentanglement of the UK from the Union.
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CHAPTER 3. ACCESSION VS. WITHDRAWAL: HOW IS THE FREEDOM OF MOVEMENT FOR WORKERS?
The free movement of persons is one of the four fundamental freedoms of the Internal Market.241 It is mainly governed by Article 45 TFEU and Regulation (EU) No 492/2011 on the freedom of movement for workers (“Regulation 492/2011”).242 Article 45 TFEU protects inter alia workers from being discriminated against based on their nationality.243 Regulation 492/2011 further guarantees this right and specifies “the substantive rights and entitlements of workers and their families”.244 As will be seen throughout this chapter, both legal instruments are directly referred to in accession and, indirectly, in withdrawal transitional arrangements.
First, it will be analysed whether transitional measures tend to facilitate the integration of workers in accession (A). Transitional measures concerning the freedom of movement for workers provide clauses protecting the Internal Market. These clauses are either safeguard clauses concerning all present Member States or flanking measures introduced specifically for Austria and Germany.245
Second, the situation of workers in accession will be compared to their fate in Brexit. As the transitional arrangements do not give direct measures relating to the free movement of persons. From the outset, through the references to Articles 45 and 56(1) TFEU, it is clarified that these transitional arrangements solely concern the freedom of movement of workers and “the freedom to provide services involving temporary movement of workers as defined in Article 1 of Directive 96/71/EC”246. This entails that other nationals from the new Member States benefit from complete freedom of movement247 and their status as EU citizens is settled from the date of accession as the measure solely concern the access to the labour market.248
241 Paul Craig and Gráinne de Búrca, EU Law: Texts, Cases, and Materials (OUP, Oxford 2015) 6th ed., 744. 242 Regulation (EU) No 492/2011 of 5 April 2011 of the European Parliament and of the Council on the freedom of movement of workers within the Union [2011] OJ L 141/1 [“Regulation (EU) No 492/2011”]. 243 Paul Craig and Gráinne de Búrca (note 241) 746. 244 Ibid. 748. 245 Kirstyn Inglis, European Union Englarment: an analysis of pre-accession and transitional arrangements with cases studies on agri-food and environmental law (Ghent University 2006) 104. 246 Annex V, 2(1) Accession Act 2012; Directive 96/71/EC of 16 December 1996 of the European Parliament and of the Council concerning the posting of workers in the framework of the provision of services [1997] OJ L 18/1. 247 Iris Goldner Land, “Transitional arrangements in the enlarged European Union: how is the free movement of workers?” (January 2008), 3 Croatian Yearbook of European Law and Policy 243. 248 Adam Łazowski and Aleksandra Wentkowska, “Poland: Constitutional Drama and Business as Usual”, in Łazowski A. (ed.) The Application of EU Law in the New Members States – Brave New World (The Hague, T.M.C. Asser Press 2010) 318.
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A. Free movement of workers in accession
The transitional measures on the free movement of workers further contain safeguard clauses (1); and additional protections (2) which will be analysed in turn. The results of these measures will briefly be addressed considering all stakeholders in the process of accession (3).
1. Safeguard clauses
The first derogation from the acquis is brought to Articles 1 to 6 Regulation 492/2011.249 From the date of accession and for a period of two years, the present Member States will apply the measures which were regulating access to their labour markets by Croatian nationals before Croatia’s accession to the Union, be it national measures or measures resulting from a bilateral agreement.250 After the two-year period, the present Member States may choose to maintain the same rules for an additional period of three years.251 Croatian nationals who were already working at the date of accession and admitted for a minimum uninterrupted period of 12 months in a present Member State have access to its labour market. However, these workers will not enjoy the same access in other Member States.252 The same can be said for “Croatian nationals admitted to the labour market of a present Member State following accession for an uninterrupted period of 12 months or longer”.253 These rights will cease to apply if the worker voluntarily leaves the present Member State he was working in.254 Any worker having access to the labour market of a present Member State for a period of less than 12 months shall not enjoy these rights.255
The transitional provisions shall be reviewed by the Council which will base its findings on a report from the Commission before the end of the first transition period of two years following the accession date.256 It then belongs to the present Member States applying transitional measures to decide, taking into account the review of the Council and the Commission, whether they will extend that right for a three-year period or begin to apply the EU measures under Articles 1 to 6 of Regulation 492/2011. In the event the present Member States fail to notify
249 Annex V, 2(2)(1) Accession Act 2012. 250 Ibid. 251 Ibid. 252 Annex V, 2(2)(2) Accession Act 2012. 253 Annex V, 2(2)(3) Accession Act 2012. 254 Annex V, 2(2)(4) Accession Act 2012. 255 Annex V, 2(2)(5) Accession Act 2012. 256 Annex V, 2(3)(1) Accession Act 2012.
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their willingness to extend the period, the latter measures will apply. This can be subjected to further review should Croatia request it. The whole review procedure may not take more than six months.257 The five-year period may be further extended for two years, provided Present Member States notify the Commission of serious disturbances of their labour market or a threat thereto. Without such notification, the Regulation will fully apply.258 This procedural step illustrates again the member-state driven aspect of accession.259
An additional safeguard clause is granted to the present Member States applying Article 1 to 6 Regulation 492/2011 to Croatian nationals before the end of the seven-year period following the date of accession.260 Therefore, if, due to the application of the Regulation to Croatian nationals, a present Member State “undergoes or foresees disturbances on its labour market which could seriously threaten the standard of living or level of employment in a given region or occupation”261, the Member State can request a whole or partial suspension of the Regulation to the region or occupation facing difficulties. This can be requested upon submission of relevant information to the Commission262 and the other Member States. The Council may be requested by any Member State to annul or amend the decision and this, by qualified majority.263 Exceptionally, the suspension of the Regulation can be decided upon by a Member State itself, provided a “reasoned ex post notification” is given to the Commission.264
In casu, safeguard clauses which are provided for in the transition on the free movement of workers question the further integration of the Union and whether such measures could be considered as selective exits. First, as Kirstyn INGLIS suggested, the suspension of the application of certain measures of the acquis concerning workers during transition adds to the complexity of Union law.265 As already mentioned,266 safeguard clauses concerning the internal market as such and justice and home affairs are already contained in the Accession Acts.267
257 Annex V, 2(4) Accession Act 2012. 258 Annex V, 2(5) Accession Act 2012. 259 See Chapter 1(B)(2). 260 Annex V, 2(7) Accession Act 2012; Agnieszka Fihel, Anna Janicka, Pawel Kaczmarcyk and Joanna Nestorowicz, “Free movement of workers and transitional arrangements: lessons from the 2004 and 2007 enlargement” (2015), Centre of migration research – University of Warsaw, 3. 261 Annex V, 2(7)(2) Accession Act 2012. 262 The Commission will decide on the duration and scope of the suspension and then notify the Council within two weeks of the reception of the request. 263 Annex V, 2(7)(2) Accession Act 2012. 264 Annex V, 2(7)(3) Accession Act 2012. 265 Kirstyn Inglis, “The accession Treaty and its Transitional Arrangements: A twilight zone for the New Members of the Union” (note 151) 77. 266 See Chapter 2(A)(1). 267 Article 38 Accession Act 2003, Article 37 Accession Protocol 2005, Article 37 Accession Act 2012.
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Specific safeguards concerning the access to the labour market may further slowdown the process of integration of the new Member States. However, their inclusion also brings advantages to all stakeholders. It grants time to implement the free movement of workers acquis on the acceding countries’ part; to adapt to the increasing labour demand for receiving countries; and, to adjust and supervise their implementation for the institutions. It also ensures that the rights of workers are respected despite a delay. Therefore, the integration process is surely slowed down by enlargement, but it is also strengthened by it.
Second, safeguard clauses can be analysed through the lens of Joseph WEILER’s notion of selective exits, i.e. when Member States retain their membership but avoid certain treaty obligations.268 Safeguard clauses cannot be considered as selective exits as they only entail a temporary adaptation or correction to the system while remaining in the same system.269 This ties in with integration as the fact that the adaptation is only temporary, contrary to opt-outs for instance, does not hamper the integration process, rather, contributes to its development.
2. Additional protections
The transitional measures further mention Article 23 of Directive 2004/38/EC270 which provides that “irrespective of nationality, the family members of a Union citizen who have the right of residence or the right of permanent residence in a Member State shall be entitled to take up employment or self-employment there”. If the application of Articles 1 to 6 of the Regulation is suspended, this article will apply not only to Croatian nationals in the present Member States but also to nationals of the latter in Croatia under two conditions. First, family members legally residing with the worker in a present Member State at the date of accession will enjoy immediate access to the labour market of that Member State, provided the worker is legally admitted to the same labour market since more than 12 months.271 Second, family members legally residing with the worker in a present Member State after accession, but within the period transitional measures apply, may also have access to the labour market of that Member State once they either have been resident in the State for at least 18 months or from
268 Joseph H. H. Weiler (note 58) 2412; See Chapter 1(B)(1). 269 Ibid. 270 Directive 2004/38/EC of 29 April 2004 of the European Parliament and of the Council on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC [2004] OJ L158/77. 271 Annex V, 2(8)(1) First indent Accession Act 2012.
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the third year following the date of accession.272 However, should any national measures or measures resulting from bilateral agreements be more favourable than this regime, the former will apply.273
Furthermore, the provisions of Directive 2004/38/EC may be derogated from, should it be necessary for the application of the suspensions of the Regulation and/or Article 23 of the Directive. Conversely, should measures resulting from the transitional provisions be applied to Croatian nationals in the present Member States, Croatia is given the guarantee that it can “maintain in force equivalent measures with regard to the nationals of the Member State or Member States in question”274.
Where the suspension of the Regulation is applicable and national measures apply instead, present Member States may always decide to grant greater freedom of movement and even full labour market access and this, from the date of accession.275 In any event, three years after accession, present Member States may decide to apply the Regulation upon information of the Commission.276
An additional safeguard clause is specifically granted to Germany and Austria in sensitive service sectors in the labour market. As long as transitional provisions of services apply, Germany and Austria may derogate from Article 56(1) TFEU and limit the services coming from companies established in Croatia.277 Croatia can take equivalent measures mutatis mutandis.278 However, this paragraph contains a standstill clause as none of these measures may be more restrictive than the measures prevailing on the date of signature of the Accession Treaty.279 The latter condition also applies to the effect of the application of the suspensions. Moreover, during the transitional period, preference should always be given to the new Member State’s nationals over third countries’ nationals.280
272 Annex V, 2(8)(1) Second indent Accession Act 2012. 273 Annex V, (2)(8)(2) Accession Act 2012. 274 Annex V, 2(10) Accession Act 2012. 275 Annex V, 2(11) Accession Act 2012. 276 Annex V, 2(11) Accession Act 2012. 277 Annex V, 2(12)(1) Accession Act 2012. 278 Annex V, 2(12)(2) Accession Act 2012. 279 Annex V, 2(12)(3) Accession Act 2012; Kirstyn Inglis, “The accession Treaty and its Transitional Arrangements…” (note 265) 85; Iris Goldner Lang (note 247) 248-250. 280 Ibid.
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The last paragraph of the transitional measures on free movement of workers provides for a similar standstill clause as no measure shall be applied, nor by the present Member States nor by Croatia towards Croatian nationals or Member States nationals respectively, which leads to a more restrictive regime than the one applied to third-country nationals.281 This is further reinforced by the principle of Union preference.282 In casu, this principle is specifically added to the Accession Treaty as it concerns the admission of third-country nationals working in Croatia who cannot benefit from a more favourable treatment than Croatians.283 According to the European Employment Services, the application of such a principle allows to “achieve a balance between labour supply and demand within the Union”284.
3. Results
Some results of the transitional measures on the different stakeholders will be addressed in this section. First, the rationale of the inclusion of transitional measures concerning the free movement of workers in light of their general rationale, addressed earlier on in this study,285 will briefly be analysed (a); afterwards, to study the results of these measures in accession, the perspective of some stakeholders shall then be taken, i.e. acceding States and the present Member States (b).
Different rationales for the transition on the free movement of workers
In addition to helping acceding countries integrate the acquis and adequately adapt thereto, Accession Treaties and Acts contain specific transitional measures which have been introduced to further protect the free movement of workers in accession.
The Commission reiterated that the free movement of persons is a fundamental right in the EU and this right specifically guarantees workers not to be discriminated against.286 However,
281 Annex V, 2(13)(1) Accession Act 2012; Kirstyn Inglis, “The accession Treaty and its Transitional Arrangements…” (note 265) 85. 282 Annex V, 2(13)(3) 283 European Parliament, “Answer given by Ms Thyssen on behalf of the Commission to the Parliamentary question of 17 November 2017”, E-005764/2017(ASW). 284 European Parliament, “Answer given by Ms Thyssen on behalf of the Commission to the Parliamentary question of 17 November 2017”, E-005764/2017(ASW); Referring to: Regulation (EU) 2016/589 of 13 April 2016 of the European Parliament and of the Council on a European network of employment services (EURES), workers' access to mobility services and the further integration of labour markets, and amending Regulations (EU) No 492/2011 and (EU) No 1296/2013 [2016] OJ L 107/1. 285 See Chapter 2(B). 286 European Commission, “Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions - The impact of free movement of
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labour disturbances, such as income differentials between the old and new Member States,287 can result from sudden and mass mobility from new Member States to the present Members.288 Therefore, specific transitional arrangements on the access to the labour market allow new workers to blend gradually in the present Member States and protect the internal market as can be understood from the Commission’s report for the 2004 enlargement.289
Nevertheless, a study has cast doubts on the large impact of access to the labour market with transitional measures290 and found that the “opening of borders for workers immediately upon accession would have only a minor impact on the EU labour market and a rather small impact on employment and wages in the Union”291. Considering this, the addition of transitional measures on labour are rather politically motivated and implemented as an insurance for the old Member States.292 Countries had particular and diverging needs within their national systems. 293 For instance, Austria and Germany campaigned for strict transitional measures on the free movement of workers because it would reassure the public opinion and alleviate the fear of an impact on wages and a distortion of the internal market.294
Results
Despite the political motivation for the introduction of transitional measures on the freedom of movement for workers, significant results can still be denoted from their inclusion.
From the analysis of the transition on the free movement of workers, it was seen how ultimately a balance between labour demand and the capacity of the old Member States to respond to that demand was found.295 It is interesting to note that safeguard clauses are implemented in the
workers in the context of EU enlargement - Report on the first phase (1 January 2007 – 31 December 2008) of the transitional arrangements set out in the 2005 accession treaty and as requested according to the transitional arrangement set out in the 2003 accession treaty” (18 November 2008) COM(2008) 765 Final, pt. 1.2 [“Commission report 2008 on the free movement of workers in transition”]. 287 European Commission, “Information Note on the Free Movement of Workers in the Context of Enlargement” (6 March 2001). 288 Iris Goldner Lang (note 247) 242, 261; see also: Michael Dougan, “A spectre is haunting Europe… Free Movement of Persons and the Eastern Enlargement”, in Hillion C. EU Enlargement: A legal approach Hart publishing, Oxford 2004) 120. 289 Commission report 2008 on the free movement of workers in transition. 290 Herbert Brückner and Tito Boeri, The Impact of Eastern Enlargement on Employment and Labour Markets in the EU Member States (DIW & IGIER 2000). 291 Iris Goldner Lang (note 247) 261-262. 292 Ibid.; Agnieszka Fihel et al. (note 260) 8. 293 Lendita Memeti-Kamberi (note 156) 298-301. 294 Agnieszka Fihel et al. (note 260) 9. 295 See Chapter 3(A)(2).
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benefit of the old Member States, whereas standstill clauses protect the New Member States’ citizens.296 These measures are verified by statistics which show the tendency of increasing mobility from Croatian citizens for example since its accession in 2013 and thus, the entry into force of the transitional measures.297
Additionally, labour migration was mostly higher towards Germany and Austria, which confirms their previous concerns.298 However, the Commission found that the flows of Croatian workers would proportionally not drastically increase in the coming years, not even towards Germany or Austria.299 It also concluded that the restrictions imposed through the transitional measures dot not hamper the flow as other factors, such as wages and languages, incentivise the workers to move.300 Considering the fact that some countries choose not to apply transitional measures on the movement of workers and others do, transitional measures contribute to a more proportional distribution of workers throughout the Union and protect the countries where the greatest impact could be brought.301 This is true for the enlargements from 2004 onwards.
Therefore, the inclusion of transitional measures should not be challenged concerning the free movement of workers as it brings an equilibrium between the old Member States and does not either disturb the acceding States’ internal labour markets.
B. State of the art: Workers in the Draft Withdrawal Agreement
In the event of Brexit, the fate of workers is rather uncertain. Part IV of the Draft Withdrawal Agreement does not bring tangible information as to their future. The only certainty is that the European Council has reiterated302 that for the second phase of the Brexit negotiations “the four freedoms are indivisible and that there can be no ‘cherry-picking’ through participation in the
296 Agnieszka Fihel et al. (note 260) 2-3. 297 European Commission, “Report from the Commission to the Council on the Functioning of the Transitional Arrangements on Free Movement of Workers from Croatia (First phase: 1 July 2013 - 30 June 2015)” (29 May 2015) COM(2015) 233 Final [“Commission report 2015 on the free movement of workers in transition”]. 298 Ibid. 299 Ibid. 300 Ibid. 301 Ibid.; Timo Baas and Herbert Brücker, “EU Eastern enlargement: The benefits from Integration and Free Labour Movement” (2011) 9(2) ifo DICE Report 45, 47. 302 European Council, “Special meeting of the European Council (Article 50) – Guidelines” (29 April 2017), para. 1.
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Single Market based on a sector-by-sector approach, which would undermine the integrity and proper functioning of the Single Market”.303
From the analysis of Article 127 Draft Withdrawal Agreement, in principle, the Union acquis would remain applicable to the UK during transition.304 No derogations were brought in the transitional provisions for workers.305 This means that EU workers will still enjoy the right of free movement in the UK and, conversely, UK workers will enjoy the same rights in the EU.306 In contrast, during the accession transitional period, workers enjoy the same rights as EU citizens only gradually.307 In Brexit, however, citizens would retain the same rights as before the UK ceased to be a Member State as Regulation 492/2011 will continue to apply during transition.308 This is confirmed in the other part of the Draft Withdrawal Agreement.
Bearing in mind that the Draft Withdrawal Agreement only sets out the overall arrangements for withdrawal,309 Part II of the Draft Withdrawal Agreement concerns citizens’ rights. In this Part, the personal scope extends to workers if they fulfil one of the two following conditions: either they are “Union citizens who exercised their right to reside in the United Kingdom in accordance with Union law before the end of the transition period and continue to reside there thereafter”;310 or, they are “United Kingdom nationals who exercised their right to reside in a Member State in accordance with Union law before the end of the transition period and continue to reside there thereafter”.311 Article 24 Draft Withdrawal Agreement clarifies the rights that workers enjoy and specifically refers to Article 45 TFEU and Regulation 492/2011.
It remains to be seen whether this agreement will enter into force and if so, in its present wording. The present agreement evidences the outcome of the negotiations between Prime
Minister MAY’s government and the EU. The UK Prime Minister had stated on several
303 European Council, “European Council (Article 50) – Guidelines” (23 March 2018), para. 7. 304 European Commission, “Questions and Answer – the rights of EU and UK citizens, as outlined in the Withdrawal Agreement” (26 November 2018) 3; Elspeth Guild, “Brexit: Deal or no Deal: The Consequences for the freedom of movement EU and British citizens” (10 December 2018) EU immigration and Asylum Law and Policy < https://eumigrationlawblog.eu/brexit-deal-or-no-deal-the-consequences-for-freedom-of-movement-of- eu-and-british-citizens/> accessed 9 June 2019. 305 See Chapter 2(A)(2)(b)(ii). 306 European Commission, “Questions and Answer – the rights of EU and UK citizens, as outlined in the Withdrawal Agreement” (26 November 2018) 3. 307 See Chapter 3(A). 308 European Commission, “Questions and Answer – the rights of EU and UK citizens, as outlined in the Withdrawal Agreement” (26 November 2018) 3. 309 Article 1 Draft Withdrawal Agreement. 310 Article 10(1)(a) Draft Withdrawal Agreement. 311 Article 10(1)(b) Draft Withdrawal Agreement.
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occasions that the rights of workers are of primary importance and that the body of European law would be translated into UK domestic regulations.312 As she is set to officially resign, her successor may adopt diverging decisions in this matter. It also remains to be seen what would happen once the transition period has lapsed and whether the UK would then implement stricter rules on workers’ immigration as Michael DOUGAN suggested.313 Compared to accession, it appears no gradual system is put in place in Brexit. It remains to be seen whether the Draft Withdrawal Agreement will enter into force and subsequently, lead to a future regime between the EU and the UK on the free movement of workers.
312 Theresa May, “The government’s negotiating objectives for exiting the EU: PM speech” 17 January 2017,
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CONCLUSION
The present paper aimed to draw a comparison on the transitional arrangements between, on the one hand and, accession of third countries to the Union since the enlargements of 2004 onwards and, on the other hand, withdrawal from the Union through the topical example of Brexit. Delving into the comparison on transitional arrangements required in the first instance to begin with a general analysis of Articles 49 and 50 TEU. This has led to address four general points of comparison between accession and withdrawal.
The first of these common grounds helped depict that an interplay exists between exit and voice when referendums are resorted to. Throughout the processes of enlargement, which often entail referendums, voice is developed, allowing Member States to correct the intra-organisational system internally. Whereas, in Brexit exit was chosen despite a developed voice. Therefore, there seems to be a general movement of development of voice in accession as opposed to the abandonment of the system in withdrawal. Second, the question of competences in the processes clarified that accession tends to be a Member State-driven procedure, where the CJEU is not entitled to annul accession treaties, as opposed to withdrawal in which the CJEU keeps its powers and the Union insisted on having a prominent role in negotiations. The latter is shown through the exceptional horizontal competence it is granted in the Brexit negotiations. Nevertheless, both outcoming agreements, be it Accession Treaties or a withdrawal agreement, should in principle not entail mixity. Third, the impact of the movements on European integration was evaluated, concluding that integration can be challenged by enlargements and, agreeing with Christophe HILLION, that exit of a Member State does not necessarily jeopardise integration, rather strengthens it. Lastly, the fourth point of comparison was based on the duty of loyal cooperation which plays an important role in negotiations and was further referred to in the analysis on transitional arrangements themselves.
This led to the second part of the study which addressed these transitional measures. The definition and scope of the measures in accession and withdrawal evidenced that although they have the same general characteristics, they still diverge. In both dynamics, transitional arrangements entail temporary amendments to the acquis. However, they differ in that accession entails a derogation to the acquis until its full application whereas, withdrawal calls for a prolongation of its application until the country has effectively left the Union, although some derogations to the application of the acquis are brought as well. Furthermore, the scope ratione materiae did not bring clear convergence points between the transitional measures,
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except for the fact that the duty of loyal cooperation must be fulfilled. Reading their scope in light of their respective purposes, it was emphasised that the transition in accession brings derogations to fifteen chapters of the acquis to facilitate the entry of new Member States to the Union, ensure the rapid adoption of the Accession Treaty and, in a certain way, use transition as a further application of conditionality. However, in the Brexit Draft Withdrawal Agreement, transition is there to grant more time in order to (try to) find a solution for the future relationships between the Union and the UK, which could not be addressed under the Withdrawal Agreement itself. Interestingly and although the Union intended to negotiate in its own way, the provisional measures are the mirror of tough negotiations and illustrate that the UK managed to find its way as well, or that due compromises were found.
The general approach towards transitional measures and their comparison were further exemplified through the specific case of the freedom of movement for persons. The analysis of one of the four fundamental freedoms of the internal market shows that workers have an important place in the Union. In accession, specific transition is provided for workers and entails safeguard clauses as well as standstill clauses, respectively helping present Member States and acceding Members. Safeguard clauses also strengthen the gradual integration of the new Members and brings them up to the same speed as other Member States. Although these measures were at first implemented under a political impetus, they proved to be useful for the proportional distribution of workers through the Union. Nevertheless, a further multi- disciplinary study covering statistical and economic data on the enlargement since 2004 would be interesting to explore and perhaps challenge the mere inclusion of transition on workers. It would be interesting to extend this study to Brexit, in function of the outcome of negotiations. As it stands, this study could only provide with a state of the art on workers in the likely withdrawal of the UK. It was highlighted that, contrary to accession, no specific measures were provided on the free movement of workers. This led however to the conclusion that the workers would retain their rights during transition should the Draft Withdrawal Agreement effectively enter into force. Nevertheless, a similarity with accession can be found in the fact that they both are the results of the pressing needs of the stakeholders, the acceding States, the present Member States, the European institutions and the UK to protect the free movement of workers.
It remains to be seen how further enlargement of the Union would evolve and whether the addition of transitional measures would still be justified. In the case of withdrawal, Brexit being the laboratory of the procedure under Article 50 TEU, several factors might change the
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comparison drawn in this study, starting with the identity of next Prime Minister of the UK. On the latter will depend the entry into force of the Draft Withdrawal Agreement, which in the hands of hard Brexiteers could be obsolete and leave the place for a no-deal. Such a scenario could have a tremendous impact on workers as well.
However, at present and should the transition period start in the withdrawal of the UK from the Union, it would help the UK to gradually adapt and untangle some parts of the acquis from its legal system, similarly to accession, where transition helps the countries acceding progressively and gradually implementing the acquis into their legal system. Accordingly, it is put forward that Brexit resembles to an accession in reserve.
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BIBLIOGRAPHY
A. LEGISLATION
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C. NATIONAL DOCUMENTS
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D. CASE-LAW
1. Court of Justice of the European Union
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2. National judicial decisions
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E. BOOKS AND BOOK CHAPTERS
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World’”, in Łazowski A. (ed.) The Application of EU Law in the New Members States – Brave New World (The Hague, T.M.C. Asser Press 2010) 157-207. - Łazowski A., “It works! The European Union in the wake of 2004 and 2007 enlargements”, in Łazowski A. (ed.) The Application of EU Law in the New Members States – Brave New World (The Hague, T.M.C. Asser Press 2010) 7-30. - Adam Łazowski and Aleksandra Wentkowska, “Poland: Constitutional Drama and Business as Usual”, Łazowski A. (ed.) The Application of EU Law in the New Members States – Brave New World (The Hague, T.M.C. Asser Press 2010) 277-324. - Łazowski A., “Be careful what you wish for: Procedural Parameters of EU Withdrawal”, in Closa C. (ed.) Secession from a Member State: Troubled membership (CUP, Cambridge 2017) 234-256. - Maresceau M., “The EU Pre-accession Strategies: A political and legal Analysis”, in Maresceau M. and Lannon E. (eds.) The EU’s enlargement and Mediterranean Strategies – A comparative analysis (Palgrave MacMillan, London 2001) 3-28. - Medhi R., “Brèves observations sur la consecration constitutionnelle d’un droit de retrait volontaire”, in Demaret P., Govaere I. and Hanf D. (eds.) 30 Years of European legal Studies at the College of Europe (Peter Lang, Oxford 2005) 113-126. - Memeti-Kamberi L., L’Etat candidat à l’Union Européenne (L’Harmatan, Paris 2012). - Tatham A., Enlargement of the European Union (Kluwer Law International, The Netherlands 2009). - Peter Van Elsuwege, “The Duty of Sincere Cooperation and its Implications for Autonomous Member State action in the Field of External Relations”, in Varju M. (ed.) Between Compliance and Particularism (Springer, Cham 2019) 283-298.
F. ARTICLES
- Baas T. and Brücker H., “EU Eastern enlargement: The benefits from Integration and Free Labour Movement” (2011) 9(2) ifo DICE Report 44-51.
- Dougan M., “An Airbag for the crash test dummies? EU-UK Negotiations for a Post- withdrawal ‘Status quo’ transitional regime under Article 50 TEU” (2018), 55(2/3) Common Market Law Review 57-99.
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- Friel R. J., “Providing a Constitutional framework for withdrawal from the EU: Article 59 of the Draft European Constitution” (2004) 53 ICLQ 407-428.
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- Łazowski A., “Withdrawal from the European Union and Alternatives to Membership” (2012) 37 ELRev 523-540.
- Łazowski A., “Exercises in Legal Acrobatics: Brexit Transitional Arrangements” (2017), 2(3) European Papers 845-862.
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- Weiler J. H. H., “The transformation of Europe” (1991), 100(8) The Yale Journal 2403- 2483.
G. PRESS ARTICLES
- Amaro S., “Brexit chaos drags European Parliament elections into legal confusion” CNBC (16 April 2019),
- Nadeem Badshah, “Boris Johnson wins Court challenge over £350m Brexit claims” The Guardian (7 June 2019),
- Bangerter J., “La votation sur la ‘pénalisation du mariage’ est annulée, une première en Suisse” RTS (10 April 2019),
- Gerbet P., “The Accession of Austria, Finland and Sweden to the European Union”,
- Henley J., “Court overturns referendum as voters were poorly informed… in Switzerland” The Guardian (11 April 2019),
- Khan S., “Final say: The misinformation that was told about Brexit during and after the referendum” The Independent (28 July 2018),
- Landler M. and Haberman M., “As Trump Dangles post-Brexit Trade Deal, Some Britons see Opportunisme” New York Times (4 June 2019),
- Sparrow A. and Rawlinson K., “Trump says US is ready to post-Brexit trade deal – as it happened” The Guardian (3 June 2019),
H. MISCELLANEOUS
- Tribunal Fédéral Suisse, “Communiqué de Presse du Tribunal Fédéral – Initiative populaire ‘Pour le couple et la famille – Non à la pénalisation du mariage’ : votation annulée” (10 April 2019), Lausanne, File No. 11.5.2/15_2019.
- Joint report from the negotiators of the European Union and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 TEU on the United Kingdom's orderly withdrawal from the European Union, TF50(2017).
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- EU referendum results,
- Results of the European elections
- X., “Brexit and Ireland”,
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