Brexit Clock

The clock is ticking! With only seven months left until the leaves the EU on 29 March 2019.  With the European Council Summit on 18 October 2018 eagerly anticipated by all parties there is some expectation, that until that date it will not be resolved whether the UK and EU are able to agree on a Withdrawal Agreement, which would form the basis of the Transition Period from 30 March 2019 to 31 December 2020.

An open issue remains on whether or not any agreed final draft Withdrawal Agreement, will be submitted to the European Court of Justice (ECJ) for the usual legal opinion the ECJ renders under Article 218 (11) Treaty of European Union (TEU) in respect of international agreements the EU enters into.

There is an overwhelming view between legal experts that such Article 218 (11) TEU does not only apply to “normal” international agreements, but will also apply to the draft Withdrawal Agreement under Article 50 TEU. A recent survey and Report by Naurus outlines legal expert opinion.

It is common practice that the relevant institutions of the EU obtain legal opinions from the ECJ in relation to important contemplated international agreements the EU is about to enter into.

The ECJ court practice shows that the time obtaining such opinions can range from 5 ½ months – in case of the fundamentally important ECJ Opinions 1/91 and 1/92 on the European Economic Area Agreement with Norway and others, which Agreement would be the basis of any “Norway Solution” if so agreed – to 22 months in case of the most recent ECJ Opinion 2/15 in respect of the sophisticated Free Trade Agreement with Singapore.

Given the length of time it takes to seek Opinions from the ECJ, time really is of the Essence for the draft Withdrawal Agreement.