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Which option includes "Create a story that convinces the EU to give an Article 50 extension for, say, a year."
by asdf on Sat Jan 12th, 2019 at 07:00:42 PM EST
Reply: None. It won't happen. Unless the UK revokes A.50 notification, which I doubt will happen unless as change of government or second referendum authorizes it.

Index of Frank's Diaries
by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Sat Jan 12th, 2019 at 07:04:21 PM EST
[ Parent ]
I wonder if you accidentally overlook the perniciousness of EU politicians.
by asdf on Sun Jan 13th, 2019 at 02:29:58 AM EST
[ Parent ]
Anyway, that is the option I would vote for, regardless of whether it is currently considered "impossible."
by asdf on Sun Jan 13th, 2019 at 02:30:25 AM EST
[ Parent ]
I have little doubt the EU would agree an A.50 extension by the required unanimous consensus if requested by the UK, and if presented with a clear rationale for doing so - e.g. to enable the UK to hold a general election or second referendum. The extension would therefore likely be in the 1-3 month range to facilitate the above, although there is no reason the Council could not grant a second extension if deemed necessary.

The unanimity requirement becomes problematic if the purpose is merely to enable the UK to re-open and extend negotiations on the current deal. A new government might be extended that privilege if its stated re-negotiation objectives were not incompatible with EU interests - e.g. full membership of the Single Market or Customs Union - although the hostility of some to Corbyn would not be helpful.

If the new government were led by someone like Boris Johnson whose main objective might be to grandstand and shift the blame for a breakdown to the UK the probability of a further A.50 extension approaches zero. It would be ironic if it were the EU27 which finally lost patience with the UK and effectively booted it out by refusing to extend A.50.

Of course until the notice period or any agreed extension thereof expires, the UK retains the agency to revoke the A.50 notification entirely, even if its intention is merely to play for time and re-invoke it some time later. The ECJ ruling (para. 76) that any such revocation must be:

  1. In writing to the Council
  2. In accordance with that members states own constitutional procedures, and
  3. unequivocal and unconditional

Does not include the Advocate General's condition, included in his Opinion and guidance to the Court (para. 170) that any such revocation must be done in good faith and does not involve an abusive practice. Therefore, conceivably the UK could invoke and revoke A.50 ad nauseam just to annoy the rest of the EU. Of course no one would pay any notice to them if they decided to adopt such tactics.

Index of Frank's Diaries
by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Sun Jan 13th, 2019 at 11:08:15 AM EST
[ Parent ]
although the hostility of some to Corbyn would not be helpful.

Goodness me. You think animosity between heads of government would be an obstacle to cutting a deal? If that were the case, nothing would ever get done in the EU.

It is rightly acknowledged that people of faith have no monopoly of virtue - Queen Elizabeth II

by eurogreen on Mon Jan 14th, 2019 at 04:40:47 PM EST
[ Parent ]
The concluded Withdrawal Agreement ("May's Deal") establishes a 21 MONTH "transition period".

In that 21 MONTH TRANSITION PERIOD the UK gov't might

  • do nothing
  • negotiate and conclude the precious "future partnership" ETA from third-country status
  • revoke A.50 without prejudice.


Diversity is the key to economic and political evolution.
by Cat on Sat Jan 12th, 2019 at 07:13:59 PM EST
[ Parent ]
No, once they're out they can't revoke A50. They can if they extend the A50 period but not after they leave.
by Colman (colman at eurotrib.com) on Sat Jan 12th, 2019 at 08:30:12 PM EST
[ Parent ]
meaning, the stipulated mandatory date of exit, expiry date, or "conclusion" of the WA . The effects of that phrase are context-sensitive, ie. termination of negotiation, termination of a period of time, termination of UK membership in the TEU ("entry into force").

The WA conditionally releases UK from TEU rights, obligations, and (some) liabilities. It does not replace the TEU (with ETA). The WA "concludes" negotiation of procedures for exit, including but limited to disposal of community property and legal obligations. ECJ judgment about WA scope relies on TEU limitations.

The WA alters the mandatory date of exit from 29 March 2019 (de minimis period, A.50 notification minus 24 months) to 31 Dec 2020 (ADDING 21 months to the period), ergo the Council already approved extension of the withdrawal period. The EP has not yet approved, "concluded" or ratified, the WA.

Any requirement by UK to proffer a unique A.50 instrument to alter the statutory terms or A.50 notification period is fallacious. This is an error propagated by some UK politicians or press for speculations hinting that a narrow application of A.50 and ECJ judgment for "time limit" or wtf in order to obtain parliamentary ratification of the WA or PM "concessions" from the EU. This reasoning is as defective as was interpretation of "transition period" or "implementation period" over the prior two years, ostensibly superimposing ETA codification onto the WA.

reference
Opinion
Judgement
[29 - 30 in re: UK ratification]
[40 - in re: objection to serial extension of negotiations]
[51 - 54]: "That maximum period of two years applies unless the European Council decides, unanimously and in agreement with the Member State concerned, to extend it."
[57, 69, 73,75]: "for as long as a withdrawal agreement concluded between the European Union and that Member State has not entered into force or, if no such agreement has been concluded, for as long as the two-year period laid down in Article 50(3) TEU, possibly extended in accordance with that provision, has not expired."

 

Diversity is the key to economic and political evolution.

by Cat on Sat Jan 12th, 2019 at 10:40:22 PM EST
[ Parent ]
errata:

A.50 notification plus 24 months

Diversity is the key to economic and political evolution.

by Cat on Sat Jan 12th, 2019 at 10:45:29 PM EST
[ Parent ]
"WA alters the mandatory date of exit from 29 March 2019"

I think you are mistaken. The withdrawal agreement provides for a 21 Month transition or implementation period after Brexit day during which the UK continues to enjoy some of the benefits and obligations of membership but is no longer actually formally a member. It will no longer have representatives in the EP or the Council or have any decision making rights.

Quite separately the European Council might, by unanimous consent, agree to an extension of the A.50 notice period beyond 29th. March but that is not part of the Withdrawal Agreement which only needs to be approved by weighted majority vote on the Council and by the EP.

Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Sat Jan 12th, 2019 at 11:01:59 PM EST
[ Parent ]
A limiting factor is a variable of a system that, if subject to a small change, causes a non-negligible change in an output or other measure of the system.

Per ECJ what is the limiting factor on UK unilaterally revoking A.50 notification?
expiry date of WA

What is the limiting factor on expiry date of WA (dependent variable)
de minimis: A.50 notification date (independent variable) + 24 months (constant variable)
-or, unless, for as long as (conditional tests*)-
de minimis + extension of expiry (independent var) agreed by the parties' heads of state, ie. PM + EU Council

What is the limiting factor on agreement by the parties to (A) WA or (B) revocation of A.50?
ratification of (A) or (B) by the parties' legislatures according to each state's constitutional requirements

:: TRANSITION, ARTICLE 126, Transition period, p196 (14 Nov 2018)

There shall be a transition or implementation period, which shall start on the date of entry into force of this Agreement* and end on 31 December 2020.
* on or before 29 March 2019


Diversity is the key to economic and political evolution.
by Cat on Sat Jan 12th, 2019 at 11:46:24 PM EST
[ Parent ]
Per ECJ what is the limiting factor on UK unilaterally revoking A.50 notification?
expiry date of WA

No. The expiry date is two years after the A.50 notification has been issued, or the date of the entry into force of the Withdrawal Agreement, whichever is the sooner. Both mark the end of the UK's formal membership of the EU, and the end of any possibility of revoking an A.50 notification.

Article 50.3:

3.   The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period."


Index of Frank's Diaries
by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Sun Jan 13th, 2019 at 12:07:46 AM EST
[ Parent ]
conditional statements
"or, unless, for as long as"
testing the WA period (between entry and exit dates)
in which UK retains unilateral power to revoke A.50 action -ELSE- exit TEU as stipulated.

MODEL (not actual) TEU, WA, ECJ instructions

The WA text and ECJ interpretation of TEU ("judgment" quoted in part above) offered UK gov a ridiculous variety of opportunities to correct their own perversity. But I think we agree, Frank: The probability that the withdrawal agreement enters into force (IF signed and ratified) on or before 29 March 2019 per TEU approaches 0.

I have observed, one reason among many given NOT to enter the withdrawal agreement is its duration in force to exit date.

It is TRUE, sabotaging WA entry into force forecloses UK powers while WA is in force.

It is TRUE, UK High Court foreclosed SNP unilateral power to table a revoking bill.

It is FALSE, UK may modify TEU exit date by means or conditions other than WA terms which are not in force. (That is my read. TEU A.50 ends UK agency in EU. Council agreement to supersede would violate conclusion to negotiations, now submitted. UK retained powers pertain to ECJ narrow judgment and application of Vienna.)

UK gov could but will not obtain Art. 126 extension of WA period -THEN- power to revoke A.50 action on or before 31 Dec 2020 .


Diversity is the key to economic and political evolution.

by Cat on Sun Jan 13th, 2019 at 03:24:16 AM EST
[ Parent ]
More like a switch statement with a default of no-deal Brexit.
by asdf on Sun Jan 13th, 2019 at 03:57:10 AM EST
[ Parent ]
that works too, but you know coder conceit boils down to brevity, read my mind.

Diversity is the key to economic and political evolution.
by Cat on Sun Jan 13th, 2019 at 09:16:56 PM EST
[ Parent ]
"THEN- power to revoke A.50 action on or before 31 Dec 2020 ."

The withdrawal agreement, if ratified, can take effect  BEFORE 29 March, or, at the latest 29th. March - unless the EU Council, in an entirely separate vote - unanimously agree to extend the A.50 notification period.

The Withdrawal agreement ONLY COMES INTO FORCE AFTER the UK has left the EU and no longer has representation or agency within it. It does not extend the UK's membership of the EU, but merely provides the UK with some of the benefits and obligations of membership. The UK can no longer revoke an A.50 notification once the WA has come into force because at that stage it has already left the EU.

Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Sun Jan 13th, 2019 at 06:57:28 PM EST
[ Parent ]
Nor for a year, no.

A society committed to the notion that government is always bad will have bad government. And it doesn't have to be that way. — Paul Krugman
by Migeru (migeru at eurotrib dot com) on Sat Jan 12th, 2019 at 09:43:51 PM EST
[ Parent ]

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