One Foot In, the Other Foot Out: The Brexit Transition Period in the Withdrawal Agreement

The agreement on the United Kingdom’s (UK) withdrawal from the European Union (EU) based on Article 50 TEU envisages that as soon as the UK has formally exited the EU, it will enter into a transition period. During the transition period, EU law will continue to apply in and to the UK as if it were an EU Member State. The key difference to formal Member State status is that the UK will be excluded from participation in the EU's institutions and decision-making processes. This working paper examines the transition period more closely. In particular, it subjects the claim that transition represents a 'status quo transition' closer scrutiny. In doing so, it shows that the transition period does not represent a mere continuation of the status quo, as is often claimed. Instead, there are numerous examples where EU law will be applied differently with regard to the UK resulting in a different balance between UK’s rights and obligations compared with EU membership. Furthermore, there is room for an argument that the transition period might run counter to the UK’s obligations under the ECHR.