At 23.00 GMT on 31st January 2020 the United Kingdom (and the European Union) will enter a period of unprecedented legal uncertainty and chaos which I term "Mayhem Brexit".
Let me explain one important aspect of the problem of "Mayhem Brexit".
The shared assumption of the United Kingdom and the European Union is that the supposed Withdrawal Agreement of 17th October 2019 enters into force at 23.00 GMT on 31st January 2020.
One anticipated effect is that "the Treaties" (the Treaty on European Union and the Treaty on the Functioning of the European Union) cease to apply to the United Kingdom.
The UK and EU assume that the Transition Period comes into effect, so preserving for the United Kingdom functional pseudo-membership of the European Union.
One important aspect of that functional pseudo-membership is that, so the UK and EU assume, the UK will ... by virtue of the Transition Period ... continue to function as a member of the EU's Internal Market.
There is a MAJOR problem with that assumption.
"Competence" with respect to the Internal Market is explicitly a "shared competence".
Article 4.2(a) of the Treaty on the Functioning of the European Union makes that clear.
To create a lawful international agreement with the effect that the UK and the EU hope that the Transition Period will have requires that all 27 Member States of the EU27 are parties to the international agreement and that the agreement has been ratified by national parliaments and, in some EU27 members, regional parliaments.
In the absence of the Member States being parties to the supposed Withdrawal Agreement of 17th October 2019 the United Kingdom is NOT a functional member of the Internal Market from 23.00 GMT on 31st January 2020.
Whether any of the provisions of the Transition Period are legally operative is a separate, very interesting and very complicated question. I don't attempt to provide an answer here.
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