Negotiating International Trade Treaties Before ExitClaims
have been made by European Commission President Jean-Claude Juncker and
others that the United Kingdom is legally prevented while it remains an
EU member from formally negotiating and concluding post-exit trade
agreements with non-member countries. Francis Hoar, Lawyers
for Britain Committee Member and barrister, has looked into this issue
in depth. His conclusions are clear and are set out below, and
his full article can be downloaded here: Francis Hoar: UK's Right to Negotatiate Free Trade Agreements before leaving the European Union (PDF).
Executive summary - conclusions
1 Since the United Kingdom’s referendum vote to leave
the European Union, it has been suggested that the UK may not negotiate
future free trade agreements (‘FTAs’) with countries outside the EU
while it remains a member state. This view has no support from
the EU Treaties or the Court of Justice of the European Union (CJEU):
the EU may not prevent the UK negotiating and entering into such
treaties providing that they will not come into force until the UK
withdraws from the EU.
2 The EU Treaties give the Union the exclusive
competence (exclusive right) to enter into FTAs with non-EU countries
(known as “third countries”). Yet, although member states
surrender their right to negotiate or execute such treaties, they do so
on the basis that they will be members of the Union once they come into
force. That membership is not irrevocable; and, under the
termination provisions of Article 50 of the Treaty of European Union
(TEU), the Union and its member states can expect that any one of them
may go through a process of departure likely to take some years.
3 Members of the EU have a duty of sincere
co-operation with each other, a duty the CJEU has ruled prevents them
from negotiating treaties within the EU’s competence without the
consent of the European Commission. This consent is required in
order that member states may consider their common position before
negotiating; and that they do not damage the interests of the EU where
it must act with one voice.
4 What the CJEU has never suggested is that the
co-operation duty gives it the jurisdiction to consider whether member
states negotiating treaties outside the EU’s competence damage the
wider interests of the Union. Rather, the duty is imposed only to
prevent member states presenting conflicting positions to third
countries in areas (including FTAs) within its competence.
5 A treaty coming into force after the UK withdrew
from the EU would not be in breach of the UK’s treaty obligations to
the EU. Thus, neither the EU nor any other member states could
expect to influence the UK’s negotiations: such co-operation may only
be required where treaties being negotiated would, once ratified, be
within the competence of the EU. By analogy, the UK would
be acting no differently to a person negotiating a new employment
contract before the end of his current employment.
6 While the EU was founded with the object of
providing for the economic interests of its members, it also has the
objective of creating an area of prosperity and good neighbourliness
outside it. In taking steps to enhance its economic prosperity
once it left the Union, the UK would be acting in accordance with that
object; and the EU, were it to seek to prevent such steps, would risk
endangering the wider area of prosperity and its good relations with
its future neighbour.
Field Court Chambers, Gray’s Inn