Professor Steve Peers, Royal Holloway University of
London
Photo credit: Julian Herzog, via Wikimedia
Commons
Introduction
Advocates of Quebec’s independence
from Canada have long argued that their plan would not entail complete separation
from Canada, but rather a fusion of independence and continuing links that they
described as ‘sovereignty-association’. Conversely, opponents of Quebec
separation derided this suggestion as ‘divorce
with bed privileges’. Why should one party to a marriage get to walk away –
but still expect sex?
On the other hand…what if sex was
never the problem? What if both sides to the relationship could agree to end the
marriage as a whole, yet consent to occasional mutually enjoyable booty calls?
Especially if the relationship with that cute American that one of them was
always fantasising about while the couple was married was not really working
out as planned.
The debate about the post-Brexit
UK/EU relationship has raised similar issues, albeit with less horny analogies:
‘cherry-picking’ and ‘having one’s cake and eating it’. During the initial
Brexit talks, the EU indicated that it would trade off market access against
the degrees of integration which the UK would accept with the EU, comparing
this to models of its relationships with other non-EU countries: Barnier’s even
less sexy ‘escalator’.
This explains the nature of the
UK/EU relationship, as eventually devised. First of all, though, the two sides
agreed a withdrawal
agreement which wound down the UK’s membership of the EU, retaining some continuing
alignment with EU law, especially for the bitter ex-couple’s troubled child:
Northern Ireland. That entailed continued jurisdiction for the CJEU and ongoing
application of the direct effect and supremacy principles of EU law, rather
than the more usual UK approach to international law, keeping it separate from
the national legal order.
After the divorce, though, the
parties agreed a very different type of treaty: the Trade
and Cooperation Agreement (TCA), which co-exists alongside the withdrawal
agreement. It explicitly eschewed any link with EU law, and therefore any CJEU
jurisdiction (except as regards UK participation in EU research programmes),
ruling out the ‘direct effect’ principle allowing individuals to invoke the
treaty in courts to obtain rights – except as regards the social security
provisions.
It proclaimed itself as the single
framework for the UK/EU future relationship, with all further treaties between
the two regarded as supplementary. But in fact it was itself several different treaties
under a trenchcoat, containing within it a number of different rules on dispute
settlement as well as separate termination and suspension rules for certain
parts of the treaty.
Five years later, and a different
UK government, believing there are economic benefits in closer ties – but political
jeopardy in very close ties – with the EU, returned to the bottom of the
Barnier escalator, hoping that closer ties could be negotiated without stepping
on it. Ultimately this has proved possible, with the EU and UK willing to agree
a complex compromise between both a number of substantive areas of interest and
as regards the integration/market access trade-off in some particular fields.
The following blog post is an overview
of the legal aspects of the reset deal – both substantively and in terms of the
legal nature of what the two sides have agreed in principle.
Legal Framework
The reset arrangements are set
out over three documents: a joint
statement on broad foreign policy issues; a security
and defence partnership; and a common
understanding on development of the UK/EU relationship. None of this is legally binding as such; but some
of it is legally binding-adjacent, in the sense that it is linked to
legally binding texts or indicates an intention to negotiate them. While
operational cooperation can be important in practice, this blog post focusses
on the issues with a link to legally binding measures.
Alongside these documents, the EU
and UK have also agreed (as briefly mentioned in para 3 of the common
understanding) to extend the current arrangements for fisheries and energy
cooperation in the TCA. More precisely, according to the Commission’s Qs
and As on the reset, the EU and UK have reached a ‘political agreement’ to
extend the rules on fisheries in the TCA for 12 years, and to keep extending
the rules on energy in the TCA annually. (Both sets of rules had been set to
expire on 30 June 2026)
They have agreed to formalise
this agreement to extend those rules ‘within one month’. It is not clear
whether the parties think that this can be done via a decision of the Partnership
Council set up by the TCA, or will need an amendment to that treaty by means of
a Protocol, which would then need signature and ratification on each side. In
light of the agreed speedy timeframe, we will soon find out the answer to that
question.
Security and defence
partnership
As the common understanding notes
(para 6), agreeing the partnership potentially enables the UK and EU to agree
on defence procurement within the context of the ‘SAFE’ Regulation on defence
spending, under discussion at EU level (see the proposal here).
The partnership text also refers to the UK’s participation
in the EU’s military mobility project (approved under the previous UK
government) and possible participation in other EU crisis management operations,
along with association with training and the European Defence Academy. But it
mainly provides for more frequent discussions between the EU and the UK in various
security and defence fields.
Common understanding
First of all, the much-discussed
prospect of a ‘youth experience’ scheme is mentioned in para 13:
13. Therefore,
the European Commission and the United Kingdom should work towards a balanced
youth experience scheme on terms to be mutually agreed. The scheme should
facilitate the participation of young people from the European Union and the
United Kingdom in various activities, such as work, studies, au-pairing,
volunteering, or simply travelling, for a limited period of time. It should
provide a dedicated visa path and ensure that the overall number of
participants is acceptable to both sides.
On the EU side, the Commission
already proposed a mandate from the Member States (ie the Council) to negotiate
a treaty to this end in April 2024; this proposal is public.
The Council apparently agreed in principle on a mandate in December 2024, but does
not seem to have formally adopted it; this might differ from the Commission
proposal somewhat but we cannot be certain, as none
of the Council texts are fully public at time of writing.
Looking at what the EU and UK
have mutually agreed, the mobility will be limited in time, but the extent of
this is not determined yet (the Commission had proposed perhaps three or four years).
It will be on the basis of a visa (as the Commission had proposed). It appears
that some form of limit on numbers will exist (the Commission had rejected
this).
The agreement does not refer to a
number of key issues, such as: the age range concerned (the Commission proposed
18-30); whether this will be a formal treaty, as the Commission proposed (which
would need to be signed and ratified; on the EU side the Member States, via the
Council, would have to agree to this, plus the consent of the European
Parliament for conclusion); equal treatment in tuition fees (although not student
loans), as the Commission proposed; family reunion (mentioned by the
Commission); or dropping the UK’s healthcare surcharge (as the Commission
proposed).
It should be noted that while some
claim that ‘the UK asked for this first’, the Commission’s proposal makes clear
that the UK had asked some Member States bilaterally for a youth exchange
treaty; the EU preferred to respond by requesting a negotiation with the entire
EU. There’s an obvious difference between separate arrangements with some
Member States and a treaty open to nationals of all Member States.
If agreed, this would be the EU’s
first youth exchange treaty (as distinct from whatever arrangements individual
Member States have negotiated), and there’s no framework in EU law for such
arrangements. Conversely, the UK has several youth exchange
arrangements with non-EU countries.
Para 14 of the common
understanding refers to Erasmus:
14. Furthermore,
the United Kingdom and the European Commission should work towards the
association of the United Kingdom to the European Union Erasmus+ programme. The
specific terms of this association, including mutually agreed financial terms,
should be determined as part of that process in order to ensure a fair balance
as regards the contributions of and benefits to the United Kingdom. The
association should be in accordance with the European Union Multiannual
Financial Framework and the Trade and Cooperation Agreement.
(nb other non-EU countries are linked
to Erasmus already). The reference to the TCA links the UK’s participation
in Erasmus to the general rules for UK participation in EU programmes set out in
the TCA already; Erasmus is not listed but Article 710 of the TCA gives the joint
specialist committee set up by the agreement the power to amend the list of
which programmes the UK participates in. So legally the two sides will presumably
adopt something similar to the texts associating the UK with the EU
research programmes; and like that negotiation, the negotiations will probably
focus on the amount of the UK’s contribution. (Let’s not kid ourselves that
either the EU or the UK is too high-minded to haggle over money).
Incidentally, as noted already, participation
in EU programmes is the one part of the TCA which currently provides for jurisdiction
of the CJEU to settle disputes (see Article 728, and my discussion of dispute
settlement under the TCA); this will presumably apply to Erasmus too.
Next, there is a paragraph on touring
musicians et al:
15. The European Commission and
the United Kingdom recognise the value of travel and cultural and artistic
exchanges, including the activities of touring artists. They will continue
their efforts to support travel and cultural exchange.
Effectively this says nothing –
the UK’s previous government having passed up an offer, when negotiating the
TCA, to agree declarations similar to those attached to the EU’s visa
waiver treaties with some other non-EU countries, which clarify that artists
are not required to obtain visas during short visits to EU Member States, as
they are not considered to be carrying out paid work.
On the issue of the use of e-gates,
the common understanding says:
16. The United
Kingdom and the European Commission will continue their exchanges on smooth
border management for the benefit of their citizens, including the potential
use of eGates where appropriate. They note that European Union citizens can use
eGates in the United Kingdom and that there will be no legal barriers to eGate
use for British Nationals traveling to and from European Union Member States
after the introduction of the European Union Entry/Exit System.
Again, this is not really a commitment
to anything. In practice, under the current EU border rules, which make no mention
of e-gates, some Member States allow UK citizens to use e-gates before getting
their passports stamped. Under the EU entry-exit system, supposedly
to be applied later this year (although prior deadlines have been missed),
e-gates are referred to explicitly; they will be used at least on some occasions
to collect entry and exit data, with passport stamping becoming the exception. (EU
legislators have just
agreed on amendments to the law to roll out the system more gradually)
Moving on to economic issues, the
common understanding refers to a possible agreement on the UK’s link to the EU
electricity market:
18. The United
Kingdom and the European Commission share the view that close cooperation on
electricity is in the interest of both the European Union and the United
Kingdom.
19. The
European Commission and the United Kingdom should explore in detail the
necessary parameters for the United Kingdom’s possible participation in the
European Union’s internal electricity market, including participation in the
European Union’s trading platforms in all timeframes. Meanwhile, the current
electricity trading arrangements will continue to apply.
20. Regarding
its territorial scope, any agreement should be appropriately articulated with
the provisions of the Windsor Framework. Any agreement should be based on a
balance of rights and obligations and ensure a level playing field. In this
context, it should define the relationship between the United Kingdom and
European Union rules on the electricity market, as well as on State aid, the
promotion of renewables and the protection of the environment, in so far as
they relate to the electricity sector.
21.
Accordingly, any agreement should include dynamic alignment with European Union
rules where relevant, giving due regard to the United Kingdom’s constitutional
and parliamentary procedures and respect the role of the Court of Justice of
the European Union within an arbitration-based dispute resolution mechanism,
and an appropriate United Kingdom contribution to decision-shaping.
This appears to contemplate a
future treaty, with a broad indication of its content – although of course the
details would need to be renegotiated. Although the TCA already has rules on
State aid and the environment, this text appears to consider that sui generis
rules will be needed, including ‘dynamic alignment’ (ie the UK aligning with
current and future EU law in this field) entailing a role for the CJEU, in which
arbitrators (in the event of a dispute on EU law) will ask it questions about
the interpretations of EU law.
This model is not used in the TCA
– as noted above, the CJEU only has jurisdiction in the current TCA in the event
of disputes about UK participation in EU programmes – but it is used in the
withdrawal agreement (see discussion here),
and in a number of EU treaties with non-EU countries. In practice, I don’t believe
that any arbitration panel under an international agreement has ever asked the
CJEU questions about EU law; and in some ways this would be less far-reaching
than the CJEU’s role under the withdrawal agreement, given that some parts of
that agreement (the Northern Ireland protocol; the financial settlement;
citizens rights) provide for some additional jurisdiction for the Court.
A role for the UK in
decision-making is likely to take the form of some kind of consultation similar
to treaties with Norway et al (for instance, the EEA).
The detailed outline of a
possible food standards agreement raises similar issues on dispute
settlement, dynamic alignment, and a UK rule in decision-making, although it is
slightly differently worded on these points:
23. The
European Commission and the United Kingdom share the view that a functioning
sanitary and phytosanitary area would address many of the issues raised in
respect of the movement of agri-food products.
24. The United
Kingdom and the European Commission should work towards establishing a Common
Sanitary and Phytosanitary Area by way of a European Union-United Kingdom
Sanitary and Phytosanitary Agreement (hereafter ‘SPS Agreement’).
25. Regarding
its territorial scope, the SPS Agreement should cover the European Union and
the United Kingdom in respect of Great Britain (2). This would result in the
vast majority of movements of animals, animal products, plants, and plant
products between Great Britain and the European Union being undertaken without
the certificates or controls that are currently required by the rules within
the scope of the SPS Agreement for such movements. These same benefits would be
extended to the movements between Great Britain and Northern Ireland, through
the interplay of the Windsor Framework and the SPS Agreement, so long as the
SPS Agreement is fully implemented. The continued application of the Windsor
Framework would provide for Northern Ireland maintaining its privileged unique dual
access to both the European Union Single Market and the United Kingdom internal
market.
26. In terms
of its material scope, the SPS Agreement should cover sanitary, phytosanitary,
food safety and general consumer protection rules applicable to the production,
distribution and consumption of agrifood products, the regulation of live
animals and pesticides, the rules on organics as well as marketing standards
applicable to certain sectors or products.
27. Within the
scope defined above, the SPS Agreement should ensure the application of the
same rules at all times by providing for timely dynamic alignment of the rules
applicable to and in the United Kingdom acting in respect of Great Britain with
all the relevant European Union rules, giving due regard to the United
Kingdom’s constitutional and parliamentary procedures; and where necessary to
ensure the European Union’s level of food, sanitary, and phytosanitary safety,
through the immediate application of the relevant European Union rules.
28. The United
Kingdom should be able to take targeted action to protect its biosecurity and
public health, in the same way as Member States under European Union law. In
addition, the SPS Agreement should include a short list of limited exceptions
to dynamic alignment. An exception could only be agreed if: (i) it does not
lead to lower standards as compared to European Union rules, (ii) it does not
negatively affect European Union animals and goods
being placed on the market in the United Kingdom in respect of Great Britain,
and (iii) it respects the principle that only animals and goods compliant with
European Union rules move into the European Union.
29. The SPS
Agreement should be subject to a dispute resolution mechanism with an
independent arbitration panel that ensures the Court of Justice of the European
Union is the ultimate authority for all questions of European Union law.
30. To ensure
that it can put forward its view, the United Kingdom should be involved at an
early stage and contribute appropriately for a country that is not a member of
the European Union to the decision-shaping process of European Union legal acts
in the fields covered by the obligation to dynamically align. The European
Commission should consult the Government of the United Kingdom at an early stage
of policy-making. These rights would not extend to participation in the work of
the Council or its preparatory bodies.
31. The United
Kingdom should have appropriate access to relevant European Union agencies,
systems and databases in the areas covered by the SPS Agreement.
32. The SPS
Agreement should provide for an appropriate financial contribution from the
United Kingdom to support the relevant costs associated with the European
Union’s work in this policy area.
33. The SPS
Agreement should be subject to a joint governance mechanism.
There is also a difference in territorial
scope, in that a food standards agreement would not apply to Northern Ireland,
the Windsor Framework/Northern Ireland Protocol addressing this issue already
there. A UK financial contribution is expressly mentioned.
Again, the issues of costs, dynamic
alignment, dispute settlement and decision-making are addressed as part of the
section on emissions trading and the carbon border adjustment mechanism:
34. The
European Commission and the United Kingdom share the view that a functioning
link between carbon markets would address many of the issues raised in respect
of trade and a level playing field and would give effect to Article 392(6) of
the Trade and Cooperation Agreement. This link should not constrain the
European Union and the United Kingdom from pursuing higher environmental
ambition, consistent with their international obligations.
35. Therefore,
the United Kingdom and the European Commission should work towards establishing
a link between carbon markets by way of a European Union-United Kingdom
agreement linking the United Kingdom Emission Trading Scheme (UK ETS) and the
European Union Emission Trading System (EU ETS).
36. Regarding
its territorial scope, this agreement should be appropriately articulated with
the provisions of the Windsor Framework.
37. The
agreement to link the UK ETS and EU ETS should create the conditions for goods
originating in our jurisdictions to benefit from mutual exemptions from the
respective European Union and United Kingdom Carbon Border Adjustment
Mechanisms subject to compliance with the relevant provisions of European Union
and United Kingdom legislation.
38. In terms
of material scope, the agreement should cover all aspects of the functioning of
an ETS link.
39. The
sectors falling in the scope of the ETS linking agreement should be clearly
defined to avoid risks of carbon leakage and competitive distortions. Among
others, this scope should include the sectors of electricity generation,
industrial heat generation (excluding the individual heating of houses),
industry, domestic and international maritime transport and domestic and
international aviation. The agreement should provide for a procedure to further
expand the list of sectors to be covered by the linking agreement.
40. Within
that scope, the agreement should ensure the dynamic alignment of the United
Kingdom with the relevant European Union rules underpinning the functioning of
the ETS link, giving due regard to the United Kingdom’s constitutional and
parliamentary procedures.
41. The United
Kingdom cap and the United Kingdom reduction pathway will be guided by the
United Kingdom’s Climate Change Act obligations and Nationally Determined
Contributions. They should be at least as ambitious as the European Union cap
and the European Union reduction pathway.
42. The
agreement should provide for an appropriate financial contribution from the
United Kingdom to support the relevant costs associated with the European
Union’s work in this policy area.
43. The
agreement should be subject to a dispute resolution mechanism with an
independent arbitration panel that ensures the Court of Justice of the European
Union is the ultimate authority for all questions of European Union law.
44. To ensure
that it can put forward its view, the United Kingdom should be involved at an
early stage and contribute appropriately for a country that is not a member of
the European Union to the decision-shaping process of European Union legal acts
in the fields covered by the obligation to dynamically align. The European
Commission should consult the United Kingdom at an early stage of
policy-making. These rights would not extend to participation in the work of
the Council or its preparatory bodies.
45. The
agreement should be subject to a joint governance mechanism.
There is rather less ambition as
regards temporary entry and stay of businesspeople:
46. The United
Kingdom and the European Commission will set up dedicated dialogues on the
implementation of the Trade and Cooperation Agreement, as regards entry and
temporary stay of natural persons for business purposes, including the
sponsorship scheme, and the recognition of professional qualifications.
As for competition law cooperation,
the common understanding refers to a recently agreed treaty, which was already foreseen
in the TCA:
47. The
European Commission and the United Kingdom recognise the mutual benefit of
cooperation in competition enforcement. In this context and in implementing the
level playing field provisions of the Trade and Cooperation Agreement, the
European Commission and the United Kingdom welcome the successful conclusion of
negotiations for a competition cooperation agreement between the European Union
and the United Kingdom.
As it happens, the Commission has
since
proposed the signature and conclusion of this treaty.
Moving on to justice and home
affairs, the common understanding encourages more use of the provisions in
the TCA. On irregular migration, a hot topic on both sides, there are five
paragraphs which effectively amount to very little:
57. The
European Commission and the United Kingdom underline their commitment to deepen
co-operation on challenges posed by irregular migration – including action to
tackle people smuggling and to deepen information sharing to control and manage
migration at our respective external borders – while remaining committed to
ensuring international protection for those who need it.
Upstream
Migration
58. The United
Kingdom and the European Commission will deepen cooperation on the external
dimension of migration across key geographies, as part of a whole of route
approach. They recognise the benefit of increased mutual sharing of
information, country expertise and analysis enabling better coordination. They
will also work more closely in multilateral fora, processes and dialogues,
including the European Union’s Global Alliance to Counter Migrant Smuggling,
and through exploring United Kingdom participation in the Khartoum and Rabat
Processes.
Working
together on practical solutions and returns
59. The
European Commission and the United Kingdom should work together on practical
and innovative approaches to reduce irregular migration. This includes work to
share best practices and operational information on key issues like returns to
third countries, and to explore possible deterrence mechanisms and other
innovative solutions, in line with national, European Union and international
law. This would be underpinned by closer cooperation across key networks such
as the European Migration Network and agencies, including the European Union
Agency for Asylum and Frontex, and respective United Kingdom authorities. They
should work together to prevent irregular Channel crossings.
Bolstering
United Kingdom and European Union border security including through law
enforcement cooperation
60. The United
Kingdom and the European Commission should bolster their operational and
strategic cooperation to tackle the challenges posed by irregular migration
along key routes and at external borders, including through their agencies, law
enforcement and judicial cooperation, and information sharing capabilities.
This includes through enhanced cooperation with Europol and its European
Migrant Smuggling Centre.
Addressing
challenges and abuses of visa policy
61. In
addition to these enhanced efforts, the European Commission and the United
Kingdom will explore closer cooperation to address challenges related to visa
policy such as exchanging analysis on visa abuse by third country nationals.
It’s striking that the common understanding
does not even mention the previous agreement
for the UK to cooperate with Frontex, the EU border agency.
Finally, the common understanding
limits its territorial scope in footnotes:
(1) : Unless
otherwise provided, the territorial scope of the cooperation envisaged by this
Common Understanding will be in line with the scope of Article 774 of the Trade
and Cooperation Agreement.
(2) : In line
with Article 520(5) of the Trade and Cooperation Agreement, the territorial
scope of the SPS Agreement could be extended to cover the territories referred
to in Article 774(2) of the Trade and Cooperation Agreement.
Article 774 TCA provides that in
principle the TCA only applies to the UK (although note the specific references
to Northern Ireland in the common understanding), while Article 774(2) provides
for parts of it to apply to the Channel Islands and the Isle of Man. There is
no mention of Gibraltar, which is excluded from the TCA by virtue of its
Article 774(3); there is equally no mention of the separate
treaty on Gibraltar that the EU and UK are negotiating. The Rock that dare
not speak its name.
The overall legal relationship
As noted already, the TCA
announced itself as the permanent template for the UK/EU relationship. Even
though it had to co-exist with the more integrationist withdrawal agreement, the
withdrawal agreement was the past and the TCA was the future, boldly going to a
‘dualist’ international law model separated from substantive EU law, its principles
and its courts.
But now, the reset agreement makes
little reference back to the TCA, besides the extension of the fisheries and
energy provisions. Will treaties on youth mobility, and on food standards and
emission standards/carbon border adjustment and the electricity market, take
the form of ‘supplementary agreements’ to the TCA at all? Even if they do, they
will not resemble the TCA legal framework that much – given that with the treaties
on food standards, emission standards/carbon border adjustment and the electricity
market, the current UK government has pragmatically accepted the integration/market
access trade-off (as regards dynamic alignment and the CJEU) that the previous
government rejected as ideologically unacceptable (under the TCA, that is).
And the question may also be
asked whether these treaties, and the youth mobility treaty, will be subject to
the principle of direct effect, ie invocability by individuals in courts, given
that the social security rules in the TCA are already subject to an exception
on this point.
Next, to what extent will all
these treaties be connected? The extensions of parts of the TCA will remain
connected to that treaty (with all its internal disconnections) of course, but
will the other treaties be connected to the TCA – and/or each other? Inevitably
this issue arises because some UK opposition parties have pledged to terminate
the treaties concerned if they are elected to government; so the conditions for
their termination will be relevant. This might also be relevant to negotiating
these treaties – ie the UK (or EU) can’t have its pudding until it’s eaten its
dinner.
Finally, it’s notable how many
Rubicons have been crossed with this reset deal. As noted already, the UK now
accepts the market access/integration trade-off. But the EU now accepts
agreeing this trade-off with the UK in limited fields: the UK can have
one foot several steps up the Barnier escalator, but the other one firmly on
the ground. The EU has also accepted a Swiss-like complex legal relationship
with the UK, having opposed it in principle for years. (In fact, the EU already
conceded this point when agreeing the TCA; but that treaty hid its legal
complexity better than the reset deal does). The UK has accepted an agreement
with the EU as regards movement of (some) EU citizens; although it might claim
this arrangement will simply resemble its youth mobility treaties with many
other countries, the extent of that similarity will be dependent upon the
details of the final deal. Above all, the EU, having accepted freer movement of
some goods and demanded the freer movement of some people, can no
longer lecture the UK on cherry-picking or cake-eating – what with all the crumbs
and cherry juice smeared across the EU’s own mouth.