The EU‐UK Trade and Cooperation Agreement – Exceptional Circumstances or a new Paradigm for EU External Relations?
| Published date | 01 January 2022 |
| Author | Christina Eckes,Päivi Leino‐Sandberg |
| Date | 01 January 2022 |
| DOI | http://doi.org/10.1111/1468-2230.12698 |
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Modern Law Review
DOI:10.1111/1468-2230.12698
LEGISLATION
The EU-UK Trade and Cooperation Agreement –
Exceptional Circumstances or a new Paradigm for EU
External Relations?
Christina Eckes∗and Päivi Leino-Sandberg
In the nal days of 2020,the European Union and the United Kingdom concluded a Trade and
Cooperation Agreement (TCA) covering a broad range of policy areas,including cooperation
of law enforcement authorities and social security systems. The EU-UK TCA is unique as
concerns the circumstances of its negotiation and adoption, as well as its substance. However,
contrary to the argument of the EU institutions, the agreement will havebroad implications for
the understanding of the EU’s external competence and Member States’ability to act in areas
that are national competence and rely on national budgets.We are critical of the legitimacy
of the TCA’s conclusion process, consider that the lack of a deep constitutional analysis of
the consequences of EU-only conclusion of the TCA, and of the TCA itself,are problematic,
and believe that the choices made are likely to create diculties for the implementation and
enforcement of the agreement.
INTRODUCTION
The EU mandate for negotiating the Trade and Cooperation Agreement
(TCA) between the EU and the UK sketched ‘an ambitious,broad,deep
and exible partnership across trade and economic cooperation with a com-
prehensive and balanced Free Trade Agreement at its core,law enforcement
and criminal justice, foreign policy,security and defence and wider areas of
cooperation.’1The negotiators were under greater time pressure than usual.
The transition period was to expire at the end of 2020, and the UK was
∗Christina Eckes is professor of European law at the University of Amsterdam and director of the
Amsterdam Centre for European Law and Governance (ACELG). Päivi Leino-Sandberg is Profes-
sor of Transnational European Law at the University of Helsinki and Deptuty Director of the Erik
Castrén Instituteof InternationalLaw andHuman Rights. We thankThomas Beukers, MariseCre-
mona,Toomas Kotkas, PiotrKrajewski, ChantalMak, Sakar iMelander, Peter vanElsuwegeand Anna
Wallerman for comments on earlier drafts.This publication results from the NORFACE project
‘Separation ofpowers for 21stcenturyEurope(SepaRope)’, a jointproject by theACELG,ECI, and
the Centre for European Research at the University of Gothenburg.We gratefully acknowledge the
funding of the ‘NORFACE Democratic Governance in a Turbulent Age programme.
1Political declaration setting out the framework for the future relationship between the European
Union and the United Kingdom 2019/C 384 I/02 (2019) at https://eur-lex.europa.eu/legal-
content/EN/TXT/?qid=1592316528275&uri=CELEX%3A12019W/DCL%2801%29 (last
visited 25 May 2021).
© 2021TheAuthors. The Moder n Law Review published byJohn Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2022)85(1)MLR 164–197
This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License,which per mits
use and distribution in any medium, provided the original work is properly cited,the use is non-commercial and no modications or
adaptations are made.
Christina Eckes and Päivi Leino-Sandberg
reluctant to extend it.The Commission explained thata no-Deal Brexit
would lead to a signicant disruption of the EU-UK relations,‘to the
detriment of individuals, businesses and other stakeholders’.’2The negotiations
were concluded on Christmas Eve.The decision to sign the agreement was
taken by the Council in a hasty written procedure between Christmas and the
New Year, enabling provisionalapplication asof1 January2021. The European
Parliament (EP) gave its consent on 27 April,3and the Council concluded the
agreement on 29 April 2021.4In theUK, Parliamentapproved theagreement
on 30 December,and it became the European Union (Future Relationship)
Act 2020 when it received royal assent on 31 December 2020.5The agreement
entered into force on 1 May 2021.
Until the end of 2020, the UK was bound by EU law.This could have paved
the way for exceptionally easy negotiations.However, this was not the case.The
positions of the parties were fundamentally dierent as regards in particular the
role of EU law and the European Court of Justice (ECJ) in the application of
the agreement. The UK repeatedly underlined how ‘the EU had to accept once
again that it was dealing with an independent and sovereign country’.6
Yet,the level of ambition was high and many of the UK proposals went
‘signicantly beyond what has been negotiated by the EU in other [free trade
agreements] with third countries in recent years’, as the EP observed.7The
EU mandate aimed among other things to ensure the ‘common standards ap-
plicable’in various areas beyond the internal market,8including the ‘eec-
tive and ecient practical cooperation between law enforcement and judicial
2European Commission, ‘EU-UK Trade and Cooperation Agreement:protecting European in-
terests,ensur ing fair competition,and continued cooperation in areas of mutual interest’at https:
//ec.europa.eu/commission/presscorner/detail/en/ip_20_2531 (last visited 25 May 2021).
3European Parliament, ’Parliament formally approves EU-UK trade and cooperation agreement’
Press Release (2021) at www.europarl.europa.eu/news/en/press-room/20210423IPR02772/
parliament-formally-approves-eu-uk-trade-and-cooperation-agreement (last visited 25 May
2021).
4Council of the European Union, ’Council Decision on the conclusion, on behalf of the Union,
of the Trade and Cooperation Agreement between the European Union and the European
Atomic Energy Community,of the one part, and of the Agreement between the European
Union and the United Kingdom of Great Britain and Northern Ireland concerning security
procedures for exchanging and protecting classied information’ 5022/3/21 REV 3 (2021)
at https://data.consilium.europa.eu/doc/document/ST-5022-2021-REV-3/en/pdf (last vis-
ited 25 May 2021).
5European Union (Future Relationship) Act 2020 at www.legislation.gov.uk/ukpga/2020/29/
enacted/data.htm (last visited 24 June 2021).
6 UKPrimeMinister’s Oce, ‘StatementonfurtherUK-EUnegotiations: 21October
2020’ at https://www.gov.uk/government/news/statement-on-further-uk-eu-negotiations-
21-october-2020(lastvisited 25May 2021). Seealso K. Nicolaïdis, ThePolitical Mantra. Brexit,
Control and the Transformation of the European Order in F.Fabbr ini (ed), The Law & Politics of Brexit
(Oxford: OUP, 2017) 25, 45.
7European Parliament, ‘Recommendations on the negotiations for a new partnership with the
United Kingdom of Great Britain and Northern Ireland’ P9_TA(2020)0152,para 4 at https:
//www.europarl.europa.eu/doceo/document/TA-9-2020-0152_EN.html (last visited 25 May
2021).
8 Council of the European Union,‘ANNEX to COUNCIL DECISION authorising the
opening of negotiations with the United Kingdom of Great Britain and Northern Ire-
land for a new partnership agreement’ 5870/20 ADD 1 REV 3 (2020),para 103 at
https://data.consilium.europa.eu/doc/document/ST-5870-2020-ADD-1-REV-3/en/pdf (last
visited 26 May 2021).
© 2021TheAuthors. The Moder n Law Review published byJohn Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2022) 85(1) MLR 164–197165
The EU-UK Trade and Cooperation Agreement
authorities in criminal matters’.9It further recognises that ‘the envisaged part-
nership may encompass areas of cooperation beyond those described therein’
and that it ‘might evolve over time.’10
At the stage of opening the negotiations, as is usual,the Council autho-
rised the Commission to conduct negotiations, including in areas of national
competences. The question of who should conclude the agreement was to be
determined at the end.11 However,due to particular urgency, a proper discus-
sion never took place.The TCA was concluded as an association agreement
between the EU and the UK.The EU Member States are thus not parties to
the ag reement. This hasmany legalimplications, inparticularfor theirroleand
responsibilities under the agreement.The obligations under the ag reement bind
them as EU membership obligations. Member States are hence responsible for
implementing the TCA as a matter of EU law12 and the UK cannot enforce
TCA obligations against them directly as a matter of international law.On the
EU side,this solution is based on the argument that the EU had exclusive com-
petence for part of the agreement (in particular Common Commercial Policy
(CCP)) and at least ‘potential competence’ (shared competence that the EU
exercises for the rst time) for the rest.
The choice against mixity strikes us as an unusual one.Agreements negoti-
ated by the EU that include provisions outside its exclusive competences are
generally concluded as mixed agreements.This is the case even if mixity is
not strictly necessary because of reserved competences of the Member States
but results from a political choice (‘facultative mixity’).13 In the context of the
EU-UK TCA,the EU-only solution may be legally problematic from a compe-
tence perspective.This is the case because large parts of the agreement fall under
shared competences and because it covers several elds that the EU cannot reg-
ulate exhaustively,elds that it may not have competence to implement,and
measures which are funded from national budgets.While the Member States
may join the Union delegation in TCA governance bodies they do not act in
a national capacity but as EU representatives. We discussbelow14 in what way
this makes a dierence considering that the Member States are bound by the
principle of sincere cooperation with the aim to protect unity in the external
representation of the Union.
Instead of a detailed legal analysis, the EU only character of the TCA was
justied with the ‘exceptional and unique character of the TCA,which is a
9ibid, para 124.
10 ibid,para8.
11 Council Legal Service Opinion, footnote 4. The leaked opinion of the Council Legal Ser-
vice isavailable atS. Peers, ‘The Brexit Deal–Council legalserviceopinion’ EU LawAnaly-
sis (2021) at http://eulawanalysis.blogspot.com/2021/01/the-brexit-deal-council-legal-service.
html?m=1 (last visited 26 May 2021) (CLS opinion).The relevant Annex B of Doc 6239/20 to
which the opinion refers is not publicly available.
12Both EU-only and mixed agreements are binding on the Member States under Article 216(2)
TFEU.They are hence under EU lawequally responsible for the implementation of both types of
13A. Rosas, ‘MixityPast, Present andFuture: Some Obser vations’inM. Chamonand I. Govaere
(eds),EU External Relations Post-Lisbon - The Law and Practice of Facultative Mixity (Leiden;Boston:
Brill, 2020).
14Under the heading ‘Institutional consequences’.
166 © 2021TheAuthors. The Moder n Law Review published byJohn Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2022) 85(1) MLR 164–197
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