Cooperative Brexit: Giving Back Control Over Trade Policy

Abstract

Pursuant to Article 50 TEU, Member States may decide to leave the EU, but EU law—including the principle of “sincere cooperation”—continues to apply while withdrawal negotiations take place. This creates a fundamental and underappreciated difference between withdrawal negotiations with a departing EU Member State (to which that principle applies) and arms-length negotiations between the Union and non-EU Member States (to which it does not). In particular, this article argues that the principle of sincere cooperation requires the Union and a departing Member States to pursue a “cooperative” approach to withdrawal, and applies that proposition to the contested area of trade policy in the context of the United Kingdom’s impending withdrawal from the Union. It argues that one way in which the Union could give expression to the principle of sincere cooperation would be to re-empower the UK to negotiate trade agreements on its own account, prior to the effective date of its withdrawal. This provides one example of the ways in which EU law beyond Article 50 TEU frames and structures the exit process, and one way in which the Union can affirm its central principles (and the bases of its enduring legitimacy) even in the difficult context of a Member State’s exit.

Keywords: Brexit, EU, Article 50, sincere cooperation, trade, common commercial policy, withdrawal, EU external relations, exclusive competence, re-empowerment

JEL Classification: K33, F13