Building a resource on the Trade and Cooperation Agreement
Welcome to EUatOU, my new blog that continues my previous work at Surrey on EU-UK relations, euroscepticism, Brexit and anything else European-y that takes my attention. I’m now based at the Open University in the Department of Politics and International Studies, as well as the next Chair of UACES from September 2021.
But you’ve not come for the introductions, rather the substance.
One of my developing plans is to try and build up a more stable set of resources about two post-Brexit treaties – the 2020 Withdrawal Agreement, which dealt with ending UK membership, and the 2021 Trade & Cooperation Agreement, which sets out the new relationship. Eventually, I’ll get around to making a stand-alone website, but in the meantime, I thought I’d start here by sharing some of the work I’ve already done on the TCA.
You can find more materials and contemporaneous comment on my Google Drive folder and Twitter account respectively. And if you can’t find what you want, try asking: many of the materials have come out of conversations with people like yourself, and I’d rather produce things that I know someone will find useful.
So what do we have for you?
Keeping up to date
One of the biggest challenges with the TCA has been the very hurried fashion of its production and agreement. One consequence was the use of provisional article numberings in the version released just before Christmas 2020 (and so used in all the initial analyses and commentaries). It has only been this month that a finalised version has become available on EurLex.
With that in mind, I made a simple spreadsheet to let you read from provisional to final numbering (and back). This includes the many annexes, which also got renumbered. If anyone know how to make a simple widget so you can type in one and get out the other, do get in touch and I’ll make you extremely popular with some legal scholars.
That aside, while I’ve updated articles in the following graphics, if you’re not sure about which system is being used, just remember that the final numbering is very simple and linear (1, 2, 3,.. etc.), while the provisional stuff is crazy (hello, X-2 and the rest).
The basic structure of the Agreement isn’t that complicated, once you get past the length. It’s the classic approach of preamble, then institutions, then policies in declining levels of centrality, then final provisions.
Piece of cake really.
Of course, it’s complicated by the decision of the parties to include lots of segmentation of how you can end parts (or the whole) of the Agreement, as outlined below (thread):
Likewise, the governance structure is easy enough too: a central coordination body, with sub-committees for each part of the Agreement. I’ve included a brief description of dispute settlement here, but you should look at the following graphic for more (thread too):
That dispute settlement mechanism closely mirrors the one in the WA, but with importance differences that there is no role for the CJEU and that there are lots of exceptions to the main process, so check carefully in each instance (thread):
One of those exceptions is the rebalancing mechanism for Level Playing Field provisions, which runs much more quickly for infringements and allows for a general review after four years (i.e. from 2024), potentially with very significant effects.
This leads into another aspect of the TCA that merits attention: its wider context. At most, the Agreement is a starting point and a framework for EU-UK relations, so we should expect it to develop and evolve over time.
Already the text provides for lots of dynamic evolution, with many pre-programmed reviews on an on-going basis. 2024-5 in particular will be a period for very major reflection on how this is(n’t) working, given the consent provisions for the Northern Irish Protocol that will be kicking in at that stage too, on top of the end of the fisheries transition and the general review.
And to round out this post, you might also want to see the extent to which the TCA highlights the broader entanglement of the EU and UK, through other international agreements. I can’t tell you how much I liked making this one, mainly because I didn’t, but note it doesn’t include the several bilateral UK-member state agreements mentioned. the key take-away is that whatever margin of manoeuvre the UK might gain from withdrawal, there is still a strong set of constraints on its freedom to act (thread and post).
More to come
The focus of these graphics has been on the more legal side of the TCA. This both because that’s the most useful starting point for analysis and because the politics is still developing. With the first meeting of the Partnership Council now slated for June that might shift, but I hope this is enough to be getting on with for now.