A couple weeks ago, I blogged about the issue of when the UK can start negotiating its own trade agreements. There was some twitter discussion of this issue recently, which spilled over into several new comments on that blog post. I wanted to raise the issue again because I'm still not convinced by the argument that the UK cannot legally negotiate trade agreements until Brexit is completed.
Once again, here is the EU treaty text:
Article 3
1. The Union shall have exclusive competence in the following areas:
...
(e) common commercial policy.
Clearly, the EU has exclusive competence over the "common commercial policy." What exactly is the "common commercial policy"? I have included the relevant treaty text at the bottom of this post, but there doesn't seem to be a clear definition. My sense is that the "common commercial policy" is the commercial policy that the EU member states have decide to engage in together (that is, the one they are conducting in common with each other). Thus, as part of this common policy, individual member states cannot negotiate with non-EU countries on commercial treaties that involve the EU as a whole. So, for example, during the CETA negotiations, the UK could not have negotiated with Canada on its own. All CETA negotiations had to go through the EU institutions, as the EU has "exclusive competence" here.
With Brexit, though, the UK has made a decision not to participate in the "common commercial policy" anymore. At least as of today, it is clear that the UK will extricate itself from the "common" commercial policy, and begin developing its own commercial policy, over which the EU has no competence. In these circumstances, I don't see anything in the text that prevents the UK from negotiating its own FTAs right now. Negotiating FTAs in anticipation of Brexit being completed is not related to the common commercial policy, and therefore is not an issue over which the EU has competence.
I should note that many EU lawyers seem to disagree with me on this, and I look forward to more discussion, both in the comments here and on twitter.
I'm less convinced that the UK could sign and implement those FTAs before Brexit is complete, though. It is still bound to apply the common commercial policy until then. But I just don't see anything that prevents it from making preparations -- hiring its own trade negotiators, negotiating FTAs, etc. -- to abandon the common commercial policy.
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TITLE II
COMMON COMMERCIAL POLICY
Article 206
(ex Article 131 TEC)
By establishing a customs union in accordance with Articles 28 to 32, the Union shall contribute, in the common interest, to the harmonious development of world trade, the progressive abolition of restrictions on international trade and on foreign direct investment, and the lowering of customs and other barriers.
Article 207
(ex Article 133 TEC)
1. The common commercial policy shall be based on uniform principles, particularly with regard to changes in tariff rates, the conclusion of tariff and trade agreements relating to trade in goods and services, and the commercial aspects of intellectual property, foreign direct investment, the achievement of uniformity in measures of liberalisation, export policy and measures to protect trade such as those to be taken in the event of dumping or subsidies. The common commercial policy shall be conducted in the context of the principles and objectives of the Union's external action.
2. The European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall adopt the measures defining the framework for implementing the common commercial policy.
3. Where agreements with one or more third countries or international organisations need to be negotiated and concluded, Article 218 shall apply, subject to the special provisions of this Article.
The Commission shall make recommendations to the Council, which shall authorise it to open the necessary negotiations. The Council and the Commission shall be responsible for ensuring that the agreements negotiated are compatible with internal Union policies and rules.
The Commission shall conduct these negotiations in consultation with a special committee appointed by the Council to assist the Commission in this task and within the framework of such directives as the Council may issue to it. The Commission shall report regularly to the special committee and to the European Parliament on the progress of negotiations.
4. For the negotiation and conclusion of the agreements referred to in paragraph 3, the Council shall act by a qualified majority.
For the negotiation and conclusion of agreements in the fields of trade in services and the commercial aspects of intellectual property, as well as foreign direct investment, the Council shall act unanimously where such agreements include provisions for which unanimity is required for the adoption of internal rules.
The Council shall also act unanimously for the negotiation and conclusion of agreements:
(a) in the field of trade in cultural and audiovisual services, where these agreements risk prejudicing the Union's cultural and linguistic diversity;
(b) in the field of trade in social, education and health services, where these agreements risk seriously disturbing the national organisation of such services and prejudicing the responsibility of Member States to deliver them.
5. The negotiation and conclusion of international agreements in the field of transport shall be subject to Title VI of Part Three and to Article 218.
6. The exercise of the competences conferred by this Article in the field of the common commercial policy shall not affect the delimitation of competences between the Union and the Member States, and shall not lead to harmonisation of legislative or regulatory provisions of the Member States in so far as the Treaties exclude such harmonisation.
