’In view of the exceptional and unique character’ of the EU-UK Trade and Cooperation Agreement – an Exception to Separation of Powers within the EU?
The Trade and Cooperation Agreement between the EU and Euratom, of the one part, and the UK, of the other, was signed on 30 December 2020 (EU-UK TCA). At the stage of opening the negotiations, as is usual, the option of concluding it as mixed agreement was left open. However, the TCA was signed as an EU-only agreement, based on the argument that the EU had exclusive competence for part of the agreement (Common Commercial Policy (CCP)) and ‘potential competence’ (shared competence that the EU exercises for the first time) for the rest. At present, the EU-UK TCA is provisionally applied and the European Parliament is planned to give its consent in the plenary session starting on 26 April 2021.
The decision to sign the agreement as an EU-only agreement was taken in a hasty written procedure between Christmas and New Year. The Council relied on a confidential but leaked opinion by the Council Legal Service (CLS), which ‘does not provide an in-depth examination of all of its aspects, nor does it provide a comprehensive and detailed competence analysis.’ The Opinion is indeed strategically selective. At the same time, the Member States, who were not involved in the negotiations, are unlikely to have had the necessary time to analyse the competence question in any depth. To what extent their parliaments – whose prerogatives are fundamentally affected by the choice for an EU-only agreement – were involved in approving the Council decision depends on national constitutional provisions and the limited time window.