Britain’s ambition to sign a quick Free Trade Agreement with the European Union after Brexit has received a significant boost after a landmark ruling by the European Court of Justice handed expanded trade negotiation powers to Brussels.
The much-anticipated decision from the court in Luxembourg surprised experts by ruling that on key areas - including financial services and transport - the European Union does not need to seek ratification of a trade deal by the EU’s 38 national and local parliaments.
Trade experts said the ECJ ruling could substantially reduce the risk of any future EU-UK free trade agreement getting bogged down in the EU national parliaments, opening the way for an FTA to be agreed by a qualified majority vote of EU member states.
“The Court of justice says all services - even transport - can be ratified by a qualified majority vote, which is potentially quite a big opening for the UK,” said Steve Peers, professor of EU law at Essex University. “It could certainly make things easier.”
In the ruling, the ECJ was asked to decide whether the new-generation bilateral EU-Singapore trade deal should be treated as a so-called ‘mixed’ agreement - that requires ratification by national parliaments - or could be agreed by a qualified majority vote of member states.
This is the most significant ECJ case on EU trade policy for twenty years and has huge ramifications for any UK-EU FTA
Nicole Kar, Linklaters
The court ruled that the EU did not have exclusive competence to conclude the Singapore deal, but said that only in two narrow areas - namely non-direct foreign investment and the investor-state dispute resolution mechanisms - did it need to seek ratification by national parliaments.
By contrast, the court said the EU did have competence to conclude agreements without ratification across the great majority of the Singapore agreement - contradicting parts of a previous opinion by the court’s advocate-general.
Areas covered by EU competence include all goods and services, “including all transport services”, as well as intellectual property rights, competition policy, labour and environmental standards and and the rules relating to exchange of information.
Legal and trade experts said the ruling had potentially massive implication for Brexit if the UK formulated its own FTA to avoid investment provisions and investor-state dispute mechanisms, relying on alternative arrangements such as bilateral investment treaties and WTO panels.
“This is the most significant ECJ case on EU trade policy for twenty years and has huge ramifications for any UK-EU FTA,” said Nicole Kar, head of international trade at Linklaters, the law firm.
“In policy terms, now the UK government will want to consider whether it moderates its ambition for the UK-EU FTA to those matters where there is exclusive competence in order to secure agreement through EU Member State governments by qualified majority voting.”
If Britain took a more expansive approach, Ms Kar warned, it risked any FTA getting mired in member state politics as happened last year when the regional Walloonian parliament of Belgium held the EU-Canada trade deal to ransom.
This problem arises because some EU member states, like Belgium, have domestic law that requires local parliaments to sign off on trade deals before they can be ratified by at a national level.
Allie Renison, head of EU and trade policy at the Institute of Directors, said the court ruling was to be welcomed and would make it easier for the EU to conclude deals “without fear of as many hold-ups from national and sub-national legislatures”.
“How this affects Brexit negotiations will depend on whether the final trade agreement includes investment provisions or not, although neither the UK or EU has expressed much interest in this to date,” she added.
“It’s important to remember that any eventual UK-EU trade agreement would not be about opening up each other’s markets in controversial areas, but trying to limit the amount of disruption to trade, and so it is unlikely to encounter the same resistance from other EU countries once concluded by the Commission.”