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Article 50(2) of the Treaty on European Union (the “Lisbon Treaty”) sets out that the European Union Withdrawal Agreement should take account of the terms for the departing Member State’s future relationship with the EU.

It states:

  1. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

But at the same time, EU law prohibits trade agreements between the EU and member states, so the future relationship definitionally remains open until the Article 50 process is completed.

Can someone square this circle for me?

To restate:

The future relationship - by definition - cannot be defined prior to leaving the EU. And yet the 50(2) agreement needs to take the future relationship into account. Why am I wrong and what am I missing?

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  • How does the paragraph underneath that, containing the phrase "So the Withdrawal Agreement will be followed shortly after we have left by one or more agreements covering different aspects of the future relationship." not answer your question?
    – DonFusili
    Commented Nov 6, 2018 at 12:38
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    Can you cite the specific provisions of EU law that supposedly "prohibit trade agreements between the EU and member states"? It seems to me that such a trade agreement can't so much be prohibited as logically impossible. It would be like prohibiting the Labour party from entering into a coalition with Jeremy Corbyn.
    – phoog
    Commented Nov 6, 2018 at 16:54
  • Just a precision: the withdrawal article (50) was introduced in the Treaty of Lisbon. And this is the treaty responsible for the current version of the TEU. Also negotiations can take place. Any new agreement will only become become valid after the "de facto" withdrawal. This includes any talks with external parties (in fact I believe the EU agreed to this). For example the UK has been in talks with the US for quite some time in the pursuit of a potential trade deal.
    – armatita
    Commented Nov 7, 2018 at 9:20

3 Answers 3

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No, "take account" only refers to the negotiations. The agreement would be done at EU level and only take effect after the department member state leaves. It is allowed to make such negotiations, just not to enact the trade deal until the departing member has departed.

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  • The Maastricht Treaty states: “the Union shall negotiate and conclude an agreement (my emphasis) with the State... taking account of the framework for its future relationship with the Union”.
    – 52d6c6af
    Commented Nov 6, 2018 at 14:25
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    ' conclude ' here just means that the negotiations are compete, and their the provisions of the treaty are defined. The negotiated treaty can't come in to effect until the leaving nation had exited. There is no paradox here
    – PhillS
    Commented Nov 6, 2018 at 14:48
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    Why can't it be defined before leaving the EU? The whole point of Article 50 is to give a two year period before leaving to define the future relationship.
    – user
    Commented Nov 6, 2018 at 15:15
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    @Ben future relationship includes things like the border(s) and citizens' rights. Clearly, these are part of the negotiation now and it would be irresponsible to wait until the country has left to start negotiating about those issues.
    – JJJ ♦
    Commented Nov 6, 2018 at 15:25
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    @Ben You are conflating the English verb "to agree" and the legal concept of "an agreement". The EU law does not prohibit agreeing (the verb), it prohibits agreements (the legal contract), and specifically it prohibits a trade agreement (the legal contract) from being in effect between two EU countries. It does not prohibit agreeing (the verb) that an agreement (the legal contract) will come into effect when the other party is no longer an EU country, as long as the agreement (the legal contract) is not in effect before that happens.
    – Moyli
    Commented Nov 6, 2018 at 16:24
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As @user indicated, there is very little preventing the EU27 and the UK to negotiate a trade agreement, to be ratified at the same time as the withdrawal agreement. The main constraint is that such a trade agreement could hardly take effect before Brexit because it would probably entail leaving the customs union and single market (although even that would depend on its exact contents). In fact, the UK and the EU have already entered negotiations on this topic (albeit with no intention of wrapping them up by March 2019).

But that's actually moot, “take account” is very weak wording, that's the kind of things you end up with when some parties want something to be acknowledged but others do not want to seriously commit in any way. If the redactors of the treaty had agreed that the future relationship should be covered by the withdrawal agreement, the article would simply read “setting out the arrangements for its withdrawal and its future relationship with the EU”.

As it happens, the UK wished to discuss it as much as possible from day one of the negotiations and the EU27 did not. I would be curious to know if there was a similar disagreement when drafting the article.

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  • So the refusal to engage on trade by the EU is a choice and not a product of law. I have read multiple narratives stating that the trade agreement cannot be completed due to EU rules.
    – 52d6c6af
    Commented Nov 6, 2018 at 18:17
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    @Ben “Engaging on trade” and "completing an agreement” are two very different things. If you quote specific examples we could look into the argument being made. As I explained, the main constraint is that such an agreement could hardly take effect while the UK is still a member and discussing the terms of its withdrawal. If that's what you mean by “completed“ then I guess you could say EU rules prevent that. But there is nothing against entering negotiations and that's what happened, just not immediately.
    – Relaxed
    Commented Nov 6, 2018 at 18:20
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    Beyond that, very few experts believed such an agreement could be worked out in two years, on a purely technical level (that's even if the UK or EU weren't so far apart and agreed to begin negotiating immediately, which hasn't happened), another reason why article 50 had such a weak wording and the whole discussion is moot.
    – Relaxed
    Commented Nov 6, 2018 at 18:22
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"user"'s answer is almost certainly right, but some challenge it on a technical reading of the words.

If they prevail, there is still no paradox. The articles themselves, as a general principal of law, are stronger than the individual laws, so the laws step aside.

Or alternatively, one could hold that article 50 is most specific and so has the governing law in question and permits the agreements to be made even though they would not otherwise be allowed.

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