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Would it be illegal for the UK to negotiate a trade deal with the EU while still a member?

Or is it the signing of trade deals that is prohibited, and negotiation is permitted?

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    @JonathanReez By definition, if you break a law, you did an illegal thing, even if you're the one who came up with the law, no? – Lightness Races in Orbit Jan 18 at 15:54
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    @JonathanReez Laws apply to whatever they say they apply to. You may however argue that an entity is unlikely to enforce a law against itself, and I'd argue that you'd be right :) In this case we're probably talking about a loose definition for "illegal" though, in the sense of "in violation of the treaties that make up the EU relationship" (we could term this a kind of international law, but I'm not going to go there), which certainly does apply to States. – Lightness Races in Orbit Jan 18 at 16:00
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    @JonathanReez There are loads of illegal things you can do that have nothing to do with jail time. So to suggest that a thing can't be illegal because you can't go to jail because you are not a person is ridiculous. – Lightness Races in Orbit Jan 18 at 16:05
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    @JonathanReez I don't have a question about it. You feel free to do so ;) – Lightness Races in Orbit Jan 18 at 16:57
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    This was pretty much already covered in the earlier question (Is EU Treaty Article 50 (2) paradoxical?) – Moyli Jan 18 at 16:59
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Illegal? Probably not. Remember, the initial plan was to invoke article 50, and spend two years on hammering out the withdrawal agreement and the "future relations". A trade deal between the UK and the EU falls under the future relations.

But the EU has made it clear it won't start negotiations about future relations before there is a withdrawal agreement. As of this writing, it's 70 days before the 2 years are up. There is no withdrawal agreement yet. Hence, at this moment, the EU will not negotiate a trade deal.

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    @Ben Starting a negotiation with a third party (in this case the UK) is made in accordance with article 218 of the TFEU. As so the Council needs to approve the start of those negotiations. What Abigail is saying is that the Council won't approve those negotiations until the the withdrawal is finished. That is to way the EU won't negotiate a trade deal separately from the withdrawal. So it's not prohibited, just not a good negotiating tactic. – armatita Jan 18 at 13:58
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    @Ben It applies because Article 50 says it applies, specifically 50(2). – armatita Jan 18 at 14:03
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    @Ben The trade deal negotiation could, in theory, be occurring right now (again because A50 refers to TFEU218). The actual start of the trade deal with a 3rd party only after the UK becomes a 3rd party. Just to clarify one important point. You mentioned, perhaps by accident, an A50 process. There's really no such thing. The UK could have left little after it activated article 50. The 2 year negotiation is the maximum limit for a withdrawal negotiation before the UK crashes out (hard-break) from the EU. All of these talks are occurring to avoid an hard brexit, not because it's obligatory. – armatita Jan 18 at 14:22
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    @Ben There are no exceptions. The UK is currently in talks with many different nations in an attempt to secure trade deals post brexit. Any EU member could, in theory, be in talks right now to secure a deal (diplomatic incidents aside) with a 3rd party. It's not "illegal" to chat about a potential future deal. What an EU member cannot do is to negotiate (and when I say negotiate I mean actually execute the terms of deal) while within the EU (mostly meaning customs union) unless specifically approved by the EU. In fact I believe the EU even agreed on letting the UK sign deals last year. – armatita Jan 18 at 20:12
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    In 2018 the EU agreed to let the UK sign trade deals during the transition period ie. when we are a third country... – Ben Jan 18 at 20:19
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The UK could negotiate a trade deal, but other countries aren't really interested in putting resources into a negotiation that will probably take several years anyway at this stage. Until the UK has decided what its future relationship with the EU will be the parameters of any other trade deals are impossible to define, so any talks would be extremely preliminary at best.

It wouldn't be illegal for the UK to do, but it wouldn't be of much use either. The signing of such deals would be problematic at the moment because they would conflict with the treaties that established EU membership.

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    Thank you. My question is specifically about negotiating a trade deal with the EU while still a member. – Ben Jan 18 at 10:30
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    @Ben it is legal. But negotiating requires at least two parties. Since the rest of the EU is not interested in negotiating a trade deal currently, it cannot happen. – Josef Jan 18 at 13:34
  • Thank you. And signing trade deals is illegal? – Ben Jan 18 at 14:03
  • No such deals would take effect before the Brexit is complete, signed or not signed. – TaW Jan 19 at 9:18
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Together, the UK and the EU27 could change any EU rule.

The EU decided that EU members cannot negotiate trade deals with third parties while they are EU members. Those rules did not go to much length when it comes to EU members who have negotiated and ratified a withdrawal agreement under Article 50, and either way the EU would not be a third party. EU members can and do negotiate matters affecting trade with their fellow members.

They cannot change logic:

  • The UK cannot sign trade deals with a third party while it is still an EU member. Negotiating them may be a gray area, but see the next point.
    That's part of the EU rules, applicable as long as the UK is in the EU. The EU could easily change the rules to permit any member to negotiate trade deals as long as those deals only come into effect if and when the member leaves, but which third party would bother to make such deals?
  • The UK cannot have meaningful negotiations with a third party before the Brexit conditions are clear and at least an outline of the post-Brexit relationship with the EU becomes apparent.
    Of course they could start negotiating sooner, but they would have to stay terribly vague. Say they negotiate duty-free trade in lawnmower parts with China. The Chinese would naturally want to know if they can assemble the duty-free lawnmower parts in an UK factory and sell them duty-free to the EU27, or what the duties would be in that case. And the EU27 would not agree on duty-free trade in lawnmowers unless they know what treaties with third parties the UK got in this regard.
    That's not in any rulebook, just common sense. They could decide to negotiate a comprehensive trade treaty with, say, the US before they negotiate one with the EU, but only if they crash out of the EU on a no-deal basis first. Then the deal with the EU would be constrained by the terms of the US deal, and not the other way around.
  • The EU27 want to negotiate Brexit first, then the Post-Brexit relationship. In theory, they could negotiate both simultaneously. That would greatly complicate the issues, but it might also open new chances for compromise ("let's make a deal, I get full market access in this area if I pay that percentage of MEP pensions for the next 30 years").
  • Thank you. I suppose my question boils down to this: is negotiating a trade deal before leaving forbidden or not (ignoring your very valid point that the rules could be changed)? In other words: is there a provision to enable member states to negotiate a trade deal to come into effect immediately after they have left the EU? In "normal" circumstances it would be forbidden, but in the case of a leaving state I can see why this rule would not apply. – Ben Jan 18 at 15:16
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    @Ben If they can negotiate both the future relationship and the free trade deal between invoking Article 50 and leaving (at most 2 years unless mutually agreed to be longer), then yes they can. – gerrit Jan 18 at 15:19
  • The FTA is part of the future relationship as you probably know. Do you have a reference that the future terms of trade may be decided after A50 and before leaving? – Ben Jan 18 at 15:20
  • @Ben, I think the withdrawal agreement could contain provisions to allow such negotiations between the signing of the withdrawal and the time when it takes effect. – o.m. Jan 18 at 15:27

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