Elettra Bargellini (DCU)
On September 28th and 29th, 2023, the DCU Brexit Institute organized an online conference, serving as the preliminary book workshop for the upcoming publication titled “The Law & Politics of Brexit. Volume 5. The Trade and Cooperation Agreement,” edited by Federico Fabbrini and scheduled for release by Oxford University Press next spring. This event marked the fifth edition in the Law & Politics of Brexit series.
Federico Fabbrini, Founding Director of the DCU Brexit Institute, began the event by conveying his gratitude to the esteemed international scholars who contributed to the book, encompassing legal experts, economic historians, political scientists, and trade specialists. Notably, Fabbrini announced that David McAllister, Chair of the European Parliament Foreign Affairs Committee, has agreed to write the preface for the volume, thereby enhancing its visibility in the realm of policy-making.
Derek Hand, Dean of the Faculty of Humanities and Social Sciences at Dublin City University, chaired the first panel from an Irish perspective, acknowledging the Brexit Institute’s role in bringing together diverse voices and perspectives to understand the ongoing developments of the EU-UK relationship.
The first speaker, Harold James (Princeton University), emphasized the importance of considering the backdrop of the Trade and Cooperation Agreement (TCA) in the ongoing globalization discourse. Events such as the UK referendum in June and the US presidential elections in November 2016 were seen as reactions against globalization, signalling the beginning of a process of deglobalization. However, James argued that the term deglobalization may not fully capture these evolving dynamics. He identified three aspects that point to a different form of globalization rather than a straightforward deglobalization process: the formation of trade blocs, government-driven investments, and technological transformations.
In addressing whether Brexit should be regarded as an anti-globalization movement, he identified the motivations behind the UK’s divergence from the EU under three pillars: political, economic and psychological factors. In particular he contended that these psychological factors, deeply ingrained in English history dating back to the 16th century, significantly influenced the UK’s stance on sovereignty.
Subsequently, Billy Melo Araujo (Queen’s University Belfast) delved into the Windsor Framework and its implications for rebuilding EU-UK trust in the post-Brexit era. Araujo noted that despite the attention the Windsor Framework received, it didn’t radically transform the regime established by the Protocol. There were very few areas where the text of the Protocol itself had been amended. Indeed, the key features, such as the application of EU law in Northern Ireland and the jurisdiction of the European Court of Justice, remained largely intact.
In his paper, Araujo categorized criticisms of the Protocol into three broad areas: trade-related concerns (these revolved around the Irish Sea border and the increased checks on goods moving from Great Britain into Northern Ireland); sovereignty concerns (these related to the conceptualization of national sovereignty, particularly as advocated by the Leave campaign); governance or democratic legitimacy concerns (these centred on the limited input and influence of Northern Ireland authorities and stakeholders in decision-making processes regarding the application of EU law in Northern Ireland). Araujo emphasized that the question of the Irish Sea border remained unresolved and that the Windsor Framework requires ongoing maintenance and renegotiation by both parties.
The concluding speaker of the initial panel, Andrea Biondi (King’s College London), raised questions regarding whether the Subsidy Chapter of the TCA does enough to ensure the protection of a level playing field between the EU and the UK post-Brexit. He observed that the TCA encompasses the most extensive subsidy regime ever seen in any free trade agreement a date, which is of particular interest considering that subsidy control emerged as one of the most contentious issues throughout the negotiations.
Furthermore, Biondi delved into the Subsidy Control Act 2023, which introduced a domestic subsidy control regime in the UK. He examined whether this new domestic framework effectively aligns with the obligations outlined in the TCA. The system requires that public authorities adhere to a set of principles and assess the potential effects of subsidies on trade and investment within the UK. Biondi expressed concerns about the system’s effectiveness, particularly in its capacity to determine if there is a distortion of competition, as it necessitates a relevant market analysis. However, the overarching issue is that the Subsidy Control Act 2023 primarily concentrates on domestic mechanisms. This is a significant consideration, given that it’s supposed to be a full implementation of the TCA.
The second panel, which focused on the Free Trade Agreements (FTAs), was chaired by Sharon O’Brien, the Associate Dean for Research at Dublin City University. The first speaker, Pinar Artiran (Istanbul Bilgi University) discussed services, investments, and public procurement within the context of the TCA. Artiran briefly covered trading services provisions in the TCA, noting that they were modest compared to single market regulations, especially considering the importance of financial services, such as those in the City of London. She mentioned that there are no passporting rights within the TCA, which led many financial institutions to move from London to EU member states to benefit from equivalence opportunities.
Artiran also highlighted the intertwining of trading services and investments in the TCA, which she found surprising, as she expected separate chapters for these important fields. She noted that the investment protection provisions in the TCA were super modest compared to other free trade agreement investment chapters. In conclusion, Artiran emphasized that the TCA was just the beginning of the Brexit process and that Brexit remained an unfinished work. The absence of passporting rights for financial services is a significant challenge. She mentioned that the parties will need to work on liberalization efforts, and the possibility of review every five years for mutual recognition and mobility arrangements will be crucial.
Elaine Fahey (City, University of London) discussed various topics related to health, environment, energy, and cybersecurity. Fahey began by emphasizing the importance of cybersecurity in the context of Brexit. She noted that the UK had been a leading player in cybersecurity within the EU and had played a significant role in areas such as cyber sanctions against Russia. Fahey found cybersecurity to be one of the most exciting and detailed forms of cooperation within the TCA. She highlighted the UK’s alignment with the EU and the US on cyber sanctions following the COVID-19 crisis.
Fahey also mentioned that the TCA contained significant institutional cooperation and participation, despite being a relatively thin agreement. While it may not resemble the regulatory cooperation seen in traditional trade agreements, it demonstrated a broad range of cooperation. She noted the commitments to multilateralism and engagement within the agreement. However, Fahey acknowledged that foreign policy was largely about relationships, and the EU held considerable influence in areas like cybersecurity. She emphasized that issues at the margins of competences were essential to consider in the future.
Niall Moran (Dublin City University) provided insights into the trade in goods under the TCA. He focused on three specific topics within this area. First, he discussed trade in electric vehicles (EVs), highlighting the intense speculation surrounding this topic in recent months. In particular, he explored how the TCA impacted the trade in EVs. Second, Moran examined how the TCA’s rules on trade in goods affected the position of UK manufacturers in European supply chains. Lastly, he addressed the topic of Sanitary and Phytosanitary (SPS) and Technical Barriers to Trade (TBT) requirements within the context of trade in goods. These requirements relate to food safety, animal welfare standards, and technical regulations, which can have significant implications for trade.
Moran also discussed the stability of EU-UK trade in goods and how the TCA played a crucial role in minimizing disruptions, especially considering the uncertainties surrounding Brexit and the potential for a no-deal scenario. He mentioned that recent compromises between the EU and the UK point to a more pragmatic and cooperation-based approach to their relations. Lastly, he highlighted the importance of listening to the business community to reduce friction caused by Brexit.
Mariela de Amstalden (University of Exeter) discussed capital movements and intellectual property rights within the TCA. She highlighted that capital movements and intellectual property rights are significant components of any trade agreement, and their treatment can have far-reaching implications for both parties involved. De Amstalden emphasized that the TCA can be seen as a unique and evolving document, with elements of both a traditional free trade agreement and newer, more dynamic forms of global governance. She discussed how various initiatives and provisions within the TCA can be interpreted in different ways, indicating either emerging novel forms of global agreements or reflecting disagreements and ongoing negotiations between the EU and the UK.
Additionally, she delved into the significance of Geographical Indications (GIs) within the TCA and how they might serve as a stress test for the agreement.
The discussion continued on Friday, September 29th and panel three was chaired by Christy Ann Petit (Dublin City University) and featured Graham Butler (University of Southern Denmark) who provided a comprehensive analysis of the TCA fisheries provisions. Graham Butler pointed out that the TCA is distinctive in its inclusion of several provisions related to fisheries, unlike some EU agreements with third countries, which tend to exclude fisheries from their scope.
The discussion focused on the critical issue of determining the “total allowable catch.” Butler explained that these negotiations establish quotas and limits for various fish stocks across different international waters. Butler emphasized that until 2026, fishing quotas remain largely unchanged, as they were established when the UK was an EU member state. However, Butler suggested that the real changes in fishing opportunities are expected to materialize post-2026, during new negotiations. One noteworthy provision, as highlighted by Butler, allows either party to suspend the preferential tariff regime if they perceive non-compliance of the TCA provisions by the other party. Importantly, Butler noted that terminating the fisheries provisions can have broader implications for other areas of the TCA.
Adam Lazowski (University of Westminster) delved into the realms of aviation and road transport, underscoring their significance for the EU-UK post-Brexit cooperation. He began by pointing out that when examined in isolation, the regulations governing aviation and road transport might seem like a basic yet acceptable structure, especially when viewed from a perspective of heightened restrictions. However, it is essential to recognize that this framework signifies a reduction in the legal framework previously offered by EU membership.
Therefore, the transport sector experienced broader repercussions due to Brexit. Factors such as the reintroduction of customs controls and the cessation of free movement of workers had their consequences. In light of Brexit’s core principles—reclaiming control over laws, departing from the Internal Market and Customs Union, and ending the jurisdiction of the Court of Justice—it was inevitable that the EU and the UK would embark on a trajectory focused on mitigating the damage.
Panel four was moderated by Niall Moran (Dublin City University). During this session, Christy Petit (Dublin City University) offered valuable perspectives on regulatory cooperation, social security coordination, and participation in Union programs. Petit began by discussing financial services regulatory cooperation, highlighting that the TCA contains very few provisions regarding financial services, lacking a dedicated chapter. Instead, it references a Memorandum of Understanding (MOU) on Financial Services Regulatory Cooperation. This MOU is non-binding but sets out a framework for cooperation. One essential aspect is international cooperation, emphasizing the alignment of standards in the financial services sector and coordination of positions ahead of international meetings, fostering closer regulatory cooperation between the EU and the UK.
Moving on to UK participation in Union programs, Petit explained that the UK reached a political agreement on its association with Horizon Europe and Copernicus, allowing UK-based universities to re-engage with EU programs and networks. While the UK will participate in these programs, its role in governance will be limited, as it will have observer status without formal decision-making powers.
Lastly, Petit touched on Social Security Coordination. The TCA includes a protocol for the coordination of some social security benefits, and a specialized committee on Social Security Coordination has met three times to address this aspect. While there are legal provisions, leaving room for a broader professional framework may enhance flexibility and benefit both parties in certain areas.
The conference wrapped up with an insightful discussion on the prospects for EU-UK cooperation in the evolving European landscape, presented by Federico Fabbrini (Dublin City University). The discussion focused on options for deepening EU-UK cooperation beyond the TCA and its limitations. Fabbrini emphasized that the TCA, primarily driven by a sovereigntist logic, represents a relatively thin deal, which has raised questions about its sufficiency. He explored three possibilities for expanding EU-UK cooperation in the next few years. The first option is to pursue a review of the TCA, which is foreseen by the TCA itself. This review could offer an opportunity to revisit and potentially enhance the TCA’s provisions. Both the UK and the EU could propose amendments, and there is a political window for renegotiation in 2025, following the UK general elections.
The second option involves an enhanced level of engagement between the parties in European governance. Indeed, the conflict in Ukraine has prompted greater engagement between the UK and the EU in a new European governance and institutional frameworks. These forums provide opportunities for cooperation beyond the TCA, emphasizing the UK’s role in various international organizations like the Council of Europe, NATO and the European Political Community. These forums, while distinct from the EU, offer platforms for collaborative efforts.
Finally, the third option concerns European constitutional reforms. The revival of the enlargement process, with promises of EU membership for Ukraine and Moldova, has initiated discussions about constitutional reforms within the EU. Fabbrini emphasized that the European project is entering an experimental phase characterized by discussions about the future of European integration, treaty reforms, and alternative avenues for cooperation. The central aim is to enhance the EU’s effectiveness and legitimacy. He concluded by stating that while uncertainties persist, the evolving landscape presents numerous opportunities for additional research and policy efforts concerning EU-UK relations.
The views expressed in this blog reflect the position of the author and not necessarily that of the Brexit Institute Blog.