Some argue that the European Union is obliged to negotiate a future UK-EU relationship under conditions favourable to the United Kingdom. The claim stems from Article 8 of the Lisbon Treaty which mandates the EU to develop special relationships with neighbouring countries. Paragraph 1 of Article 8 says:
The Union shall develop a special relationship with neighbouring countries, aiming to establish an area of prosperity and good neighbourliness, founded on the values of the Union and characterised by close and peaceful relations based on cooperation.
Even before the referendum there was some speculation on this question. On 31 March 2016, a question was raised at the European Parliament as to whether the European Commission would commit to carrying out negotiations with the UK in the spirit of Article 8.
The Commission President, Jean-Claude Juncker, ducked the question by noting that ‘The Commission does not speculate on hypothetical situations’.
We think there are six reasons why Article 8 does not oblige the EU to prevent a ‘bad’ Brexit by negotiating a future deal with the UK.
First: Article 8 is an ‘internal’ rule which does not create an international obligation. In other words, Article 8 applies only to the EU and its member states and cannot be enforced by third parties (i.e. non-EU countries). Article 265 of the Treaty on the Functioning of the European Union (TFEU) allows only member states of the EU to bring an infringement action before the European Court of Justice against the EU institutions for failure to act. The United Kingdom will become a third party vis-à-vis the EU upon its withdrawal (i.e. on 29 March 2019) and will thus not be able to rely on Article 8 during negotiations for the future relationship. Article 265 allows individuals to bring a complaint before the EU Courts but this only applies in limited situations when an EU institution has failed to address to that person a specific EU act. This would not cover a general complaint against ‘bad’ Brexit.
Second: Article 8 was not intended to cover Brexit-type situations. Rather, the purpose of Article 8 is to establish an express Union ‘neighbourhood competence’. This competence is directly related to the European Neighbourhood Policy (ENP), which was launched in 2003 and is funded by the EU. The ENP was designed as a process which aims to progressively integrate the economically least developed neighbouring countries and encourage and sustain political and economic reforms within these countries. The policy currently covers 16 countries and was reviewed in 2015, following the Arab Spring, placing stabilization in the region as its primary goal. It is doubtful whether the drafters of Article 8 meant to commit the EU to giving preferential trade deals to its trading partners.
Third: contrary to the claim that Article 8 obliges the EU to afford its neighbours favourable relationships, Article 8 in fact constrains the EU to engage with its neighbours only to the extent that they commit to the ‘values of the Union’ (hence, not shared or common values). Article 8 is thus subject to strict conditionality. The four fundamental freedoms (free movement of people, goods, services and capital) and the protection of the internal market is at the core of the EU values. The EU’s guidelines for Brexit negotiations seek to protect these values by drawing red lines, such as the ‘no-cherry picking’ rule (see our analysis here). Accordingly, instead of obliging the EU to agree with the UK’s Brexit proposals, Article 8 prevents the EU from negotiating any agreement which contradicts the principles of the Union’s legal order. Furthermore, Article 8 places a condition on its neighbours to ‘cooperate’. Questions could be raised whether the UK government’s red lines are compatible with this condition.
Fourth: Article 8 reference to the ‘special relationship’ is not specified. The EU is not obliged to follow any specific model for the future UK-EU relationship. Article 8 in no way defines ‘bad’ Brexit. Claims that Article 8 obliges the EU to prevent a hard, ‘no deal’ or any other form of Brexit have no legal basis.
Fifth: Article 8 has so far never been used as a ‘legal basis’ (i.e. the legal provision which empowers the EU to take legal acts) for agreements with the Union neighbours. The special relationships between the EU and its neighbours are commonly concluded in the form of association agreements (AA), such as the European Economic Area Agreement or the EU-Turkey Customs Union, which entered into force before the 2009 Treaty of Lisbon (and so before Article 8). The legal basis for AAs can be found in Article 217 TFEU. The legal basis for the EU’s free trade agreements (FTAs), on the other hand, is set out in Article 207 TFEU (we explain the difference between AAs and FTAs here). Thus, while the overarching institutional framework of the future UK-EU relationship will likely be concluded as an AA and will thus have to be compatible with both Article 8 and Article 217 TFEU, it is expected that trade related matters will take the form of an FTA under Article 207 TFEU. This is also confirmed by the UK (section 4.2 of the UK government’s Brexit White Paper). The relationship between Article 207 TFEU and Article 8 is not clear but it is difficult to see how Article 8 would oblige the EU to conclude a specific type of FTA with the UK – or to conclude an FTA at all.
Sixth: the EU’s constitutional structure requires that the future agreement with the UK be signed and ratified, not only by the EU but also by the EU member states. Thus, the ultimate vote on the form of the UK-EU relationship, and whether to have this relationship at all, rests not just with the EU but with the national parliaments of the 27 states. This constitutional constraint in itself suggests that the EU cannot be obliged to prevent ‘bad’ Brexit, even if we were able to define what ‘bad’ Brexit is.