A Little Bit Brexit? An Analysis of the Rules Governing Post-Withdrawal Treaties

On March 29, 2017, the United Kingdom formally notified the European Council of its intention to withdraw from the European Union. The United Kingdom's government and the European Union now face the difficult task of negotiating their future relationship. If these negotiations fail, the United Kingdom will be forced to trade with the European Union under the rules of the World Trade Organization, an outcome that many economists expect to have profoundly negative consequences for the economy of the United Kingdom, as well as for some of its European trading partners. As a practical matter, the prospects for reaching a compromise on these matters between the United Kingdom and the European Union depend greatly on the applicable voting requirements on the side of the European Union. Under the general rules of European Union law, a comprehensive treaty may well require a unanimous decision in the Council where the Member States are represented. Such a unanimity requirement would make it very difficult to attain a deal: at least some Member States are bitterly opposed to granting privileged access to markets in the European Union without full recognition of the Free Movement of Workers, yet the United Kingdom's government has put the rejection of the principle of Free Movement at the core of its Brexit agenda. It is important to note, therefore, that the Treaty on European Union contains special majority rules governing withdrawal agreements. Such agreements, aside from needing the consent of the European Parliament, require a mere qualified majority in the Council. The decisive question, then, is whether the withdrawal agreement is limited to governing the withdrawal as such, or whether it may also stipulate the withdrawing country's future status vis-a-vis the European Union. In the latter case, a comprehensive deal on the future relationship could avoid the sword of Damocles in the form of a unanimity requirement.