Expert View

European Court ruling: a shot from a Singapore sling

by David Hannay | 16.05.2017

David Hannay is a member of the House of Lords and former UK ambassador to the EU and UN

The ruling of the European Court of Justice (ECJ) that the EU-Singapore agreement must be ratified not only by the EU and its member states, but where responsibilities have been devolved, by regional assemblies too, is certainly of relevance to Britain’s aim to conclude an ambitious new partnership agreement with the EU by March 2019. But is it an event of the “small earthquake in Chile, not many dead” variety, or is it a real conversation-stopper?

To some extent this latest ruling could look more like the former than the latter. It was in any case already clear that the proposed far-reaching new partnership agreement outlined by Theresa May in her letter to Donald Tusk of 29 March, which contains plenty of elements of shared and national responsibility as well as trade issues for which the EU is itself solely responsible, would need to be ratified not only by the EU Council and Parliament but also by all 27 individual member states. The ECJ verdict adds another layer to an already pretty overloaded structure; and we have seen in the case of the EU-Canada agreement how that additional layer can cause delay and complications.

It is as well, however, not to forget that the leverage regional assemblies can exert is more on their own governments and on the EU than it is on the third country concerned. And, given that, by definition, the EU and all its member states will have decided that the agreement is in their interest before they submit it for ratification by their elected representatives, there could be an expectation that they will do what is necessary to handle any problems raised by regional assemblies.

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    But one thing this ruling does is to hole beneath the waterline any chance that a new UK-EU partnership agreement can be up and running by March 2019. That in turns gives sharper focus to the need for some bridging or transitional arrangements if a fearsome cliff-edge departure is to be avoided. Fortunately the EU’s negotiating mandate does envisage such an eventuality; but that does not mean it will be easy or straightforward to negotiate, nor that it will not cross some of the Prime Minister’s all-too-prolific red lines.

    Moreover, as usual with the ECJ, the ruling leaves as many questions unanswered as those it answers. Could the trade provisions only of a UK-EU agreement be brought into force in advance of the rest of it by a simple decision of the EU Council or the European Parliament (something along those lines was used to avoid major disruption when a referendum in the Netherlands brought in a negative result on the EU-Ukraine agreement)?

    What can be said right away is that this is a timely reminder that we are about to start negotiating with an entity whose jurisprudence and legislation is constantly evolving and will continue to do so; and that those changes will spring on us surprises – more usually, like this one, unwelcome ones.

    Meanwhile we can chalk this up to the ever-lengthening list of complications which the Brexiters failed to take into account or to warn their supporters about before they propelled us towards the exit.

    Edited by Geert Linnebank

    One Response to “European Court ruling: a shot from a Singapore sling”

    • this is not as clear as it should be – perhaps the ECJ press release is to blame for it certainly is misleading. The judgement itself gives the EU institutions very considerable exclusive commercial competence to negotiate and conclude very extensive FTA’s. In so doing , supra nationality is advanced to the detriment of the members states whose arguments were given short shrift along with the UK Advocate General’s legally correct but politically inconvenient opinion that would have given them far more say.

      in practical terms it may make little difference for the Brexit process as all centralising measures increase the levels of scrutiny by shareholders who will be careful to make sure their interests are not sacrificed by those negotiating on their behalf. So yes it is perhaps a small earthquake in Chile