Five things you might not have known about Brexit’s Trade and Cooperation Agreement

1. The Trade and Cooperation Agreement (TCA) is not yet fully in force

Despite being announced on 24 December 2020 and signed on 30 December 2020, the TCA is still not in full force.  For example, it is still only "provisional". The European Parliament and the European Council have yet to sign off on the document. It is expected that they will sign off by the end of April 2020. So, Brexit is not yet done!

2. The TCA will Change

The EU and the UK are engaged in a process of "legal cleansing" of the document. The 1449 pages were negotiated at great speed over nine months in 10 formal negotiations sessions so it was a somewhat rushed job. There is therefore a "cleansing" exercise being undertaken at present.

3. The TCA has renamed some familiar EU concepts

Phrases such as, for example, "State Aid" and "Undertakings" have been renamed as "State subsidies" and "Economic Actors" respectively but not all the terms are exactly the same as their EU equivalent. For example, the term "State Aid" and "State subsidy" are slightly different. So, in interpreting the TCA, it is useful to consider the pre-existing EU regime and concepts but bearing in mind that the concepts in the TCA have their own unique definitions.

4. The TCA has to be interpreted in a new way

We have become very familiar with the way in which EU law is interpreted. The TCA is to be interpreted in a different way. The TCA provides that the "provisions of this Agreement and any supplementing agreement shall be interpreted in good faith in accordance with their ordinary meaning in their context and in light of the object and purpose of the agreement in accordance with customary rules of interpretation of public international law, including those codified in the Vienna Convention on the Law of Treaties, done at Vienna on 23 May 1969". This means that there is a new way of interpreting the TCA – based on public international law rather than the traditional EU law approach.  Interestingly, the judgments of either the EU or the UK courts are not binding on the courts of the other party – so a judgment of the EU courts would not be binding on the UK courts (and vice versa).

5. The Court of Justice of the European Union is still present (at least in part)

The popular view (particularly in sections of the UK media) is that the UK is no longer subject to the jurisdiction of the Court of Justice of the European Union (CJEU). In fact, the CJEU is still relevant for certain purposes – particularly, in the context of the Withdrawal Agreement – and there could even be preliminary references from the Northern Irish courts to the CJEU which would then be binding on the Northern Irish courts.

For more information on this topic please contact Vincent Power, Partner or any member of A&L Goodbody's EU, Competition & Procurement team.

Date published: 23 March 2021