Withdrawal Agreement Best Endeavours

The possibility of the UK agreeing to withdrawal agreements in order to undermine them later could not be unknown to the EU. However, the restrictions on the material scope of a Withdrawal Agreement by Article 50(2) described above limited the extent to which it could protect itself against such action by the United Kingdom, as the Withdrawal Agreement could not create legally binding and detailed obligations with regard to the future economic relationship between the Parties. Article 184 of the Withdrawal Agreement obliges both the EU and the UK to “do their best [and] in good faith. to take the necessary steps to negotiate expeditiously the agreements referred to in the Political Declaration on Their Future Relations. However, even if an alleged breach of this obligation were to be tried in court, it would be very difficult to prove non-compliance to the best of one`s ability or an act in good faith. I am not saying that there is a magic formula of words that could have been used in Article 50 to prevent a withdrawing State from becoming evil. Nor do I want to be unfair to those who drafted the provision and had to do so, while playing on an abstract and almost unimaginable possibility of resignation and not on a concrete case. There are also very good reasons to agree on the two-year period and the limitation of the scope of withdrawal agreements before withdrawal; I certainly can`t offer alternatives without problems. It may well be that the advantages of these aspects of the process outweigh the disadvantages. However, the pressure of time and the delay in negotiations on a future relationship until after the withdrawal – if added to the UK`s feverish political climate at the end of 2019, the fatigue of the negotiations and the desire of both sides to avoid a no-deal Brexit at all costs – could (partially) encourage Johnson`s government to reach an agreement, possibly with the intention of: or indifference, subsequent rejection. This, of course, presupposes that there was a plan, let alone an infamous one.

The Withdrawal Agreement between the EU and the UK entered into force on 1 February 2020. Article 126 of the Withdrawal Agreement provides for a transitional period starting on 1 February 2020 and ending on 31 December 2020. During the transition period, the UK and the EU are required to make “good faith” their “best efforts” to take the “necessary steps” to negotiate their future relationship in accordance with the Political Declaration of 17 October 2019 (Article 184). This is in addition to the general good faith commitment of the EU and the UK established by Article 5. However, the possibility for the Joint Committee to extend the transitional period is urgent: a decision under Article 132 can only be taken before 1 July 2020 and the Joint Committee will not meet until June. But what would prevent the Joint Committee from following 1. July 2020 to adopt a decision to extend the transition period if the UK and the EU agree, not to apply the deadline set out in Article 132? Nothing in Article 166, which defines the powers of the Joint Committee, contains any provision prohibiting it. Indeed, I argue that such measures would facilitate the implementation and enforcement of the provisions of the Withdrawal Agreement relating to mutual agreement, best efforts and good faith to achieve a future relationship. The best way to achieve this is to prove that the UK will open its markets to competing trading partners on 1 January 2021, and if the EU is to maintain its duty-free preferential access to the UK market, it must accept reasonable and balanced terms and abandon its attempts to turn the UK into an EU offshore colony. .

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