Article 218 of the Treaty on the Functioning of the European Union sets out the EU’s rules for conducting negotiations with third parties. It applies to negotiations between the EU and one or more EU countries or international organisations.
Article 218 was the EU’s legal basis for its negotiations with Canada over the Comprehensive Economic and Trade Agreement and with Singapore on the EU–Singapore Free Trade Agreement.
Most negotiations covered by Article 218 focus on trade and investment, but it can also apply to other areas of economic co-operation and development, such as participation in EU programmes.
The EU could decide to use article 218 as the legal basis for its negotiations on the future relationship with the UK.
The EU’s draft mandate for UK-EU future relationship negotiations, which was published on 3 February 2020, mentions two options: Article 217 or Article 218. The scope of the agreement will determine which legal basis the EU chooses.
Article 218 sets out the roles of the Council of the EU, the European Commission and the European Parliament during negotiations, and details how negotiations are opened and concluded:
- Article 218 (3) sets out how negotiations will begin. The Commission submits a recommendation to the Council, the Council then adopts that decision and appoints a negotiator.
- Article 218 (4) provides that the Council may give directives to its negotiator to guide the negotiations. It can also appoint a special committee to oversee the negotiations.
- Article 218 (6) sets out how negotiations are concluded – by a vote of the Council, following a recommendation from the negotiator.
- Article 218 (10) states that the European Parliament must be "immediately and fully informed at all stages of the procedure". The European Parliament is also required to give its consent to any EU international agreement.
Article 218 (8) sets out that in most cases, the Council must agree the final deal by a qualified majority vote. That means that 72% of the 27 member states (representing at least 65% of the total population of the 27 member states) need to vote in favour of the agreement.
However, if the agreement covers some areas of EU but also member state law – including EU accession, EU finances, or common foreign and security policy – then the Council must agree to the deal by a unanimous vote. Whether or not the final Brexit deal will require a unanimous vote therefore depends on the scope of the agreement.
Article 217 TFEU also sets out the EU’s rules for conducting negotiations with third countries, but usually in the context of closer and deeper relations with the EU. The EU used Article 217 as the legal basis for its association agreements with Ukraine, Georgia and Moldova in 2014.
The process for negotiating association agreements is very similar to the process described under Article 218. However, the deal must be adopted by unanimity – rather than by qualified majority voting.