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Explainer

UK–EU future relationship: EU ratification and provisional application

Ratification is the act of approving, signing and adopting an international treaty.

The information in this explainer details the situation at the time of publication and does not reflect possible recent developments.

The UK and EU concluded negotiations on the UK–EU Trade and Cooperation Agreement (TCA) on 24 December 2020. The agreement has been provisionally applied since 31 December 2020 – meaning that it has taken effect in practice – but is still awaiting full ratification by the EU.

What is ratification?

Ratification is the act of approving, signing and adopting an international treaty.

EU ratification can take several years to complete and is complex due to the size and diversity of the European Union. However, the UK–EU Trade and Cooperation Agreement has already been provisionally applied (see below) and is expected to fully ratified by the end of April, far more quickly than many EU treaties.

How does the EU ratify treaties like the UK–EU Trade and Cooperation Agreement?

The EU needs a provision in EU treaties (a so-called ‘legal basis’) to undertake any act, including ratifying international agreements. This legal act, along with the content of the final agreement, will determine who in the EU needs to vote on the final agreement. More specifically:

  • The EU: both the Council of the European Union (the grouping of the 27 EU governments) and European Parliament,
  • Or the EU plus member states’ legislatures. Naturally this is a much more complicated process.

The 2009 Lisbon Treaty codified the nature of EU competence (law-making power) in trade.[1] For example, EU has exclusive competence for goods, but also some services, aspects of intellectual property and foreign direct investment (FDI). In other areas, the EU shares legal competence with member states, for example in agriculture and fisheries. 

For other areas, the EU has limited to no law-making power: these include common foreign, security and defence policies and the co-ordination of economic, employment and social policies.

The UK–EU Trade and Cooperation Agreement, like most of the EU’s international treaties, covers policies that both the EU (as a whole) and member states (either with the EU or independently) can legislate in. This is known as a ‘mixed agreement’, as opposed to an ‘EU-only’ one, and has implications for who in the EU votes on it and therefore the ratification process.

Exclusive competence

Shared competence

Supporting competence

The EU has the exclusive right to legislate and conclude international agreements in following areas: Member states can’t exercise competence where the EU has done so in the following areas EU and member states share competence in the following areas: The EU can support, co-ordinate or supplement national policies of member states in the following areas:
  • The customs union
  • Competition
  • Monetary policy for member states who use the euro
  • Conservation of fisheries and other resources under the Common Fisheries Policy
  • Common Commercial Policy
  • Internal market
  • Economic, social and territorial cohesion
  • Agriculture and fisheries, excluding the conservation of marine biological resources
  • Consumer protection
  • Transport
  • Energy
  • Security and justice, and home affairs
  • Research, technological development and (outer) space
  • Development and humanitarian aid
  • Tourism
  • Education
  • Culture
  • Administrative co-operation
  • Human health
  • Civil protection

How will the EU vote on the future UK–EU Trade and Cooperation Agreement?

The UK–EU Trade and Cooperation Agreement requires the unanimous approval of the council of the EU and consent of the EU parliament.

For international treaties, the council of the EU votes in one of two ways: by reaching a qualified voting majority (QMV) or unanimity. Unanimity always applies if the deal:

  • is an association agreement (one that goes beyond trade) – this includes the UK-EU Trade and Cooperation Agreement
  • covers areas that require unanimity voting, such as cultural and audio-visual services, educational services, and social and human health services
  • includes a foreign policy or security chapter.

For anything else, it can use QMV. A vote in favour of a deal requires 55% of member states, representing at least 65% of the total EU population, to vote in favour.

The EU parliament must also give its consent. This usually happens before the Council of the EU gives its consent.

Some of the EU’s mixed agreements have also required the approval of up to 38 national and regional assemblies across the EU. This is not the case for the UK-EU Trade and Cooperation Agreement.

Do national parliaments and regional assemblies in the EU need to vote on a UK–EU Trade and Cooperation Agreement?

No. Member state governments collectively decided to limit ratification to the EU level, so just in the Council of the EU and European Parliament. Similarly, the 2019 Japan–EU trade agreement was ratified as an ‘EU-only agreement’ though it included provisions of shared competence. 

Has the UK–EU Trade and Cooperation Agreement been in force (provisionally applied) before full ratification?

Yes, the Council of the EU consented to provisionally apply the UK–EU treaty on 29 December, pending approval by the European Parliament. This means that the agreement has taken effect in practice. However, full ratification can only happen once the European Parliament consents to the deal and the Council of the EU formally agrees to it.

The European Parliament was originally due to vote on the UK–EU Trade and Cooperation Agreement by the end of February, but this was delayed – in part due to political tensions over the operation of the Northern Ireland protocol. The European Parliament is expected to consent to the deal on 27 April.

The UK government has said that the various committees outlined in the agreement to manage the UK–EU relationship – including the Partnership Council, which will oversee the operation of the entire agreement, will only be established once the EU has ratified the deal.

How has the UK ratified the UK-EU Trade and Cooperation Agreement?

In the UK, ratification is governed by the Constitutional Reform and Governance Act 2010. This allows the government to ratify a treaty 21 days after it has been laid before parliament, provided MPs don’t vote against it. But the government is under no obligation to schedule a vote on any treaty – and it removed its initial commitment to hold a vote on the final UK–EU treaty from the new European Union (Withdrawal Agreement) Act 2020 passed in January.

Between Christmas and New Year, the government rushed the EU (Future Relationship) Act 2020 through parliament to implement the Trade and Cooperation Agreement into UK law.


 

Watch our video explainer on the EU ratification process

Topic
Brexit
Publisher
Institute for Government

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