The shape of Brexit is probably already written in a 60-year-old document

Signing the Treaty of Rome in 1957. Wikipedia

For the United Kingdom, March 2017 represents a significant turning point. Prime Minister Theresa May plans to trigger Article 50 of the Treaty on European Union and the Brexit clock will start ticking. But March 2017 also marks the 60th anniversary of a seminal moment in the history of European integration: the signing of the Treaties of Rome in 1957.

One question on everybody’s mind during the celebrations for this milestone will of course be what the future holds for the UK’s relationship with Europe. A similar question was not far from the minds of those signing the Treaties of Rome 60 years ago. Somewhat ironically, the answer is set to be the same now as it was then: an association agreement.

What is association?

In February, the UK government published a white paper committing to establishing “an ambitious and comprehensive free trade agreement” and “a new strategic partnership” with the EU after Brexit. That points clearly towards what is called an association agreement.

Voices in the EU have assumed that association is the most likely scenario, too. Immediately after the June referendum, German Finance Minister Wolfgang Schäuble, was advocating some form of associate status. Former MEP Andrew Duff has also made the case for a UK-EU association agreement. Others have noted the option as well.

Association status can take many forms. Indeed, over the years, the EU and its predecessors have concluded numerous association agreements – particularly with European states. There is the European Economic Area, which involves Iceland, Liechtenstein and Norway, for example. Or there is the customs union arrangement between Turkey and the EU. The agreements in place with the countries of the western Balkans are association agreements and association agreements have also been concluded with Ukraine, Moldova and Georgia.

All have as their shared legal base a provision now found in Article 217 of the Treaty on the Functioning of the European Union. It is brief and quite vague – so it provides for considerable flexibility, at least in terms of the scope of association.

The language of Article 217 has barely changed since it first appeared in Article 238 of the Treaty establishing the European Economic Community. Today, Article 217 states that the EU:

May conclude with one or more third countries or international organizations agreements establishing an association involving reciprocal rights and obligations, common action and special procedure.

Sixty years ago, Article 238 stated that:

The Community may conclude with a Third State or an international organization agreements establishing an association involving reciprocal rights and obligations, common action and special procedures.

The same wording appeared in Article 206 of the second Treaty of Rome, the Treaty establishing the European Atomic Energy Community (Euratom).

Why allow association?

Back in 1957, it was clear that the UK had no interest in joining the “Six” – Belgium, France, Italy, Luxembourg, the Netherlands and West Germany – in establishing the European Economic Community and Euratom. The UK had already rejected the supranationalism of the European Coal and Steel Community (ECSC) in 1952 and was certainly not going to sign up to even more ambitious projects.

The UK and the Six were nevertheless intent on establishing some form of close relationship. Economically and politically it made sense. And as they had with the establishment of the ECSC, the preferred option was an “association”. The UK had concluded an association agreement with the ECSC in 1954.

So, a primary reason for including provisions on association in the Treaties of Rome was precisely to provide a legal basis for a close relationship with the UK. More significantly, the wording was written specifically with the UK in mind.

The language of “reciprocal rights and obligations, common action and special procedure” reflected concerns that too close a relationship without specified constraints could allow the UK to assume certain benefits of the EEC and Euratom membership without assuming the same associated obligations as the Six. The concern then – as now, 60 years later – was to avoid the UK “cherry-picking”.

The language of “common action and special procedure” was also carefully chosen. The “common action” meant engaging in more than just free trade; an associate was expected to take on relevant rules of the EU. And as for “special procedures”, this meant the association would have its own institutional arrangements. The associated country would not have access to the EEC’s institutional and decision-making processes.

This way to the reading room, Theresa. EPA

On one point, the Six were more accommodating. The original provisions on association included a “flexibility” clause allowing the Treaties of Rome to be amended to accommodate the establishment of an association agreement. This was included specifically with the UK in mind. In fact, the UK officials drafted provisions that were passed to those preparing the treaties. They were not used.

Nor, ultimately, were the provisions on association used to establish a relationship between the EEC/Euratom and the UK. Negotiations on the UK government’s preferred option of a European free trade area collapsed and the UK soon turned its attention in 1960-61 to seeking membership. There were few voices advocating association.

At first glance, the same may be true today. The UK government will be seeking a “bespoke agreement”. However, the legal basis for the future post-Brexit UK-EU relationship will be for the EU to decide. Assuming the UK opts – as expected – for more than just a basic free trade agreement with the EU, then the obvious legal basis for the new relationship will be Article 217.

Having been a key inspiration for the inclusion of a provision for association in the Treaties of Rome, the UK could, more than 60 years later, at last be its beneficiary.

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