Must Mutual Recognition Transform into Mutually Assured Obstruction? Three Creative Suggestions for the UK's Brexit Negotiators

Abstract

On 2nd October 2016, Theresa May gave the clearest indication yet that the UK will be leaving not only the European Union, but the European Economic Area too, finding herself outside “Fortress Europe” altogether. Thus while Brexit might offer exciting opportunities for the British to “go it alone”, setting our own standards, this would have the effect of excluding non-compliant EU goods and services from the British market, and would likely be answered by the remaining 27 Member States in kind: any barriers to trade erected on our side, whether tariff or non-tariff, will simply be met by equal and opposite barriers on the other. Even if a UK-EU Free Trade Area is negotiated, removing the threat of tariffs themselves, the remaining 27 Member States will be free to impose quotas on British goods, or indeed “measures having equivalent effect” (regulatory barriers), without fear of censure from the Court of Justice as in the past. The Court’s classic doctrine of “mutual recognition” will serve no further purpose. The situation will be, as the present author has described it elsewhere, one of “Mutually Assured Obstruction”. This paper postulates three alternative doctrines that our Brexit negotiators might consider as they draft a Withdrawal Treaty, which might leave some scope for liberalization on both sides of the Fortress wall, but at the same time remaining true to the spirit of Brexit, and not simply undoing it “in the small print”. These alternatives are based, respectively, on the concepts of obversion, unilateralism and tripartism.