It is now over a year since Francis Hoar’s careful analysis that the UK is not prohibited by European law from now negotiating trade deals with non-EU countries which will take effect in March ’19. But it is an analysis that is becoming more compelling now.
Jean-Claude Juncker has suggested that the UK cannot negotiate these trade deals during the 2 years period under Article 50 (Frans Timmermans is more realistic), but it seems clear that Juncker is wrong about this.
It is true that in the Blue Skies Case (Commission v United Kingdom, Denmark, Sweden, Finland, Belgium, Luxembourg, Austria, Germany), the Court of Justice of the European Union (CJEU) declared illegal an agreement entered into by various EU countries with the USA for co-operation in the area of aviation. But note the summary of that case:
The Court then points out, in accordance with its case-law, that, where the Community lays down common rules, the Member States are no longer competent to enter into obligations towards non- member countries if those obligations affect the common rules and that the Community alone is entitled to assume such obligations.
So the prohibition is on entering into obligations, not negotiating. And further if the negotiations concern arrangements that only come into effect after the common rules cease to apply, then pas de problème, because the obligations that potentially arise from those negotiations cannot affect any relevant common rules.
We live in a chaotic world, but my guess is still that the UK will leave the EU in March ’19 with no Article 50 deal. Even if Michel Barnier and David Davis put something forward, there is a very good chance that it will be voted down either by the EU nations (who have a veto, and may think the draft is not generous enough) or the UK parliament (where, bizarrely, Brexiteers and anarchists might well make common cause – the former because the draft is too generous and the later because they are very unhappy). So, it would be good to be ready to activate a string of trade deals with the rest of the world pretty much straight away.