Friends with benefits: the legal elements of the reset of the EU/UK relationship

 

Professor Steve Peers, Royal Holloway University of London

Photo credit: Julian Herzog, via Wikimedia Commons

Introduction

Advocates of Quebec’s independence from Canada have long argued that their plan would not entail complete separation from Canada, but rather a fusion of independence and continuing links that they described as ‘sovereignty-association’. Conversely, opponents of Quebec separation derided this suggestion as ‘divorce with bed privileges’. Why should one party to a marriage get to walk away – but still expect sex?

On the other hand…what if sex was never the problem? What if both sides to the relationship could agree to end the marriage as a whole, yet consent to occasional mutually enjoyable booty calls? Especially if the relationship with that cute American that one of them was always fantasising about while the couple was married was not really working out as planned.

The debate about the post-Brexit UK/EU relationship has raised similar issues, albeit with less horny analogies: ‘cherry-picking’ and ‘having one’s cake and eating it’. During the initial Brexit talks, the EU indicated that it would trade off market access against the degrees of integration which the UK would accept with the EU, comparing this to models of its relationships with other non-EU countries: Barnier’s even less sexy ‘escalator’.

This explains the nature of the UK/EU relationship, as eventually devised. First of all, though, the two sides agreed a withdrawal agreement which wound down the UK’s membership of the EU, retaining some continuing alignment with EU law, especially for the bitter ex-couple’s troubled child: Northern Ireland. That entailed continued jurisdiction for the CJEU and ongoing application of the direct effect and supremacy principles of EU law, rather than the more usual UK approach to international law, keeping it separate from the national legal order.

After the divorce, though, the parties agreed a very different type of treaty: the Trade and Cooperation Agreement (TCA), which co-exists alongside the withdrawal agreement. It explicitly eschewed any link with EU law, and therefore any CJEU jurisdiction (except as regards UK participation in EU research programmes), ruling out the ‘direct effect’ principle allowing individuals to invoke the treaty in courts to obtain rights – except as regards the social security provisions.

It proclaimed itself as the single framework for the UK/EU future relationship, with all further treaties between the two regarded as supplementary. But in fact it was itself several different treaties under a trenchcoat, containing within it a number of different rules on dispute settlement as well as separate termination and suspension rules for certain parts of the treaty.

Five years later, and a different UK government, believing there are economic benefits in closer ties – but political jeopardy in very close ties – with the EU, returned to the bottom of the Barnier escalator, hoping that closer ties could be negotiated without stepping on it. Ultimately this has proved possible, with the EU and UK willing to agree a complex compromise between both a number of substantive areas of interest and as regards the integration/market access trade-off in some particular fields.

The following blog post is an overview of the legal aspects of the reset deal – both substantively and in terms of the legal nature of what the two sides have agreed in principle.

Legal Framework

The reset arrangements are set out over three documents: a joint statement on broad foreign policy issues; a security and defence partnership; and a common understanding on development of the UK/EU relationship.  None of this is legally binding as such; but some of it is legally binding-adjacent, in the sense that it is linked to legally binding texts or indicates an intention to negotiate them. While operational cooperation can be important in practice, this blog post focusses on the issues with a link to legally binding measures.

Alongside these documents, the EU and UK have also agreed (as briefly mentioned in para 3 of the common understanding) to extend the current arrangements for fisheries and energy cooperation in the TCA. More precisely, according to the Commission’s Qs and As on the reset, the EU and UK have reached a ‘political agreement’ to extend the rules on fisheries in the TCA for 12 years, and to keep extending the rules on energy in the TCA annually. (Both sets of rules had been set to expire on 30 June 2026)

They have agreed to formalise this agreement to extend those rules ‘within one month’. [Update 20 June 2025:*] In practice, this deadline was met by means of decisions of the Partnership Council set up by the TCA and other measures adopted by 19 June 2025 (the reset agreement was dated 19 May 2025). 

Security and defence partnership

As the common understanding notes (para 6), agreeing the partnership potentially enables the UK and EU to agree on defence procurement within the context of the ‘SAFE’ Regulation on defence spending, under discussion at EU level (see the proposal here). The partnership text also refers to the UK’s participation in the EU’s military mobility project (approved under the previous UK government) and possible participation in other EU crisis management operations, along with association with training and the European Defence Academy. But it mainly provides for more frequent discussions between the EU and the UK in various security and defence fields.  

Common understanding

First of all, the much-discussed prospect of a ‘youth experience’ scheme is mentioned in para 13:

13. Therefore, the European Commission and the United Kingdom should work towards a balanced youth experience scheme on terms to be mutually agreed. The scheme should facilitate the participation of young people from the European Union and the United Kingdom in various activities, such as work, studies, au-pairing, volunteering, or simply travelling, for a limited period of time. It should provide a dedicated visa path and ensure that the overall number of participants is acceptable to both sides.

On the EU side, the Commission already proposed a mandate from the Member States (ie the Council) to negotiate a treaty to this end in April 2024; this proposal is public. The Council apparently agreed in principle on a mandate in December 2024, but does not seem to have formally adopted it; this might differ from the Commission proposal somewhat but we cannot be certain, as none of the Council texts are fully public at time of writing.

Looking at what the EU and UK have mutually agreed, the mobility will be limited in time, but the extent of this is not determined yet (the Commission had proposed perhaps three or four years). It will be on the basis of a visa (as the Commission had proposed). It appears that some form of limit on numbers will exist (the Commission had rejected this).

The agreement does not refer to a number of key issues, such as: the age range concerned (the Commission proposed 18-30); whether this will be a formal treaty, as the Commission proposed (which would need to be signed and ratified; on the EU side the Member States, via the Council, would have to agree to this, plus the consent of the European Parliament for conclusion); equal treatment in tuition fees (although not student loans), as the Commission proposed; family reunion (mentioned by the Commission); or dropping the UK’s healthcare surcharge (as the Commission proposed).

It should be noted that while some claim that ‘the UK asked for this first’, the Commission’s proposal makes clear that the UK had asked some Member States bilaterally for a youth exchange treaty; the EU preferred to respond by requesting a negotiation with the entire EU. There’s an obvious difference between separate arrangements with some Member States and a treaty open to nationals of all Member States.

If agreed, this would be the EU’s first youth exchange treaty (as distinct from whatever arrangements individual Member States have negotiated), and there’s no framework in EU law for such arrangements. Conversely, the UK has several youth exchange arrangements with non-EU countries.

Para 14 of the common understanding refers to Erasmus:

14. Furthermore, the United Kingdom and the European Commission should work towards the association of the United Kingdom to the European Union Erasmus+ programme. The specific terms of this association, including mutually agreed financial terms, should be determined as part of that process in order to ensure a fair balance as regards the contributions of and benefits to the United Kingdom. The association should be in accordance with the European Union Multiannual Financial Framework and the Trade and Cooperation Agreement.

(nb other non-EU countries are linked to Erasmus already). The reference to the TCA links the UK’s participation in Erasmus to the general rules for UK participation in EU programmes set out in the TCA already; Erasmus is not listed but Article 710 of the TCA gives the joint specialist committee set up by the agreement the power to amend the list of which programmes the UK participates in. So legally the two sides will presumably adopt something similar to the texts associating the UK with the EU research programmes; and like that negotiation, the negotiations will probably focus on the amount of the UK’s contribution. (Let’s not kid ourselves that either the EU or the UK is too high-minded to haggle over money).

Incidentally, as noted already, participation in EU programmes is the one part of the TCA which currently provides for jurisdiction of the CJEU to settle disputes (see Article 728, and my discussion of dispute settlement under the TCA); this will presumably apply to Erasmus too.

Next, there is a paragraph on touring musicians et al:

15. The European Commission and the United Kingdom recognise the value of travel and cultural and artistic exchanges, including the activities of touring artists. They will continue their efforts to support travel and cultural exchange.

Effectively this says nothing – the UK’s previous government having passed up an offer, when negotiating the TCA, to agree declarations similar to those attached to the EU’s visa waiver treaties with some other non-EU countries, which clarify that artists are not required to obtain visas during short visits to EU Member States, as they are not considered to be carrying out paid work.

On the issue of the use of e-gates, the common understanding says:

16. The United Kingdom and the European Commission will continue their exchanges on smooth border management for the benefit of their citizens, including the potential use of eGates where appropriate. They note that European Union citizens can use eGates in the United Kingdom and that there will be no legal barriers to eGate use for British Nationals traveling to and from European Union Member States after the introduction of the European Union Entry/Exit System.

Again, this is not really a commitment to anything. In practice, under the current EU border rules, which make no mention of e-gates, some Member States allow UK citizens to use e-gates before getting their passports stamped. Under the EU entry-exit system, supposedly to be applied later this year (although prior deadlines have been missed), e-gates are referred to explicitly; they will be used at least on some occasions to collect entry and exit data, with passport stamping becoming the exception. (EU legislators have just agreed on amendments to the law to roll out the system more gradually)

Moving on to economic issues, the common understanding refers to a possible agreement on the UK’s link to the EU electricity market:

18. The United Kingdom and the European Commission share the view that close cooperation on electricity is in the interest of both the European Union and the United Kingdom.

19. The European Commission and the United Kingdom should explore in detail the necessary parameters for the United Kingdom's possible participation in the European Union's internal electricity market, including participation in the European Union's trading platforms in all timeframes. Meanwhile, the current electricity trading arrangements will continue to apply.

20. Regarding its territorial scope, any agreement should be appropriately articulated with the provisions of the Windsor Framework. Any agreement should be based on a balance of rights and obligations and ensure a level playing field. In this context, it should define the relationship between the United Kingdom and European Union rules on the electricity market, as well as on State aid, the promotion of renewables and the protection of the environment, in so far as they relate to the electricity sector.

21. Accordingly, any agreement should include dynamic alignment with European Union rules where relevant, giving due regard to the United Kingdom's constitutional and parliamentary procedures and respect the role of the Court of Justice of the European Union within an arbitration-based dispute resolution mechanism, and an appropriate United Kingdom contribution to decision-shaping.

This appears to contemplate a future treaty, with a broad indication of its content – although of course the details would need to be renegotiated. Although the TCA already has rules on State aid and the environment, this text appears to consider that sui generis rules will be needed, including ‘dynamic alignment’ (ie the UK aligning with current and future EU law in this field) entailing a role for the CJEU, in which arbitrators (in the event of a dispute on EU law) will ask it questions about the interpretations of EU law.

This model is not used in the TCA – as noted above, the CJEU only has jurisdiction in the current TCA in the event of disputes about UK participation in EU programmes – but it is used in the withdrawal agreement (see discussion here), and in a number of EU treaties with non-EU countries. In practice, I don’t believe that any arbitration panel under an international agreement has ever asked the CJEU questions about EU law; and in some ways this would be less far-reaching than the CJEU’s role under the withdrawal agreement, given that some parts of that agreement (the Northern Ireland protocol; the financial settlement; citizens rights) provide for some additional jurisdiction for the Court.

A role for the UK in decision-making is likely to take the form of some kind of consultation similar to treaties with Norway et al (for instance, the EEA).

The detailed outline of a possible food standards agreement raises similar issues on dispute settlement, dynamic alignment, and a UK rule in decision-making, although it is slightly differently worded on these points:

23. The European Commission and the United Kingdom share the view that a functioning sanitary and phytosanitary area would address many of the issues raised in respect of the movement of agri-food products.

24. The United Kingdom and the European Commission should work towards establishing a Common Sanitary and Phytosanitary Area by way of a European Union-United Kingdom Sanitary and Phytosanitary Agreement (hereafter ‘SPS Agreement').

25. Regarding its territorial scope, the SPS Agreement should cover the European Union and the United Kingdom in respect of Great Britain (2). This would result in the vast majority of movements of animals, animal products, plants, and plant products between Great Britain and the European Union being undertaken without the certificates or controls that are currently required by the rules within the scope of the SPS Agreement for such movements. These same benefits would be extended to the movements between Great Britain and Northern Ireland, through the interplay of the Windsor Framework and the SPS Agreement, so long as the SPS Agreement is fully implemented. The continued application of the Windsor Framework would provide for Northern Ireland maintaining its privileged unique dual access to both the European Union Single Market and the United Kingdom internal market.

26. In terms of its material scope, the SPS Agreement should cover sanitary, phytosanitary, food safety and general consumer protection rules applicable to the production, distribution and consumption of agrifood products, the regulation of live animals and pesticides, the rules on organics as well as marketing standards applicable to certain sectors or products.

27. Within the scope defined above, the SPS Agreement should ensure the application of the same rules at all times by providing for timely dynamic alignment of the rules applicable to and in the United Kingdom acting in respect of Great Britain with all the relevant European Union rules, giving due regard to the United Kingdom's constitutional and parliamentary procedures; and where necessary to ensure the European Union's level of food, sanitary, and phytosanitary safety, through the immediate application of the relevant European Union rules.

28. The United Kingdom should be able to take targeted action to protect its biosecurity and public health, in the same way as Member States under European Union law. In addition, the SPS Agreement should include a short list of limited exceptions to dynamic alignment. An exception could only be agreed if: (i) it does not lead to lower standards as compared to European Union rules, (ii) it does not negatively affect European Union animals and goods
being placed on the market in the United Kingdom in respect of Great Britain, and (iii) it respects the principle that only animals and goods compliant with European Union rules move into the European Union.

29. The SPS Agreement should be subject to a dispute resolution mechanism with an independent arbitration panel that ensures the Court of Justice of the European Union is the ultimate authority for all questions of European Union law.

30. To ensure that it can put forward its view, the United Kingdom should be involved at an early stage and contribute appropriately for a country that is not a member of the European Union to the decision-shaping process of European Union legal acts in the fields covered by the obligation to dynamically align. The European Commission should consult the Government of the United Kingdom at an early stage of policy-making. These rights would not extend to participation in the work of the Council or its preparatory bodies.

31. The United Kingdom should have appropriate access to relevant European Union agencies, systems and databases in the areas covered by the SPS Agreement.

32. The SPS Agreement should provide for an appropriate financial contribution from the United Kingdom to support the relevant costs associated with the European Union's work in this policy area.

33. The SPS Agreement should be subject to a joint governance mechanism.

There is also a difference in territorial scope, in that a food standards agreement would not apply to Northern Ireland, the Windsor Framework/Northern Ireland Protocol addressing this issue already there. A UK financial contribution is expressly mentioned.

Again, the issues of costs, dynamic alignment, dispute settlement and decision-making are addressed as part of the section on emissions trading and the carbon border adjustment mechanism:

34. The European Commission and the United Kingdom share the view that a functioning link between carbon markets would address many of the issues raised in respect of trade and a level playing field and would give effect to Article 392(6) of the Trade and Cooperation Agreement. This link should not constrain the European Union and the United Kingdom from pursuing higher environmental ambition, consistent with their international obligations.

35. Therefore, the United Kingdom and the European Commission should work towards establishing a link between carbon markets by way of a European Union-United Kingdom agreement linking the United Kingdom Emission Trading Scheme (UK ETS) and the European Union Emission Trading System (EU ETS).

36. Regarding its territorial scope, this agreement should be appropriately articulated with the provisions of the Windsor Framework.

37. The agreement to link the UK ETS and EU ETS should create the conditions for goods originating in our jurisdictions to benefit from mutual exemptions from the respective European Union and United Kingdom Carbon Border Adjustment Mechanisms subject to compliance with the relevant provisions of European Union and United Kingdom legislation.

38. In terms of material scope, the agreement should cover all aspects of the functioning of an ETS link.

39. The sectors falling in the scope of the ETS linking agreement should be clearly defined to avoid risks of carbon leakage and competitive distortions. Among others, this scope should include the sectors of electricity generation, industrial heat generation (excluding the individual heating of houses), industry, domestic and international maritime transport and domestic and international aviation. The agreement should provide for a procedure to further expand the list of sectors to be covered by the linking agreement.

40. Within that scope, the agreement should ensure the dynamic alignment of the United Kingdom with the relevant European Union rules underpinning the functioning of the ETS link, giving due regard to the United Kingdom's constitutional and parliamentary procedures.

41. The United Kingdom cap and the United Kingdom reduction pathway will be guided by the United Kingdom's Climate Change Act obligations and Nationally Determined Contributions. They should be at least as ambitious as the European Union cap and the European Union reduction pathway.

42. The agreement should provide for an appropriate financial contribution from the United Kingdom to support the relevant costs associated with the European Union's work in this policy area.

43. The agreement should be subject to a dispute resolution mechanism with an independent arbitration panel that ensures the Court of Justice of the European Union is the ultimate authority for all questions of European Union law.

44. To ensure that it can put forward its view, the United Kingdom should be involved at an early stage and contribute appropriately for a country that is not a member of the European Union to the decision-shaping process of European Union legal acts in the fields covered by the obligation to dynamically align. The European Commission should consult the United Kingdom at an early stage of policy-making. These rights would not extend to participation in the work of the Council or its preparatory bodies.

45. The agreement should be subject to a joint governance mechanism.

There is rather less ambition as regards temporary entry and stay of businesspeople:

46. The United Kingdom and the European Commission will set up dedicated dialogues on the implementation of the Trade and Cooperation Agreement, as regards entry and temporary stay of natural persons for business purposes, including the sponsorship scheme, and the recognition of professional qualifications.

As for competition law cooperation, the common understanding refers to a recently agreed treaty, which was already foreseen in the TCA:

47. The European Commission and the United Kingdom recognise the mutual benefit of cooperation in competition enforcement. In this context and in implementing the level playing field provisions of the Trade and Cooperation Agreement, the European Commission and the United Kingdom welcome the successful conclusion of negotiations for a competition cooperation agreement between the European Union and the United Kingdom.

As it happens, the Commission has since proposed the signature and conclusion of this treaty.

Moving on to justice and home affairs, the common understanding encourages more use of the provisions in the TCA. On irregular migration, a hot topic on both sides, there are five paragraphs which effectively amount to very little:

57. The European Commission and the United Kingdom underline their commitment to deepen co-operation on challenges posed by irregular migration – including action to tackle people smuggling and to deepen information sharing to control and manage migration at our respective external borders – while remaining committed to ensuring international protection for those who need it.

Upstream Migration

58. The United Kingdom and the European Commission will deepen cooperation on the external dimension of migration across key geographies, as part of a whole of route approach. They recognise the benefit of increased mutual sharing of information, country expertise and analysis enabling better coordination. They will also work more closely in multilateral fora, processes and dialogues, including the European Union's Global Alliance to Counter Migrant Smuggling, and through exploring United Kingdom participation in the Khartoum and Rabat Processes.

Working together on practical solutions and returns

59. The European Commission and the United Kingdom should work together on practical and innovative approaches to reduce irregular migration. This includes work to share best practices and operational information on key issues like returns to third countries, and to explore possible deterrence mechanisms and other innovative solutions, in line with national, European Union and international law. This would be underpinned by closer cooperation across key networks such as the European Migration Network and agencies, including the European Union Agency for Asylum and Frontex, and respective United Kingdom authorities. They should work together to prevent irregular Channel crossings.

Bolstering United Kingdom and European Union border security including through law enforcement cooperation

60. The United Kingdom and the European Commission should bolster their operational and strategic cooperation to tackle the challenges posed by irregular migration along key routes and at external borders, including through their agencies, law enforcement and judicial cooperation, and information sharing capabilities. This includes through enhanced cooperation with Europol and its European Migrant Smuggling Centre.

Addressing challenges and abuses of visa policy

61. In addition to these enhanced efforts, the European Commission and the United Kingdom will explore closer cooperation to address challenges related to visa policy such as exchanging analysis on visa abuse by third country nationals.

It’s striking that the common understanding does not even mention the previous agreement for the UK to cooperate with Frontex, the EU border agency.

Finally, the common understanding limits its territorial scope in footnotes:

(1) : Unless otherwise provided, the territorial scope of the cooperation envisaged by this Common Understanding will be in line with the scope of Article 774 of the Trade and Cooperation Agreement.

(2) : In line with Article 520(5) of the Trade and Cooperation Agreement, the territorial scope of the SPS Agreement could be extended to cover the territories referred to in Article 774(2) of the Trade and Cooperation Agreement.

Article 774 TCA provides that in principle the TCA only applies to the UK (although note the specific references to Northern Ireland in the common understanding), while Article 774(2) provides for parts of it to apply to the Channel Islands and the Isle of Man. There is no mention of Gibraltar, which is excluded from the TCA by virtue of its Article 774(3); there is equally no mention of the separate treaty on Gibraltar that the EU and UK are negotiating. The Rock that dare not speak its name.

The overall legal relationship

As noted already, the TCA announced itself as the permanent template for the UK/EU relationship. Even though it had to co-exist with the more integrationist withdrawal agreement, the withdrawal agreement was the past and the TCA was the future, boldly going to a ‘dualist’ international law model separated from substantive EU law, its principles and its courts.

But now, the reset agreement makes little reference back to the TCA, besides the extension of the fisheries and energy provisions. Will treaties on youth mobility, and on food standards and emission standards/carbon border adjustment and the electricity market, take the form of ‘supplementary agreements’ to the TCA at all? Even if they do, they will not resemble the TCA legal framework that much – given that with the treaties on food standards, emission standards/carbon border adjustment and the electricity market, the current UK government has pragmatically accepted the integration/market access trade-off (as regards dynamic alignment and the CJEU) that the previous government rejected as ideologically unacceptable (under the TCA, that is).

And the question may also be asked whether these treaties, and the youth mobility treaty, will be subject to the principle of direct effect, ie invocability by individuals in courts, given that the social security rules in the TCA are already subject to an exception on this point.

Next, to what extent will all these treaties be connected? The extensions of parts of the TCA will remain connected to that treaty (with all its internal disconnections) of course, but will the other treaties be connected to the TCA – and/or each other? Inevitably this issue arises because some UK opposition parties have pledged to terminate the treaties concerned if they are elected to government; so the conditions for their termination will be relevant. This might also be relevant to negotiating these treaties – ie the UK (or EU) can’t have its pudding until it’s eaten its dinner.

Finally, it’s notable how many Rubicons have been crossed with this reset deal. As noted already, the UK now accepts the market access/integration trade-off. But the EU now accepts agreeing this trade-off with the UK in limited fields: the UK can have one foot several steps up the Barnier escalator, but the other one firmly on the ground. The EU has also accepted a Swiss-like complex legal relationship with the UK, having opposed it in principle for years. (In fact, the EU already conceded this point when agreeing the TCA; but that treaty hid its legal complexity better than the reset deal does). The UK has accepted an agreement with the EU as regards movement of (some) EU citizens; although it might claim this arrangement will simply resemble its youth mobility treaties with many other countries, the extent of that similarity will be dependent upon the details of the final deal. Above all, the EU, having accepted freer movement of some goods and demanded the freer movement of some people, can no longer lecture the UK on cherry-picking or cake-eating – what with all the crumbs and cherry juice smeared across the EU’s own mouth.