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31 Swiss. Rev. Int'l & Eur. L. 713 (2021)
Brexit and a Breach of Good Faith?

handle is hein.journals/sriel31 and id is 727 raw text is: Brexit and a Breach of Good Faith? Darren Harvey* This paper examines whether recent actions taken by the UK government constitute a breach of good faith obligations flowing from Article 4(3) of the Treaty on European Union (TEU) and Article 5 of the UK-EU Withdrawal Agreement (WA) respectively. In doing so, it undertakes an analysis of the preambles to the re- spective Treaties in an attempt to flesh out the content and scope of the good faith obligations that both the United Kingdom and the EU Member States are subject to. It argues that the preambles to the EU Treaties play no role whatsoever in the case law of the Court of Justice of the European Union related to Article 4(3) TEU. In contrast, the preamble to the WA is likely to play a prominent role when interpreting the good faith obligations stemming from Article 5 of that Agreement. Therefore, as the source of the UK's good faith obli- gations moves away from Article 4(3) TEU and towards Article 5 WA, not only does the nature of those good faith obligations change, but so too does the role that preambles to treaties play in defining the content ofgood faith obligations. Keywords: Brexit - Article 4(3) TEU - Article 5 WA - sincere cooperation - good faith - preambles to international treaties Table of Contents I. Brexit and Multiple (Potential) Breaches of Good Faith: An Introduction in Three Parts A. The Good Faith Clause in the UK-EU Withdrawal Agreement B. A Breach of Good Faith? Round One: The UK Internal Market Bill C. A Breach of Good Faith? Round Two: Unilateral Delays in Applying the Withdrawal Agreement II. Scope of the Study III. The UK, Article 4(3) TEU and Good Faith A. The UK was Bound by Article 4(3) TEU during Transition B. Avenues for Enforcing Article 4(3) TEU C. Article 4(3) TEU and the Duty of Abstention D. Directives, the Duty of Abstention and the UK Internal Market Bill E. A Breach of Article 4(3) TEU during the Transition Period? IV. The UK, Article 5 WA and Good Faith A. Is Good Faith under Article 5 WA a <Concept> of EU Law? B. A Textual Interpretation of <<Objectives> under Article 5 WA C. Interpreting Good Faith in light of the Object and Purpose of the WA D. The Role of the Preamble to the UK-EU Withdrawal Agreement V. Examining the Actions of the UK Government in Light of Article 5 WA A. The UK's Actions and the Commission's Response B. A Breach of Good Faith under Article 5 WA? VI. Conclusion * Lecturer in Law, King's College London. 31 SRIEL (2021) 713

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