Regulatory Autonomy after EU Membership: Alignment, Divergence and the Discipline of Law

Abstract

The United Kingdom withdrew from the European Union on 31 January 2020 and immediately entered into a period of “transition”. With the EU acquis continuing to apply to the UK during this period, regulatory alignment with the EU is maintained until transition ends. However, this “shadow membership” is not an intimation of the desire of the UK to maintain alignment following transition. Indeed, the UK has stipulated that continuing alignment is incompatible with its direction of travel out of the EU. Rather, in its desire to protect and enhance its “regulatory autonomy”, the UK is set to ditch the discipline on its autonomy experienced during membership—a “free movement” discipline—in favour of a looser “free trade” discipline. In response, the EU has asserted the need to protect its own autonomy by demanding that the UK commit to “level playing-field” requirements aimed at preventing the EU’s balance of market liberalism and regulation and regulatory competition and neutrality from being eroded. The aim of this article is to evaluate whether the ambition to agree a comprehensive economic partnership is compatible with EU and UK attempts to protect their regulatory autonomy.