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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 respective 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 obligations moves away from Article 4(3) TEU and towards Articlle 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 of good faith obligations.