CYIL vol. 8 (2017)

ONDŘEJ SVOBODA CYIL 8 ȍ2017Ȏ UK as a Member State of the EU is a Contracting Party to 63 trade agreements, 2 which the EU negotiated in various forms on behalf of its Members States. 3 While the UK does not possess the legal authority under the EU law to conduct trade negotiations on its own until the last day of the two year period since the notice of withdrawal according to Art. 50 of the Treaty on the European Union (TEU), it is of utmost importance for the UK to remain a contracting party to the current EU trade agreements. Given its significance, a possibility of the post-Brexit UK relying on these treaties and benefiting from them in the future was discussed during the 2016 referendum campaign. The official document of the British Government at the time maintained that in case of leaving the EU “[t]he UK would lose the benefit of EU Free Trade Agreements with other parts of the world: renegotiating these would take years.” 4 Also in evidence to the Treasury Committee, the Chancellor then, George Osborne, said that “some of the free trade agreements that we currently benefit from would no longer apply to the UK if we were no longer in the EU.” 5 Various scholars also shared this opinion. 6 Nevertheless, the Brexit campaigners, arguing that the UK could continue to apply the substantive terms of the EU FTAs after withdrawal, labelled the opposite opinions as just “pro-Remain propaganda”. 7 The truth is that opinions on the effects of Brexit on EU international agreements differ, but the prevailing majority of preliminary analyses is of the view that the agreements will cease to apply from the first moment after UK’s withdrawal. This article focuses on the question of the disputed status of the post-Brexit UK in the EU trade treaties in order to help identify which camps during the heat of the campaign used arguments based on sound legal analyses rather than wishful thinking or, worse, propaganda. For this purpose, the article will proceed in four stages. EU international agreements are divided into two groups regarding Member States’ status as Contracting Parties in these accords: exclusive (EU-only) and mixed (EU and the Member States). 8 This division reflects the distribution of competences between the Union and the Member States under EU law. Therefore, the first part will examine the situation of EU exclusive agreements. The second part will similarly scrutinise the more complex question of mixed agreements, namely the EU-Korea Free Trade Agreement and the EU-Canada Comprehensive Economic and Trade Agreement (CETA), which represent the most developed EU trade treaties so far. The third part will look at a specific case of provisional application of a mixed agreement because Brexit 2 House of Commons Library, List of EU trade agreements, Briefing Paper No. 7792 (21 November 2016), p. 1. 3 Besides usual FTA, other forms of trade treaties can be found in the EU practice such as economic partnership agreements (EPAs) or association agreements. 4 HM Government, Alternatives to membership: possible models for the United Kingdom outside the European Union (4 March 2016), p. 25. 5 Treasury Committee, Oral Evidence: The economic and financial costs and benefits if UK membership of the EU), HC 499, Q372 (1 December 2015), p. 24. 6 See e.g. GEHRING, Markus W., Brexit and EU-UK trade relations with third states, EU Law Analysis (6 March 2016), see http://eulawanalysis.blogspot.cz/2016/03/brexit-and-eu-uk-trade-relations-with.html; KOUTRAKOS, Panos, Brexit and International Trade Treaties: A Complex, Long, and Expensive Process, Lawyers – In for Britain, see http://lawyers-inforbritain.uk/briefings/brexit-and-international-trade-treaties-a- complex-long-and-expensive-process/. 7 Lawyers for Britain, Brexit and International Trade Treaties, see http://www.lawyersforbritain.org/int-trade. shtml. 8 Based on information on the Europa Treaties website, there are currently 746 exclusive EU agreements and 229 mixed agreements. See http://ec.europa.eu/world/agreements/default.home.do.

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