CYIL vol. 8 (2017)

ONDŘEJ SVOBODA CYIL 8 ȍ2017Ȏ number of EU FTAs are of an exclusive nature and will not apply to the UK upon the UK’s withdrawal from the EU. This conclusion is also supported by Van der Loo and Blockmans’ assumption regarding uncomplicated modification of the EU exclusive FTA to adapt to new circumstances after Brexit: “a simple notification by the EU to the third parties might thus suffice to inform them that the EU no longer consists of 28 but 27 Member States.” 19 EU Mixed Agreements In case of shared competences between the Union and Members States the international agreement is ratified both by the EU and by all Member States, pursuant to their respective constitutional ratification procedures. Accordingly, they are called mixed agreements. As these treaties need their entry into force to be concluded by all the Members States along with the EU, the UK enters into them in its own legal capacity. 20 This raises the issue whether a mixed agreement is a single bilateral treaty between the EU and a third country or a multilateral treaty establishing multiple legal relationships with each Member State. As both the EU and Member States are Contracting Parties to the agreement as opposed to exclusive agreements, it is more difficult to assess the UK’s status. This raises question whether the mixed agreement is concluded between a third party and both the EU and each of its individual Member State. 21 The starting point of the presented analysis is a definition of Parties in two of the most important EU mixed FTAs – the EU-Korea FTA and the EU-Canada CETA. The Parties and specifically EU Party are defined in both texts as follows: [EU-Korea FTA:] “The Parties mean, on the one hand, the European Union or its Member States or the European Union and its Member States within their respective areas of competence as derived from the Treaty on European Union and the Treaty on the Functioning of the European Union (hereinafter referred to as the ‘EU Party’), and on the other hand, Korea.” 22 [EU-Canada CETA:] “Parties means, on the one hand, the European Union or its Member States or the European Union and its Member States within their respective areas of competence as derived from the Treaty on European Union and the Treaty on the Functioning of the European Union (hereinafter referred to as the ‘EU Party’), and on the other hand, Canada; 23 19 VAN DER LOO, Guillaume, BLOCKMANS, Steven, The Impact of Brexit on the EU’s International Agreements, CEPS Commentary (15 July 2016), see https://www.ceps.eu/publications/impact-brexit-eu% E2%80%99s-international-agreements. 20 Supra note 13, s. 47. 21 APRIL, Kent, Brexit and the East African Community (EAC) – European Union Economic Partnership Agreement (EPA). In: HILLMAN, Jennifer, HORLICK, Gary (eds.), Legal Aspects of Brexit: Implications of the United Kingdom’s Decision toWithdraw from the European Union , Institute of International Economic Law: Washington 2016, p. 61. 22 Free Trade Agreement between the European Union and its Member States, of the one part, and the Republic of Korea, of the other part, May 14, 2011, 2011 O.J. (L 127) 6, Art. 1.2. 23 Comprehensive Economic and Trade Agreement (CETA) between Canada, of the one part, and the European Union and its Member States, of the other part, January 14, 2017, 2017 O.J. (L 11) 60, Art. 1.1.

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