CYIL vol. 8 (2017)

ONDŘEJ SVOBODA CYIL 8 ȍ2017Ȏ Hence, the scrutinised provisions referring to the three different categories of “EU Party” do so as a technicality of internal EU law. Deep EU FTAs cover the subject matters that partly belong to EU exclusive, shared and supportive competence. To understand why there is this division of the term “EU Party” in definitions reflects how competences are distributed within the EU in FTAs. 32 It does not, however, change the fact that the EU and its Member States as a whole are the Contracting Parties. Moreover, EU FTAs usually contain specific provisions relating to their territorial application. For instance, in the case of the EU-Korea FTA, Art. 15.5 stipulates that “this agreement shall apply to the territories in which the Treaty on the EU and the Treaty on the Functioning of the EU are applied and under the conditions laid down in those Treaties […]”. 33 The text clarifies the intentions of the Contracting Parties to limit an application of the agreement only to countries governed by the EU law. 34 Since the EU law would no longer apply to the UK after Brexit and the UK is bound by this provision under Art. 11-13 of the VLCT, the territory of the UK would no longer be covered by the territorial application of EU FTAs containing similar language. To conclude, taking into account all above presented arguments while using rules of interpretation under art. 31 of VCLT, the rights and obligations derived from EU FTAs of mixed nature are binding on the UK by virtue of EU membership and they will not likely survive after Brexit. 35 Provisional Application – A Case of CETA Under the Law of Treaties codified in the VCLT 36 and also under the Founding Treaties of the EU in Art. 218(5) of the TFEU there is a possibility of provisional application of an international agreement in order to give effect to the rights and obligations of the said agreement as a whole or in parts, upon signature or on an agreed date, pending the entry into force of the treaty. The past EU practice provides some interesting examples of such cases. The Energy Charter Treaty operated almost three years on the basis of a decision on provisional application of the Council taken back in 1994 for the Community part, and on the basis of national decisions for the Member States’ part. 37 The more recent EU-Korea FTA was provisionally applied no less than five years while the Council only excluded two minor parts Canada). In: HILLMAN, Jennifer, HORLICK, Gary (eds.), Legal Aspects of Brexit: Implications of the United Kingdom’s Decision to Withdraw from the European Union , Institute of International Economic Law: Washington 2016, p. 75. 32 JINWOO (JAY), Kim, Is the United Kingdom Still a Party to the EU-Korea FTA after Brexit?). In: HILLMAN, Jennifer, HORLICK, Gary (eds.), Legal Aspects of Brexit: Implications of the United Kingdom’s Decision to Withdraw from the European Union , Institute of International Economic Law: Washington 2016, p. 49. 33 Also see Art. 1.3 (b) of Chapter 1 of the CETA „geographical scope of application“. 34 Supra note 21, p. 61; Supra note 13, p. 50. 35 It should be also recalled that the different opinion presented by Bartels that the post-Brexit UK will remain formally a Party to mixed FTAs as it ratified them, however it will not receive any benefits from them because rights and obligations arise only for the EU and its Member States. Post Brexit Britain in a World of Preferential Trade Agreements conference held on 24 February 2017 at Birmingham Law School. 36 Supra note 25, Art. 25. 37 HOFFMEISTER, Frank, Curse or Blessing? Mixed Agreements in the Recent Practice of the European Union and its Member States. In: HILLON, Christophe, KOUTRAKOS, Panos (eds.), Mixed Agreements Revisited: The EU and its Member States in the World , Oxford: Hart Publishing 2010, p. 258.

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