CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ NO REASON TO PARTY: UNITED KINGDOM AS PARTY TO EU … of the agreement – provisions relating to the criminal enforcement of intellectual property rights and cultural cooperation due to exclusive competence of the Member States. 38 Also, the CETA itself presumes it will be provisionally applied pursuant to Art. 30.7. This is now on track as negotiations have been completed; however, the CETA has been signed but still needs to be ratified by all EUMember States to be valid. 39 On the EU’s side the provisional application is subject to numerous exclusions based on division of competence which are more complex in compare to the EU-Korea FTA. The Council of Europe in its decision on the provisional application of the CETA on 5 October 2016 approved the provisional application excluding enumerated parts under the competence of the EU Members States. 40 For that reason the rest of the agreement falls under the EU exclusive competence or under an area of shared competence. 41 In relation to the process and supposing the UK in the meantime completes its ratification of the CETA, Brexit invoked the question of whether the CETA will continue to provisionally apply to the UK after the withdrawal. The Council’s decision on the provisional application confirms that the provisional application of the CETA affects Member States through the EU law. Circumstances are thus the same as in regards exclusive agreements. Provisional application and derived trade benefits for the UK from the CETA depend on membership in the EU. 42 The above presented arguments lead to a conclusion that the provisional application of the CETA will have an effect on the UK only for the time of its being a Member State. This conclusion is further strengthened by the mere fact that the UK is not even a party to the CETA until all Member States have ratified it. 43 Brexit could not affect the provisional application nor the conclusion of the CETA. A possibility of provisional application without there being a Party then reinforces an assumption of bilateral nature of the treaty. 44 Conclusion Brexit supporters claimed prior to the referendum that the UK would retain its status as a Contracting Party to EU FTAs, preserving thus trade benefits from these treaties. On the basis of this brief analysis it is difficult to draw complete conclusions. Nevertheless, the claim of Brexit supporters is questionable. As the article shows, Brexit is likely to imply the termination of EU FTAs vis-à-vis the UK. Exclusive agreements do not provide any legal basis for the assertion above as only the EU is the Contracting Party for the EU side. Mixed agreements create more difficulties as “mixity directly confronts fundamental elements of 38 Council of the European Union, Council Decision of 14 March 2014 on the signing, on behalf of the European Union, and provisional application of the Free Trade Agreement between the European Union and its Member States, of the one part, and the Republic of Korea, of the other part, 2014/257/EU. 39 For more information on the ratification process in the EU see also KLEIMANN, David, KÜBEK, Gesa, The Signing, Provisional Application, and Conclusion of Trade and Investment Agreements in the EU: The Case of CETA and Opinion 2/15, EUI Working Paper , RSCAS 2016/58, 2016, p. 16-22. 40 Council Decision (EU) of 28 October 2016 on the provisional application of the Comprehensive Economic and Trade Agreement (CETA) between Canada, of the one part, and the European Union and its Member States, of the other part, 2017/38. 41 Supra note 31, p. 12. 42 KOUTRAKOS, supra note 6. 43 GEHRING, supra note 6. 44 Supra note 21, p. 63.

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