May be of interest @IanDunt @StevePeers @AllieRenison @GuitarMoog @EmporersNewC @davidallengreen @Sime0nStylites @Usherwood @JMPSimor @JolyonMaugham @_JeremyNicholls @WomaninHavana @jdportes @SarahLudford @CarolineLucas @lisaocarroll @GeorgePeretzQC @PaoloBrennan @riccsallustio66 pic.twitter.com/qrgJ6d2MqL— Steve Lawrence (@SteveLawrence_) April 26, 2018
Article 127 provides that:
“Each Contracting Party may withdraw from this Agreement
provided it gives at least twelve months’ notice in writing to the other
Contracting Parties.
Immediately after the notification of the intended
withdrawal, the other Contracting Parties shall convene a diplomatic conference
in order to envisage the necessary modifications to bring to the Agreement.”
The UK has not invoked this
provision which leads many to think that the EEA Agreement would still apply to the
UK after Brexit. Unfortunately this isn't how it works!
Context is everything. Article 2 of
the Agreement provides that:
“The term ‘Contracting Parties’ means, concerning the Community and the EC Member States, the Community and the EC Member States, or the Community, or the EC Member States. The meaning to be attributed to this expression in each case is to be deduced from the relevant provisions of this Agreement and from the respective competences of the Community and the EC Member States as they follow from the Treaty establishing the European Economic Community.”
Iceland, Liechtenstein and Norway
clearly are contracting parties but regarding the EU (the legal successor to
the European Community) and its member states, contracting parties could mean:
a.
the EU and the EU member states
(acting together),
b.
the EU (on its own), or
c.
the EU member states.
Right, everybody clear now? Well no,
but other aspects of the Agreement are less open to interpretation.
Article 2 contains the following
further definition:
“the term ‘EFTA States’ means the Iceland, the Principality
of Liechtenstein and the Kingdom of Norway;”
Article 28(1) provides that:
“Freedom of movement for workers shall be secured among EC
Member States and EFTA States.”
Article 126(1) provides that:
“The Agreement shall apply to the territories to which the Treaty establishing the European Economic Community is applied and under the conditions laid down in that Treaty, and to the territories of Iceland, the Principality of Liechtenstein and the Kingdom of Norway.”
Together these mean that:
First, even if the UK were to join
the European Free Trade Association, it would not automatically become an EFTA
State for the purposes of the EEA Agreement.
Second, when the EU treaties cease
to apply to the UK, the EEA Agreement will also cease to apply. The UK will be
neither a "EC Member State" or a "EFTA State" so the free
movement of workers provisions will also cease to apply. A transitional deal
between the EU and the UK won't help, the UK will need a separate transitional
deal with the EFTA states.
In follows that that the phrase
"Contracting Party" in Article 127 doesn't refer to a single EU
member state, but to the EU in its entirety. The EU could withdraw from the EEA
as could Iceland, Liechtenstein and Norway, but an individual EU member state
couldn't withdraw in its own right.
There might be an argument to say
that the UK remains a contracting party in the Vienna Convention sense, as it signed and ratified
the EEA Agreement, but it would be a hollow position without the application of
any substantive provisions.
The EEA Agreement is not unique.
Pretty much all the agreements the EU signs contain territorial provisions
similar to Article 126 of the EEA Agreement. Trade deals with Canada and Japan
will cease to apply to the UK from Brexit day unless those countries agree to
continue to apply them to the UK after Brexit day.
