Resumen de Brexit and European Economic Area Membership
On 29 March 2017, the United Kingdom notified the European Council of its intention to leave the European Union in accordance with art.50 TEU. At the time of writing, the fourth round of negotiations between the UK and the EU, the latter represented by the European Commission, has been completed. What are the implications of this process for the UK's membership of the European Economic Area (EEA)? The notification letter made no reference to this matter. And yet, EEA membership may be an interesting part of the discussions about the prospects of the UK's links with the single market.
The EEA consists of the EU, the EU's Member States, Norway, Iceland, and Liechtenstein. The EEA Agreement includes a withdrawal clause. This is laid down in art.127 EEA and reads as follows:
"Each Contracting Party may withdraw from this Agreement provided it gives at least twelve month' 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 above provision sets out a process markedly different from that governing withdrawal from the EU pursuant to art.50 TEU: it imposes a notification requirement on the withdrawing party, but does not provide for a negotiation process with the remaining parties. Instead, it is the latter that are to discuss how to adjust the Agreement to the new circumstances. Article 127 EEA is also silent on the consequences of non-compliance with the provision laid down thereunder.
The EEA Agreement refers expressly to the United Kingdom as an autonomous contracting party. In doing so, it differs from other international agreements in which the UK participates along with the EU, the bilateral nature of which is clear. A case in point is the 2000 Cotonou Agreement which was concluded between "the African, Caribbean and Pacific Group of States of the one part, and the European Community and its Member States, of the other part".
The autonomous nature of the UK's membership is also borne out by art.2(c) EEA which defines the term "Contracting Parties" in relation to the Community (as it then was) and the EC Member States as "the Community and the EC Member States, or the Community, or the EC Member States". The meaning of this formulation "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 �".
Two points follow from the above. First, whilst art.2(c) EEA confirms the autonomous nature of the UK�s membership ("or the EC Member States"), it also suggests that the latter is a party in the context of its EU membership. Secondly, the UK's EEA membership is to be understood in relation to the areas where competence has not been passed on to the EU. In other words, whilst autonomous, the UK�s membership is also limited.
In the light of the above, is there any scope in the EEA Agreement for continuing membership once the UK has left the EU? The scope of its existing membership and its link with EU membership, under art.2(c) EEA, would suggest a negative answer. This conclusion is also supported by the territorial clause laid down in art.126 EEA and which provides that the latter "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 �". This clause defines the territorial scope of the EEA Agreement with reference to the territorial scope of the EU�s primary law. As, following Brexit, the UK would not be part of the latter, it would also be excluded from the former.
The broader logic of the EEA also rules out UK�s continuing membership. The EEA Agreement establishes a system that is binary in its conception, and involves EU and European Free Trade Area (EFTA) members. In its preamble, the Agreement �reafffirm[s] the high priority attached to the privileged relationship between the European Community, its Member States and the EFTA States��.
This view is borne out by the institutional characteristics of the EEA. The membership of the EEA Council, for instance, consists of the members of the EU�s Council and Commission and one member of the Government of each of the EFTA States. As for the EEA Joint Committee, whilst its membership is couched in broader terms, its decisions are to be taken �by agreement between the Community, on the one hand, and the EFTA States speaking with one voice, on the other�.
In terms of judicial supervision, the jurisdiction of the EFTA Court covers the enforcement of the Agreement in the EFTA States and the settlement of disputes between EFTA States. The EEA Joint Committee is responsible, amongst others, for reviewing the development of the case-law of the Court of Justice of the European Union and the EFTA Court. It would be difficult to envisage the participation of a member which would be subject to the jurisdiction of neither court.
It follows from the above that EEA membership is tied in with EU or EFTA membership. This conclusion is also borne out by art.128(1) EEA which provides that �[a]ny European State becoming a member of the Community shall, and the Swiss Confederation or any European State becoming a member of EFTA may, apply to become a party to this Agreement. It shall address its application to the EEA Council�. This provision does not expressly confine EEA membership to EU or EFTA members. Viewed, however, in the light of the logic and structure of the Agreement, it supports the view that there is no scope within the existing Agreement for a third type of a contracting party, the latter being neither an EU nor an EFTA member.
In other words, whilst a party to the EEA, the UK�s membership is conditioned by its EU membership. Notification pursuant to art.126 EEA is a procedural duty which would need to be complied with. Failure to notify, however, would not maintain EEA membership, unless either the EEA Agreement was amended or the UK became an EFTA member. Instead, leaving the EU without having notified the EEA under art.126 EEA would have consequences for the UK in the public international law sphere. The other EEA members, for instance, would be able to consider Brexit a fundamental change of circumstances under art.62 of the Vienna Convention on the Law of Treaties and terminate the Agreement.
