The EU has concluded 1,139 bilateral and multilateral agreements with third parties on behalf of its Member States, including the UK, ranging from trade, development and sectoral economic issues like aviation, energy and fisheries, to matters related to visas, human rights, and the Common Foreign and Security Policy.
A few questions have arisen in relation to the UK’s position (or possible position) upon withdrawal: whether it will be able to succeed to the agreements, or whether these international agreements would need to be renegotiated and ratified; and how the UK may want to amend its participation in the agreement and whether this could be achieved.
The Brussels Office of the UK Law Societies has explored the ways to ensure the continued application of these conventions, and how the UK can rescind or amend its international obligations, a brief summary of which is below.
It is necessary to examine the two different types of international agreements that have been ratified in the context of the EU:
- Agreements that have been ratified by the EU under its exclusive competence. An example of this is the Hague Choice of Court Agreements Convention, which has been ratified simply by the EU.
- Mixed agreements, which have been ratified by both the EU and its individual member states as the competence for these agreements is shared. An example of this type of international agreement is the Aarhus Convention.
Furthermore, there are different types of international agreements:
- Simple agreements, which set out the rights and obligations of the participating states. For example, in the area of trade, agreements will stipulate that the customs tariffs will not be applied to certain products or goods.
- Agreements that set up a separate bodies, for example the UPC Agreement, which aims to set up the Unitary Patent Court.
- Complex agreements that set out separate institutional frameworks, which require rules on participation, dispute settlement tribunal or mechanism, such as the WTO, which includes the rights and obligations derived from the WTO framework, but also rules on participation on the institutional arrangements.
- International multilateral and bilateral agreements
In sum, the UK should be able to continue to participate in any multilateral agreements by a simple notification where it does not need to renegotiate the content or the extent of the UK’s participation such an agreement. The UK should have a corollary power to also withdraw from these agreements by notification.
For the reasons of legal certainty and clarity, it would be advisable that the UK approaches the institution or State responsible for the administration of the agreement to affirm its continuation or withdrawal. Similarly, this right to continue by a simple notification should be given in cases where the agreement is mixed, having already been ratified by the UK separately, and where the continued participation does not entail changes to the agreement or require reallocation of the UK’s share in the maintenance of the legal framework. Should the UK wish to terminate these agreements, it can do so in accordance with the terms of the agreement itself.
Where renegotiation and possible re-ratification by all the parties concerned is required or where the UK would like to change the substance of agreements, such agreements would need to be changed as the UK would be participating separately. This applies, in particular, where there are institutional consequences from the UK becoming a separate party.
Multilateral Agreements: some examples of the simplified procedures
Accession to, or resigning from, participation in simple EU only agreements
As stated above, the Hague Conference Convention on Choice of Court Agreements is an EU-only Convention that allows for the recognition and enforcement of judgments where there is a choice of court agreement between the parties.
It could be argued that the UK should be able to accede to this convention by simply giving notification as the UK is already a member of the Hague Conference in its own right and therefore has the right to ratify the Convention. Furthermore, there is no need or scope to make any changes to the text of the Convention or in relation to its participation in the Hague Conference.
The UK, should it wish, could alternatively establish a separate agreement or terminate the current agreement, in which case, the UK would need to declare its intention to withdraw from the agreement.
As stated above, an example of a mixed type of agreement is the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters. The Convention has been ratified by the EU and the UK, and upon the UK’s withdrawal from the EU, the UK’s participation in this Convention remains valid. The UK will merely need to ensure that it has implemented legislation so as to meet all its obligations under the Convention where these have previously been set out in EU law.
If the UK wishes to change the terms of its participation, announcement of its intentions to do so should be possible where the Convention provides for reservations that are open to the participating States. Similarly, withdrawal should be possible by notification, where the terms of the agreement allow it.
Where there is need to re-negotiate and ratify the new convention
In contrast to the previous scenarios, if there are any provisions in agreements that would need to be changed for the UK to enter as a separate contracting party, such agreements will need to be re-negotiated and ratified, regardless of whether the agreement is mixed or EU-only.
One example is the Unitary Patent Court Agreement. This is simply a convention agreed between Member States. If the UK wishes to continue its membership of the court, it would be necessary to renegotiate the entry of the UK to the agreement as it is not currently open to non-EU states. The new agreement would also need to include revised rules regarding the links between the Unitary Patent Court Agreement and the EU institutions, notably the jurisdiction of the Court of Justice of the European Union, and the link to the EU Unitary Patent Regulation.