The status of the existing trade agreements under the Withdrawal Agreement
The WA provides in Article 126 for a transitional period that will last until 31 December 2020 (unless it is extended by 30 June for a maximum of two more years). During this period, the WA introduces, for all intents and purposes, the principle of continuity regarding the application of EU law in the UK legal order and UK—EU relations. This principle applies to international agreements too, as the WA confirms that the term EU law covers the international agreements to which the Union is a party and the international agreements concluded by the Member States acting on behalf of the Union.2’
This principle is further elaborated upon in Article 129 of the Agreement. Entitled ‘Specific arrangements relating to the Union’s external action’, it provides as follows in its first paragraph:24
Without prejudice to Article 127(2), during the transition period, the United Kingdom shall be bound by the obligations stemming from the international agreements concluded by the Union, by Member States acting on its behalf, or by the Union and its Member States acting jointly, as referred to in point (a)(iv) of Article 2.
The underlying rationale for the principle of continuity is spelled out in the preamble to the Agreement:
[1 ] t is in the interest of both the Union and the United Kingdom to determine a transition or implementation period during which — notwithstanding all consequences of the United Kingdom’s withdrawal from the Union as regards the United Kingdom’s participation in the institutions, bodies, offices and agencies of the Union, in particular the end, on the date of entry into force of this Agreement, of the mandates of all members of institutions, bodies and agencies of the Union nominated, appointed or elected in relation to the United Kingdom’s membership of the Union — Union law, including international agreements, should be applicable to and in the United Kingdom, and, as a general rule, with the same effect as regards the Member States, in order to avoid disruption in the period during which the agreement(s) on the future relationship will be negotiated.25
The main objective of ensuring the continuity' of trade relations with third countries did not emerge in the WA in a policy vacuum. In fact, it had been set out by the EU early on. In its Article 50 Negotiating Guidelines of April 2017, the European Council pointed out that it expects the United Kingdom to honour its share of all international commitments contracted in the context ot its EU membership. In such instances, a constructive dialogue with the United Kingdom on a possible common approach towards third country partners, international organisations and conventions concerned should be engaged.26
This point was taken up by the Council which, in its May 2017 negotiating directives, stated the following:
in line with the European Council guidelines, a constructive dialogue should be engaged as early as practicable with the United Kingdom during the first phase of the negotiation on a possible common approach towards third country' partners, international organisations and conventions in relation to the international commitments contracted before the withdrawal date, by which the United Kingdom remains bound, as well as on the method to ensure that the United Kingdom honours these commitments.27
This theme of continuity was carried over in the second round of negotiations, about the transitional period. In its Article 50 Guidelines of December 2017, the European Council stated that, given the British position to leave the customs union, it would
calibrate its approach as regards trade and economic cooperation in the light of this position so as to ensure a balance of rights and obligations, preserve a level playing field, avoid upsetting existing relations with other third countries, and to respect all other principles set out in its guidelines of 29 April 2017, in particular the need to preserve the integrity and proper functioning of the Single Market.28
It was in the light of the above that the Council’s Negotiating Directives of January' 2018 also provided for the continuing application of existing international agreements concluded by' the EU.29
Continuity as a matter of international law, however, is not a unilateral issue. This dimension is acknowledged in the WA itself, as Article 129(1) WA is accompanied by an asterisked footnote which provides as follows: ‘The Union will notify the other parties to these agreements that during the transition period the United Kingdom is to be treated as a Member State for the purposes of these agreements.’
From a policy' point of view, given the scope and depth of the WA, it may' be difficult to envisage third States raising obstacles to this course of action. Two main reasons support this view. First, the WA is of such broad scope that it may be argued that, in functional terms, and the UK’s formal withdrawal from the EU notwithstanding, nothing will change during the transition period as far as the application of EU law to the UK is concerned. Given that EU law covers international agreements binding on the EU, including the UK,’" it would be reasonable to assume that the continuing application of international agreements would not raise policy concerns for the EU’s contracting parties. Second, the transition period is of limited duration and, therefore, any concerns that the EU’s interlocutors may have about the unfolding uncertainty regarding their post-Brexit trade relations with the UK would be bound to be timelimited.
From a legal point of view, however, the arrangement envisaged in Article 129 WA requires the consent of the third parties which are the Union’s interlocutors in the context of each and every agreement concluded under Article 218 TFEU. To that effect, in January 2020, the Member States, including the UK, endorsed a note verbale which will be sent by the relevant
Head of Mission to the EU’s partners?1 This short document sets out the WA arrangements and provides that the EU and Euratom ‘notify’ the contracting parties of agreements referred to in Article 129(1) WA that ‘the United Kingdom is treated as a Member State of the Union and of Euratom for the purposes of these international agreements’?2 The above document refers to how the UK is treated by the EU under the WA agreements, as the Union does not have the power to state how third countries would treat the UK under international law. In this vein, the note verbale does not suggest that the EU’s and UK’s contracting parties act in a specific manner in response. It merely informs them of the internal EU arrangement which is about ‘business as usual’ for a limited period of time.
The remainder of Article 129 W A sets out the main parameters within which the UK would be deemed to be a party to EU agreements whilst not an EU Member State?3 In particular, it is about three issues. The first may be summarised as the ‘present but not really’ principle: the continuing binding effect of international agreements on the UK notwithstanding, no UK representatives would be present at meetings of bodies set up under such agreement during the transition period, unless the UK participates in its own right (that is, not pursuant to its prior EU membership) or it is invited by the EU to attend as part of the EU’s delegation on an ad hoc basis required, in particular, for the effective implementation of the WA?
The second issue is about the duty of cooperation. This hallmark of the EU’s legal order” in general and EU external relations law in particular’6 is adjusted to the specific context set out by the WA. On the one hand, in order to reflect the principle of continuity, the duty of cooperation applies during the transition period and imposes a duty on the UK ‘to refrain from any action or initiative which is likely to be prejudicial to the Union’s interests, in particular in the framework of any international organisation, agency, conference or forum of which the United Kingdom is a party in its own right’. ’7 On the other hand, the application of the duty is not extended in an uncompromising manner. It reflects, instead, the transitional nature of the timelimited period set out in the WA by enabling the UK to
negotiate, sign and ratify international agreements entered into in its own capacity in the areas of exclusive competence of the Union, provided those agreements do not enter into force or apply during the transition period, unless so authorised by the Union.38
The third issue, finally, is the provision of ad hoc cooperation ‘whenever there is a need for coordination, the United Kingdom may be consulted, on a case-by-case basis’?9