Brexit: Will Bri­tain remain a mem­ber of the EEA?

Whilst most of the cur­rent expert artic­les and news sto­ries are about the pos­si­ble con­se­quen­ces of the immi­nent Brexit, deal­ing with ques­ti­ons such as the pos­si­bi­li­ty of regar­ding a Bri­tish limi­t­ed com­pa­ny here in the future as a GbR or an OHG, in the con­text of an over­all view of the mat­ter the­re is one rele­vant cir­cum­s­tance which has very likely been overlooked. 

In con­cre­te terms we are refer­ring here to Britain’s mem­ber­ship of the EEA. The back­ground: the EEA Agree­ment of 2 May 1992 is an agree­ment of asso­cia­ti­on bet­ween the Euro­pean Uni­on and its mem­ber sta­tes and three of the four so-called EFTA sta­tes. EFTA (the Euro­pean Free Trade Asso­cia­ti­on) is an inter­na­tio­nal orga­ni­sa­ti­on estab­lished in 1960, which mean­while mere­ly con­sti­tu­tes a free trade zone bet­ween its mem­bers; having said that, it was ori­gi­nal­ly crea­ted as a coun­ter­ba­lan­ce to the Euro­pean Com­mu­ni­ties. The EFTA sta­tes (Ice­land, Liech­ten­stein and Nor­way – with Switz­er­land abs­tai­ning) crea­ted in the EEA Agree­ment with the EU a free trade zone bet­ween the EU and the three above-mentioned EFTA sta­tes. The basis of the EEA Agree­ment in the form of the four basic free­doms (Art. 1 II of the EEA Agree­ment: free move­ment of goods, per­sons, ser­vices and capi­tal) was taken from Euro­pean Com­mu­ni­ty law (as pro­vi­ded for in the TFEU). EEA law thus has a strong simi­la­ri­ty to Com­mu­ni­ty law.

Rele­vant in the second step of this con­tem­pla­ti­on is the ext­ent to which the EEA Agree­ment bet­ween the EU and the EFTA sta­tes appli­es not only bet­ween the par­ties (EU – EFTA), but also within each of the par­ties, i.e. in par­ti­cu­lar within the EU sta­tes among them­sel­ves. In a report on this in 1991, the ECJ declared pro­vi­sio­nal­ly that the EEA was only based on an inter­na­tio­nal trea­ty and the­r­e­fo­re, as a mat­ter of basic prin­ci­ple, only appli­ed bet­ween the con­trac­tu­al par­ties. The EFTA Court, on the other hand, took the view that the EEA Agree­ment had a direct third-party effect; this posi­ti­on was con­firm­ed by the court of first ins­tance, and final­ly the ECJ also jud­ged that the basic free­doms in the EEA Agree­ment had the same prio­ri­ties of appli­ca­ti­on as tho­se of Com­mu­ni­ty law. 

It fol­lows from this that the basic free­doms of the EEA Agree­ment do not only app­ly bet­ween the EU sta­tes and the EFTA sta­tes as sepa­ra­te indi­vi­du­al blocs, but also bet­ween the EU and EFTA mem­ber sta­tes among them­sel­ves. This begs the ques­ti­on of to what ext­ent Britain’s depar­tu­re from the EU affects the country’s mem­ber­ship of the EEA. The EEA Agree­ment does not sta­te express­ly that a mem­ber sta­te of the EU lea­ves the EEA when it loses its mem­ber sta­tus in the EU. True, the­re is a pro­vi­si­on in Artic­le 126 of the EEA Agree­ment accor­ding to which the Agree­ment is appli­ca­ble to the ter­ri­to­ries to which the Trea­ty estab­li­shing the EEC (the pre­cur­sor of the EU) is appli­ed, but that does not neces­s­a­ri­ly mean that the Agree­ment only appli­es to today’s EU mem­ber sta­tes. It mere­ly makes it clear which count­ries the Agree­ment covers. 


Britain’s depar­tu­re from the EU the­r­e­fo­re has no impact on its mem­ber­ship of the EEA. The only issues to which heed would have to be paid are Britain’s with­dra­wal from the EEA Agree­ment or its right to sus­pend / ter­mi­na­te the Trea­ty as in Art. 62 of the VCLT (Vien­na Con­ven­ti­on on the Law of Trea­ties), though the lat­ter pre­sup­po­ses the actu­al exer­cis­ing of said right.


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