Brexit and mixity – An update

Posted on 22 Jul 2016 by Brick Court

Aidan Robertson QC

In a recent blog post I referred to the European Commission’s recent announcement that that Member States will be required to ratify CETA, but that CETA would have “provisional application” until that happened.

I raised the question what was meant by provisional application? As ever, Brick Court’s Professor Derrick Wyatt QC has the answer which he gave at the Brick Court Panel Discussion on “Brexit and the UK Constitution” held in a packed Inner Temple Hall on 21 July.

Provisional application means that those parts of CETA which fall within the exclusive competence of the EU can come into force before ratification by Member States. In effect, Member State ratification only has effect in relation to those parts of the agreement infected with mixity (ie shared competence). Professor Wyatt QC expressed the view that it may be that not much of the agreement does fall within shared competence.

If the UK goes down a CETA-style route with EU, the same mixity issues are likely to arise. Thus the other 27 EU Member States would required to ratify the UK’s trade deal with the EU, but the bulk of the agreement would already have provisional application prior to national ratification. That raises the prospect of a remaining Member State voting against ratification, only to be told that the agreement is already largely be in effect – a somewhat difficult outcome to explain to any electorate one would have thought.

Of course, these mixity problems may diminish or be eliminated altogether if the Court of Justice of the European Union takes a broad approach to the Union’s exclusive competence in the case (Opinion 2/15) in which the Commission is seeking an opinion on the mixity issue as it concerns the EU/Singapore trade deal.