Brexit and mixity – the implications for a UK free trade agreement with the EU

Posted on 22 Dec 2016 by Brick Court

Aidan Robertson QC

In a blog in July, I referred to the question whether the EU is likely to have exclusive competence to conclude a free trade agreement with the UK or whether a free trade agreement will be a ‘mixed’ agreement requiring ratification by individual EU Member States so far as it would cover areas not falling within the EU’s exclusive competence.

The issue of the extent of the EU’s exclusive competence is under consideration by the Court of Justice of the European Union in relation to the EU’s free trade agreement with Singapore.

Advocate General Sharpston handed down her Opinion in this case on 21^st December 2016. In her view, the Singapore agreement is infected with some degree of mixity because the EU does not have exclusive competence over particular areas. These include provisions on trade in air transport services, maritime transport services, types of investment other than foreign direct investment; -government procurement in so far as they apply to transport services; non-commercial aspects of intellectual property rights; provisions laying down fundamental labour and environmental standards and falling within the scope of either social policy or environmental policy. Thus any free trade agreement with the UK involving those limited areas would require national ratification. However, the areas falling within EU exclusive competence, which would form the bulk of any agreement with the UK, could have provisional application without national ratification.

In other words, the outcome so far before the Court of Justice is as predicted by Professor Derrick Wyatt QC in July this year (see my previous blog): not much of a free trade agreement would fall within shared competence.

The Court will hand down its judgment in the new year.

The Court’s press release is here.

Advocate General Sharpston’s Opinion is here.