In, Out or In-between? The UK as a Contracting Party to the Agreement on the European Economic Area

The article examines the legal status of the UK as a contracting party to the Agreement on the European Economic Area (EEA Agreement) pre-and post-Brexit. To understand the legal nature of the EEA Agreement it is necessary to consider the historical context in which it was concluded. Furthermore, the institutional set-up of the Agreement, centred on the so-called two-pillar system, sets this Agreement apart from other association agreements concluded by the EU. Thus the decision-making procedures and the provisions related to the application and interpretation of the agreement rely on this two-pillar structure: the EU and EFTA and the respective institutions. The article then examines the nature of mixed agreements under EU law and how it applies to the EEA Agreement in the light of the division of competence between the EU and its Member States. The authors conclude that it is not de facto possible for the UK to remain a contracting party to the EEA Agreement without adhering to one of the two pillars, as it is the only way to have access to decision-making and to ensure the effective application and enforcement of EEA law.