Withdrawal from the EU and Bilateral Free Trade Agreements Being Divorced Is Worse?

Ambiguity still remains around the legal effects of a Member State's withdrawal from the EU in relation to the new generation of Free Trade Agreements ('FTAS'), which are concluded as bilateral mixed agreements. Such withdrawal may have secondary implications in relation to the international obligations towards the other party of the ratified agreement. According to article 70(1)(a) of the Vienna Convention on the Law of Treaties ('VCLT'), the termination of a treaty under its provision releases the parties from the obligation further to perform the treaty. However, mixed agreements that are signed by both the Member State and the EU may cause complications. The obligation of sincere cooperation could play a large role in respect of the Member State's compliance with its commitments under the agreement. Indeed, there are many concerns regarding the effect of the withdrawal on the EU and the withdrawing Member State in respect to mixed FTAS. Could a withdrawal lead to an automatic termination or renegotiation of a trade agreement? Would it be possible to argue for fundamentally changed circumstances? Or could the principle of continuity in the VCLT in the context of succession of states affect the outcome? This contribution aims to clarify the legal situation in regard to bilateral mixed FTAS that are ratified or provisionally applied-such as the EU-Canada Comprehensive Economic and Trade Agreement ('CETA')-in the event of a Member State's withdrawal from the EU. It considers the Member State's responsibilities and obligations when the withdrawal has been effectuated. Additionally, it explores the rights of the NON-EU party to the agreements, as well as the consequences that the EU might face as a remaining party to the agreement.