EU Mixed Agreements in International Law under the Stress of Brexit

Abstract

Since 1961, the EEC has concluded so-called mixed agreements with the rest of the world. On the EU side, such agreements are concluded both by the EU and by its member states, acting jointly. This is a consequence of the principle of conferral, which sometimes limits EU capacity to act on the international stage; it also helps managing over time the evolving distribution of competencies between the EU and its member states. If mixed agreements are consistent with the EU legal order, they constitute a peculiar novel practice under general international law. Such agreements do not fit in any of the existing treaty law ‘categories’, and the legal qualification for the EU and its member states’ commitments under mixed agreements may appear problematic according to international law. Under EU law, the principles of pre-emption and sincere cooperation are applicable. However, Brexit forces legal scholars to reconsider the issue under international law: what happens when a member state leaves the EU regarding its commitments under mixed agreements? According to international law it shall remain a party to such agreements, as a State, bound by its international commitments. But how and under which conditions shall these agreements be implemented remain open questions. We propose to investigate these legal issues with regard of the UK’s commitments under mixed agreements in the perspective of Brexit.