The non-ratification of mixed agreements: Legal consequences and solutions

Abstract

The 2016 referendum in the Netherlands on the EU-Ukraine Association Agreement and the Walloon objection in Belgium to sign CETA triggered the question of the consequences of the non-ratification of mixed agreements that are (to be) concluded between the EU, its Member States and one or more third parties. This non-ratification would lead to so-called “incomplete” mixed agreements. The present article discusses the legal problems connected to incomplete agreements and points to the differences between bilateral and multilateral agreements. Now that mixity seems to be have become more common – due to the wider scope of Free Trade Agreements – and EU citizens and their parliaments become more outspoken with respect to the content of these agreements, it seems just a matter of time before we are faced with problems of non-ratification. The unclear division of external competences between the EU and its Member States makes it difficult to offer clear-cut solutions. Overall, however, it does not seem advisable to rely on ex post facto solutions for non-ratification problems; we may have to find ways to allow potential problems to be on the negotiation table at an earlier stage.