The UK Government has expressed the view that when the UK withdraws from the EU, it will automatically leave the EEA (as with other free trade agreements signed by the EU). The UK Government however has not outlined in detail the legal reasons for such a position.

If the UK Government is right, in the event the UK wished to retain its membership of the EEA after Brexit, the UK would first have to become a member of EFTA (according to the EEA Agreement only EU Member States or EFTA States can become parties to the EEA Agreement) and would then have to apply to become a member of the EEA according to the procedure outlined in Article 128 of the EEA Agreement. Acceptance of its application would require the consent of all other members of the EEA.

British Influence, a UK think-tank, has argued that the UK will in fact remain a member of the EEA despite its withdrawal from the EU. The implication of such a position is that, if the UK wanted to withdraw from the EEA, the UK would have to notify the other members of the EEA of its intention to withdraw and such a notification could possibly require the consent of the UK Parliament.

There are legal arguments both for and against these propositions:

    • Automatic withdrawal from EEA upon Brexit. Arguments include:
      • Under Article 126 of the EEA Agreement, the territorial scope of the EEA agreement is limited by reference to the territories of the EU and EFTA States. When the UK leaves the EU it will not be part of the EU territory, and is no longer a Member of EFTA (it withdrew when it joined the EEC). This suggests that if the UK left the EU the EEA Agreement would no longer apply to its territory.
      • Article 2(c) defines ‘Contracting Parties’, in relation to the EU, as the EU and its Member States. If the UK withdraws from the EU, it is no longer a Member State.
      • The EEA Agreement provides that its institutions will be constituted by representatives of the EU and EFTA States. This is another indication that only EU members and EFTA States where supposed to be parties to the Agreement. For example, Article 90 in outlining who “shall” be members of the EEA Council (one of the governing bodies of the EEA) provides that the EEA Council shall consist of members of the Council of the EU, and member of the Commission, and of one member of the Government of each of the EFTA States.
      • Article 128(1) defines who can apply to become a Contracting Party to the EEA, and limits it to a Member State of the EU, Switzerland or an EFTA State. This suggests that when the EEA Agreement was drafted it was not envisaged that a European State could become party to the Agreement if it was not already an EU Member State or an EFTA State.
      • A number of provisions would have to be amended to accommodate a party that is not EU or EFTA, since these provisions appear to proceed on the basis that the only ‘Contracting Parties’ will be members of the EU and EFTA States. For example under Article 28, the right of free movement of workers is limited to EU Members and EFTA States
    • UK remains a member of the EEA upon Brexit. Arguments include:
      • The UK has signed up to the Agreement independently of its membership of the EU. The UK is a separate signatory of the EEA Agreement; is named individually as one of the ‘Contracting Parties’ in the preamble of the EEA Agreement and has approved the Agreement in accordance with its own constitutional requirements.
      • The EEA Agreement contains no specific provisions for automatic withdrawal when a ‘Contracting Party’ leaves the EU or EFTA. Article 127 describes the only explicit mechanism for withdrawal which requires a ‘Contracting Party’ to give at least twelve months notice to the other ‘Contracting Parties’. Accordingly, if the UK wanted to withdraw from the EEA after Brexit, the UK would have to give notification under Article 127 and the UK Parliament would have to consent to that.
      • Article 126, which deals with the territorial scope of the EEA Agreement is not an obstacle, because it does not contain the term “only” and so other States that are not EU or EFTA countries are not excluded.

As is evident, the legal arguments in favour and against an immediate UK withdrawal from the EEA Agreement, are finely balanced. British influence has implied that if the UK Government does not provide a reasoned response, it will go to judicial review.

It is the Court of Justice of the EU (CJEU) which has ultimate responsibility for the interpretation of the EEA agreement in the EU states and can therefore decide (if there is a reference from the UK Courts) on whether the UK can remain a member of the EEA or whether Brexit automatically results in withdrawal from the EEA.

In the event that the UK can remain a member of the EEA the UK Courts may have to address the further question of whether UK Parliament will have to give its consent in order for the UK to withdraw from the EEA under Article 127 as this is a UK constitutional law question.

However, as with the Article 50 procedure, the question is then a political one as to whether Parliament would, in any event, refuse to consent to withdrawal.