I have a number of comments. We have not yet mentioned that the UK’s departure from the European Union would also lead to its departure from the European Economic Area unless the UK became an EFTA country. Membership of the EEA is open only to EU member states, for which it is compulsory, and EFTA countries, for which it is optional. We would have to negotiate that, too.
Whether the agreement was a mixed one would depend on its contents. As Professor Barnard mentioned, businesses in the UK would still want to export goods and services to the European Union. That means that we would like to participate in the internal market, or the Common Market, as it was called in the 1970s, when the UK became a member state.
The European Union has a policy of more for more vis-à-vis, for instance, European neighbourhood policy countries. We have the example of the European Economic Area and the example of Switzerland. The rule of thumb is that, the more integrated a country wants to be, the more it has to comply with. When it comes to the EEA, there are lists of EU legislation that in no way has to apply in Iceland and Liechtenstein. It is the same story for Switzerland, with the few agreements that it has. There is a simple, dynamic system for the EEA, and there is no way that Iceland and Liechtenstein have to accept whatever policy the EU adopts in the areas that are covered by the EEA without participating in the decision-making process.
I would expect a withdrawal agreement to have lists of legislation that the UK would be bound by after the exit to guarantee access to the internal market. Even the association agreements with Ukraine, Georgia and Moldova have lists of acquis that they have to comply with within five to 10 years plus. For example, Georgia has to comply with more than 300 legal acts. I would expect something similar to be in a withdrawal agreement, so I think that it would have to be a mixed agreement.
If the worst comes to the worst and, for instance, there is a political decision to make it an EU-UK agreement, that could be challenged under paragraph 11 of article 218 of the Treaty on the Functioning of the European Union. The Court of Justice would be asked for an opinion on whether the EU could conclude such an agreement. Dr Lock mentioned the European Parliament; it would be a good candidate to submit such a request.
Going back to the point about interpretation, there are two sides to the story. If we look at the European Economic Area agreement, the courts have an obligation to interpret, in the light of jurisprudence of the Court of Justice of the European Union, the jurisprudence predating the EEA but, in practice, as Professor Barnard mentioned, they do that anyhow—they take into account the jurisprudence of the Court of Justice; the EFTA court has a role to play here.
I would like to draw the committee’s attention to one more thing. Regardless of whether it is a mixed agreement, it will be concluded by the European Union by means of a decision first on signing and then on conclusion of an agreement. If we look at most recent practice with trade agreements, but especially with the association agreements with Georgia, Ukraine and Moldova, we see that those decisions contain a trap: they contain provisions that say that the agreements cannot produce direct effect in the member states in the national courts. That would mean, for instance, that British businesses that were willing to challenge the legality of certain measures based on an attempt to invoke the withdrawal association agreement in the future would be deprived of such a right.
Therefore, we must be very careful during the negotiations and in relation to what happens when the EU signs a withdrawal agreement. Mind you, those are unilateral EU decisions, so they are not subject to negotiation, unless we have a guarantee in the withdrawal agreement that it can produce direct effect in measures that are based on it.