One of the many relevant questions following the Brexit vote is what would happen to the decentralised agencies were the UK to leave the EU? This blogpost by Merijn Chamon focuses on some of the most pressing practical problems that would arise for EU agencies in the context of Brexit.
By Merijn Chamon
Relocation, Administration and Union acquis
A first consequence would be that the two EU agencies that have been established on UK territory, i.e. the European Medicines Agency (EMA) and the European Banking Authority (EBA), would have to be relocated to one of the remaining Member States. Needless to say that such a relocation would negatively affect the continuity of the two agencies’ functioning.
Evidently, another immediate consequence would be that the UK will not be involved in the agency’s functioning anymore. Since EU agencies constitute platforms to diffuse (national) best practices, allowing cross-fertilization among national administrations, a Brexit would be a genuine loss for those agencies operating in a sector in which the UK counterpart has a strong reputation and expertise. For instance, an agency such as the European Aviation Safety Agency (EASA) and the national counterparts have undoubtedly benefited from the presence of the UK Civil Aviation Authority.
Following a Brexit, the UK might choose to disapply all EU legislation but the more likely scenario is that the UK will (have to) continue to apply a lot of the Union acquis.
If so there would again be an objective need for the UK to continue to participate in a number of EU agencies. So how can a third state be involved on a structural basis in an EU agency? Current agency practice shows there are two main options, but they would either be unattractive for the UK or result in cumbersome procedures.
Third State Involvement?
First, not all EU agencies are open to third state participation. Notable examples of EU-only agencies are the EMA and the European Union Intellectual Property Office (EUIPO). Whether an agency is open to third-country participation will depend on whether its establishing regulation allows for this.
The normal way for a third state to participate on a structural basis in an agency is to conclude a specific international agreement with the EU to this end. This means that the UK would have to conclude an agreement for each single EU agency in which it would want to participate. The agreements would set out the modalities of the UK’s participation and a budgetary contribution to be made by the UK. This option would allow the UK to pick and choose but the procedure is very cumbersome which is also why today very few such agreements with third states have been concluded. For the UK, these agreements could, in theory, be incorporated in the Article 50 agreement, but it is doubtful whether that agreement is the appropriate instrument for such detailed arrangements. The Article 50 agreement might however set out the framework for further future arrangements (such as agreements on the UK’s participation in EU agencies).
The fast-track way would be for the UK to become a member of the European Economic Area (EEA) like Norway, Iceland and Liechtenstein which also allows them to participate in more agencies than regular third countries. Unlike the latter, the EEA countries do not have to conclude a separate agreement each time, since their participation is made possible by a decision of the EEA Joint Committee amending the EEA Agreement’s Annexes or Protocols. Again here however, EEA states have to pay a financial contribution and the UK would not be able to pick and choose anymore (except for the agencies not covered by the EEA Agreement).
In addition, under both options, the UK would not, as a rule, have any voting rights within the Agency. It would again have to accept EU decisions without having a vote.
The above is illustrative of the general nonsensical nature of a Brexit: since Leave campaigners admit that the UK would have to establish a close relationship with the EU, the UK will have to continue to apply EU legislation in a large number of fields. This will in turn require the UK’s participation in EU agencies. The EEA-option would be the more secure, but would also entail accepting the free movement of workers (which a lot of people apparently voted against). The pick and choose-option is hardly efficient and already controversial in the EU-Swiss relations. Ultimately a Brexit would result in a situation mirroring as closely as possible the situation pre-Brexit but in a more costly, less efficient and more cumbersome way, with the UK also giving up its voting rights (both in the institutions and in the agencies).
For more details, see Merijn Chamon, EU Agencies: Legal and Political Limits to the Transformation of the EU Administration, Oxford, OUP, 2016, pp. 86-90.
Merijn Chamon is post-doctoral assistant at the Ghent European Law Institute, Ghent University (Jean Monnet Centre of Excellence)