The administrations of the four EFTA countries have set up their own internal structures, in which work focuses not only on the consequences of Brexit, but also on establishing new trade relations with the UK. These include the appointment of national coordinators at the senior level and the creation of inter-departmental working groups. Article 56.3 of the EFTA Convention stipulates that a new EFTA Member State “requests membership of free trade agreements between Member States on the one hand and third countries, state associations or international organisations, on the other.” As a member of a customs union, a country that joins EFTA has not been able to fulfil this obligation. EFTA membership does not exclude the establishment of a customs agreement with the EU; existing EFTA countries regulate their relations with the EU through different instruments. Yes, the EFTA agreement does not require EFTA states to enter into preferential trade agreements as a group. They retain the full right to conclude bilateral agreements with third countries. The first objective of EFTA was the liberalisation of trade between its Member States. In 1972, each EFTA state concluded bilateral free trade agreements with the EEC. Currently, 29 free trade agreements are in force in EFTA countries or are awaiting ratification for 40 partner countries around the world (outside Europe).
Article 126 of the EU-UK Withdrawal Agreement provides for a transitional period until 31 December 2020. Article 129 of the withdrawal agreement states that, during the transitional period, the UNITED Kingdom is bound by obligations under international agreements concluded by the EU, including the EEA agreement. EEA-EFTA states have agreed to treat the UK as an EU member state during this period. As a result, the rights and obligations set out in the EEA agreement between the United Kingdom and the EEA-EFTA states apply until 31 December 2020. The EEA-EFTA states and the United Kingdom signed a separation agreement on 28 January 2020. The separation agreement reflects the relevant parts of the EU-UK withdrawal agreement and guarantees the rights of EEA-EFTA and UK citizens who already live or work in the EEA-EFTA states or the UK. In addition to the citizens` rights provisions, the separation agreement includes other separation issues – such as goods marketed before the end of the transition period, intellectual property rights, ongoing police and judicial cooperation, judicial proceedings, data protection and public procurement – as well as institutional provisions. To be clear, after Brexit, the EEA agreement will be blamed by the UK if it decides not to become a contracting party to EFTA, since it would not be subject to the EU or EFTA monitoring and justice mechanisms (i.e. the European Commission and the ECJ, the EFTA Supervisory Authority and the EFTA Tribunal). Title III raises another jurisdictional issue.
It should be noted that Title III of the EEA-EFTA Separation Agreement (Articles 49-54) concerns “ongoing police and judicial cooperation in criminal matters”.