My second thread on @vonderleyen ‘s speech concerns a question that came from @Embamexru if I am not mistaken, and I fear the short answers by the President and @MichelBarnier did not do justice to the question, so let me attempt a full answer (thread)
@vonderleyen @Embamexru @MichelBarnier The question concerned the EU’s treaties with third countries (@MichelBarnier gave a number of 600, including exchange of notes etc. the number turns out to be higher), the UK’s capacity to negotiate replacements and notice by the EU to partner countries /2
@vonderleyen @Embamexru @MichelBarnier The question combined a number of issues that deserve separate treatment. First up: the UK’s capacity to negotiate replacement treaties with third countries. The question here is: can the UK legally negotiate replacement treaties with third countries /3
@vonderleyen @Embamexru @MichelBarnier There was a lively discussion on this in academia. Within the EU some competences are exclusive EU competences - like the competence to negotiate free trade agreements Art. 207 TFEU - and Member States may not negotiate such agreements /4
@vonderleyen @Embamexru @MichelBarnier Lawyers (yes, including me) spend some time thinking whether this also applied to leaving members. Some said yes, some said not really. Reality has moved on - here’s the reality: /5
@vonderleyen @Embamexru @MichelBarnier A) During the transition period the UK may - explicitly - negotiate and ratify treaties even in area of EU exclusive competence even though bound by EU law. Such treaties can only enter into force during transition with EU agreement. Art. 129(4) of the WA 
@vonderleyen @Embamexru @MichelBarnier B) Before the transition period there was a legal problem given EU exclusive competences. However, the EU has (tacitly?) allowed the UK to negotiate in areas of exclusive competences as long as treaties enter into force when the UK is no longer bound by EU law. /7
@vonderleyen @Embamexru @MichelBarnier The UK has used this tacit agreement by the EU extensively and negotiated a number of agreements with third countries to replace existing EU agreements. /8
@vonderleyen @Embamexru @MichelBarnier Which brings me to the notice mentioned by @Embamexru in the question. That notice is a notice sent by the EU during transition that the EU asks partner countries to treat the UK as a member State during the transition period. WHY THAT? /9
@vonderleyen @Embamexru @MichelBarnier EU Agreements count as EU law. The UK remains bound by EU law (largely) during transition. This includes EU Agreements, as Art. 129(1) WA makes clear.
@vonderleyen @Embamexru @MichelBarnier Now being bound by the agreement does not mean the UK gets to benefit from them. That depends on the reaction of the partner country. Will it treat the UK as still a party to the agreement during transition? /11
@vonderleyen @Embamexru @MichelBarnier The Agreement tries its best to provide continuity for the benefit of the UK, but all it really can do is oblige the EU to send notices to partner countries asking to treat the UK as a member state during the transition period. That’s in this footnote to Art. 129 /12
@vonderleyen @Embamexru @MichelBarnier The notice will be sent as soon as the treaty enters into force, so once it has been ratified by the two sides. /13
@vonderleyen @Embamexru @MichelBarnier The text of the note verbale the EU will sent has been published, however. Yes. I should link it here. But I have to get through the thread and do other things... /14
@vonderleyen @Embamexru @MichelBarnier Final point: the UK has already negotiated a number of replacement treaties. It has published information on its treaty continuity program here: /15 gov.uk/government/pub…
@vonderleyen @Embamexru @MichelBarnier Y finalmente por nuestros amigos mexicanos en @Embamexru : Estoy, por supuesto, siempre dispuesto a hablar en mas detalle de esos problemas. Para servirles.
