We really are leaving the EEA

To leave the EEA (roughly the same thing as the single or internal market, encompassing EFTA and the EU) one normally has to give notice, a process that is defined in article 127 of the EEA agreement. The UK has not done this. I was curious whether this would mean we stay in the EEA, but I was struggling to get a straight answer to the question, so I tried a less straight question, addressed to the Europe Direct service.

The UK has notified the EU of an intention to leave the EU and EEA by following article 50 TEU.
 The UK asserts that this is valid notice to leave the EEA treaty, so that letter should be taken as valid notice under article 127 EEA. Article 127 EEA places the following obligation on EEA contracting parties
 “Immediately after the notification of the intended withdrawal, the other Contracting Parties shall convene a diplomatic conference in order to envisage the necessary modifications to bring to the Agreement.”
 Such a conference has not been convened and there are now less than 12 months remaining to the notice given. Either the contracting parties are in breach of article 127 EEA or valid notice under article 127 EEA has not been given.
 Please could you clarify whether this conference is going to be called bringing the contracting parties into line with their obligation, or whether the UK will remain in the EEA after 29th March 2019.

So, instead of directly asking what is going to happen, I claimed that the other member states were not meeting their obligation to convene a conference, in the hope that phrasing it this way would force an answer to be given. I was in essence agreeing with the UK government position. Today I got this answer:

Dear Mr Bell,
 Please accept our apologies for the delayed response. Your enquiry has been dealt in consultation with Article 50 Task Force (TF50).
 We acknowledge receipt of your enquiry addressed to the European Commission regarding Article 127 EEA. You wish to know in particular whether the conference to which Article 127 EEA refers is going to be convened.
 Article 127 EEA provides that each “Contracting Party” may withdraw from the EEA Agreement provided it gives at least twelve months’ notice in writing to the other Contracting Parties.
 The term “Contracting Parties” is defined in Article 2(c) EEA as follows: “concerning the Community and the EC Member States, the Community and the EC Member States, or the Community, or the EC Member States.” The wording of this provision shows that EU Member States become members of the EEA solely by reason of their EU membership. A further confirmation of the interdependency between EU membership and EEA membership is provided by Article 128 EEA, by virtue of which any new EU Member State is obliged to become a party of the EEA Agreement. EU Membership and EEA membership go hand in hand.
 Article 126 EEA provides that the EEA Agreement “shall apply to the territories to which the Treaty establishing the European Economic Community is applied and under the conditions laid down in that Treaty”. Consequently, when a Member State withdraws from the Union, the EEA Agreement ceases automatically to apply to that Member State whose territory is no longer part of the “territories to which the Treaty establishing the European Economic Community is applied.” 
 Following the withdrawal of the UK from the EU, the UK territory will no longer be part of the “territories to which the Treaty establishing the European Economic Community is applied”, and the EEA Agreement will consequently cease automatically to apply to the United Kingdom. Therefore serving a withdrawal notice or convening a diplomatic conference under Article 127 EEA do not appear to be necessary.
 We hope you find this information useful. Please contact us again if you have other questions about the European Union, its activities or institutions.

So, the EU agrees with the UK government, that separate notice to leave the EEA is not required, and that as we are not leaving through the door, but chucking ourselves out through the window, a diplomatic conference does not appear to be necessary. This means that as of our departure from the EU, we will not be in the single market and able to trade on those advantageous terms. This probably doesn’t come as news to anyone, but it does lock down some assumptions that people thought they knew were true.

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