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EU-ACP Economic Partnership Agreements After Brexit: The (Neglected) Case of Legitimate Expectations and Fundamental Change of Circumstances

The United Kingdom (UK) officially left the European Union (EU) in January 2020. While the nature of its future relations with the rest of the EU Members is couched in a Trade and Cooperation Agreement concluded in extremis in December 2020, it will cease to be part of several agreements concluded by the EU in the areas of common commercial policy. This is the case for EU trade agreements including Economic Partnership Agreements (EPAs) concluded between the EU and its Members with African, Caribbean and Pacific (ACP) countries. With Brexit now effective, international agreements concluded by the EU cease to be applicable to the UK whose status with regard to the EU is that of a third state. Thus, the UK becomes a non-member state of the EU with regard to EU’s international partners. Consequently, Brexit implies the modification of the territorial scope of treaties concluded by the EU. This paper studies the consequences of Brexit on these EPAs. It explores whether, and to what extent, ACP countries may invoke fundamental change of circumstances to seek termination of their respective EPAs because Brexit was an event that they could not have contemplated when negotiating these agreements. Likewise, it investigates whether the threat of termination could provide any leverage to ACP countries to induce renegotiation of the terms of EPAs considering frustration of their legitimate expectations.