The ‘think tank’ British Influence has announced that its lawyers will be writing to David Davis, the Secretary of State for Exiting the European Union, to indicate that it will take legal action if the UK Government does not provide a clear legal opinion whether the UK’s membership of the European Economic Community (EEA) automatically ends along with its membership of the EU. The press release issued by British Influence can be found here.

The EEA brings together the existing EU Member States and the three European Free Trade Area (EFTA) States in the Single Market. The Agreement on which it was founded in 1994 provides for the inclusion of EU legislation covering the so-called four freedoms (free movement of goods, services, persons and capital) throughout the 31 EEA states. It covers cooperation in areas such as research and development, education, social policy, the environment, consumer protection, tourism and culture. It does not, however, cover common agricultural and fisheries policies, a customs union, common trade policy, common foreign and security policy, justice and home affairs or monetary union.

The point made by British Influence is that, in the recent UK Referendum on membership of the EU, the question of leaving the Single Market was not put to the electorate. This means that a question remains as to whether or not the UK Government would be right to remove the UK from the Single Market as part of the Brexit negotiations after triggering Article 50 as it is unclear as to whether UK’s membership of the EEA is distinct from its membership of the EU.

The UK Government has given its opinion that the UK was only party to the EEA agreement in its capacity as an EU member state, and so once the UK leaves the EU, it will automatically cease to be a member of the EEA. British Influence, however, has contended that there is no legal consensus on this point. They have cited Article 127 of the EEA Agreement, which requires members of the EEA to give twelve months notification to leave the EEA, without any reference to Article 50. They make the further point that Article 128 of the EEA Agreement states that countries acceding to the EU “may apply to join the EEA, but are not compelled to”.

British Influence has indicated that if no clear legal opinion is produced by the UK Government, it will look to the courts to clarify the position. It is unclear as to what the UK Government’s formal response to British Influence will be. It is, however, clear that there is now another potential legal action facing the UK Government in the process of preparing to take the UK out of the EU.