On June 5, the United Kingdom applied for membership in the WTO Government Procurement Agreement (GPA) “in its own right”. Currently, Britain participates in the GPA as a member of the European Union. The request was made in anticipation of its planned withdrawal from the EU. While the UK can negotiate the terms of its accession to the GPA, it cannot become a GPA party on its own until it has left the EU. This post considers the context for the request and the issues that will need to be addressed in the UK’s accession.
On March 29, 2017, Britain notified the EU of its intention to withdraw from the Union pursuant to Article 50 of the Treaty on European Union. That notification triggered a two-year process for negotiations on the terms of disengagement and the UK’s future relationship with the EU. The UK is expected to leave the EU at the end of March 2019. However, a transition or implementation period will apply at least through December 2020, during which Britain will continue to be bound by EU rules and remain in the bloc’s customs union.
The EU has accepted that Britain can negotiate, but not implement, trade agreements with third countries before its withdrawal is final. For its GPA membership, that means it can negotiate the terms of its accession, but it would not become a party in its own right until it has departed from the EU.
In transmitting the UK’s application and market access offer, the EU’s WTO Ambassador noted that the UK and EU “agreed to work together towards the United Kingdom’s objective of remaining, in its own right, subject to the rights and obligations it currently has under the [GPA as an EU Member State] on the basis of the commitments which are currently contained in the European Union schedule”. The EU is reserving “its position on the terms of the United Kingdom’s final market access offer”.
The assurances accompanying the UK’s accession request reflected a joint EU-UK letter to the WTO in October 2017. It set out their intention “to maintain the existing levels of market access available to other WTO Members”, including under the GPA. A briefing paper describes the procurement that the UK currently covers under the GPA, and how it is tied into the EU schedules.
The GPA accession negotiations will have two elements: the procurement that Britain will cover under the GPA and the conformity of its laws with the Agreement. In presenting its own schedules, the UK will need to delink certain elements of its current commitments from EU procurement directives. For example, its coverage of sub-central entities includes contracting authorities, which are bodies governed by public law as defined by an EU procurement directive. Similarly, the UK covers contracting entities whose procurement is covered by the EU utilities directive. The UK will likely be expected to define such coverage in terms of its own procurement measures.
The UK will also have to present to the GPA parties the measures it will take to implement its GPA commitments when it is no longer subject to EU directives, which are currently incorporated into its procurement system.
The WTO procurement committee is expected to begin work on Britain’s accession request when it meets at the end of June. Since the UK has been a party to the GPA, and its predecessor — first on its own and then as a member of the EU — for more than 35 years, its accession to the GPA should be straightforward.
Jean Heilman Grier
June 6, 2018