The Partnership, Trade and Cooperation Agreement (PTCA) with Kosovo was signed on 3 December 2019, thus two months shy of Brexit. It rolls over the Stabilisation and Association Agreement (SAA) recently concluded between the EU and Kosovo. 81 It is also the first of this family of EU AAs to be developed into a post-Brexit agreement, 81 while the negotiations with the remaining non-EU countries of the Western Balkans were pending on 31 January 2020.
Three key points are worth being made at the outset. First, the EU—Kosovo SAA is a relatively short free trade agreement, providing a skeleton framework for bilateral relations. Second, as in the case with the other SAAs, the creation of the free trade area is an end in itself. However the Agreement serves also much broader and ambitious objectives. It was designed as a tool for the association of Kosovo with the EU and, at the same time, as an instrument for stabilisation in the Western Balkan region. Furthermore, in the long term, the SAA is the ultimate legal vehicle for the future accession of Kosovo to the EU. With this in mind, the roll-over of the SAA had to take into account a recalibration of objectives underpinning the legal framework. Third, UK—Kosovo trade amounts to symbolic volumes, to the point that the Foreign and Commonwealth Office, in its report to the Parliament, admitted that exact data are not available. It was added, however, that the total trade in 2018 was worth approximately million. 82
The pruned aims of the rolled-over Agreement are reflected in its title. The notions of ‘stabilisation’ and ‘association’ have been replaced with more suitable concepts for the post-Brexit reality: ‘partnership’, ‘trade’ and ‘cooperation’. It is notable that in the case of this Agreement, the parties opted for the ‘short form’. It is a bit surprising as its prototype is rather short and straightforward, hence good material for a copy—pasting exercise.
Unlike the UK—Georgia Agreement presented above, the UK—Kosovo PTCA has a very brief and unambitious preamble, merely restating the factors behind it: Brexit and the need for continuous cooperation. This is also reflected in Article 1 PTCA. Surprisingly enough, the aim is to establish not only a free trade area but also an association. As noted earlier, an association between states is a rather alien concept, not properly founded in contemporary’ international law. The raison d’etre of this move is not clear and not elaborated upon in governmental documents submitted to the UK Parliament.
The main part of the UK—Kosovo PTCA is brief and comprises a handful of provisions. At the heart of it is Article 3 PTCA, which provides: ‘The provisions of the EU-Kosovo Agreement in effect immediately before they cease to apply to the United Kingdom are incorporated into and made part of this Agreement, mutatis mutandis, subject to the provisions of this instrument.’ By means of such a cross-reference the EU—Kosovo SAA is being turned into a postBrexit UK—Kosovo Agreement. This, however, is subject to a lengthy list of SAA provisions which do not apply. It is provided in the Annexes forming an integral part of the PTCA. They merit a closer look at this stage of the analysis.
The opening provision of the EU—Kosovo SAA defines the aims of association. For the purposes of the PTCA, Article 1 is incorporated, sans reference to the ‘approximation’ of Kosovar law with the EU acquis. At the same time, the parties opted not to roll-over Article 2 EU-Kosovo SAA, which codifies a legal fiction that the conclusion of the SAA does not amount to recognition by the EU of Kosovo as an independent country. 83 Arguably, for UK—Kosovo relations it remains a non-issue as the UK was one of the first countries to formally recognise the independence of Kosovo in 2008. The list of other not incorporated, or modified, provisions is rather long and extends to all sections of the SAA. Not surprisingly, this covers references to EU legislation and concepts inextricably linked to EU relations with Kosovo. For instance, Article 74 EU—Kosovo SAA dealing with law approximation has not been rolled over. The same applies to Articles 122—125 EU—Kosovo SAA covering financial cooperation. At the same time, the bilateral institutional structures have been largely kept in place, the main exception being a joint parliamentary committee which has become an optional feature. Furthermore, a reworked Protocol on origin of products has also been inserted as Annex II to the PTCA.
The overall impression is that the UK—Kosovo PTCA is a patchwork built on the EU—Kosovo SAA. A ‘short form’ agreement was, perhaps, easier to draft but it certainly does not deliver the advantages argued by the UK government. It offers neither clarity, nor transparency.