I have written previously about the challenge that the Single European Act of 1987, with its objective of creating a single market by 1992, presented to the EFTA states. In August 1988, the Swiss Federal Council published a Report on European Integration, in which it rejected EC membership as incompatible with its neutrality policy, in current conditions at least, but advocated instead ‘an active integration policy’ aiming at the establishment of ‘conditions as similar to the internal market as possible’.
In May 1988, the Federal Council decided to examine all reports and proposals submitted to parliament to ascertain their compatibility with European law. The goal was ‘to ensure the greatest possible compatibility of our legal provisions with those of our European partners in all areas having a transborder dimension (and only in those)’. Thus began the process known as autonomer nachvollzug (‘automomous enactment’) by which Switzerland has voluntarily adapted its own legislation to conform in greater or lesser degree to Community legislation.
The EEA-EFTA nations have to adopt new single market EU acquis without having a vote on its enactment in either the EU Council or the European Parliament. Clearly, this is a major drawback to the EEA-EFTA (or ‘Norway’) Brexit option. But equally clearly, just how big a drawback this is depends greatly on how much of the total EU acquis we would have to adopt, or perhaps more to the point, on how much of the acquis we would have to adopt compared to how much we currently adopt, given our various opt-outs.
Some of the estimates that have been given are:
- 6.5%, from David Oddson, Icelandic Minister for Foreign Affairs, 2005.
- 9%, from Nei til EU, the Norwegian anti-EU campaigning organisation. See their articles here and here.
- 21% from Richard North here.
- 28% from the 2012 Norwegian government report ‘Outside and Inside’, at page 795 of the Norwegian edition.
- ‘Approximately three-quarters’, from the same Norwegian report, at page 6 of the official English version of chapter 1, here and here.
- 80%, from Halldór Ásgrimsson, Icelandic Minister for Foreign Affairs, 2003.
Jean-Claude Piris, formerly Legal Counsel of the European Council and of the EU Council, has claimed that if the UK were to leave the EU and join EFTA, we could not simply remain in the EEA, but would have to make a fresh application to join it according to Article 128 of the EEA Agreement. Article 128 reads:
1. Any European State becoming a member of the Community shall, or becoming a member of EFTA may, apply to become a Party to this Agreement. It shall address its application to the EEA Council.
2. The terms and conditions for such participation shall be the subject of an agreement between the Contracting Parties and the applicant State. That agreement shall be submitted for ratification or approval by all Contracting Parties in accordance with their own procedures.
The European Free Trade Association was founded in 1960 by Austria, Denmark, Norway, Portugal, Sweden, Switzerland and the United Kingdom. When the UK and Denmark left EFTA and joined the EEC on 1 January 1973, the remaining EFTA states entered into bilateral Free Trade Agreements with the Community (except that the FTAs of Iceland, which had joined EFTA in 1970, and of Norway, followed later in March 1973, and July 1973, respectively.)
By 1984, the process of removing tariffs and quotas between the EFTA states and the EC had been completed, and in April at an EFTA-EC Ministerial meeting in Luxembourg, it was agreed to strengthen cooperation with a view to creating a ‘dynamic European economic space’.
Michael Gove claimed this week that there exists a European free trade zone. He said:
There is a free trade zone stretching from Iceland to Turkey that all European nations have access to, regardless of whether they are in or out of the euro or EU. [his footnote n. 26] After we vote to leave we will remain in this zone. The suggestion that Bosnia, Serbia, Albania and the Ukraine would remain part of this free trade area – and Britain would be on the outside with just Belarus – is as credible as Jean-Claude Juncker joining UKIP.
His only supporting reference for this claim, as given in the above document, is this map from the EU:
In my last post, I described how, as a result of objections to an EEA Court by the ECJ, an EFTA Court was set up instead. A two pillar structure was established, with an EFTA Surveillance Authority being granted powers corresponding to those of the Commission in its surveillance role. The EFTA Court operates in parallel to the Court of Justice of the European Union (CJEU or more commonly, ECJ), and has jurisdiction with regard to the three EFTA-EEA states, but not to Switzerland.
Broadly speaking, the EEA Agreement was designed to allow the EFTA nations to participate in the Single Market without the loss of national sovereignty that was inherent in membership in the European Community. It was intended to be an inter-governmental treaty, not one that brought into being a supranational entity with powers over nation states. It has been observed, however, that since its inception, the EEA has developed in a supranational direction, owing primarily to a series of judgements from the EFTA Court, in several cases finding in favour of litigants against one of the EFTA states.
One of the priorities for our Leave campaign is to develop coherence in our analysis of Brexit options. Once we are clearer about the options, I think there is still a possibility that something like a dominant majority position could emerge in favour of the Free Trade Agreement option. This is my own position, clearly, and I recognise of course that there is a strongly held alternative view that the EFTA-EEA option is preferable. But we cannot hope to resolve this issue until we have a good understanding of it.
Today, I want to address an element of confusion that seems to exist about the relationship between EFTA and the EEA. I discussed this before in my series on Iain Mansfield’s winning IEA Brexit Prize entry, and now want to look at Murray and Broomfield’s Brexit plan, which gained the runner-up’s position, and in which there is further evidence of incomplete understanding of EFTA and the EEA.
Perhaps the most startling claim of the government’s pro-EU leaflet is that ‘We control our own borders’. For me, perhaps the primary reason for leaving the EU is to regain control of our borders, so I did a bit of a double take when I saw that our government was pretending that we already have such control.
Although I am basically in agreement with Iain Mansfield’s vision of a Britain which is outside the EU and is entering where possible into free trade agreements with countries and blocs the world over, I am not convinced that he has a proper understanding of EFTA, nor the right prescription for our future relationship with the EU. With regard to the first point, he seems to believe that membership of EFTA would in itself give preferential access to the EU market, and in this I think he is mistaken.
The Eastern Partnership and the acquis
I left off yesterday with a puzzle: why does Mansfield, after rejecting the idea of joining the EEA (through EFTA) because of the necessity of incorporating EU Single Market legislation, and advocating instead a looser arrangement, similar to that of the nations of the Eastern Partnership, then suggest that we would have to adopt 2/3 of the acquis communitaire? My difficulty is that the proportion of the acquis adopted by Norway and the other EFTA-EEA nations is lower than this, at least by most measure.
I think I may have found the answer. Continue reading