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.
In its leaflet, on page 8 of the pdf, the Government claims that no country has so far:
managed to secure significant access to the Single Market, without having to:
• follow EU rules over which they have no real say
• pay into the EU
• accept EU citizens living and working in their country
The Government claim (at page 8 of pdf) that less than 8% of EU exports come to the UK, whereas 44% of UK exports go to the EU. Is this true?
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.
The government has announced that it is sending out to 27 million homes a 16-page leaflet, making its case for Britain to remain in the EU. I am quite surprised by how outrageously biased it is. And also by how poorly written and argued. I was shocked by the following statement on the first page of the leaflet (page 2 of the pdf):
The UK has secured a special status in a reformed EU:
- we will not join the euro
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
Yesterday, I pointed out what appear to be two serious problems in Iain Mansfield’s prize winning Brexit paper. First, he writes as if joining EFTA would in itself give preferential access to the European (ie EU) market. Second, he says that our entry to EFTA would need the agreement of the EU and all its member states.
On the second point, here is Article 56(1) of the consolidated (ie in its current amended form) EFTA Convention, which is also now known as the Vaduz Convention, since the major revision of the Convention at Vaduz in 2001:
I left off yesterday trying to understand what Iain Mansfield means by ‘EFTA access’ to the European market. It is true that all four EFTA countries do have a high degree of access to the European market through being part of the Single Market, either by means of the EEA Agreement or, in the case of Switzerland, through a series of bilateral agreements. But if we end the free movement of peoples, as Mansfield proposes, then, as I understand it, we would no longer be in the Single Market, in the normal sense of the term. Indeed, to the best of my knowledge, membership of EFTA itself would not give any preferential market access to the nations of the Single Market (EEA plus Switzerland).