A leading European jurist says the plan for temporary EEA membership needs improvementby Carl Baudenbacher / October 30, 2018 / Leave a comment
In recent weeks, a movement has emerged in British politics that believes it can overcome the current Brexit crisis. It is called “Norway for now” and was launched by the Conservative MP and former minister Nick Boles. The basic idea is to have the transition period under the auspices of the EU replaced by a transition period in the safe harbour of the European Economic Area/European Free Trade Association. This would allow Britain to maintain the continuity of its customs arrangements while finalising the details of its future relationship with the EU. Boles and others believe that after this transition, the UK should go for a Canada-style free trade agreement with the EU.
The new roadmap is at first sight attractive. Firstly, it seems be quite popular. Secondly, it has become clear that Chequers has no chance of realisation. Thirdly, the prospect of the PM signing a Brexit deal with the EU that is then overturned by the Commons is scary as it could mean the country leaving without a deal. Fourthly, holding a second referendum would be problematic from the perspective of democracy.
If you take a closer look, however, you will discover that “Norway for now” meets with considerable concerns. The first is the name. Not only the EU and Norway, but also Iceland and Liechtenstein would have to give their consent. Even small and very small states have their pride, and rightly so. Secondly, the question arises where the incentive would be for three EEA/EFTA states to offer Britain a safe harbour in order to be left in the lurch.
The EU has always signalled that EEA membership in the EFTA pillar is a valid option for the UK. But whether it would have an interest in the UK’s membership being limited in time remains an open question.
The fourth EFTA State, Switzerland, is not in the EEA and therefore does not feature in some versions of the plan. However, a precondition for UK EEA membership on the EFTA side, even if temporary, would be EFTA membership. And here Switzerland, together with Iceland, Liechtenstein and Norway, would have a say.
On the basis of my 15 years of experience as the EFTA Court’s President, I take the liberty to make the following proposal: the “Norway for now” plan should be modified without losing momentum. The idea of the UK spending the transition phase in the EFTA pillar of the EEA is ingenious. The UK would no longer be subject to the jurisdiction of the European Court of Justice but to that of the EFTA Court. It could nominate its own man or woman as a judge.
However, the idea of entering a Canada-style deal with the EU should be abandoned. Unlike the EEA agreement, it would not provide British industry and the City of London with access to the single market, while citizens and companies would not have access to a non-national court of law. They would be dependent on the goodwill of civil servants if their rights were infringed. Finally, it is not certain that the ECJ will approve the EU-Canada Treaty. The corresponding proceedings are pending.
The UK should rather make a declaration of intent to negotiate permanent EEA/EFTA membership in good faith at the end of the transitional phase. In view of its economic and political weight, the UK should then aim to broker certain improvements to the EEA Agreement, for example regarding free movement of people and a clearly defined right, in legislation, to be part of the decision-making process. The EEA, which respects the sovereignty of the EFTA states in the fields of foreign policy, foreign trade, agriculture and fisheries, would thereby also become attractive for Switzerland, whose negotiations over the conclusion of a so-called “framework agreement” with the EU have basically failed. The project had the same flaw as the Chequers plan: major conflicts would be decided by the ECJ. Switzerland is close to the UK in many ways. I will only mention the lack of a Hegelian state model, the belief in free trade and open markets and the modern image of man.
Carl Baudenbacher, former President of the European Free Trade Association Court, Monckton Chambers, London