The UK and the EEA

Yesterday on social media I said something about the EEA, writing in haste and late at night I may have left the impression that things were less complicated than they appear. I want to correct that impression and also say some things about the EEA because people seem to be talking about it.

What is the EEA?

In computer science terms, the EEA is a sort of fork of what was then the European Community in 1994. Most (but not all) of the then outstanding European law was carried into the EEA agreement with some modification. The EEA has then developed by adopting EU laws (such as regulations and directives) over time.

So the EEA is very like the EU, except that:

  • The Common Agricultural Policy and the Common Fisheries Policy do not apply
  • There is no common foreign policy, monetary union or customs union
  • The single market has limitations (eg free movement does not apply to all goods).
  • There is no Parliament.

In theory, the mechanism of the EEA requires that all EEA members consent to new EU laws before they are incorporated into the EEA agreement. As far as I can see in practice that consent is a formality. The Foreign Affairs Select Committee has carried out some useful research which indicates that in practice the EEA members have little real option but to accept the legislation that is sent to them.

Would this be enough for “leave” voters?

An interesting question is whether the EEA is enough to satisfy “leave” voters. This is hard to say. There never was a “leave” plan. From listening and talking to people it seems that “leave” opinions ranged from, on the one hand, those who did not actually want to leave but voted that way as a protest vote or to give the UK more bargaining power in the EU, to those who want a complete break with any special arrangement with Europe at all.

The EEA answers some objection I have heard. It avoids some of the “political union” that many leave politicians do not like. No Parliament for instance which seems to be a good thing in some people’s eyes. It is also much easier to believe that a European Army would not happen to the EEA without its members consent (of course this could not have happened if the UK were in the EU anyway because of the European Union Act 2011, but this point seems to have been missed).

Most importantly a lot of politicians on the leave side have said that free movement is still going to be something they support, so may be the EEA is the thing for them?

The UK is a member of the EEA

My ire was engaged last night by a pompous article in the Telegraph which included the words “One way forward would be for the UK to join the European Economic Area”. The simple response to this is that the UK is already a member of the EEA, as are all existing EU member states.

There is nothing in the EEA agreement that requires an existing contracting party (like the UK) to leave if it ceases to be a member of the EU. At first sight it appears that if the UK were to abandon the EU it would remain in the EEA.

EEA: not designed for Brexit

But, no, there is more and it’s awful. The EEA agreement was written on the assumption that, once in the EU (or the EC as it was when the EEA was written) a country will never leave. I suppose this is forgivable because the EEA was written long before the Treaty of Lisbon which first introduced the right to withdraw under Article 50 TEU.

The EEA agreement has a weird “two pillar” structure. All the contracting parties are divided into two: (1) members of the EU; and (2) Iceland, Liechtenstein and Norway called the “EFTA members”. Each “pillar” has a court to supervise it. For EU members it is the Court of Justice (of the European Union) for the EFTA members it is another body called the EFTA court.

What that means is that if the UK leaves the EU without the EEA agreement being fixed, the UK will be in a strange anomalous position in which it has to abide by lots of EEA rules but will have no representation on the EEA Council or either of the courts.

Leaving the EEA is easy though: you just give 12 months’ notice and you are gone. The UK can avoid the anomaly if it wants, but it would be odd to leave the EEA and then reapply for membership.

The EEA agreement assumes that any country applying for membership has to first be a member of either EFTA (where we would need the permission of Norway, Iceland, Liechtenstein and Switzerland) to join or the EU, which presumably we are leaving. All EU and Norway, Iceland and Liechtenstein would then have to agree on UK membership.

My guess is, if this is the way the UK does want to go, it would be easier to agree an amendment to the EEA agreement to remain a member. That, at least, would take fewer steps and avoid bringing in Switzerland.