Causes, Aftermath, and Future: The Three Stages of Brexit

Jo Eric Kushahl Murkens*

A friend of mine, who is French and lives in London, returned from holiday the day after the referendum. In an email to me, she wondered why she had bothered: she felt as though her home had been “vandalised” by half the people in the country. Most people I spoke to reported feelings of anger, shock, and disbelief in the immediate aftermath. These strong emotional reactions were entirely understandable given that their future right to work and live in the UK as EU citizens had just been put into question.

On second thoughts, however, why were we shocked? The Brexiters had run a very effective campaign, with slogans along the lines of “We want our country back” and “Let’s take back control”. The Remain camp had no response to this. David Cameron and George Osborne were simply not the right people to remind voters of this straightforward fact: it was not uncontrolled immigration from the EU that was responsible for the decline in public services throughout the country, but the austerity politics driven by Conservative Party ideology since 2010. The Brexiters had won the campaign effortlessly.

More importantly, we are not talking about mendacities, myths, and misinformation that were spread over the course of a two-month long referendum campaign. We are talking about the wilful and sustained distortion of the European project by British politicians and journalists from the very beginning, and especially since the date of accession in 1973. Could a referendum on EU membership ever have been won in the last 20 years, I ask myself? And should we not be positively surprised that almost half the British voters elected to remain in the EU?

Anger and irritation soon gave way to analysis and interpretation. The referendum was clearly not about the European Union. It revealed something significant about the United Kingdom. The United Kingdom was not unanimous, but split down the middle: Scotland and Northern Ireland voted to remain, England and Wales voted to leave. The two main political parties were not putting forward helpful proposals regarding Britain’s future relationship, but were in open meltdown over the Europe question. Embarrassingly, Britain had once again set itself up to fail over a serious policy choice. In 2003, Britain went to war upon the basis of unreliable information and without an exit strategy. In 2016, it conducted a referendum upon the basis of false promises and without a Brexit strategy. This is not a good time to be British, and it certainly is not a good time for Britain.

Constitutional analysis proved to be my pathway to hope and optimism. There is no way the UK can withdraw from the EU and expect to survive politically. European law is woven into the Belfast Agreement of 1998, which stands testament to a rare and recent British diplomatic achievement. It has brought peace to Northern Ireland and improved the relations between the Republic of Ireland and the UK. It is, of course, possible for the UK to leave the EU. But to begin that process without second thoughts for the Irish peace process is borderline criminal. Something similar needs to be said in relation to Scotland. The governing SNP have been quietly waiting for an excuse to hold a second independence referendum, and David Cameron has single-handedly given them a reason.

Few countries display much enthusiasm for the European Union. British people are certainly amongst the least knowledgeable in this respect. Ignorance about European institutions is one matter, but ignorance about one’s own constitution (and yes, the UK has a constitution) is unforgivable. At the very least, the 52 per cent should stop claiming that their slim majority should in any way be decisive.

As a state, the UK is neither centralised nor unified. It is de-centralised and fragmented. Scotland and Northern Ireland reveal the UK constitution at its most fragile. The new Prime Minister will need to tread very carefully. So far, only the homes of the 48 per cent have been vandalised. Pretty soon the UK, the home of 100 per cent, could cease to exist. No one voted for that in June 2016.

* This essay is from a Working Paper of the European University Institute, Department of Law, entitled “Brexit and Academic Citizenship” (LAW 2016.20, San Domenico di Fiesole 2016, available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2871428). The paper, edited by Christian Joerges, collects a series of personal reflections on the outcome of the Brexit referendum. The essays do not engage with the legal and constitutional issues that arise from this event – these aspects have received comment elsewhere. Rather, the editor has solicited personal reflections from a group whose scholarly journey included the European University Institute, a hub for transforming, and integrating Europe. Aware of this privileged position, the authors shed light on how the result of the referendum and its aftermath may impact on the UK and the European Union.

Brexit, Post-Truth Politics and the Triumph of a Messy Vision of Democracy over Technocracy

Sandra Marco Colino*

As I watched the last US presidential debate of the 2016 election live over breakfast a few weeks ago, I recalled the last time I had spent an entire morning glued to the television screen watching political developments unfold. It was on 24 June, when the results of the referendum on the UK’s membership of the European Union were announced live on the BBC (a perk of living in Hong Kong and being 7 hours ahead of the UK is that I can watch British election results in real time without having to pull an all-nighter). It was 11:40 am here when David Dimbleby confirmed what felt like the “chronicle of a death foretold” soon after the vote counts began to trickle in: the UK had chosen to leave the EU.

The news refused to sink in, even as I stared at the headline flashing across the screen. The outcome had a much more intense emotional impact on me than I had anticipated. On Brexit, I am both biased and non-biased: biased, as a Spaniard brought up in the UK, who has extensively exercised her rights as an EU citizen; and non-biased, for having made a career and a profession of the study of EU law for over two decades. And in my two capacities, my feelings were unanimous: my heart said remain, and my head said remain. More accurately, my head said “remain and revolt”, as I believe that the UK could have used its solid position within the EU to push for a superior process of integration. But remain nonetheless.

I have undoubtedly been shaped both as an individual and as a professional by the opportunities offered to me by my UK residency. My family moved to London when I was just 11 years old. Since then, I have spent a total of 12 crucial years living in Britain. My first job was at the University of Glasgow. Although I have retained my Spanish nationality and citizenship, and the UK may not be part of my DNA, it is most certainly a vital part of my inner fabric, and I deeply care about the country’s future, whether in or out of the EU. But equally important, I am an EU national, and I have extensively taken advantage of the myriad of privileges that this entails. I am one of the 3 million undergraduate students who have experienced what it is like to live and study in another European country (in my case, Germany) thanks to the EU’s Erasmus university exchange programme. I wrote my Ph.D. at the European University Institute in Florence with a grant partly funded by the EU. I have been a trainee at the European Commission, where I had the chance to witness EU law enforcement and policy-making as it happened. I have extensively exercised my free movement rights, having resided and/or worked in six different EU Member States. As a female and as an employee, I have benefited from gender equality protection and working conditions guaranteed by EU law. Unsurprisingly, I find it regrettable that the continuity of all of these life-changing benefits has now been compromised for UK citizens. The result of the referendum is often portrayed as a popular uprising against technocracy and élitism. However, it is unclear whether the potential loss of such privileges, even if seemingly by the will of the beneficiaries, is really a win for the British people or more of an own goal. The idea that citizens’ rights would be at the forefront of the concerns when deciding to call for a nationwide reflection on EU membership is debatable. After all, the referendum was propelled by the same political leadership that put a heavy price tag on tertiary education in some parts of the country; the very one that has pushed Britain into an age of austerity and growing inequality which the United Nations recently declared to be in breach of international human rights.

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“I want my Country Back!”: Equality, Discrimination and Xenophobia after the Referendum

Diamond Ashiagbor*

We’ve been asked to offer some personal reflections, hopefully mediated by scholarly insight, on the UK referendum vote on EU membership. The quotation in my title comes from the rallying cry of the “Leave” campaign. The resonance of that slogan with the claim of Donald Trump to “Make America Great Again” is telling, as both imply a nostalgia, or rather a fantasy, for a lost state: one which is fully “sovereign”, unfettered by international or supranational obligations, freed from the constraints of a liberalised global trading regime whose rules it had been responsible for crafting, and – most significantly – almost entirely free from migrants.

Before the Vote

I voted “Remain” in the UK referendum for all the obvious reasons. Because I believe the EU, for all its faults and its challenges to the “embedded liberal bargain” which many Member States had been able to strike within their national economies, represents the best chance for cross-national solidarity and some defence against unfettered global capital. Because I didn’t want to see the most openly racist political campaign that I can recall since coming to the UK in 1975 as – yes – a migrant, succeed. Because I think the UK’s social and economic ills (the housing crisis, with housing-cost inflation outstripping stagnant wages, the lack of investment in social housing, the prevalence of a high-cost, high-turnover private rented sector; the underfunding of the National Health Service; vicious austerity policies; and the failure to alleviate the devastating social costs of the post-industrial decline) are the fault of elected national politicians not the fault of the EU or of immigrants. Because I would like to hope that the UK could remain a (relatively) open, reflective, socially progressive country.

 False Statements and First Impressions

 The key legislation governing eligibility to vote and the conduct of elections in the UK, consolidating and replacing earlier statutes, is the Representation of the People Act (RPA) 1983. The European Referendum Act 2015, in Section 4, made provision to incorporate most aspects of electoral law from the RPA 1983 into the referendum process. However, whilst Section 106 of the RPA makes it an offence to make false statements “for the purpose of affecting the return of any candidate at the election”, there was no attempt to introduce a false statement offence tailored to the different circumstances of a referendum vote – i.e., where voters are not choosing between candidates, but between different answers to a question.

Opinions vary as to the merits of attempting legislatively to compel a form of “truth in political advertising” – e.g., the risks to freedom of speech and the risk of the judicialisation of politics versus the reality of the weakness of political sanctions and the weakness of the media role in generating informed debate. But it is certainly the case that the absence of any real guidance to voters during a febrile referendum campaign left voters, as Claus Offe notes in this paper, to their own individual means of will formation.

As it was, the Leave campaign blatantly lied about an imminent accession to the EU of Turkey, about the UK’s net contribution, about eurozone bailouts, about the mechanics of trade, about the NHS, about threats to national security, and, of course, about immigration. It was relatively silent about, or downplayed, the impact of a “Leave” vote on the markets, Sterling, the union and the retention of Scotland within that union, the border with the Republic of Ireland, the Gibraltar/Spain border, the frontier at Calais, the need to continue compliance with all EU regulations in order to retain membership of the single market, the ease and impact of negotiating trade deals with non-EU states, the status of UK citizens in other EU states, EU citizens in the UK, acquired rights, and the status of legislation transposed from EU law under the authority of the European Communities Act 1972. They were also dismissive of “experts”: economists, foreign policy analysts, legal scholars and practitioners, historians, other Europeans, and world leaders.

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The problems associated with associate citizenship of the EU

Dr Adrienne Yongyong

It is fair to say that since June 23, 2016 – the day the UK voted to leave the EU –the 48.1% of the electorate that voted to remain have voiced some concerns. Indeed, many of the concerns expressed by this minority are shared by EU citizens residing in the UK who were unable to vote in the referendum, with none more important than the idea of rights to free movement within the EU. The concept which grants rights such as residency, entry and exit from the territory of EU Member States without prejudice is EU citizenship. Article 45 TFEU also encompasses some of these same rights, but applies only to workers. In contrast, EU citizenship status, enshrined in Article 20 TFEU, is granted to all Member State nationals by virtue of their Member State nationality. As made clear in that provision, EU citizenship does not replace nationality but is additional to it. This status was first introduced 24 years ago, in the Maastricht Treaty 1992. The most recent study in 2012 showed that a third of the population of foreign citizens in EU Member States are individuals from other EU Member States, indicative of large volume of people who have made use of their rights to free movement.

Associate citizenship of the EU

With the vote to leave the EU and the subsequent process of withdrawal that the UK must now undergo, it is clear that EU citizenship will no longer be a status accorded to British nationals. Though nothing is set in stone as yet, this much is fairly clear. However, this would mean British nationals can no longer enjoy the rights to free movement and residency that are currently enjoyed by all EU citizens. Plainly, this is one of the consequences that Britain must be prepared to accept as it negotiates its exit in the coming years. Unsurprisingly, there have been voices of discontent from sections of the “Remain” electorate about the unilateral “stripping” of their EU citizenship and calls for some consideration of a voluntary citizenship of the EU for British citizens. Most recently, this has crystallised in the form of Amendment 882, brought before the European Parliament by MEP Charles Goerens, to offer citizens from a former Member State what would be known as “associate citizenship”. The Amendment offers a new regime for discussion amongst high level EU officials. This is the most thoroughly considered of all the suggestions thus far on any alternative arrangement for British citizens post-Brexit. In contrast, other suggestions concerning the retention of citizenship rights after Brexit have not been as formal as Amendment 882 and are also less specific about solutions to the problem of losing of EU citizenship status after Brexit. The proposal here is for an opt-in with payment of a membership fee; in return, individuals would have some of the rights guaranteed by the Treaty under Articles 21-22 TFEU: to free movement, to residency, and to vote and stand for election in the European Parliament. The right to consular protection, petitioning the European Parliament, recourse to the Ombudsman and right to communication from EU institutions in the citizens’ own language are not included. The effect therefore, would be retention of a form of citizenship of the EU.

It is clear where this sentiment is coming from. While the referendum was won by “Leave”, over 16 million people in the UK did vote to remain in the EU. It is assumed that these voters would have wanted to retain the benefits of being part of the supranational entity, including EU citizenship and its associated rights. Furthermore, EU citizenship has been granted to the entire British population and these individuals feel that they did not choose for it to be taken away from them. Indeed, as a right that impacts the majority of the population in the EU, its loss will be felt by many. Speculation is already rife about the visa requirements for British citizens in the EU after Brexit. Therefore, the outcry arguing in favour of a way to retain EU citizenship and its requisite rights is unsurprising. However, there is equal outcry about associate citizenship of the EU as a solution.

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High Court Brexit judgment: do all roads lead to Luxembourg?

Albert Sanchez Graellsbalanced-scale

This is a lightly edited version of a post that first appeared on the How to Crack a Nut blog. 

The High Court has now issued its Judgment in the dispute about the UK Parliament’s necessary approval of a Brexit notification–see R (Miller) -V- Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin). It has ruled that such Parliamentary approval is indeed required as a matter of UK constitutional and public law. The Government has already announced that it will appeal this decision to the UK Supreme Court (UKSC). The implications of such an appeal are important and need to be carefully considered. One such possible consequence is that the appeal (indirectly) brings the case to the docket of the  Court of Justice of the European Union (CJEU).

In my view, an appeal of the High Court’s Judgment before the UKSC will indeed trigger a legal requirement under EU law for the UKSC to send a reference for a preliminary ruling to the CJEU. I have rehearsed most of my arguments on twitter earlier (see here and here) and this posts brings them together.

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Arguments in the referendum challenge now available

Rosalind English

This post originally appeared on the UK Human Rights Blog, and is reproduced here with permission and thanks.

The imminent  litigation concerning the government’s response to the Brexit vote is much anticipated. The skeleton arguments have now been filed. The High Court has just resisted an application for partial redaction of the arguments, so they are open for public perusal.

A quick reminder of what this is all about:

In R (on the Application of Gina Miller) and others v Secretary of State for Exiting the European Union the claimants seek a declaration that it would be unlawful for the defendant secretary of state or the prime minister on behalf of HM Government to issue a notification under Article 50 (TEU) to withdraw the UK from the EU without an act of parliament authorising such notification.

Here is the  skeleton argument from one of the groups supporting that case (People’s Challenge), and here are the Government defendants’ grounds of resistance

Prerogative Power

People’s Challenge

The triggering of Article 50 requires a prior step: the decision to withdraw from the EU in response to the referendum result. It is only once this decision is taken that it can be notified to the European Council.

This first step cannot be made as an exercise of the royal prerogative, which is the power of the government to take action without consulting parliament.  This power has been weakened over time – mainly whittled away by parliamentary legislation – and is so residual now that it cannot be exercised to implement Brexit. Consequently, the executive does not have power to decide that the UK should withdraw from the EU, and without putting the matter to vote in Parliament, ministers cannot notify the European Council of any such decision to withdraw.

Because parliament brought us into the UK, only parliament can authorise a decision to leave.

Since the prerogative forms part of the common law,  the courts have jurisdiction to determine the extent of this power in accordance with ordinary judicial review principles.

Government

Prerogative powers cannot be reduced by implication. In any event, withdrawal from the EU by governmental fiat has not been prohibited by any statute.

The Act that parliament passed to authorise the referendum was predicated on the “clear understanding” that the government would respect the outcome, and this is a lawful and constitutional step. Parliament has a role, but only in the negotiations following the decision to leave, not in the taking of the decision itself, which follows the outcome of the referendum. That is for the government, under its prerogative treaty making powers.

The referendum result cannot be attacked in the way the challengers contend; the vote concerned the decision to leave the EU. As articulated, this result should be given effect by use of prerogative powers.

Courts have no more power to adjudicate on the decision to withdraw from the EU as they did on the decision to join it. This is now, and was then, a matter of “highest policy reserved to the Crown”. Treaty-making, with the European Union or any other body, is not generally subject to parliamentary control. Continue reading

The TTIP Negotiations Innovations: On Legal Reasons for Cheer

Elaine FaheyDr Elaine Fahey

By now, the Transatlantic Trade and Investment (TTIP) negotiations have undergone a marathon 14 rounds of negotiations after 36 months of talks, despite Brexit and the tumultuous US presidential elections standing in the back drop. The political mood on either side of the Atlantic is still challenging to say the least. And after EU-Canada Comprehensive Economic Trade Agreement (CETA) being proposed for recently as a mixed agreement meaning that many national parliaments will vote on it (not being an exclusive EU only agreement as anticipated), the legal context of free trade with Europe just got trickier.

The TTIP negotiations have generated fears about the transfer of authority to a new living entity as a form of global governance. Yet by opting for public institutions and institutionalisation within TTIP, there is a shift towards transparency and the ‘governability’ of global governance. Even if it fails – and there is a reasonable chance that it may not survive the US elections – there are a whole host of positives to be found within the TTIP negotiations. They can be viewed as innovative attempts to right the wrongs of global governance. They may well inspire future developments and are worthy of a brief analysis.

This post focusses upon the latest developments as to TTIP’s institutions in the latest texts released in mid-July.

On the institutional side of things, the EU’s most recent proposal of 14 July 2016 has undergone some considerable changes to appease European critics. The latest TTIP EU-proposed text still features a Joint Committee, comprised of the US Trade Representative and an EU Commission at the apex of TTIPS’s Regulatory Cooperation. The Committee would possess considerable supervisory and legally salient interpretive powers about TTIP’s proposed 30 chapters. But is more executive than supranational in nature and this matters to the US. The executive dominance of the EU’s proposed Institutional chapter as of July 2016  is apparent (Article X. 2) – because it would provide for powers to supervise and guide activities, adopt rules, adopt interpretations about the agreement and act subject to transparency and openness principles- between levels of Government essentially. The Joint Committee would principally work with Specialised Committees (e.g. market access, services …) and Working Groups but can be perceived as a great empowerment of the European Commission, arguably moving far beyond its institutional and constitutional functions.

However, it is importantly now heavily ‘tempered’ by a number of other bodies, actors and entities that align with more European than American ideals.  Above all, binding duties of cooperation and participation along wide transparency and equal access are ‘latecomers’ to the negotiations – and heavily Americanised ideas of Administrative law (e.g. ‘notice and comment’). They are important in so far as they mitigate critique of earlier drafts as to closed-decision-making practices. Thus firstly, the Joint Committee is ‘tempered’ by a Regulators Forum which would discuss regulatory cooperation between regulators, holding public sessions. The Transatlantic Legislators Dialogue (TLD) next envisaged within the new text would be comprised of EU and US parliamentarians and has already been part of several decades of EU-US relations. Nonetheless, although lacking any significant powers, as has always been the case with the TLD, it could further foster the parliamentary dimension of cooperation. In the text, the Civil Society forum would also be provided for to ensure a balance number of interests is displayed, along with a Domestic Advisory Body independent representatives of civil society, whose participation is to be facilitated. Although a lot of functional overlap is apparent from this version of the text, it is an important state of affairs. For example, ironically, the harshest criticism of the latest draft of institutional set up is that it contains too much participation or too many bodies and actors – and this criticism comes directly from the TTIP’s institutionalised Advisory Body, itself supposed to represent civil society. Previous version of the text failed to provide adequate assurances concerning the place of parliamentary sovereignty and civil society. And so on balance, on can see its virtues emerging as a broadly open and truly participatory idea of transnational cooperation with considerable control and input given to elected representatives. Continue reading

10 (pro-EU) reasons to be cheerful after Brexit

Cormac Mac Amhlaigh

As the dust continues to swirl around the momentous Brexit referendum result a month ago (and doesn’t show any signs of settling anytime soon) I suspect many EU sympathisers will be somewhere in the middle of the various stages of the Kübler-Ross Grief cycle: denial, anger, bargaining, depression, acceptance. So, somewhat incongruosly, are the ‘leavers’. Whereas there are almost as many emotions being experienced on all sides as there are potential options on what will happen next both in terms of the UK’s future relationship with the EU as well as the future of the EU itself, in this post I want to set out a number of (pro-EU) reasons – some obvious, some optimistic, others wildly speculative – to be cheerful amidst the uncertainty created by the Brexit vote.

  1. It is worth reminding ourselves that (a version of) the EU existed before the UK joined in 1972 (with Denmark and Ireland) and it will survive its withdrawal. Brexit will not have the same effect as one of the founding six, and particularly say Germany or France, leaving the bloc.
  1. The feared domino effect of other Member States agitating to leave has not transpired. Indeed post-Brexit opinion polls have shown a bounce in support for the EU in other EU Member states since Brexit.
  1. Even were an in/out referendum to be held in another EU Member state, there are good reasons to believe (barring unforeseeable ‘exogenous shocks’) that a majority would not vote to leave. No other EU Member State has a national media so relentlessly hostile to the EU as the UK. The UK’s top-two selling national newspapers (with a combined circulation as much as the next three put together) are rabidly anti-EU and a study released during the referendum campaign found that even the UK’s supposedly ‘neutral’ state broadcaster, the BBC, had been overwhelmingly negative about the EU over the past fifteen years. Against this heavily Eurosceptic background, there was still only 3% difference between leave and remain in the referendum result. This augurs well for an EU referendum in an EU Member state with a less hostile media.
  1. The referendum and its aftermath has increased curiosity, interest and knowledge about the EU and what it does among many previously disinterested EU citizens. Most obviously in the UK where google reported a sharp rise in searches asking was ‘What is the EU?’, albeit that this was after the polls had closed. Admittedly, much of this knowledge and information is starting from a pretty low base but any improvement has to be a good thing for the EU.
  1. Ever since the last British government passed the EU Act 2011, which requires referendums in the UK on certain future reforms at EU level, future EU reform would have been considerably hamstrung by the UK through the floating of a ‘referendum veto’ at every turn in negotiations.   An actual referendum on future EU reform, even reform which would have been disproportionality advantageous to the UK, would have been very unlikely to succeed given the general eurosceptic feeling in the UK as exemplified in the Brexit referendum result. Future negotiations would therefore have involved even more protracted wrangling over EU reform than is usually the case, with increasingly less patience with the UK among other EU Member States. In the Brexit result, future EU reform has dodged a considerably large UK-shaped bullet allowing for better reform at the EU level at a time when it needs to be efficient and decisive in the face of the many issues it currently faces.
  1. The Brexit vote has put EU legitimacy back on the agenda (again!). It provides a useful time to reflect on the broader legitimacy of the EU, particularly from the viewpoint of citizen knowledge about, and engagement with, the EU. Vital lessons can be learned from the way in which the EU was presented as well as misrepresented in the Brexit campaign debates and the extent to which EU questions tend to be dominated by domestic political concerns. This should feed into analysis and reflection on the never-ending project that is the enhancement of the EU’s legitimacy. Furthermore, unlike the high-stakes, pressure-cooker atmosphere of the eurocrisis, the Brexit vote has been followed by an important ‘cooling down’ period (helped considerably by Cameron’s decision not to push the Art. 50 button on his resignation) which allows for more probing and searching analysis into these big questions and better solutions to be developed.

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Political Reductionism at its Best: Some Considerations on the EU Institutions’ Response after the UK Referendum

Giuseppe-MartinicoGiuseppe Martinico

This post first appeared on the Verfassungsblog; it is reproduced here with kind permission.

Colleagues have already commented upon the response of the EU institutions to the outcome of the referendum held on 23 June, stressing the rushed and populist attitude shown by the Commission and the EU Parliament, referring, for instance, to the exclusion of the UK from the “informal” meeting of the European Council held on 29 June and to the way in which Juncker made a joke of Nigel Farage, asking why he was in the European Parliament after the UK vote.

However, there is another episode which is very telling, about the respect shown by the “political class” towards Art. 50 of the TEU and, in general, other relevant norms to be taken into account independently from the activation of the exit procedure, like, for instance Art. 4.2 TEU demanding equal treatment of the Members States and respect of their national identity and constitutional structure.

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The EEA Agreement and the ‘Norway option’: integration without co-determination

Henrik Nordling Henrik Nordling[1]

The result of the UK’s EU referendum has thrown the EEA Agreement to the forefront as a potential template for the UK’s future relationship with the EU. The term ‘Norway option’, under its various guises, is steadily referenced to as a potential compromise. However, Norway’s relationship with the EU is relatively complex: Norway has adopted about ¾ of the EU legislation of that of an ‘ordinary’ EU Member State, but does not have any powers of determination in the EU legislative process. Norway benefits from the advantages of being part of the internal market, but does not get to decide on the rules which govern it – only adhere to them. Nonetheless, Norway is not bound by some of the EUs most hotly debated policy areas, such as agriculture, fisheries and home affairs.

An overview of Norway’s EU relationship

The UK and Norway share a common past when it comes to the EU. In 1960 Norway and the UK were part of the seven states that founded the EFTA as an alternative to what was then the European Economic Community (EEC). Then in 1962 Norway, along with the UK, Denmark and Ireland applied to join the EEC only to be met with a resound ‘non’ from Mr De Gaulle. Although the General’s veto was aimed squarely at the Anglo-Saxons across the channel, Norway suffered collateral damage. Still, the Norwegian government continued negotiations and that were completed in 1972. Parliament was overwhelmingly in favour of joining the EEC, but the question was put to a referendum – yes one of those – and the result was a quite clear ‘no’ which caused the prime minister to resign and Norway ended up with a trade agreement with the EEC instead. History has a tendency to repeat itself. Norway then had a second referendum on EU membership in 1994, but the answer was once again No. As an aside, it is worth noting that on a regional basis the Yes vote was the clear winner in Oslo and the surrounding regions whilst No blanketed the rest of the country in both referendums.

The EEA Agreement was entered into between five EFTA States (Sweden, Austria, Norway, Iceland and Finland) and the EU Member States in 1992 and entered into force in 1994. Lichtenstein became a full participant in the EEA Agreement in 1995, and in the same year Sweden, Finland and Austria left the EFTA and the EEA to join the EU. This leaves us with today’s three remaining EEA EFTA States: Norway, Iceland and Lichtenstein. Switzerland, the fourth remaining EFTA State, chose to enter into a bilateral agreement with the EU.

The EEA Agreement, at its most basic level, extends the EU’s internal market to the three EEA EFTA States, granting equal rights and obligations for citizens and economic operators in the EEA. The substantive scope of the EEA Agreement thus includes, at its core, the four freedoms (goods, services, persons and capital), competition rules and State aid. In order to ensure that the internal market functions well it was also imperative to include various ‘horizontal provisions’ related to the four freedoms (such as consumer protection and environmental regulation) that serve to strengthen and support the internal market. There are also provisions relating to cooperation outside the four freedoms. These are known as ‘flanking areas’ (such as research and development, culture and education) which further strengthen the cohesion of the EEA.

However, the EEA Agreement does not cover the following EU policies: Common Agriculture and Fisheries Policies, Customs Union, Common Trade Policy, Common Foreign and Security Policy, Justice and Home Affairs and Monetary Union. Although it should be noted that EU Member States have the ability to opt out of some of these policies to a certain extent.

An interesting reflection is that the relative proportion of EEA EFTA to EU Member States was 5:12 in 1992, which is considerably better than it is now at 3:28. Whether the same agreement would be reached under this constellation is not sure.

To put it simply the EEA EFTA States adopt some, but not all of the EUs rules and only within certain policy areas that are of ‘EEA Relevance’. But this divide is not as clear as it may seem when it comes to Norway, as cooperation can and does occur within policy fields that are outside the remit of the EEA Agreement. For instance, within the field of Justice and Home Affairs, Norway is a member of the Schengen area. Within the field of Foreign and Security Policy, Norway has entered into an agreement with the EU as regards EU civilian and military operations and has participated in EU-led operations in the Balkans and the Horn of Africa. Norway also participates in Europol, the European law enforcement organisation and has entered into an agreement based on the principles of the European Arrest Warrant. Norway has thus extended its cooperation with the EU to a number of areas where the two parties share common interests that are outside of the EEA Agreement.

Administration, legislation and the lack of co-determination

Administration of the EEA Agreement is shared between the EU and the EEA EFTA States. The European Commission carries out supervisory functions within the EU and the EFTA Surveillance Authority carries out the same role for the EEA EFTA States. This has led to the term ‘one agreement, two authorities’ which rings true insofar as it denotes the existence of separate supervisory organs. Nonetheless, both work together and must ensure uniform application of the EEA rules. The task of uniform interpretation within the EEA lies with the EFTA Court, which is responsible for interpreting the EEA Agreement with regard to the EEA EFTA States. Its role is similar to that fulfilled by the EU Court of Justice with regard to the EU Member States.

In terms of legislation, the EEA Agreement adopts the principle of ‘homogeneity’ which means that the same rules and conditions apply to all economic operators within the EEA. To this end, the EEA Agreement is continuously updated and amended to mirror the current EU internal market legislation. This importantly includes the incorporation of EU secondary legislation (notably Regulations, Directive and Decisions)

Under the EU legislative process all EU Member States will have several means to influence, shape and decide on the final text. But what about Norway – as an EEA EFTA State, would it be left without a ‘say’? Well, not exactly. Through a system known as ‘decision shaping’ Norway participates in expert groups and in the preparatory work of the Commission, providing comments on green papers that are sent to the European Parliament and Council. EEA EFTA States representatives also meet with their EU counterparts in the EEA Council to provide political oversight and guidance. An EEA Joint Parliamentary Committee provides a forum for MEPs and EEA EFTA national MPs to discuss matters of joint interest. These are all different forms of indirect influence, but a crucial detail of the EEA Agreement is that it does not give the EEA EFTA States any direct involvement in the EU legislative process or decisional powers. Essentially, although Norway may have a ‘say’ it does not have a vote.

EU legislation also does not have direct effect in Norway. Rather, EEA relevant legislation will have to be ‘incorporated’ into the EEA Agreement. The task of incorporation is performed by perhaps the most central of the ‘joint’ EU/EEA bodies: the EEA Joint Committee, which incorporates EU rules by way of decision (JCD).

The process of incorporation essentially involves a dialogue between the EEA EFTA States and EFTA institutions, on the one hand, and their EU counterparts and EU institutions on the other. Each ‘side’ of the EEA Agreement must give its consent to the contemplated JCD before it can be adopted by the EEA Joint Committee. Only once a piece of secondary legislation has been incorporated does it produce effects in Norway.

A distinguishing feature of the EEA Agreement is that the EEA EFTA States have not transferred legislative powers to the EEA Joint Committee. This implies that, on occasion, the EEA EFTA States may need to obtain the approval of their national parliament in order for the JCD to be binding. This is reflected in Article 103(1) EEA and known as a ‘constitutional requirement’ which allows for the direct involvement of the EEA EFTA States’ national parliament. Ultimately, the lack of transfer of legislative power provides the EEA EFTA States with something truly unique vis-à-vis their EU counterparts: a right of reservation. In effect, an EEA EFTA State can refuse to incorporate EU legislation that is EEA relevant. This is almost never used and the consequences are unclear. Norway has used this ability only once: in regards to the Third Postal Directive in 2011. This resulted in the EU threatening to exclude Norway from parts of the single market before the Directive was finally incorporated as part of the change of Government in Norway in 2013. Continue reading