What are the EEA and EFTA and what on earth was Gove thinking?

A simple explainer from the Facts4EU.Org Team on why the EEA/EFTA route isn’t Brexit

© Brexit Facts4EU.Org

'If it walks like a duck, and quacks like a duck, it’s not a lion'

Every six months or so, the question of membership of the ‘EEA’ and 'EFTA' is raised as a possible route to Brexit. In our article yesterday we reported on Michael Gove’s advocacy of this option at a dinner club for MPs and peers in June last year.

So what are the EEA and EFTA and why is it shocking that Gove was considering this?

We look at some key questions.

1. What is the EEA?

The European Economic Area (EEA) was set up in 1994 to extend the EU’s provisions on its Single Market to the European Free Trade Association (EFTA) countries. Switzerland is a member of EFTA but declined to take part in the EEA.

The EEA therefore consists of the 28 EU countries, plus 3 non-EU countries of Liechtenstein, Norway and Iceland. That’s 31 countries in total, but only three are not full members of the EU.

The UK is already member of the EEA by virtue of being a member of the EU.

2. What is EFTA?

The European Free Trade Association (EFTA) consists of four countries: The three EEA countries of Norway, Iceland and Liechtenstein, plus non-EEA Switzerland. The UK was a founder member in 1960, when EFTA was established. EFTA describes itself as:

“a framework for the liberalisation of trade in goods amongst its Member States” and “an economic counterbalance to the more politically driven European Economic Community (EEC).”

- EFTA

As EFTA countries like the UK started joining the EU (then the EEC), they left EFTA, which is why it now contains only four countries.

Over the decades EFTA has become more like the EU, with its own court adopting the rulings of the ECJ. EFTA’s countries are all members of the EEA (see below) except Switzerland.

3. How are the EEA and EFTA linked to EU membership?

As stated above, all members of the EU are members of the EEA, including the UK.

The EEA Agreement is based on two pillars of membership: EU and EFTA, each having their own respective mechanisms for supervision, in the form of the European Commission and EFTA Surveillance Authority, and courts, the Court of Justice of the European Union and the EFTA Court.

4. Does EEA membership give the UK control of its own laws? – No

Both Remainers and ‘soft’ Brexiteers have consistently spread the myth that if the UK left the EU but stayed in the EEA and also joined EFTA, then it would have escaped from the binding decisions of the EU’s Court of Justice (ECJ).

This is only partially true in theory, and not at all true in practice. The EFTA court shadows the ECJ and although the ECJ’s decisions are only ‘advisory’, in practice they are followed.

Here is the Chef de Cabinet of the EFTA Court in Luxembourg, Michael-James Clifton, writing in a personal capacity and stating that EFTA’s ‘Surveillance Authority’ must :

“ensure that the EEA/EFTA States live up to their obligations under the EEA Agreement by fully, correctly and timely transposing the common Internal Market [Single Market] rules (the acquis communautaire) into their domestic legal order and by applying these rules correctly.”

He goes on to say:

“The EFTA Court was founded in 1994 and shall follow relevant ECJ rulings handed down prior to the date of signature of the EEA Agreement (2 May 1992). This aimed at ensuring that from the outset the Single Market playing field was perfectly flat. The EFTA Court is required also to pay ‘due account’ to all subsequent relevant ECJ jurisprudence.”

“In practice, the EFTA Court makes no distinction between the two and pays equal regard to post 1994 ECJ case-law.”

- Michael-James Clifton, Chef de Cabinet, EFTA Court, Luxembourg

So, EFTA is governed by the EFTA Surveillance Authority and the EFTA Court. Whilst the EFTA Court is ostensibly separate from the EU’s European Court of Justice (ECJ), in practice it adopts its rulings.

5. Does EEA membership stop freedom of movement? – No

Put simply, no it doesn't.

As we have shown, membership of the EEA means membership of the EU's Single Market, which means accepting the four freedoms including the freedom of movement of people.

Some have argued that there is an emergency opt-out clause contained within the EEA agreement, whereby a country can suspend freedom of movement. This is wholly disingenuous.

This emergency clause was drawn up for little Liechtenstein, a 'country' of only 40,000 people - and it is for emergency use only. Any idea that this clause could be used by the UK as a permanent mechanism to suspend the obligation for freedom of movement of citizens from the EU is completely implausible.

6. Does EEA membership mean escaping from the Single Market? - No

As can be seen above, the EEA countries must obey the rules of the Single Market. This automatically defines EEA membership as preventing members from acting as free, independent countries.

Any proposal which does not involve ‘taking back control’ and becoming a sovereign country again is not a form of Brexit which would be recognised by the majority of people in the United Kingdom.

[ Sources: EFTA | EEA | EU Commission | Personal legal opinion by Barrister Michael-James Clifton, Chef de Cabinet of the EFTA Court | UK Constitutional Law Association ] Politicians and journalists can contact us for details, as ever.

Brexit Facts4EU.Org, 21 Jun 2019

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