Membership of the European Economic Area, along with Norway, Iceland and Liechtenstein, is often discussed as an option – or at least as the template for an option – for the UK after Brexit. In an interesting recent paper, Michael-James Clifton, chef de cabinet to the President of the EFTA Court (writing in a personal capacity), explains the operation of the EEA and comments on its operation.
He argues that the “EEA provides a workable framework for the UK. There is no ‘ever closer Union’. There would be no judicial oversight by the ECJ once s.3 European Communities Act 1972 is repealed. The UK could join the existing FTAs EFTA States have signed and would have the freedom to make its own FTAs and set its own trade policy as the EEA is not a customs union. This option would keep the UK in the Single Market and would potentially resolve certain difficulties with the devolved administrations”. He also comments that “The EFTA Court is mature and independent and is less jurisdictionally ‘grasping’ than the ECJ. The purpose of EFTA and the EEA is to further the friendly relations and trade between sovereign member countries. The EFTA Court has characterised its relationship with national supreme courts as being ‘more partner like’.” Finally, in a concluding section, he argues that the EEA “has proved itself to be a robust, durable and pragmatic instrument of extending the Single Market for more than 20 years. It has no federalist ambition and leaves sovereignty in national hands, and has demonstrated that the two pillar structure works well in Europe. An updated version could be a natural home for the UK post Brexit. Revisions to the EEA are both possible and achievable and would be in the interests of the EU, the current EEA/EFTA States and potentially Switzerland”.