Judge Baudenbacher’s speech on whether the EEA is an option for the UK

01 Nov 2016

In an earlier blog, I commented on a summary of a talk given by Judge Baudenbacher (President of the EFTA Court) to the Centre for European Law at King’s College London on 13 October. The full text of his speech is now available here.

The following points are worth drawing attention to.

  • It is “hard to imagine” that access to the single market will be possible in the absence of a “non-national surveillance and court mechanism”;
  • The UK will lose EEA membership on leaving the EU unless it both joins EFTA and becomes a contracting party to the EEA agreement (which would require the agreement of the EEA States plus Switzerland).  He believes that that would be forthcoming.
  • He considers that some EEA politicians have partly overstated the absence of “co-decision” in the making of EU law; in his view they have not made sufficient use of the co-determination rights that they have.
  • He suggests that EU leaders should be prepared to contemplate a compromise on free movement of persons.
  • He points out that the EEA States do not pay into the EU budget; they have their own organisation and their own projects.  He also observes that Norway, “as good Christians”, gives more of its oil money away that it needs to under EEA law.
  • He observes that, in the EFTA Court, there would be a UK judge sitting on every case.
  • The EFTA Court leaves the EEA States more sovereignty: there are no doctrines of direct effect or primacy in EEA law (legal effects occur only when they have written EEA law into their own law); there is no penalty payment for non-compliance; EFTA Court judgments are not formally binding and there is more flexibility; and there is never an obligation on national courts to make a reference.
  • He considers that (compared with the European Court of Justice) EFTA Court jurisprudence is more willing to engage with economic argument, more in favour of openness, less paternalist, more in favour of free trial rights, and less tolerant of legal fictions and presumptions: the EFTA court “is already on some sort of a common law track”. That tendency is increased by the fact that the Court works in English (albeit “EFTA English” rather than “real English”).
  • The UK cannot have unrealistic expectations.