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22 September 2017

Dismissing misunderstandings on the EEA Agreement

Much confusion - or outright misinformation - continues to circulate in the UK media regarding the exit of the country from the EU. Particularly inflicted is the difference and relationship between the EU, the political union, presently governed by the Lisbon Treaty, and the European Economic Area (EEA), the trade union, ruled by the EEA Agreement.

Days ago The Independent newspaper published an enigmatic article in which it is claimed, among other oddities, that article 127 of the EEA Agreement can stop the current process of exit from the EU. Reproduced below is a short note I sent the editors of The Independent clarifying some of the misunderstandings in the article.

Dear Editors of The Independent,

This letter is a reaction to an article penned by Ben Kentish entitled "Article 127: What is the obscure section of EU law - and how could it stop Brexit?" It floats a number of misconceptions that brews more confusion than clarity to your readers.

The EEA Agreement is not an obscure section of EU law, it is one of its foundations, negotiated and signed soon after the Maastricht Treaty - in 1994 - setting in stone much of what was seeded in the Treaty of Rome of 1957. The Agreement is available on the internet for everyone to consult, with good digests available in informal websites such as Wikipaedia.

The United Kingdom unilaterally negotiated and ratified the Agreement, not as a member of the EU, but as a sovereign and independent state. The United Kingdom Of Great Britain And Northern Ireland is explicitly stated as a contracting party in page 4 of the Agreement. No article in the Agreement poses membership of the EU as a precondition to contracting parties. In effect, three of the contracting parties - Iceland, Norway and Lichtenstein - are not, and never were, members of the EU. The argument that Article 50 of the Lisbon Treaty automatically triggers an exit from the EEA simply has no legal background.

However, membership of the EEA requires abidance to a super-national European court, that acts as arbitrator between the contracting parties (articles 105, 106 and 107). Members of the EU are subject to the Court of Justice of the European Union (CJEU), whereas Iceland, Norway and Lichtenstein are subject to the EFTA Court - an institution set up specifically for the EEA (article 108).

In her letter to President Donald Tusk triggering article 50 of the Lisbon Treaty, Prime-Minister Theresa May makes no explicit reference to the CJEU. Therefore one can only speculate to what extent the UK wishes to remain subject to this court. If in the agreement to come out of the article 50 negotiation the UK does not commit to the jurisdiction of the CJEU within its EEA competences, then the UK will be automatically suspended from the EEA on the 29th of September of 2019 (six months after breach, as provisioned in article 102).

It is also important to note that other factors may lead to a suspension of the UK from the EEA. For instance, the introduction of barriers to the settlement of European workers in the UK, outlined in a Home Office document leaked to the press on the 5th of September, also grant a similar outcome.

The real public service Journalism could pay would be to track which policies are compatible, and which are not, with a continued membership of the EEA. And to call out politicians and office tenants that contradict themselves in this regard.

Finally, the claim that somehow article 127 of the EEA Agreement could revert the process triggered by article 50 of the Lisbon Treaty should be dismissed as entirely false.

Best regards from a daily reader.

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