The European Economic Area (EEA), Switzerland and the North

The European Economic Area (EEA) was formed in 1994 in order to extend the European Union’s provisions on its internal market to countries in the European Free Trade Area (EFTA). EU legislation relating to the internal market becomes part of the legislation of the EEA countries once they have agreed to incorporate it. Implementation and enforcement are then monitored by specific EFTA bodies and a Joint Parliamentary Committee.
The EU and two of its EEA partners — Norway and Iceland — are also linked by various ‘northern policies’ and forums which focus on the rapidly evolving northern reaches of Europe and the Arctic region as a whole.
While Switzerland is not part of the EEA, it remains a member of EFTA. More than 120 sectoral bilateral treaties linking the country with the EU incorporate largely the same provisions as those adopted by the other EEA countries in the fields of the free movement of people, goods, services and capital. However, bilateral relations have been severely strained since the February 2014 anti-immigration initiative, the outcome of which called into question the principles of free movement and the single market that underpin those relations.

Legal basis

For the EEA: Article 217 of the Treaty on the Functioning of the European Union (Association Agreements).

For Switzerland: Insurance Agreement of 1989, Bilateral Agreements I of 1999, Bilateral Agreements II of 2004.

The EEA

a.Objectives

The purpose of the European Economic Area (EEA) is to extend the EU’s internal market to countries in the European Free Trade Area (EFTA). These countries either do not wish to join the EU or have not yet done so.

b.Background

In 1992, the then seven members of EFTA negotiated an agreement to allow them to participate in the ambitious project of the European Community’s internal market, launched in 1985 and completed at the end of 1992. The European Economic Area (EEA) Agreement was signed on 2 May 1992 and entered into force on 1 January 1994. The EFTA/EEA members, however, soon saw their numbers reduced: Switzerland chose not to ratify the agreement following a negative referendum on the matter, and Austria, Finland and Sweden joined the European Union in 1995. Only Iceland, Norway and Liechtenstein remained in the EEA. The 10 new Member States that joined the EU on 1 May 2004 automatically became part of the EEA, as did Bulgaria and Romania when they acceded to the Union in 2007, and Croatia in 2013.

In June 2009, Iceland also applied for EU membership as a way out of the global financial crisis of 2008. The Council accepted Iceland’s application on 17 June 2010, and the negotiations started in June 2011. However, following the April 2013 parliamentary elections, the new centre-right coalition of the Independence and Progressive Parties halted the negotiations immediately after coming to power in May 2013. Later, in March 2015, the coalition government requested in a letter to the Council of the European Union that the EU not consider Iceland as a candidate country, on the basis that Iceland’s interests were best served outside the EU. This move sparked widespread protests against the government for bypassing the parliamentary process and failing to hold a public referendum, which was a major pre-election pledge. Although the government did not officially withdraw the application, the presidency of the Council of the EU took note of the letter, and certain practical adjustments have been made within both the Council and the Commission. Accordingly, the EU does not currently regard Iceland as a candidate country. The state of play regarding Iceland’s prospects for EU membership is likely to remain unchanged, at least until the end of this government’s term.

c.Scope of the EEA

The EEA goes beyond traditional free trade agreements (FTAs) by extending the full rights and obligations of the EU’s internal market to the EFTA countries (with the exception of Switzerland). The EEA incorporates the four freedoms of the internal market (free movement of goods, people, services and capital) and related policies (competition, transport, energy and economic and monetary cooperation). The agreement includes horizontal policies strictly related to the four freedoms: social policies (including health and safety at work, labour law and the equal treatment of men and women); policies on consumer protection, the environment, statistics and company law; and a number of flanking policies, such as those relating to research and technological development, which are not based on the EU acquis or legally binding acts, but are implemented through cooperation activities.

d.The limits of the EEA

The EEA Agreement does not establish binding provisions in all sectors of the internal market or in other policies under the EU Treaties. In particular, its binding provisions do not concern:

  • the common agricultural policy and the common fisheries policy (although the agreement contains provisions on trade in agricultural and fishery products);
  • the customs union;
  • the common trade policy;
  • the common foreign and security policy;
  • the field of justice and home affairs (although all the EFTA countries are part of the Schengen area); or
  • the economic and monetary union (EMU).

e.EEA institutions and mechanisms

1.Incorporation of EU legislation

New EU internal market texts are examined by an EEA Joint Committee, composed of representatives of the EU and the three EFTA-EEA states. Meeting once a month, this body decides what legislation — and, more generally, which EU acts (actions, programmes, etc.) — should be incorporated into the EEA. Legislation is formally incorporated by including the relevant acts in lists of protocols and annexes to the EEA Agreement. Several thousand acts have been incorporated into the EEA Agreement in this way. An EEA Council, made up of representatives of the Council of the EU and the Foreign Ministers of the EFTA-EEA states, meets at least twice a year to draw up political guidelines for the Joint Committee.

2.Transposition

Once an EU act has been incorporated into the EEA Agreement, it must be transposed into the national legislation of the EFTA-EEA countries (if this is required under that national legislation). This may simply require a governmental decision, or it may require parliamentary approval. Transposition is a formal task, and the acts can only be adjusted technically at this point. There are provisions specifying that the EFTA countries should be involved in preparing EU acts.

3.Monitoring

After internal market legislation has been extended to the EFTA-EEA countries, transposition and application are monitored by the EFTA Surveillance Authority and the EFTA Court. The EFTA Surveillance Authority maintains an internal market scoreboard that tracks the implementation of legislation in the EEA countries.

4.Role of the parliaments

Both the European Parliament and the national parliaments of the EFTA-EEA states are closely involved in monitoring the EEA Agreement. Article 95 of the agreement establishes an EEA Joint Parliamentary Committee (JPC), which meets twice a year. The European Parliament and the EEA national parliaments take turns hosting this committee, whose chair alternates annually between a Member of the European Parliament and an EEA national parliamentarian. Each delegation is composed of 12 members. Parliamentarians from the Swiss Federal Assembly attend the meetings as observers. All EU legislation that applies to the EEA is scrutinised by the EEA JPC, whose members have the right to put oral and written questions to representatives of the EEA Council and the EEA Joint Committee and to express their views in reports or resolutions. The same procedure holds for scrutinising the implementation of legislation.

Switzerland

As an EFTA member, Switzerland took part in the negotiations for the EEA Agreement and signed the agreement on 2 May 1992. Immediately after that, the Swiss Government submitted an application for accession to the EU on 22 May 1992. However, following a referendum held on 6 December 1992 that yielded a vote against participating in the EEA, the Swiss Federal Council stopped pursuing the country’s EU and EEA membership. Since then, Switzerland has retained observer status within the EEA and developed its relations with the EU through bilateral agreements in order to safeguard its economic integration with the EU. Bilateral relations have been severely strained since the February 2014 anti-immigration initiative, the outcome of which called into question the principles of free movement and the single market that underpin those relations.

The EU and Switzerland have signed over 120 bilateral agreements, including a free trade agreement in 1972 and two major series of sectoral bilateral agreements that aligned a large portion of Swiss law with that of the EU at the time of signing. The first set of sectoral agreements (known as Bilateral I) was signed in 1999 and entered into force in 2002. These seven agreements cover the issues of free movement and mutual market opening[1]. A further set of sectoral agreements (Bilateral II) was signed in 2004 and entered into force in 2005. These agreements are basically related to strengthening economic cooperation and extending cooperation on asylum and free travel within the Schengen borders[2]. In 2010 another agreement was signed on Swiss participation in EU education, professional training and youth programmes. EU-Swiss relations are now governed by more than 120 sectoral agreements and continue to flourish.

While the agreements intensified economic relations, they also created a complex and sometimes incoherent network of obligations, which are not easy to sustain. Unlike the EEA Agreement, the nature of the bilateral agreements with Switzerland is static, given that there are no proper mechanisms to adapt the agreements to evolving EU legislation, nor are there any surveillance or efficient dispute settlement mechanisms. Given the increasing number of sectors covered by these agreements, and new agreements envisaged in areas such as electricity, these shortcomings have become more pressing. It is increasingly difficult to effectively manage the significant number of separate agreements, which suffer from discrepancies, and the task of keeping them updated is time- and resource-consuming. In order to resolve these ‘institutional issues’, EU-Swiss negotiations for a framework institutional agreement were launched on 22 May 2014, following the adoption of the Swiss and EU mandates in December 2013 and May 2014 respectively. The negotiations are aimed at settling the problems stemming from the evolving nature of the EU acquis related to the internal market and at introducing a dispute settlement mechanism into the current bilateral treaty network. The institutional framework negotiations are crucial, because the Council of the EU is determined not to allow Switzerland any further single market access (e.g. as regards electricity) without this framework agreement. The negotiations have been stagnating since January 2015, owing to the repercussions of the free movement crisis, and their conclusion will depend on finding a solution to this crisis. On 9 February 2014 a slim majority of the Swiss population (50.3%) voted in favour of amending the constitution to introduce annual quotas on the number of non-Swiss nationals and to give preference to Swiss citizens in the job market. Implementing the results of the vote would not only be incompatible with the Free Movement of People Agreement (FMOP) (part of Bilateral I), but it would also put at risk the country’s entire series of bilateral treaties with the EU under the ‘guillotine clause’ — if one agreement is terminated, the other agreements would cease to apply. Faced with the EU’s firm refusal to renegotiate the free movement agreement, the Swiss Government is facing difficulties in overcoming the political and legal impasse created by the initiative. Consultations to overcome the impasse continue between the Commission and the Swiss authorities.

Northern policies

The EU has also been actively involved in a number of policies and forums that focus on the rapidly evolving northern reaches of Europe and the Arctic region as a whole, in particular by contributing to the following:

  • The ‘Northern Dimension’, which has served since 2007 as a common policy for the EU, Russia, Norway and Iceland. This policy complements the EU-Russia dialogue and has led to effective sector partnerships for cooperation in the Baltic and Barents regions. The Northern Dimension includes a parliamentary body — the Northern Dimension Parliamentary Forum — of which the European Parliament is a founding member.
  • The Council of the Baltic Sea States (CBSS), launched in 1992 by the EU and the riparian states following the dissolution of the USSR. All CBSS member states participate in the Baltic Sea Parliamentary Conference (BSPC), of which the European Parliament is also a member.
  • Cooperation in the Barents region groups the northern regions of Finland, Norway and Sweden and those of north-west Russia. It is conducted through the interregional Barents Regional Council, the interstate Barents Euro-Arctic Council (of which the EU is a member), and a parliamentary assembly (of which the European Parliament is a member).
  • Circumpolar Arctic affairs: the EU’s Arctic policy is based on Commission/EEAS communications (2008 and 2012), Council conclusions (2009) and European Parliament resolutions (2011 and 2014). In 2014 Parliament and the Council requested a new joint EEAS/Commission Arctic communication, which was issued on 27 April 2016 under the title ‘An integrated EU policy for the Arctic’; it takes account of the outcome of the Paris COP 21 international conference on climate change. In 2013 the Arctic Council granted the EU provisional observer status. The European Parliament is a founding member of the Conference of Arctic Parliamentarians.
  • The European Parliament is regularly invited to the Nordic Council annual sessions. In addition to this, delegations from the European Parliament and the West Nordic Council meet once a year.

[1]The seven agreements are on free movement of people, air transport, land transport, trade in agricultural products, technical trade barriers, public procurement and research cooperation.

[2]These agreements relate to Switzerland’s participation in Schengen and Dublin, agreements on taxation savings, processed agricultural products, statistics and combating fraud, participation in the EU’s MEDIA programme and the European Environment Agency, and Swiss financial contributions to economic and social cohesion in the new EU Member States.

Aydan Bahadir / Fernando Garcés de los Fayos

06/2016