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

The European Economic Area (EEA) was set up in 1994 to extend the EU’s provisions on its internal market to the European Free Trade Area (EFTA) countries. Norway, Iceland and Liechtenstein are parties to the EEA. Switzerland is a member of EFTA but does not take part in the EEA. The EU and EEA EFTA 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.

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). The current EFTA countries do not wish to join the EU. EU legislation relating to the internal market becomes part of the legislation of the EEA EFTA countries once they have agreed to incorporate it. The administration and management of the EEA is shared between the EU and the EEA EFTA countries in a two-pillar structure. Decisions are taken by joint EEA bodies (the EEA Council, the EEA Joint Committee, the EEA Joint Parliamentary Committee and the EEA Consultative Committee).

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 EEA EFTA 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[1].

In June 2009, Iceland 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, in March 2015, the Icelandic Government stated in a letter to the Council of the European Union that ‘Iceland should not be regarded as a candidate country for EU membership’. Although the government did not officially withdraw the application, the EU does not currently treat Iceland as a candidate country.

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 EEA 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 EEA EFTA 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 EEA EFTA states, meets at least twice a year to draw up political guidelines for the Joint Committee. The EEA Agreement contains provisions for facilitating input from EEA EFTA countries at various stages of the EU legislative procedure before new legislation is adopted (decision shaping).

2. Transposition

Once an EU act has been incorporated into the EEA Agreement, it must be transposed into the national legislation of the EEA EFTA 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.

3. Monitoring

After internal market legislation has been extended to the EEA EFTA 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 EEA EFTA 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 EFTA national parliaments take turns hosting this committee, whose chair alternates annually between a Member of the European Parliament and an EEA EFTA 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. Every year, the JPC adopts a resolution on the Joint Committee’s annual report on the functioning of the EEA Agreement, stating its views on the progress made in the incorporation of EU law and the existing backlog, and making recommendations for the proper functioning of the internal market.

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 developed its relations with the EU through bilateral agreements in order to safeguard its economic integration with the EU. Bilateral relations were strained following 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. On 16 December 2016, the Swiss Parliament adopted the Law on Foreigners implementing the result of the 2014 referendum in a manner that limited its effect, which paved the way for the beginning of the normalisation of EU-Swiss 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[2]. A further set of sectoral agreements (Bilateral II) was signed in 2004 and entered into force gradually over the 2005-2009 period. These agreements are basically related to strengthening economic cooperation and extending cooperation on asylum and free travel within the Schengen borders[3].

While the agreements intensified economic relations, they also created a complex and sometimes incoherent network of obligations. Bilateral agreements have to be updated regularly and do not have the dynamic character of the EEA Agreement. They also lack surveillance arrangements or effective dispute settlement mechanisms. In order to resolve these problems, EU-Swiss negotiations for an Institutional Framework Agreement (IFA) were launched on 22 May 2014. The negotiations sought to solve several difficult issues, ranging from conditions for EU service providers in Switzerland to the role of the Court of Justice in dispute settlement. Negotiations for the IFA concluded at political level on 23 November 2018. Nevertheless, the Federal Council could not agree on the final text owing to Swiss concerns that the ‘flanking measures’[4] and the take-over of the EU acquis on the free movement of persons had not been adequately reflected. It then launched a broad internal consultation with the relevant Federal Assembly committees, parties, cantons, social partners and academia/the research community, which will serve as the basis for making a decision about whether or not to submit the agreement for approval to the Swiss Federal Assembly. During the consultation, which concluded in April 2019, a number of issues were raised on which the Swiss side required further clarification. The EU is open to providing further clarifications on the understanding that the text will not be renegotiated and has invited the Swiss side to provide a list of specific issues on which clarifications are required.

During the consultation concerns were raised as regards the free movement of persons (FMOP) between Switzerland and the EU. On 27 September 2020, Switzerland held a popular vote, sponsored by the Swiss People’s Party (SVP), on the termination of the FMOP agreement with the EU. Nearly 62% of voters rejected the SVP’s initiative. The EU hopes that the result of this vote will pave the way for a swift move towards the signature and ratification of the IFA.

Northern policies

The EU is actively involved in a number of policies and forums that focus on the rapidly evolving northern reaches of Europe and on 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 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, which groups the northern regions of Finland, Norway and Sweden and the north-west regions of Russia. It is conducted through the sub-state Barents Regional Council, the interstate Barents Euro-Arctic Council (of which the EU is a member), and a parliamentary conference (of which the European Parliament is a member);
  • Circumpolar Arctic affairs: the EU’s Arctic policy is based on Commission/European External Action Service (EEAS) communications (2008, 2012 and 2016), Council conclusions (2009, 2014, 2016 and 2019) and European Parliament resolutions (2011, 2014 and 2017). The latest European Parliament resolution on ‘An integrated EU policy for the Arctic’ was adopted on 16 March 2017. On 20 July 2020, the European Commission and the EEAS jointly launched a public consultation on the way forward for the European Union’s Arctic policy. The consultation seeks input on the strengths and shortfalls of the existing policy, with a view to a possible updated approach. Since 2013, the EU has been attending meetings of the Arctic Council, which, however, has still not decided about the EU’s 2008 request for formal observer status. The European Parliament is a member of the Conference of Arctic Parliamentarians;
  • Participation of the European Parliament in the annual sessions of the Nordic Council, to which it is regularly invited. In addition to this, delegations from the European Parliament and the West Nordic Council (made up of parliamentarians from the Faroe Islands, Greenland and Iceland) meet once a year.

 

[1]The agreement on the participation of Croatia in the EEA has been provisionally applied since April 2014 and will formally enter into force once ratification by all the Member States has been completed.
[2]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.
[3]These agreements relate to Switzerland’s participation in Schengen and Dublin, agreements on taxation of 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.
[4]Flanking measures‘: a number of measures introduced unilaterally by Switzerland in 2006 to protect its labour market. They include notification requirements for EU service providers, contributions by EU operators to cover the costs of Swiss tri-partite commissions, the obligation for EU businesses to provide deposit guarantees and certain sanctions. The EU considers these measures incompatible with the free movement of persons and a barrier to trade and services.

María Álvarez López / Ausra Rakstelyte