Can you “just stay in the single market”?

A lot of people seem to believe that the UK can solve its Brexit problems by “just staying in the single market” or a similar form of words.

To put it another way, the underlying theory here is that the European Economic Area agreement gives the European single market an existence independent of the European Union, the UK is currently a member both of the EEA and the EU, and we can therefore drop EU membership and keep single market membership through the EEA without further ado. Does this make any sense?

Alex, you have a European Studies degree, something that looks like a pretty poor return on all that student loan these days! Maybe you can answer this! Well, to be honest, back in 1999 we didn’t spend very much time on the EEA and still less on the customs union, as the two biggest issues in the EU were the Euro and adding more countries to it rather than taking them away. This is my hollow laughter reading about Eurocrats mugging up on the basics after it became clear the Brexiters wanted out of EURATOM and probably UEFA and the song contest. But let’s see what I can do.

The underlying source of this is a mixture of the idea of a “two-speed” or “variable geometry” European Union, something that’s been talked about since the 1980s without being implemented, the fact that several countries (the cold war neutrals – Austria, Sweden, and Finland) joined the single market as EEA members before they joined the EU, and perhaps also that there is an Act of Parliament implementing the EEA (the EEA Act 1994), so maybe we could just repeal the 1972 European Communities Act and leave that one alone.

The problem here can be seen if you go to the front of the EEA Agreement itself. The agreement is old enough that the EEC and the Coal and Steel Community were still a thing. For simplicity I will refer to them as the EU for the rest of the post. The parties to the agreement are listed in the preamble as being the EU and its member states on one hand, and the member states of EFTA on the other. Article 2 gets more specific:

(b) the term ‘EFTA States’ means the Contracting Parties, which are members of the European Free Trade Association;
(c) the term ‘Contracting Parties’ means, concerning the Community and the EC Member States, the Community and the EC Member States, or the Community, or the EC Member States. The meaning to be attributed to this expression in each case is to be deduced from the relevant provisions of this Agreement and from the respective competences of the Community and the EC Member States as they follow from the Treaty establishing the European Economic Community and the Treaty establishing the European Coal and Steel Community.

The long sentence in (c) basically means that depending on the division of responsibility laid out in the EU treaties, some things are the EU’s business, others are the member states’, and some are shared, so you should refer to the EU treaties if you’re in doubt who is meant. The member states were all parties to the EEA agreement separately as well as jointly because, back then, the EU didn’t have legal standing to sign without them. You’ll note that EFTA itself, with even less sovereignty, isn’t even a party to the agreement.

What this tells us is that the EEA agreement is an agreement between the EU and some countries outside the EU that gives those countries the right to take part in the European single market, an EU institution. For legal reasons at the time, it had to have the member states’ signatures on it as well as the EU’s. The UK is a party to the agreement, on the EU side of the table, because it was a member state at the relevant time.

If we want to move into the other group – the non-EU parties to the agreement – we could apply for membership in EFTA, and then the EEA under Article 128 of the EEA agreement. (Article 127 covers leaving.)

1. Any European State becoming a member of the Community shall, or becoming a member of EFTA may, apply to become a Party to this Agreement. It shall address its application to the EEA Council.

2. The terms and conditions for such participation shall be the subject of an agreement between the Contracting Parties and the applicant State. That agreement shall be submitted for ratification or approval by all Contracting Parties in accordance with their own procedures.

Alternatively, we could negotiate a separate UK-EU agreement on participation in the EU single market, which might be more simple. Note that point 1 says EFTA, or indeed EU, membership is a pre-requisite for EEA membership – you need to do it first.

One thing we cannot do, though, is somehow default into being in the single market but not the EU without either applying under Article 128 having first joined EFTA, or else working out a bilateral treaty with the EU.

3 Comments on "Can you “just stay in the single market”?"

  1. If the UK had stayed in EFTA in 1972, things may have been different. EFTA may have gained greater weight as other countries may have remained in it rather than joining the EU. The Single Market, when it came about, may have been a joint EFTA – EU body. We may have been able to create a two-speed Europe or even a multi-speed Europe (if that is what the Tory Brexiteers wanted).

    But the Tories were the Party of Europe and moved the UK from EFTA to the Common Market, and then discovered that “we have always been unhappy in Europe” (according to Mrs T. May); so unhappy that they don’t want to trade or cooperate with Europe at all.


  2. Regarding your tweets today (6th May 2021) about criticisms of Remainers.

    I think that Brexit is a disaster, but I am very critical of professional Remainers. We are where we are today because Labour MPs and centrist media people did not push back against the lies of Eurosceptics in the 10 years before the Referendum. They did very little to combat the myths that the EU’s rules and regulations had been imposed on the UK and that EU Free Movement was bad for the lower-paid. The Guardian’s position at the time of the Referendum (as expressed by Jonathan Freedland) was that the UK should stay in the EU but opt out of Free Movement, which was very unlikely to be achievable. Labour (and Freedland) just absorbed the fact that focus groups were repeating tabloid myths about Free Movement and started repeating them, without any apparent understanding of the implications.

    After the Referendum, Rachel Reeves and Chuka Umunna popped up saying that Brexit had to mean ending of Free Movement (so presumably meant a Hard Brexit). Then later the same people began calling for a Second Referendum with no explanation of the U-turn and no commitment to actually explain to voters what the real choices were. They were still not willing to call-out the lies of the Brexiteers. They certainly were not going to get into arguments with Rupert Murdoch, which is what any campaign to remain in the EU would have required.

    A few months ago Caroline Flint MP said that Corbyn had betrayed the people by being in favour of Free Movement. My view is the opposite: we have been betrayed by MPs and media opinion peoplle who did not defend the basics of the EU (like Free Movement) because that would mean taking on the tabloids, but were performatively in favour of Remain.


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