Monograph 1: Single
Market participation and free movement of persons.
•Contrary to claims by the Commission, including Donald Tusk and Angela
Merkel, freedom of movement provisions are negotiable.
A legal base within the EEA
Agreement exists for a settlement. After the Dano Case the ECJ declared that
the treaties and secondary legislation had "qualified and limited"
freedom of movement. Articles 112 and 113 of the EEA agreement open the door to
“safeguard measures” and negotiations. On 10 March 1995, the EEA Council
recognised that had "a very small inhabitable area of rural character with
an unusually high percentage of non-national residents and employees. Moreover,
it acknowledged the vital interest of Liechtenstein to maintain its own
national identity". It thus concluded that the situation "might
justify the taking of safeguard measures by Liechtenstein as provided for in
Article 112 of the EEA Agreement". Under the current arrangement,
Liechtenstein issues a limited number (less than 100) of residence permits for
economically active persons and a very much smaller number for economically
non-active persons.
It matters not that Liechtenstein
is a micro-state. It is a fully-fledged contracting party within the terms of
the EEA Agreement. What applies to one legally can apply to any or all.
Liechtenstein is an EFTA State within the EEA.
What exactly are “safeguard
measures”? These are actually much vaguer than the name suggests and also much
more common. Details are in the original document. They are not a barrier to
continued immigration control in Liechtenstein.
The sheer size of Liechtenstein,
which is not much bigger than a provincial town, is not a barrier either
because Switzerland was also granted immigration control in 1994 under Protocol
15 of the EEA Agreement.1. What is remarkable is the way that Article 112 is
entirely dynamic, being invoked by Iceland and praised by Martin Schultz.2
•There is a possibility that
other members states could block the transition of the UK from EU member of the
EEA to Efta member – assuming that the UK was able to rejoin Efta.
So far, we have taken our advice
from the Efta Secretariat on this, which takes the view that transitional
arrangements are nowhere set out in the EEA Agreement, and will thus have to be
settled politically. The evidence for this rests with the EEA Agreement of 1992,
when Austria, Finland, Sweden and Switzerland were also members of Efta,
becoming members of the EEA by
1 It is a matter of record that,
after a referendum, the Swiss government was unable to ratify the EEA Agreement
and its name was removed from Protocol 15. Had Switzerland not failed to
ratify, the likelihood is that both countries would currently enjoy exclusion
from freedom of movement. Certainly, unilateral safeguard measures are
currently being sought by the Federal Government as a resolution to the 2014
referendum on limiting immigration.22
2 On 15 December 1995, via
Regulation No 2907/95</a>, the Commission invoked Article 112 on its own
account, making the release for free circulation of salmon of Norwegian origin
conditional upon observance of a floor price.
virtue of their Efta membership as they joined the EU.
There was, therefore no issue to deal with on transition. Switching the names
from one pillar to the other was dealt with as a minor administrative
adjustment.
One might take it that, in view of the positive
response from Schultz to the Swiss proposal to introduce unilateral safeguard
measures, and the recent statement by French finance minister Michel Sapin,
declaring that everything will be on the table in the future talks with the UK,
including freedom of movement, there may be some political support for a
seamless transition.
•But imposition of controls, by itself – enabled
by leaving the EU - does not, in itself, bring immigration under control:
illegal immigrants can melt into their own resident communities and disappear.
Those who hold that we must abolish unrestricted
freedom of movement need to understand that imposition of controls, does not,
in itself, bring immigration under control. Enforcement of immigration controls
and a substantial raft of other measures will be required.
•The initial exit settlement is only an interim
measure, adopted for the purpose of easing our rapid exit from the EU.
And this is a temporary settlement. If the initial
exit settlement is only an interim measure, adopted for the purpose of easing
our rapid exit from the EU, there is an argument for accepting a sub-optimal
settlement if no other outcome is available. Once we are no longer members, it
will be possible to work on a longer-term settlement which deals more
satisfactorily with the freedom of movement provisions.
•What the UK needs to do now:
A fully worked-up case must be made for restrictions,
using the Article 112 criteria of "serious economic, societal or
environmental difficulties". In a 1992 proposal for a Council Regulation
(EEC) "concerning arrangements for implementing the Agreement on the
European Economic Area", procedures were laid down for implementing
Article 112. It thus proposed that, where a Member State requested the
Commission to apply safeguard measures, "it shall provide the Commission,
in support of its request, with the information needed to justify it".37
That should provide a sufficient template for the UK
in relation to its Brexit negotiations, permitting a reasoned settlement which
is capable of attracting political support. The bulk of these negotiations are
not conducted within the framework of the Article 50 negotiations. The EEA
Joint Committee and Council is the forum. This will require some deft legal
footwork if the actions of the EEA Joint Committee and Council are integrated
with the UK exit settlement.
But all in all, the prospect of a managed compromise
on trade and free movement of people, via the EEA Agreement, looks to be worth
further exploration.
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