- 5.1 Staying in the EU Single Market after exit
The EEA Agreement reproduces the parts of the EU treaties and the legislation (EU Directives and Regulations) made under them which count as being “internal market” rules. These are the rules on the free movement of goods, persons, services and capital, rules relating to employment and health and safety and labour law, EU competition law and the rules against State Aid, transport, consumer protection, environmental rules, intellectual property, company law and many other matters.
- 5.2 Harmonised interpretation and supranational enforcement
Having required the EEA States to adopt identical laws to those within the EU over this vast range of matters representing about three-quarters of EU laws (see 5.1 Staying in the EU Single Market after exit), the EEA Agreement contains mechanisms to ensure that those laws are applied and are interpreted identically within the EEA States in accordance with the interpretation adopted within the EU. This necessarily entails a mechanism for the EEA States to follow the interpretation of EU laws by the ECJ.
- 5.3 Requirement to adopt new and amended EU laws in the future
Not only would Single Market membership require that we continue to keep most of the existing corpus of EU law as part of our law indefinitely, and follow the evolving interpretation of that law by the ECJ, it would also require us to apply into our law all new Regulations and Directives relating to Single Market matters, which covers (as we have seen in 5.1) about three-quarters of EU laws.
- 5.4 Requirement to continue to allow Free Movement of Persons
The provisions of the EEA Agreement on the free movement of persons are quite clear. Article 28 of the EEA Agreement on free movement of workers is identical to Article 45 of the Treaty on the Functioning of the European Union (TFEU), and imposes the same requirement to admit any EU national who comes to the UK to take up a job. In addition, the Annexes of the EEA Agreement incorporate the EU Directives which confer wider rights, including the right to come to the UK to look for work without already having a job, and rights relating to equal treatment in social security, pensions, and other matters. Essentially, only the political rights to vote in European Parliament and local government elections are restricted to EU as distinct from EEA citizens.
- 5.5 Impact on international trade and trade agreements
Continued membership of the EU internal market would have a deleterious effect on the UK’s ability to trade with non-EU countries and on our ability to forge trade agreements with them. It is true that the effect would not be as damaging as customs union membership, which would kill off trade agreements and an independent trade policy altogether. Nonetheless, the effect would be wide-ranging and damaging.
- 5.6 Can we stay in the EEA without agreement?
A number of commentators and some politicians have suggested that the UK has a choice about whether or not we remain within the EEA after we leave the EU on 29 March 2019: in other words, we can choose to stay in the EEA if we like without needing the EU to agree to it. This suggestion is based on the idea that the UK is a party to the EEA Agreement and by simply not giving notice to terminate our membership of it, we would automatically remain within the EEA (and therefore within the Single Market) from 30 March 2019 onwards.