Paradoxes of EU non-membership
A number of EU neighbouring countries are integrated in the internal market and adopt the EU acquis to various degrees, through the EEA agreement, bilateral or other agreements. This has important democratic implications.
The panel (from left): Halvard H. Fredriksen, Espen Olsen, Sieglinde Gstöhl, John Erik Fossum, Helene Sjursen, Erik O. Eriksen and René Schwok (photo: Vivian Hertz)
Late June, ARENA invited to a public event in Brussels to explore the status and position of EU-affiliated non-members. Many EU neighbouring countries are integrated to different degrees and through various forms of affiliations. They range from bilateral agreements, association and partnership agreements to more dynamic frameworks such as the European Economic Area (EEA), of which Norway, Iceland and Liechtenstein are part. Although the EEA Agreement is increasingly used as a benchmark, it is contested as it suffers from participatory gaps. The conference aimed to shed light on the EEA and other forms of affiliation from a democratic point of view.
As emphasized by Prof. Christopher Lord in the introduction, it is paradoxical that non-membership can itself be a status; a political condition that requires institutional solutions.
To shed further light on the paradox, the conference focused on various perspectives of Norway’s EU affiliation. The first five presentations were based on findings from a recent book entitled The Norwegian Paradox, edited by Erik O. Eriksen and John Erik Fossum. The conference then explored the Swiss affiliation through bilateral agreements, which is by some portrayed as a solution for Norway to regain sovereignty and self-rule, but which also encounters challenges. Finally, the perspectives were opened up to other EU neighbouring countries and their forms of affiliation. It was here argued that the EEA forms the benchmark for desired cooperation from the EU perspective, which makes it even more important to discuss its democratic implications.
Norway in the ‘integration trap’
Prof. Erik O. Eriksen contextualised the issues at hand by referring to the 2014 bicentennial of the Norwegian Constitution and the 20th anniversary of the EEA Agreement as Norway’s permanent form of affiliation with the EU. They both represent an opportunity to reflect on the role and status of Norway’s Constitution and the state of democracy.
Erik O. Eriksen
Constitutions are important, Eriksen emphasized, as they define the basis and boundaries of political power. They decide who is to decide. But who is really deciding in Norway today? He pointed to developments which have dramatically changed Norway’s constitutional democracy during the 20 years of the EEA.
The number of EU legal acts adopted by Norway has grown at an exponential rate, Eriksen informed. New agreements have been established, and existing agreements have been developed and expanded. Norway cooperates with the EU on border controls, asylum and police matters, and even puts military troops at the disposal of EU battle groups. The cumulative effects of this development are large and complex. And it has happened despite a majority of ‘no’ votes in the referendum on Norwegian EU membership in 1994.
‘The EEA Agreement has constitutional implications, because in reality it means that Norway participates in the internal market on an equal footing with the EU member states’, Eriksen summarized.
In his view, Norway is now entrapped, and there is no escape from this situation. He did not trust that bilateral agreements like Switzerland-EU could remedy the situation. ‘They run into the same problems of as Norway do’, he claimed, and moreover, ‘the EU has no interest in establishing a set of free-trade agreements. On the contrary, the EU suggests that more countries follow the EEA model’.
‘We need to realise that the EU is not an international organisation, but rather a new form of supranational state-like organisation, which intervenes in spheres traditionally reserved for the states’, Eriksen explained. The whole political system and identity of the member states are changed, and the concept of sovereignty needs to be rethought in today’s internationalised and globalised world.
The EEA has been an economic success, he underlined, but democratically this affiliation is highly problematic. ‘Norway has surrendered sovereignty without having received anything in return in the form of co-determination.’
Norway as a rule taker
Norway is not politically represented in the EU, Prof. John Erik Fossum expanded. There is information and consultation, but no political representation. The relationship is asymmetric, with Norway being a rule taker rather than a rule maker.
John Erik Fossum
Fossum was all the more critical to the way Norwegian political parties operate to keep the membership issue off the agenda. The principles and issues that should have been debated are not discussed, as they are too much linked to the membership question. This puts heavy constrains on the public debate.
In Fossum’s view, virtual representation reflects the current Norwegian status. This is an arrangement where there is a ‘communion of interests and sympathy in feelings’ between the people and those who act in their name. The latter are however not chosen by the people to act in their name.
‘This is a pre-democratic, paternalistic and colonial form of representation, and it is timely to ask whether we are now back to the situation before 1814’, Fossum stated.
He underlined however that Norwegian governments have made efforts towards surrogate representation, which entails that Nordic neighbours are encouraged to speak Norway’s case. ‘This kind of representation is obviously also very problematic from a democratic point of view’, he emphasized, before concluding that Norway today looses out both on co-decision and self-decision.
Norwegian citizens as ‘homo economicus’
So what about citizens’ rights? How has Norway’s status as a non-member affected Norwegian citizenship over the last 20 years? Dr. Espen D. H. Olsen pointed to substantive changes since 1994, with extensive widening and deepening of European integration.
‘EU citizens have been granted a broadened set of rights, and we have seen a development where political rights have gained prominence’, he explained. Norwegian citizens have on the contrary gained no additional political rights, despite the fact that the Norwegian Parliament transposes EU law on a daily basis. Since 1994, Norwegian citizens have become strengthened as ‘homo economicus’ as opposed to ‘homo politicus’, as they have gained many economic rights through the country’s EU affiliation. Olsen called for more debate on this depoliticization of citizenship.
No debate on foreign policy issues
Prof. Helene Sjursen discussed Norway’s relations to the EU’s foreign and security policy. In this area, Norway participates in much of what the EU does: it subscribes to most of the foreign policy declarations and takes part in joint decisions, it is part of the EU’s battle groups, cooperates with the European Defence Agency, and has participated in a number of EU crisis operations.
How problematic is this from a democratic perspective? Sjursen asked, referring to findings that Norway’s cooperation with the EU in this area is hardly debated at all in the Norwegian Parliament. She referred to a number of consensus-shaping mechanisms which are in place to ensure consensus between parliament and government, and on this basis questioned its actual status. ‘Consensus should be the result of open debate’, she argued, and pointed to the risk that the claim for consensus might instead be used to silence or constrain such debates, as critique could weaken the authorities.
Sjursen also discussed the paradox of governments depicting Norway’s agreements with the EU in foreign and security policy as legally insignificant but politically crucial. The former entails that single decisions on cooperation are exempted from parliamentary debate, whereas the latter is used to justify Norwegian policy in this field.
Norway’s adoption of European case law
Dr. Halvard Haukeland Fredriksen looked at the complex judicial architecture of the EEA Agreement. There is an independent EFTA Court, he explained, whereas the European Court of Justice (ECJ) has no compulsory jurisdiction over these states. The formal full independence of national courts is acknowledged.
Halvard Haukeland Fredriksen
However, based on studies of case law over the last 20 years, Fredriksen revealed that both the EFTA Court and national courts have consistently taken into account all relevant rulings of the ECJ. ‘The Norwegian Supreme Court is in fact more interested in the opinions of the ECJ than the EFTA Court’, he argued. At several occasions the court has waited for a pending ECJ ruling to be made before judging in a similar case, or even overruled previous decisions with reference to later ECJ rulings, which have proven Norwegian decisions wrong. The upshot is that also decision-making in the legal realm has been outsourced.
Fredriksen moreover found no evidence that the legal culture and tradition of the EFTA states are taken into account by the ECJ. He mentioned the case of access to documents as one instance where the legal traditions of the EFTA states might have had an impact and contributed to the positive evolution of law.
Also in this area an imbalance thus comes to the fore, as the ECJ case law is not affected and remains completely untouched by the EFTA pillar, whereas the EFTA Court is obliged to take into account ECJ rulings.
Switzerland as a model?
Turning the focus to the Swiss case, Prof. René Schwok discussed the current situation of EU-Swiss relations. He depicted these as being in a ‘very bad shape’, even beyond the common perception of journalists and the European Commission. Switzerland has around 120 bilateral agreements with the EU, but since 2005 no new substantial agreements have been signed. And since the February referendum, in which the Swiss accepted quotas on immigration, there has been a total stalemate in the relation.
As compared to the EEA, the institutional aspects of Swiss-EU relations are very simple; there are only some joint bodies. There is no general framework agreement and thus no automatic adoption of the evolving EU acquis, no common institutions, no surveillance authority and no court of justice. However, the EU has been pushing for something more substantial and more similar to the EEA.
The referendum result introducing immigration quotas will become part of the Swiss constitution within three years. However, it is not compatible with the Swiss-EU bilateral agreements on the free movement of people, and Schwok could not see any solution to this dilemma. One possible response by the EU would be to condemn Switzerland with measures of reprisals, such as renouncing all bilateral agreements. In fact, these contradictory developments constitute a rather ‘strange situation’, Schwok argued.
He found it difficult to foresee any result of the current negotiations; the Swiss have even outlined 50 possible scenarios. On this basis, and in light of the uncertain future of the Swiss referendum results, Schwok found it very difficult to give any predictions for the future. But he did conclude that in this perspective, Switzerland can ‘obviously not be a model’.
The EEA benchmark
Prof. Sieglinde Gstöhl broadened the perspective even further, by looking at other neighbours’ EU affiliation and economic integration.
An interesting development in her view on the question of institutions and (non-)participation is the contrast between the Delors Commission, who in 1989 wanted a more structured partnership with the then seven EFTA countries, leading eventually to the EEA, and the very different perspective taken by the Prodi Commission, suggesting that the EU and its neighbours should share everything but institutions.
From the EU’s point of view, the EEA Agreement is the best you can get, she argued. 'All EU neighbours are interested in deep, not shallow, integration', she explained, and when expanding the economic community of the EU, the EEA serves as a benchmark model.
She referred to different models currently in place, from the EEA to Swiss-EU bilateral agreements, but also lesser-known cases such as the custom’s union with Turkey, the EU’s neighbourhood policy (ENP), and agreements with microstates such as Andorra and San Marino. These models have however reached their limits because of the growing sectoral scope of the agreements, but also because of the lack of official arrangements to guarantee the legal certainty and market homogeneity actually required for participation in the internal market. Not only the EEA Agreement, but also other neighbours’ integration have been questioned, Gstöhl claimed, and the paradox thus applies beyond the Norwegian context.
As for potential future scenarios, she observed a certain trend from the EU perspective to increasingly attempt to conclude more dynamic agreements. For Switzerland, this entails that the EU wants more dynamism to replace the 120 agreements. Also within the ENP, microstates and others, the European Commission wants to put everyone in one basket, with the ECJ and not national institutions in charge.
This trend however means that the problem of institutions and non-participation will only increase.
'One can observe a dilemma which increases the broader the scope of integration and the higher the degree of institutionalisation', Gstöhl expanded. On the one side, current agreements ensure market homogeneity and no legal and political fragmentation, but on the other side, they lead to participatory deficits with sovereignty implications for third countries. 'Unless you opt out, the developments will lead to more problems, not less', she predicted.
Gstöhl concluded by discussing the shortcomings of the EEA, and of using this as a benchmark. Increasingly, internal market legislation is blurred and it is often difficult to assess whether it is EEA relevant or not. The EU also increasingly adopts packages, so third countries cannot pick and choose. Moreover, new forms of government, such as agencies, are not compatible with the EEA. Finally, the large number of EU legal acts adopted each year requires technical and legal adaptation to be compatible with national legislation and incorporated into the EEA Agreement. This leads to delays in implementation, again risking the homogeneity of the internal market, which is its key feature.