John Erik Fossum
The European Union is a differentiated political entity, with member states such as the UK opting out of significant areas of co-operation and non-members such as Norway obtaining inclusion in the EU’s internal market and serving as an EU external border guard. The issue of borders in contemporary Europe is hardly a straight-forward matter.
Intrinsic to the Brexiteers’ goal of taking back control was to restore a greater measure of contiguity between territory and governing system. The UK government’s backtracking in the Brexit negotiations does not bode well for this objective. And whereas the UK government seeks a set of bespoke agreements with the EU in areas ranging from trade to security, the sheer amount of time required for coming to terms on any one such agreement (even with full EU cooperation) makes transitional arrangements imperative. Norway’s experience with what was initially cast as a temporary European Economic Area (EEA) Agreement from 1994 shows that what starts out as a temporary arrangement may easily take on greater permanence. The UK’s European Union (Withdrawal) Bill is an attempt to ensure a measure of predictability by incorporating most of existing EU law in UK law. There will obviously be domestic (and EU) pressures – from citizens, regions and businesses – to render the element of UK-EU norm and rule contiguity as firm and all-encompassing as possible.
These comments are meant to underline that we cannot rule out that the UK ends up in a situation akin to that of Norway or Switzerland. The UK-EU agreement on the terms of exit (especially with regard to the Irish border issues), if it remains in place, would suggest that ‘temporary’ may be used very flexibly.
Both Norway and Switzerland are EFTA members, but Switzerland turned down EEA membership in 1992, as a result of a negative referendum. Switzerland has instead established a set of bilateral agreements with the EU. Norway is, together with Iceland and Lichtenstein, a member of the EEA, after twice applying for EU membership, in 1972 and in 1994, and following negative popular referenda having had to withdraw the application. The main distinguishing feature between the Swiss and the Norwegian situation is that Switzerland’s EU relationship is bilateral, whereas the EEA is a multilateral arrangement. Switzerland’s EU relationship is based on two sets of bilateral agreements, which are labeled bilateral I (entered into force in 2002) and Bilateral II (signed in 2004 and gradually implemented since). These are formally speaking static sectoral agreements, which add up to 20 main and over 100 secondary agreements, without an overarching structure binding them together.
Switzerland’s EU relationship is however quite dynamic, not the least since Swiss authorities have since the late 1980s operated with the doctrine of ‘autonomer Nachvollzug’, which refers to autonomous adaptation and represents a policy of voluntary alignment with the EU. This doctrine ‘[…] stipulates that each new piece of legislation is evaluated with respect to its compatibility with EU norms’ (Lavenex 2009: 552). In a similar manner, Alfred Tovias noted ten years ago that ‘Switzerland has had an EC reflex for more than a decade now and tries to shadow EU moves autonomously. Because this process is invisible and silent, it is frequently but wrongly ignored […]’ (Tovias 2006: 215). Leaked documents from the ongoing EU – Swiss negotiations reveal that the EU seeks to impose much stricter legal obligations on Switzerland.
Norway has assured access to the EU’s internal market even though it is not a member of the EU’s customs union (as is also the case with Switzerland). Norway’s situation is therefore formally speaking different from Switzerland’s (broad range of) sectoral bilateral agreements. The EEA Agreement is a broad and dynamic multilateral agreement between the (still) 28 EU member states and the three EFTA states of Norway, Iceland and Liechtenstein. It is based on a two-pillar structure with bridging institutions, and includes a court and a surveillance body.
The EEA countries had to incorporate all relevant EU legislation that was in effect at the time of signing the agreement, because the agreement is premised on the need for ensuring legal homogeneity within the entire 31-member EEA. The EEA Agreement is designed as a dynamic agreement, with new relevant EU legislation incorporated in the agreement in an ongoing manner.
The record of Norway’s EU adaptation in terms of practice – not in terms of formal arrangements – shows that it clearly prioritizes market and other forms of EU access over sovereign control. That is despite the fact that the EEA Agreement has expanded into related flanking areas, such as for example environmental and social affairs. The initial EEA Agreement explicitly excluded agriculture. At present, 40 percent of the rules and regulations that Norway incorporates are in the field of agriculture. Important reasons for inclusion were the need for market access for fish and the sheer dynamics of horizontal expansion. These provisions are not confined to border crossing activities but cover internal affairs: “In practice today, this body of regulations makes up the main portion of all public regulation pertaining to production, sale, labeling, hygiene and so forth with regard to fish and agriculture in Norway and to a large extent sets the standards in both these sectors” (Official Norwegian Report NOU 2012:2, 646-47, author’s translation ). Norway thus essentially loses control over an issue-area that it explicitly sought to remove from the trade-off equation.
An open market in goods, services, persons and capital requires low-threshold access and passage. That is one of the reasons why the EEA–EFTA states have signed Schengen association agreements, which in effect locates them within the EU’s external borders and systems of border controls. When Denmark, Finland and Sweden entered Schengen, Norway had to ask for a Schengen association agreement in order to preserve the Nordic passport union. In addition, Norway has signed a number of additional parallel agreements with the EU, including agreements on asylum and police cooperation (Dublin I and II) and on foreign and security policy – Norwegian troops are at the disposal of the EU’s battle groups. The Norwegian Official Report that produced the largest-ever assessment of the EEA Agreement estimated that around seventy-five percent of all of EU’s laws and regulations apply to Norway (Official Norwegian Report NOU 2012:2).
Since the EEA countries are not EU members, they subject themselves to a comprehensive body of EU rule and norms without having any real access to those bodies that member states use to forge decisions in common in the EU, notably the European Council, the Council and the European Parliament. Since they pay membership contributions, it is a matter of taxation without representation. The distinctive feature for the closely affiliated non-members is that the type of affiliation that they have chosen is akin to voluntary hegemonic submission (Eriksen and Fossum 2015). The EU is not set up to be a hegemon but some of its relations to (non)members resonate well with hegemony.
If we look at actual practice and not formal arrangements and compare the unique Swiss form of sectoral bilateralism with Norway’s situation, there is no doubt that the Swiss EU affiliation is less hierarchical, since there is no set of supranational arrangements that regulates it. Nevertheless, “Swiss bilateralism – while apparently more tailored – does not necessarily imply that the EU exerts less influence on Swiss policies that it does in the formally more constraining EEA” (Lavenex and Schwok 2015:49). There are significant functionalist pressures that emanate from close patterns of interdependence.
Norway’s EU relationship is marked by an interesting paradox: the membership issue is extremely controversial, yet the ongoing EU adaptation has sparked little controversy, not least because it is quite depoliticized. There are some signs that Brexit may generate more controversy, but the great uncertainty surrounding the nature and direction of Brexit leaves much confusion and unclarity.
Brexit will have significant effects on Norway, whatever option is chosen. Norway is closely affiliated with the UK, but its links to the EU are stronger. The Norwegian government seeks to retain as close relations as possible with the EU and the UK, and has underlined the need to preserve the unity of the EU’s internal market. The government hopes that there will be an orderly Brexit process but has very limited means for influencing this, because Norway is not included in the Brexit negotiations. It is kept informed through frequent meetings with EU and UK officials. Little concrete from that percolates down to the population. In that sense it is readily apparent that the de-politicized nature of the EU relationship marks the present situation. The government is more concerned about reassuring the populace that it is taking the issue seriously than it is about involving the population through informing it about the various options and their consequences.
It is widely recognized that there is no realistic alternative to the EEA Agreement (except for EU membership) in economic terms, even if there are those that seek to take Norway out of the EEA (notably the agrarian Centre Party), and there are those that want to renegotiate the Schengen Agreement (the right-wing populist Progress Party). There is nevertheless a significant parliamentary majority in support of Norway’s present EU affiliation and the same applies to the population.
Brexit may politicize Norway’s EU affiliation. It may give grist to the mill to those who want to renegotiate Norway’s EU relationship. Further, a UK closely associated with Norway in some form of formal or de facto EEA-type arrangement is likely to politicize Norway’s EU relations, hence making this relationship more difficult to operate.
Eriksen, E. O. and J. E. Fossum, eds. (2015) The European Union’s Non-members: Independence Under Hegemony? London: Routledge.
Lavenex, S. (2009) ‘Switzerland’s Flexible Integration in the EU: A Conceptual Framework’, Swiss Political Science Review, 15(4): 547–575.
Lavenex, S. and R. Schwok (2015) ‘The Swiss Way. The Nature of Switzerland’s Relationship with the EU’, in The European Union’s Non-Members. Independence under Hegemony, edited by E. O. Eriksen and J. E. Fossum. London: Routledge, 36-51.
Norway, Official Norwegian Report. NOU 2012:2. Outside and Inside: Norway’s agreements with the European Union, delivered to the Norwegian Ministry of Foreign Affairs, 17 January 2012.
Tovias, A. (2006) ‘Exploring the “Pros” and “Cons” of Swiss and Norwegian Models of Relations with the European Union: What Can Israel Learn from the Experiences of These Two Countries?’, Cooperation and Conflict, 41(2): 203–222.
John Erik Fossum is Professor in Political Science at ARENA Centre for European Studies, University of Oslo, Norway. He has written extensively on issues of state transformation, constitutionalism and democracy in the EU and Canada, and is currently working on Brexit and ‘the Norway Model’.
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