This is an interview with Carl Baudenbacher, a judge working at the EFTA court. In which, he demystify the issues if the UK wanted to join an alternative grouping. A recent poll favours EFTA to the EU by a very large margin.
Can Britain sign its own trade deals if it joins Efta?
The EEA is not a customs union, the EEA is an enhanced free trade agreement which means that our three members, Iceland, Liechtenstein, and Norway, have retained their full sovereignty in free trade matters with the rest of the world.
If they cannot agree as a group of four as EFTA, with Switzerland, each EFTA member has the right to go it alone and agree their own individual free trade agreements.
There are agreements which are concluded by EFTA together and agreements that are concluded by individual EFTA States. There is utmost flexibility when it comes to that.
Are there any differences in how free movement works between Efta and full EU members?
There may be a difference there, probably. We have some sort of a safeguard clause which is a bit more favourable to the EFTA States than in the European Union. It also goes far, but there are now proposals [to reform free movement].
Are there other notable differences between being in Efta and being in the EU?
Our countries have also kept their sovereignty in the area of agriculture and of fisheries. In fisheries, which are extremely important for both Iceland and Norway, there is a very favourable fish protocol that allows them to keep the catch and to sell in the European Union.
What are the biggest economic advantages to Britain joining Efta?
Passporting is something else that will be an advantage for the UK, for the City of London, because under the EEA Agreement you have the same passporting rights because you are in the single market.
Switzerland doesn’t have passporting rights for its banks and insurance companies. It’s very costly for them so what the Swiss insurance companies have done is to set up subsidiaries in Liechtenstein.
And would having access to the Efta court be good for British business?
You have to have a court. And clearly the EFTA Court is more appropriate than a national supreme court because it’s a multi-lateral court and it has the recognition of the ECJ.
You must also have access for your industry to a court. The biggest danger for industry is often not from foreign governments but from one’s own government, for example, by giving State aid to certain firms etc.
So what is the main political difference between Efta and the EU?
In the EEA we don’t have the goal of ‘an ever closer Union’ and we don’t have grand visions, we are rather down to earth. At the end of the day the EEA Agreement is about market economy and free movement of production factors.
We don’t have the political concept of EU citizenship, no political rights. Movement of workers, self-employed persons, and right of establishment, yes, but no voting rights and the like.
If Britain joins Efta, will it still need to submit itself to the jurisdiction of the European Court of Justice?
The EFTA Court is a fully independent court, there are no links to the ECJ. We stand on our own feet. As regards law on the books, we are bound to follow the ECJ’s pre-1992 case law.
That set the level playing-field across the Single Market. But as regards law in action they also follow us in many, many cases. They have followed us, so this imagined one-way street has developed in practice into a judicial dialogue.
Judging is not an exact science and to have your own people on the separate independent court has turned out to be an advantage for the EFTA States.
And what do you think Britain would add as a member of the Efta court?
I have seen British judges and British advocates general on the ECJ for 20 years now and I have always been impressed by the quality of their work and by their independence, by their legal skills, by their knowledge, by their fairness.
That is by the way what I fear most for the Union, that if the British influence disappears there will be insufficient common law thinking in the Union.
We have been able to maintain EFTA values in our case law and if a British judge were here obviously this would give us more weight. In our way of thinking we are already close to the common law way of thinking.
Finally, what do you think will happen during the Brexit negotiations?
There’s a lot of noise but at the end of the day the EU has zero interest in snubbing the Brits, zero, for historic reasons, for military reasons, for all sorts of reasons and I keep saying in all my speeches if the EU does not give the Brits a certain influence on legislation it will shoot itself in the foot because there are just fields where they know it better, competition policy is such an issue.
