Richard North, 31/08/2016  
 


As the political cabinet meets today to puzzle over Brexit, and agonise over when to trigger Article 50, a committee in Brussels virtually unknown to UK audiences could relieve much of the pressure, and permit key technical negotiations to start, without waiting for the formal EU machinery to crank into action.

This is the EEA Joint Committee which is responsible, under the political direction of the EEA Council, for drafting and agreeing amendments to the EEA Agreement (pictured above).

Constituted under Section 2 (Articles 92-94) of the EEA Agreement, with its own rules of procedure, it will be a key body if the UK Government decides to follow the Efta/EEA option or, better still, decides to craft an EES/EV option.

The importance of the Joint Committee stems in part from the peculiarity of the EEA Agreement, which differs from the UK approach with its European Communities Act, in the way EU legislation is adopted into the law books of the Efta states.

What actually happens is that, each time an "EEA Relevant" legislative act is produced by the EU, it is formally adopted by way of an amendment to one of the Annexes to the EEA Agreement, becoming an integral part of the treaty. In effect, every time a new EU law is adopted, the treaty is amended.

Because of this, unlike the EU treaties which are extremely difficult to amend, the EEA Agreement is extremely easy to change. It is routinely amended about six times a year when the Committee meets.

It also makes for a very long treaty which, with all the 5,000 or so legislative acts currently in force, makes it run to about 50,000 pages, compared with the Comprehensive Economic and Trade Agreement (CETA) between Canada and the EU, which is a mere 1,598 pages long.

Crucially, the Joint Committee will be responsible for any treaty changes on Freedom of Movement, which could transform the prospects of the UK, in permitting participation in the Single Market while also restricting free movement of persons.

But there is much more to it than that. Many of the technical changes needed to smooth the transition of the UK from EU member to independent state can be dealt with by the Joint Committee. It could, on behalf of the UK, adopt measures covering interim arrangements for the CAP and the CFP, and also deal with flanking policies as well as agencies and programme participation.

In fact, so comprehensive is the scope of the EEA Agreement that most of the technical areas of the EU treaties which need to be sorted before the UK leaves the EU can be negotiated in this forum, rather than in the more frenetic atmosphere of the EU council hot house.

If it plays its cards right, the UK can set up parallel negotiations, one set with the EEA – which can start any time soon – and one with the EU via the formal Article 50 process.

With much of the detail agreed via EEA channels, the Article 50 talks need only concern themselves with the high politics, allowing an amended EEA Agreement (in the form of country-specific protocols and annexes) to be folded into the exit settlement.

Subsequently if the UK wants to change the terms, it can do so via the EEA Joint Committee. If in good time it wants to walk away from the EEA, all it has to do is give one year's notice, whence it can leave with no strings attached (Article 127).

Overall, opting for parallel negotiations is probably the only way that the UK can hope to conclude an acceptable settlement within the two-year initial period set by Article 50 – bearing in mind that we could start talking to the EEA well before the formal EU talks are triggered. Any of the Contracting Parties (which the UK currently is) can ask for a meeting to be convened.

If this is handled intelligently, Mrs May has a lot more flexibility than the doom-mongers would have her believe, with the UK emerging from the EU with full participation in the Single Market and well as a cap on free movement, and enough flexibility in the system to manage ongoing change.






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