The gathering, from which the UK was excluded, was not meeting as the European Council (even though it was using – or abusing – Council facilities) and had thus no authority to make decisions or policy on behalf of the European Union. Effectively, this was an exercise in letting off steam.
On the receiving end of the messages, we assume that the "colleagues", individually and collectively, are talking to us. This isn't always the case, and sometimes it isn't the case at all. For the most part, these are politicians speaking to their own domestic audiences - especially Merkel and Hollande, who are facing re-election next year.
What this means, though, is that the much-touted "decision
" that the UK "will not be given access to Europe's single market without accepting freedom of movement rules", has no legal force – and probably no practical effect.
Even the choice of terminology is a bit odd, with President Tusk, speaking in English
, saying that: "Leaders made it crystal clear that access to the Single Market requires acceptance of all four freedoms, including the freedom of movement. There will be no single market à la carte
One is never really sure in these circumstances what is meant by "access" to the Single Market. Properly defined, the Single Market is a common regulatory area. A country is either part of it, or it is not. If it is not, then it can trade with the countries forming the Single Market, on defined terms. But for the most part those countries which have trading privileges are not required to accept the full freedoms.
The more one explores this subject, though, the more anomalies are thrown up. For instance, it is common to talk of the Single Market acquis
is if it was a monolithic block, common to the entire area. Yet, that is not the case. There is unrestricted trade in agricultural products between the EU-28 but not within the EEA. The Efta states are not part of that market.
Thus, while all Single Market legislation supposedly has the description, "EEA Relevance" appended to it, this is not the case with laws governing agricultural products. We can see that from this example
. Norway, Iceland and Liechtenstein do not apply these standards (through the EU).
The point that emerges from this is that the Single Market is actually quite flexible - more so than would appear. It can be modified according to circumstances, and different versions of it exist, in different areas. There is no reason in principle, therefore, why the UK should not negotiate its own specific version of the supposedly Single (but actually "variable") Market.
And that very much appears to be the case with freedom of movement. It actually matters not what the HSGs say in an informal meeting because – as we saw with Leichtenstein
- the provision for exemption is built into the EEA agreement.
The important thing here is that invoking Article 112 is not bending or twisting the law. Nor is the Article a "loophole" – it is a fundamental part of the Agreement. Thus, to use it to cap immigration is to use it precisely for one of the purposes for which it was intended. And, given that – for Efta states – its application is unilateral, there is no mechanism for over-riding it.
It could of course, come to pass in the Article 50 negotiations, that the remaining EU members refuse to allow the UK to stay in the EEA, or seek to modify the Agreement.
Either would be problematical, and would create as many problems for the EU as it would the UK. Administratively, the EU simply does not want another unique arrangement with a neighbour, absorbing disproportionate amounts of resource.
This has actually been the problem with the Swiss agreements. From the EU's point of view, they are resource-intensive. It would prefer to fold Switzerland into a standard "neighbourhood agreement", common to all its near-neighbours.
Switzerland also has another edge to it, with the outcome of the 2014 referendum on immigration quotas, which is very far from resolved
. The EU could find itself fighting quota battles on two fronts, from a weaker position than currently appears.
Nevertheless, as always, our own people are proving to be the greater part of the problem. Fresh out of the "stupid bin" is our old friend Farage
who is blithely disowning the Norway option. "We didn't vote for that", he says. "We did not vote to be part of this outdated cartel that is called the single market. We voted to be free of it, to stop regulating the 88 percent of the economy that does not export goods to the European Union".