EU Law L5/L6: Comparing the EEA and EU After Brexit Vote

This essay provides a comprehensive analysis of the European Economic Area (EEA) in the context of Brexit, focusing on the potential implications for the United Kingdom. It begins by outlining the nature and institutions of the EEA, comparing them with those of the European Union (EU). The discussion covers the EEA's establishment through the European Economic Area Agreement, its objective of creating a common market, and the rights and rules governing its members. The essay then delves into the Brexit referendum and explores the possibility of the UK joining the European Free Trade Association (EFTA) to maintain access to the EU's common market. It also addresses the advantages and disadvantages for the UK of becoming a member of the EEA, including trade benefits, freedom of movement, potential taxes, and regulatory constraints. The essay concludes by summarizing the key considerations and implications of the EEA for the UK in the post-Brexit landscape.

1
Possible Aftermath of Brexit

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Table of Contents
Introduction................................................................................................................................3
European Economic Area..........................................................................................................3
Comparison of European Economic Area with European Union..............................................4
Brexit..........................................................................................................................................5
Advantages.................................................................................................................................6
Disadvantages............................................................................................................................7
Conclusion..................................................................................................................................7
Bibliography...............................................................................................................................9

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Part 1
Introduction
Off late, due to Brexit, there have been issues concerning the European institutions which
would still remain a part of the United Kingdom. The European Court of Human Rights
would still have jurisdiction over the United Kingdom since not only United Kingdom is still
a signatory to the European Convention on Human Rights but also the Human Rights Act of
1998 implies the compatibility along with the European Convention on Human Rights1. Only
an enactment of a British Bill of Rights on line with the English Bill of Rights of 1689 would
enable the United Kingdom be devolved from the ambit of the European Convention on
Human Rights2. When maximum number of the citizens of the United Kingdom voted that it
should make an exit from the European Union, procedures regarding the same have started to
take place accordingly. As a result, various people have called for the access to the Common
Market of the European Union by the virtue of being a part of the European Economic Area.
The main objective of this essay is to present an overview of the Common Market of the
European Economic Area along with the advantages and disadvantages of the European
Economic Area.
European Economic Area
The European Economic Area has been established by the virtue of the European Economic
Area Agreement3. The parties to the Agreement include the members of the European Union,
the members of the European Economic Area and the members of the European Free Trade
Association. The main objective of the European Economic Area is to establish a link
between the members of the European Union and the three members of the European
Economic Area namely Norway, Iceland and Liechtenstein under the purview of one market
popularly known as the Common Market of the European Economic Area. Such a market
implies the movement of goods and services along with the transfer of labour and finance.
Additionally, the people are given the liberty to opt for residence in any country under the
ambit of the European Economic Area. The provisions enshrined and envisaged in the
Agreement relating to the European Economic Area imply that the members of the European
1 European Convention on Human Rights 1951
2 Bill of Rights 1689
3 European Economic Area [1994] OJ L1

4
Union and the members or the European Free Trade Association are eligible to apply for
membership of the European Economic Area. Directive 2004/38/EC of the European
Parliament and the European Council implies that the rights related to the free movement are
applicable to all the members of the European Economic Area, including the ones who are
not the members of the European Union4. The Agreement relating to the European Economic
Area also specifies such kinds and rights and rules. As far as Croatia is concerned, the
Agreement relating to the European Economic Area is applicable to it on a provisional basis
since not only it is the latest nation to be a part of the European Union but also the ratification
to join the European Union is still not completed by all the members of the European
Economic Area. Switzerland being a signatory to various bilateral agreements with the
European Union has been enabled to participate in the Common Market of the European
Economic Area even though it is not a member of the European Economic Area. The judicial
bodies which are entrusted with the adjudication of the disputes amongst the members of the
European Economic Area are the Court of Justice of the European Union located at
Luxembourg City and the Court of Justice of the European Free Trade Association located at
Luxembourg City. The law governing the European Union have to be adopted by the
members of the European Economic Area to a certain extent5.
Comparison of European Economic Area with European Union
The European Union has lesser number of institutions under its belt in comparison to the
European Economic Area since it includes not only the members of the European Union and
the European Free Trade Association. The European Economic Area-Joint Committee has
been constituted in order to include the members of the European Economic Area and the
European Free Trade Association6. The European Commission has also been included into
the European Economic Area-Joint Committee as far as the representation of the European
Union is concerned7. Equivalent to the European Commission, the European Free Trade
Association is represented by the European Free Trade Association Surveillance Authority8.
The headquarters of both the European Free Trade Association and the European
Commission are located at Brussels, the capital of Belgium. Both these bodies are entrusted
with the responsibility being a supervisor for the formulation and implementation of the
4 Neill Nugent, 2017
5 James A. Caporaso, 2018
6 Boudewijn Catryl, et al., 2015
7 Treaty on European Union [2008] OJ C115/13
8 Peter Ludlow, 2018

5
treaties as far as their applicability in the territorial jurisdiction of their member states is
concerned with regard to the European Economic Area. The bodies with reference to the
adjudication of disputes include Court of Justice of the European Free Trade Association with
reference to the jurisdiction of the members of the European Free Trade Association and
Court of Justice of the European Union as far as the jurisdiction of the members of the
European Union is concerned taking account of the European Economic Area.
Brexit
Taking account of the results of the referendum of 2016, it is implied that the United
Kingdom does not want to remain a part of the European Union9. As a result, various
alternative options are being examined with regard to the link between the United Kingdom
and the rest of Europe. One of the options suggested by experts is that the United Kingdom
can join the European Free Trade Association in order to access the access the Common
Market of the European Union. In 1960, the United Kingdom was one of the founding
members of the European Free Trade Association10. However, it made an exit from the
European Free Trade Association when it joined the European Union. Since the first phase of
the meetings between the United Kingdom and the European Free Trade Association after the
referendum to leave the European Union has taken place, it is implied that the European Free
Trade Association to induct the United Kingdom as its member again11. However, Norway
has raised objections with reference to the United Kingdom being a member of the European
Free Trade Association thereby stating that there should be reservations for smaller countries
to be inducted as members of the European Free Trade Association12.
However, off late, the present Prime Minister of the United Kingdom Theresa has stated that
the United Kingdom does not intend to remain in the Common Market of the European
Union. Taking a cue from Switzerland, various bilateral agreements between the United
Kingdom and the European Union would enable between the United Kingdom to access the
Common Market of the European Union even after it devolves from the European Union13.
The United Kingdom can be permitted to be a part of either the European Free Trade
Association or the European Economic Area on approval of the members of both of these
bodies. However, present members of the European Economic Area such as Norway have
9 Swati Dhingra and Thomas Sampson, 2016
10 Dora Sif Tynes and Elisabeth Lian Haugsdal, 2016
11 Uwe Puetter, 2015
12 Sieglinde Gstohl, 2016
13 Arne Niemann and Demosthenes Ioannou, 2015

6
stated that the advantages of European Economic Area would be lost if the United Kingdom
becomes a member. Additionally, Scotland has contemplated to join the European Free Trade
Association by expressing intentions for the same. However, other members of the European
Free Trade Association have opined that Scotland can only join the European Free Trade
Association when it devolves out of the United Kingdom taking a cue from the referendum of
2014.
Advantages
There are various advantages for the United Kingdom if it becomes a member of the
European Economic Area. The main advantage implies that the trade and commerce would
take place freely between the United Kingdom and other members of the European Economic
Area. Additionally, there would not be any barriers over the citizens of the United Kingdom
to reside in other countries of European Economic Area and the citizens of the other countries
of European Economic Area to reside in the United Kingdom. As a result, it would help in
the progress and development in the economic aspects of the United Kingdom to a huge
extent. It would facilitate the ease of distribution of resources in a proper and appropriate
manner. It would also help in the increase of competitiveness between the United Kingdom
and the members of the European Economic Area along with the members of the European
Union. The quality of the production of goods would also be improved with regard to free
movement of the manufacturing units as far as the factors relating to suitability are
concerned. The scope of the specification with regard to the division of labour would also be
widened as far as mass production is concerned. In the case of Rewe-Zentral AG v
Bundesmonopolverwaltung für Branntwein14, it was held by the Court of Justice of the
European Union that any goods produced in a country which is a member of the European
Economic Area must be recognised by another member of the European Economic Area. In
this case, Article 34 of the Treaty on the Functioning of the European Union, colloquially
known as the Treaty of Rome was reffered15. This case is popularly termed as Cassis de Dijon
as the subject matter of the case involves the production and sale of a liqueur crème de cassis
which is called Cassis de Dijon.
14 Case C-120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein [1979] ECLI:EU:C:1979:42
15 Treaty on Functioning of the European Union [2008] OJ 326/13

7
Disadvantages
Despite the various kinds of advantages, there are certain disadvantages associated with being
a member of the European Economic Area. The most essential disadvantage for a member of
the European Economic Area is the various kinds of taxes which can be levied upon to the
member states by the virtue of the various policies of the European Economic Area. It implies
that a member state of the European Economic Area has to incur costs in the form of taxes
levied upon by the European Economic Area even it would not benefit the respective member
state of the European Economic Area. Any direction passed by an institution of the European
Economic Area would be applicable to all the member states of the European Economic Area
which may lead to the following and abiding of various kinds of stringencies and the
restrictions are concerned16. These also imply the imposition of many barriers thereby leading
to the policy of red tape as a country would have to be in compliance with the rules and
regulations concerned by the virtue of being a member of the European Economic Area. In
order to avail the benefits of the European Economic Area, one has to be either a member of
the European Union or European Free Trade Association or have a tie-up or collaboration
with any such bodies. Additionally induction of more and more countries under the ambit of
the European Economic Area may cause various kinds of hindrances and impediments as far
as its modus operandi is concerned. It is imperative that due to membership with the
European Economic Area, the United Kingdom may be at a disadvantageous position due to
the policies and frameworks made and implemented by the authoritative bodies of the
European Economic Area as far as limitations to trade are concerned.
Conclusion
As observed from the aforesaid discourse it can be concluded by stating that the analysis of
the European Economic Area is justified and appropriate. The discourse has properly and
appropriately presented the advantages and disadvantages of the membership of the European
Economic Area. Appropriate treaties have also been taken into account along with the
relevant case laws in order to derive and deduce a comprehensive solution as far as the
concept of the Common Market under the ambit of the European Economic Area. The United
Kingdom making an exit from the European Union has also been discussed and
demonstrated. The European Free Trade Association has also been delved into for the
purpose of drawing an appropriate comparison between the European Union and the
European Economic Area. The feasibility associated with the return of the United Kingdom
16 Rudra P. Pradhan, et al., 2016

8
has also been thoroughly examined and explained as far as the alternative options after
leaving the European Union is concerned. To roll up, the possible viability for the United
Kingdom after making an exit from the European Union has been analysed.

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Part 2
2) Facts of the case:
Richard was a British man. He lost his job from the Public Library on account of it being
closed. When he was seeking another job, he discovered from the press that there was a
requirement of English language teachers in Croatia. He decided to give it a try at Dubrovnik,
where he had befriended some people many years before. He then shifted to Dubrovnik with
his wife Aynoor, who was a Pakistani national with their 24 years old son called Bill. Bill
possessed the citizenship of Britain. Soon Richard found a position as a teacher in the high
school run by the state. He came to know that under the statute of the Croatian legislation, all
the workers under the public sector would be subjected to an increment of a special sum of
$1000 upon the completion of 4 years. This increment is yearly. Richard applied for such a
facility and explained that before the public sector in Croatia, he was working under the
public sector in Britain. But this application declined because the fours of the service would
have to be completed under the public sector of the Croatian government. The service
delivered by him United Kingdom would not be counted. Aynoor was appointed as a nurse in
a private hospital. She was very hard working and was appreciated. It was told that if she had
a degree, she could be promoted to the designation of the head nurse. So she decided to
pursue the degree in nursing from the local medical college. She also applied to the local
education board for the grant of maintenance and the payment of the remuneration for her
nursing course. Both of her were claims were declined on the ground that she was not a
citizen of the European Union. Bill found a part time job in the youth hostel. He was having a
low income, but he proceeded with work because he wanted to be independent and move out
with his Croatian girlfriend. He enrolled himself to study law in the local university without
any charge. After the completion of his initial year, it was becoming difficult for him to meet
the ends, hence he applied for assistance socially. But this assistance was declined on the
ground that it was solely available to the citizens and habitual residents of Croatia. Bill was
aware of the fact that he was not a citizen of the country. The citizenship required the a
person should have resided in the country for at least three years.

10
Issues Involved:
After a close perusal of the facts of the case, the issues which have involved in this case are
regarding the rights of Richard, Aynoor and Bill. Thus, the issues include, whether Richard
should be granted with the special length of service increment? Whether Aynoor would be
granted the remuneration and the maintenance for the local medical college degree? Whether
Bill would be granted with the social assistance in the local university of law on account of
him being a non-citizen of Croatia?
Provisions of Law:
After having a look at the facts of the case and the issues involved in the case, it is necessary
to look at the provisions of law involved in the legislation of European Union. According to
the provisions of law, the citizenship of the European Union member states is accorded to the
citizens who qualify under the special enactments of the European Union17. According to the
historical data, the citizenship was given to the citizens of the Union under the Maastricht
Treaty in the year 1992. Being a citizen of the European Union, a person possesses the rights,
freedoms, interests, liabilities and the legal protection to all the citizens. Every citizen
possesses the right free movement and access to the public places, profession, equality in the
employment opportunities. The citizens have the right to free trade and profession, goods,
services and other amounts through the outlines of the European Union18. The citizens
possess the right to participate in the elections, form associations and live freely.
According to the provisions of law, there is a right to the consular protection to the citizens
with the help of the embassy. These citizens possess a group of fundamental rights to protect
their interests in the smooth functioning of their business and company19. There are various
acts and directive principles of the government of the European Union which targets at the
17 Oliwia Berdak, "War, gender and citizenship in Croatia, Bosnia and Herzegovina and
Serbia" The Europeanisation of Citizenship in the Successor States of the Former Yugoslavia
(CITSEE), 2013.
18 Costica Dumbrava, "External citizenship in EU countries", Ethnic and Racial Studies,
37(13), 2014, 2340-2360.
19 Elspeth Guild and Kees Groenendijk, Illiberal liberal states: Immigration, citizenship and
integration in the EU, Routledge, 2016.

11
various protection and securities granted to the citizens of the European Union from the
government. There would be equal pay for equal work, equal opportunities in the local
industries, schools, colleges, universities etc. there would also be the right to get equal
remuneration for the equal work done by the citizens20. However, the laws of the European
Union provides equality of law and equal protection before the laws to all the people and not
to the citizens only21. Some rights are restricted to the citizens of United Kingdom only. The
people outside the arena of the citizenship of the European Union are not entitled to get the
special rights and the opportunities which the citizens are bound to receive as per the
constitution and the legislation of United Kingdom. The people who do not possess the
citizenship of the European Union, are those who have not lived in the European Union
without interruption22. They also include those people who have not registered themselves as
the citizens of the European Union through the statutory procedure. Thus, these people would
not be entitled to the benefits given to the citizens on a general basis. The restrictions which
are imposed upon the people who are not citizens, by the local authorities cannot be
questioned because they do not possess the qualification to receive all the benefits like the
citizens of the Union of Europe23.
In this case, there is a family of three people. Richard, who is a citizen of Britain, his wife
Aynoor, who is a citizen of Pakistan and their son Bill, who is also a citizen of Britain as
20 Dimitry Kochenov, and Sir Richard Plender, "EU citizenship: from an incipient form to an
incipient substance? The discovery of the treaty text", 2012.
21 Katja Kahlina, "Local histories, European LGBT designs: Sexual citizenship, nationalism,
and “Europeanisation” in post-Yugoslav Croatia and Serbia", Women's Studies International
Forum, 49, Pergamon, 2015.
22 Viktor Koska, "The evolution of the Croatian citizenship regime: from independence to EU
integration", 2011.
23 Roman Kuhar, "Playing with science: Sexual citizenship and the Roman Catholic Church
counter-narratives in Slovenia and Croatia", Women's Studies International Forum, 49,
Pergamon, 2015.

12
well. After shifting to Croatia, they encountered many issues regarding their employment and
the education. They were denied of the benefits given by the local authorities to them. The
sole reason behind such a bar was that they did not possess the citizenship of Croatia. Croatia
and United Kingdom are two different nations24. As a result of which the laws which are
prevalent in Croatia are different from that of United Kingdom. In the situation of Richard,
the doctrine of relation back would not apply. The laws of the United Kingdom was not
retrospective and did not apply in Croatia. Hence, the deprivation of the right to Richard was
upon a justified ground. Richard was a citizen of United Kingdom but not of Croatia25. Hence
he was not entitled to receive the benefits from the four year long completion increment from
the state run high school, where he was employed. His justification that he had been under the
employment in a public sector was not justified because he had been employed in a different
country altogether26. The rules which were applied in Britain, were not applicable in Croatia.
Hence, his denial was not unjustified because he had not spent three years of uninterrupted
stay in Croatia. He was a recent immigrant from United Kingdom. Thus, the laws would not
apply to him.
In case of the situation Aynoor, she possessed the citizen of Pakistan. Hence, she was also not
entitled to the benefits received by the citizens in Croatia. Aynoor wanted to pursue a higher
degree in her education. She undertook nursing as her career and wanted to achieve the post
of the head nurse. There was no bar of citizenship on attaining of the citizenship of Pakistan
to becoming a head nurse. But her problem arose when she desired to receive maintenance
and remuneration grants from the local education board. The grants were not permitted on
account of the local rules of the local board of education. The concession which was given to
the nursing students was restricted to the citizens of Croatia. This rule was justified. In this
24 Ruth Lister and Jo Campling, Citizenship: feminist perspectives, Macmillan International
Higher Education, 2017.
25 Maarten Peter Vink and Rainer Bauböck, "Citizenship configurations: Analysing the
multiple purposes of citizenship regimes in Europe", Comparative European Politics, 11(5),
2013, 621-648.
26 Amy Merritt and Tristan Stubbs, "Incentives to promote green citizenship in UK transition
towns", Development, 55(1), 2012, 96-103.

13
case, in order for Aynoor to utilize such grants she needs to fulfill the condition of citizenship
in Croatia by living there without interruption in Croatia for a minimum period of three
years27. Another remedy adopted by her would include getting herself registered at the
Croatian Embassy by the payment of the proper fees and in the requisite manner prescribed.
in case she does not fulfill these conditions, she would not be permitted for the grant of the
desired maintenance and the remuneration for her nursing education in the local university.
The laws imposed by Croatia are according to the rules and its constitution28. Anything done
in violation of these rules, would be in derogation with the laws prevalent under the Croatian
legislation and statutes. Thus, this was remedy that could be granted to Aynoor in the current
situation of the case.
After having advised the two main characters in the situation, Bill the 24 years old British
citizen had encountered certain issues after he shifted to Croatia. The ignorance of law is no
defence to the citizens as well as to the people of Croatia. As per the provisions of law, an
individual can be the citizen of Croatia once he has resided in the country for a consistent
period of three years without a break29. Another way of acquiring the citizenship is by way of
registration as a citizen of Croatia with the payment of the requisite fees in the prescribed
form and in the prescribed manner. Bill could not finance his education in law further, after
the completion of the first year. Instead of resorting to the social assistance for aid, he could
have contacted any local money lender. Then he would receive the desired pecuniary aid
from them. The concession and the special benefits received by the people was only
applicable to the citizens of Croatia. This was not an unjustified rule as the local authorities
were empowered to grant special leaves particularly to the citizens30. This was abided by the
constitution. There would be a violation of the laws prevalent in Croatia in case, there would
27 Janet Newman and Evelien Tonkens, Participation, responsibility and choice: summoning
the active citizen in western European welfare states, Amsterdam University Press, 2011.
28 M. Nye, S. Tapsell, and C. Twigger‐Ross, "New social directions in UK flood risk
management: moving towards flood risk citizenship?", Journal of flood risk management,
4(4), 2011, 288-297.
29 Audrey Osler, "Teacher interpretations of citizenship education: National identity,
cosmopolitan ideals, and political realities", Journal of curriculum studies, 43(1), 2011, 1-24.

14
be lack of equality among the citizens of Croatia. Thus, there was no deprivation of the
fundamental rights to Bill and he was not entitled to receive the pecuniary assistance on
account of his possessing the citizenship of United Kingdom.
Decision of the case:
After going through the facts of the case, issues involved and the provisions of law involved
in the case, it can be concluded that Richard, Aynoor and Bill were not specifically deprived
of any particular right. They did not possess the citizenship of Croatia because they had
recently shifted to Croatia from Britain. As a result of which, they were not entitled to receive
all the benefits which the citizens were entitled to receive in Croatia31. There would be
equality of rights and opportunities in the work sector and education sector only among the
citizens of the country. This was the rule according to the provisions of law prevalent for the
time being in force. But the granting of special benefits and opportunities would be justified
if they were granted to the citizens only32. This is because, the state owes a responsibility
towards the citizens of Croatia. Hence, Richard, Aymoor and Bill were not entitled to receive
the special rights which ere granted to the citizens and the prolonged residents of Croatia.
30 Laura J Quaynor, "Citizenship education in post-conflict contexts: A review of the
literature", Education, Citizenship and Social Justice, 7(1), 2012, 33-57.
31 Francesco Ragazzi and Kristina Balalovska, "Diaspora politics and post-territorial
citizenship in Croatia, Serbia and Macedonia", 2011.
32 Paul Stubbs and Siniša Zrinščak, "Citizenship and social welfare in Croatia: Clientelism
and the limits of ‘Europeanisation’", European Politics and Society, 16(3), 2015, 395-410.

15
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