Marja-Liisa Öberg unpacks the logic behind EU ‘decision-making autonomy’ – where only member states can participate in making EU decisions – suggesting that treating third countries as outsiders is not a flaw in the system but a fundamental policy choice that is unlikely to change any time soon.
Northern Ireland participates in the EU’s internal market which presupposes adoption of relevant EU legislation. In the new Windsor Framework, the Northern Ireland Assembly has been given a say on whether certain pieces of EU legislation will apply in Northern Ireland. Yet neither Northern Ireland nor other non-member states integrated in the internal market, such as Iceland, Liechtenstein or Norway have been provided with the means to participate in the making of EU law.
Participation and representation in the decision-making institutions, such as the Council and the European Parliament, is strictly limited to the member states. This lack of ability to influence the content of EU law which applies to third countries has been a common argument from non-member states against participation in the internal market.
It also invites a look into why third countries with access to the internal market have ended up in such an unequal relationship with the European Union.
When concluding agreements with third countries, the Union proceeds from an understanding that the EU shall maintain its ‘decision-making autonomy’. The term was coined in the late 1980s during the negotiations on the Union’s envisaged relationship with the European Free Trade Association. The negotiations resulted in the Agreement establishing the European Economic Area which provides for a nearly full participation of Iceland, Liechtenstein and Norway in the EU’s internal market.
The rationale behind the Union’s decision-making autonomy is to safeguard the cost of EU membership for the member states. Although associated third countries, too, make investments and take risks when aligning with EU law and policies, their overall set of obligations is not commensurable to membership. Only EU member states are bound by the supranational principles of the EU legal order and bear the full risks associated with the unanticipated future developments of the integration process.
Furthermore, membership in the Union is based on mutual trust. Within the EU, the rules, decisions and judgments from other member states must be accepted as equivalents to one’s own. In recent years, especially, mutual trust within the EU has been significantly challenged by Poland and Hungary’s rule of law crises. However, EU membership rests on the foundation of assumption of strong loyalty and trust among the member states. This assumption is tested prior to accession and accepted during membership and continues to encompass all member states.
The EU’s decision-making autonomy was emphasised during the Brexit process. Up until formally leaving the Union on 1 February 2020, the UK enjoyed full participation rights in the Union’s institutions while heading towards separation rather than (further) integration. It was suggested that the UK should not be granted more advantageous treatment than member states in order not to undermine the ‘cohesion and legitimacy’ of the EU legal order. The EU did not want to create an imbalance in the EU-UK relationship nor did it want to set a negative example for the EU’s relations with other associated countries.
During the transition period, the UK retained most of the rights and obligations of a member state. Nevertheless, pursuant to Article 7 of the Withdrawal Agreement, the UK no longer participated in, nominated or elected members of the EU institutions, nor participated in the decision-making of the Union bodies, offices, agencies and expert groups. The only exception were discussions at expert groups and various bodies which concerned issues connected to the transition period. Since withdrawal, the UK has no longer had access to the Union’s decision-making procedures.
From the EU’s perspective, treating third countries as outsiders is not a flaw in the system but a fundamental policy choice. It is intended to safeguard the Union’s political edifice and the exclusivity of membership. The EU’s decision-making autonomy is less concerned with excluding foreign influence but with protecting a privilege.
The privilege of membership provides a payoff for the member states that are devoted to the common project by allowing them to define the general direction and specific content of EU law and policies. For that privilege, the member states pay with their sovereignty, act in a spirit of loyalty, and assume the risks of supranational decision-making. In the latter, decisions can occasionally be adopted against single member states’ approval.
Removing the protective shield of decision-making autonomy to open for further expansion of the non-membership category could lead to a devaluation of EU membership. The cost of membership could no longer be balanced against the privileges thereof which include the voice in the making of the Union’s laws and policies.
In turn, allowing for third countries to participate in decision-making may dilute the distinction between insiders and outsiders. It may also lead to a loss of the strong core of member states driving EU integration further, reduce the attractiveness of membership and lead to increased disintegration. Insofar as the lessons of Brexit have taught that the latter is politically undesirable, decision-making autonomy seems to be there to stay.
By Dr Marja-Liisa Öberg, Associate Professor of EU law, Lund University.
This post draws on the article ‘Friend Zone Forever? The Essence of and Justifications for the EU’s Decision-Making Autonomy’ in the Journal of Common Market Studies.