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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....
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