Europe’s Second Soul

I.

The European Union would be well advised not to treat the European Economic Area as a historical leftover or a waiting room for eventual membership. If the strategists in Brussels had more foresight, they would stop trying to lure Iceland into the Union with dubious promises and instead recognise the EEA for what it is: Europe’s second institutional order.

From the beginning of European integration, Europe has been shaped by two distinct “souls”. One is the supranational and political logic embodied by the EEC, the EC and today’s EU. The other is the economically oriented, sovereignty-preserving logic of EFTA and, later, the EFTA pillar of the EEA. This duality was already implicit in the post-war treaties of 1957 and 1960.

This second structure matters for two reasons. First, it permits a measured form of systemic competition. The EEA/EFTA model shows that participation in the internal market does not necessarily require full political integration. Such competition is not a threat to the EU; properly understood, it is a corrective from which the Union itself can benefit.

Second, the EEA may still be needed as a bridge for countries that seek preferential access to the internal market without becoming members of the EU. The United Kingdom after Brexit is the most obvious case. Switzerland, too, has long struggled with the limits of bilateralism. The package now on the table consists of unequal treaties, with the European Commission acting as a de facto extraterritorial watchdog and the CJEU as an extraterritorial court. Even Turkey could one day require a more stable European framework. For all of them, the logic of the EEA remains highly relevant.

II.

Already in 2018, in the LSE Brexit Blog article “Two Souls in Europe’s Breast,” I pointed to this second European structure (Two souls in Europe’s breast | Monckton Chambers). The crucial insight was that Europe need not consist solely of the EU. Alongside a politically deepened Union, there can exist a market-based, treaty-backed order that preserves national sovereignty while ensuring participation in Europe’s economic space.

The legal and institutional affinity between the United Kingdom and the EFTA states reinforces this point. Their common emphasis on free trade, open markets, limited statehood and legal traditions less dependent on codified continental models makes the EEA/EFTA option intellectually and constitutionally more plausible than many in Brussels have been willing to admit.

This affinity should not be overstated. The Nordic legal tradition is not common law. It is closer to civil law: statutes matter most, legal reasoning is systematic, and court judgments are not binding in the English sense. But Nordic law is also less codified and more practical than German or French law. That brings it somewhat closer to common-law thinking. There are differences within the Nordic world. In my experience, Icelandic courts are less bureaucratic than Norwegian courts. In Norway, many judges have spent important parts of their careers in the state administration. In Iceland, that is less often the case. Icelandic judges therefore tend to act with more freedom and independence. In that respect, they stand somewhat closer to the common-law idea of courts as independent institutions.

The same is true, in a different way, of Switzerland. Switzerland is usually regarded as a civil-law jurisdiction. But when it comes to the role of the courts, it also stands close to the common-law tradition. Article 1 of the Swiss Civil Code gives the judge both the right and the duty, where there is no statutory rule and no customary law, to decide according to the rule he would make if he were acting as legislator. No less a figure than the later United States Supreme Court Justice Benjamin Cardozo drew attention to this provision. He saw in it an apt expression of the modern judge’s task: not to invent law at will, but to fill gaps responsibly, guided by doctrine and case law. Switzerland is therefore another example of a European legal order that is civil-law in form but gives courts a creative and independent role familiar to common-law lawyers.

These examples help explain why the EEA/EFTA order could appeal both to continental Europe and to Britain: it was civil-law enough for the internal market, but practical enough for common-law lawyers.

III.

The emergence of the New Hanseatic League after the Brexit referendum underlines the same point from within the EU itself (New Hanseatic League – European Sources Online). Denmark, Estonia, Finland, Ireland, Latvia, Lithuania, the Netherlands and Sweden sought to coordinate their positions as fiscally cautious, market-oriented northern states after the loss of the United Kingdom as a like-minded voice. Their cooperation showed that even inside the Union there remains a strong demand for open markets, fiscal discipline and resistance to unnecessary centralisation. In political terms, the New Hanseatic League was an intra-EU echo of the broader EFTA/EEA instinct: integration where it is useful, but without a theology of ever-closer union.

The 2016 Bruegel proposal for a “Continental Partnership” pointed in the same direction (Europe after Brexit: A proposal for a continental partnership). It envisaged, after Brexit, an outer European circle that would go far beyond a free trade agreement but would not require full supranational EU membership. In substance, however, this was close to the logic of the EEA/EFTA model: access to the internal market, common rules and institutional safeguards, but without full political integration.

Rather than constantly inventing new special arrangements, the EU should take the existing EEA seriously as a proven second European order. Europe’s “two souls” are not a weakness but a source of resilience: political deepening on the one hand, and economic cooperation with sovereignty on the other. The EEA embodies Europe’s second soul—and Europe may yet need it more than Brussels cares to admit.

Professor Dr. jur. Dr. rer. pol. h.c. Carl Baudenbacher, former President of the EFTA Court, former Visiting Professor at the University of Iceland.