Supranationality and National Legal
Autonomy in the EEA-agreement
Hans Petter Graver
ARENA
1. Introduction
The object of the EEA-agreement is ” to promote a
continuous and balanced strengthening of trade and
economic relations between the Contracting Parties with
equal conditions of competition, and the respect of the
same rules”. For this purpose, the aquis
communitaire of the European Community regarding the
four freedoms, the competition rules and rules regarding
the Community's activities in the fields of:
- Research and technological development,
- information services,
- the environment,
- education, training and youth,
- social policy,
- consumer protection,
- small and medium-sized enterprises,
- tourism,
- the audio-visual sector, and
- civil protection,
are included into the agreement. [1]
The object of homogeneity is dynamic in the way that
the agreement not only seeks to establish a regime of
common rules, but also to maintain this, in light of the
development of legislation and jurisprudence within the
Community. For this purpose, the agreement establishes a
mechanism for revising and supplementing the agreement
following the development of new legislation within the
Community. [2]
Article 102 states that: ”In order to guarantee the
legal security and the homogeneity of the EEA, the EEA
Joint Committee shall take a decision concerning an
amendment of an Annex to this Agreement as closely as
possible to the adoption by the Community of the
corresponding new Community legislation with a view to
permitting a simultaneous application of the latter as
well as of the amendments of the Annexes to the
Agreement. To this end, the Community shall, whenever
adopting a legislative act on an issue which is governed
by this Agreement, as soon as possible inform the other
Contracting Parties in the EEA Joint Committee.”
The agreement also establishes a
system to ensure as uniform an interpretation as possible
of the Agreement. [3]
A system of exchange of information concerning judgements
by the EFTA Court, the Court of Justice of the European
Communities and the Court of First Instance of the
European Communities and the Courts of last Instance of
the EFTA States is set up by the EEA Joint Committee
according to article 106. There are provisions to provide
for that the jurisprudence of the European Court of
Justice is given due account in the interpretation of
provisions of the EEA-agreement that are ”identical
in substance to corresponding rules of the Treaty
establishing the European Economic Community and the
Treaty establishing the European Coal and Steel Community
and to acts adopted in application of these two
Treaties”, namely art. 6 of the EEA agreement and
art. 3 of the Surveillance and Court Agreement.
The formal status of the
agreement, however, is that of an ordinary international
treaty. The EFTA states have not ceded formal sovereignty
to international or supranational bodies, be they of the
EFTA, EEA or the EU. [4]
The negotiations for the EEA agreement were based on the
fact that the Constitutions of most EFTA countries give
the national parliaments an exclusive right to legislate,
so that direct effect of provisions under the agreement
into national law would be unacceptable as part of the
agreement. [5] The
EEA-agreement therefor sought to establish common rules
without a common supranational power. This has been
characterised as mixing oil and vinegar [6] and as trying to
reach for the “nearly impossible”. [7]
In a situation where EU membership is undesirable or
unobtainable, the Agreement can be seen as a project of
risk-reduction. It ensures equal access for economic
operators to the enlarged European market. The legal
obligations ensure that this is not suspecting to
political whim, thus reducing economic risks by removing
or at least reducing political and social risks. From
this point of view the Agreement can be seen as a bargain
where legal obligation and reduced autonomy are traded
for reduced risks to economic operators.
Experience shows that the early observations were
correct when pointing to dilemmas. On the surface, all
may seem well. The agreement constitutes an agreement
under international law, which has to be transposed into
national law according to the rules and procedures of the
specific national legal system. As legal conflicts arise,
paradoxes appear. The agreement itself requires more of
the national legal system than a “normal”
international treaty. The EFTA Court poses challenges to
the point of departure in international law. The fact
that the main part of the agreement has been transposed
into the law of the EFTA states as national legislation
gives rise to the question of what actually has been
transposed into national law. Finally, the ordinary
legislative process within the Community is not the only
challenge to the dynamics of the agreement. Such
challenges are posed also by changes of the treaties that
constitute the European Union, and therefor also the
Community.
2. Provisions in the agreement beyond public
international law
There is no duty in public international law to give
treaties direct effect into the national legal system.
Public international law is concerned with the state as a
legal entity under international law, not with the
different organs of the state under national law. The EEA
agreement differs to a certain extent from this general
starting point. Although the agreement does not reach as
far into the internal workings of the national legal
order as Community law, it has obligations and rules that
have as their subjects different organs of the state.
Both article 7 and protocol 35 concern directly the
national legislator. Article 7 states that an act
corresponding to an EEC regulation shall as such be made
part of the internal legal order of the Contracting
Parties. An act corresponding to an EEC directive shall
be, or be made, part of their internal legal orders, but
shall leave to the authorities of the Contracting Parties
the choice of form and method of implementation. Protocol
35 states that for cases of possible conflicts between
implemented EEA rules and other statutory provisions, the
EFTA States undertake to introduce, if necessary, a
statutory provision to the effect that EEA rules prevail
in these cases. The EEA agreement in
other words obligates the EFTA states to implement all
parts of the agreement, that is to give them effect in
the national legal system, and to give these rules
primacy over national legal rules. This may be
characterised as “a qualified obligation under
international law to secure the primacy of EEA provisions
in analogy to Community law.” [8]
Direct effect and primacy may not follow from the
agreement itself, but the agreement dictates that it
shall follow from implementing provisions of national
law. The question of course is what happens when national
law fails to perform according to these obligations. [9]
There are also provisions addressed directly at the
national courts. The most obvious is article 6 which
states that ”the provisions of this Agreement, in so
far as they are identical in substance to corresponding
rules of the Treaty establishing the European Economic
Community and the Treaty establishing the European Coal
and Steel Community and to acts adopted in application of
these two Treaties, shall, in their implementation and
application, be interpreted in conformity with the
relevant rulings of the Court of Justice of the European
Communities given prior to the date of signature of this
Agreement.” Recital 15 of the preamble also
addresses the Courts and states: ”in full deference
to the independence of the courts, the objective of the
Contracting Parties is to arrive at, and maintain, a
uniform interpretation and application of this Agreement
and those provisions of Community legislation which are
substantially reproduced in this Agreement and to arrive
at an equal treatment of individuals and economic
operators as regards the four freedoms and the conditions
of competition”. It can even be argued that article
3 and the obligation of loyalty to the agreement, also
refers to the courts.
So much for the obligations of the
agreement. Also on the level of rights entailed in the
agreement, it can be seen that it reaches further into
the realm of national law than traditional international
treaties. Individual rights under international
agreements are no longer uncommon, and the EEA agreement
falls into this tradition. This can be seen already by
the eighth recital of the preamble, which states
”the important role that individuals will play in
the European Economic Area through the exercise of the
rights conferred on them by this Agreement and through
the judicial defence of these rights”. The rights
hereby referred to, are of course the rights entailed in
Community legislation that are ”substantially
reproduced” in the agreement. The content and nature
of these rights have lead commentators to characterise
the basic rules of Community law as a Wirtschafftsverfassung.
[10]
It is well known that rights for the individual to
access national courts on the basis of Community rules
form an integral and important part of Community law. The
EEA agreement is ambiguous on this point. On the one hand
the agreement presupposes national transformation for its
rules to take effect if that is required by the national
law of an EFTA state. On the other hand, its specific
provisions substantially reproduce Community rules in
such a way that they confer rights upon individuals. This
follows from the rules themselves read in connection with
article 6, which states that these rules be interpreted
in conformity with the relevant rulings of the Court of
Justice of the European Communities given prior to the
date of signature of the agreement. The dividing line
here is 2 May 1992.
Therefore, despite the fact that the
agreement has been characterised as a treaty under public
international law, it contains clear elements that go
beyond most such treaties towards elements of
supranationality. It may lack institutions with powers to
legislate such as the European Parliament and the Council
in the European Union. The EFTA Court does not have the
same monopoly and status regarding the agreement as the
ECJ has towards community law. The agreement on the other
hand does contain elements that in the Community legal
context have been important in the characterisation of
Community law as a “a new legal order of
international law for the benefit of which the states
have limited their sovereign rights, albeit within
limited fields, and the subjects of which comprise not
only the member states but also their nationals”. [11]
3. Developments by the EFTA Court
Taking the text of the agreements as
a starting point, one can see further developments in the
direction of supranationality in the jurisprudence of the
EFTA Court. In the Sveinbj�rnsdottir case, the Court
stated that the agreement is "an international
treaty sui generis which contains a distinct legal order
of its own" that "is less far-reaching than
under the EC Treaty, but the scope and the objective of
the EEA Agreement goes beyond what is usual for an
agreement under public international law". [12] The premises for
this conclusion are the objectives of homogeneity and to
ensure individuals and economic operators equal treatment
and equal conditions of competition, as well as adequate
means of enforcement.
In Sveinbj�rnsdottir, the Court found that the
homogeneity objective and the objective of establishing
the right of individuals and economic operators to equal
treatment and equal opportunities are so strongly
expressed in the EEA Agreement, that the EFTA States must
be obliged to provide for compensation for loss and
damage caused to an individual by incorrect
implementation of a directive. The Court did not go so
far as to state that such an obligation is directly
effective in the national law of the Contracting Parties.
On the contrary, the Court stated that the Agreement does
not entail a transfer of legislative powers. From a
strict technical point of view, it is a different matter
whether such a rule has been implemented into national
law along with the other parts of the agreement more
expressly provided for in the wordings of its different
articles.
In line with reasoning developed
already in Restamark, the Court, however, pronounced a
rule that may be characterised as quasi direct
effect, when it stated that “the principle of State
liability must be seen as an integral part of the EEA
Agreement as such. Therefore, it is natural to interpret
national legislation implementing the main part of the
Agreement as also comprising the principle of State
liability. [13] In
Restamark, the Court, commenting upon the national
implementation of protocol 35, stated: ”Protocol 35
EEA on the Implementation of EEA Rules stipulates that
the EFTA States are under an obligation to ensure, if
necessary by a separate statutory provision, that in
cases of conflict between implemented EEA rules and other
statutory provisions the implemented EEA rules prevail.
It is inherent in the nature of such a provision that
individuals and economic operators in cases of conflict
between implemented EEA rules and national statutory
provisions must be entitled to invoke and to claim at the
national level any rights.” [14]
In my view, the Court here goes far into the tasks for
the national courts namely the interpretation of national
law implementing the EEA agreement. In Sveinbj�rnsdottir
the Court directly refers to the interpretation of
national law and expresses its opinion on how it is
“naturally” interpreted. I Restamark, the Court
when referring to “such a provision” that must
be interpreted to the effect that implemented EEA rules
have primacy over national rules, is referring to the
national rule implementing protocol 35. The Court in this
way blurs the boundaries between international law and
national law thus giving the Agreement a certain effect
in national law directly and independently of national
law itself.
It may be argued that the Court does not go very far
in this direction. It is, after all, tied to national
rules that implement the agreement. On this basis one can
say that there are no direct effects independent of
national implementation if national law requires such. To
this one may counter that the Court is referring to the
basic implementing measures of the main parts of the
Agreement. It is unthinkable for an EFTA state not having
implemented the main parts. When the EFTA Court
endeavours upon giving these measures an independent life
of their own, this for all practical purposes amounts to
influencing not only the interpretation of the Agreement
itself, but also on the way the Agreement takes effect
into national law.
It may also be true that the interpretations of
national law, which the Court finds �inherent� or
�natural�, are not very far-reaching or controversial.
It is not very arguable that a rule implementing protocol
35 that in cases of conflict between implemented EEA
rules and other statutory provisions the implemented EEA
rules prevail, will entail a rule that implemented EEA
rules have primacy over national rules. But does this
also extent to national statutes that are of a more
recent date than the implemented EEA rule? Protocol 35
clearly by its wording covers this situation, also in the
case where it is clear that the national provision is
intended as a deviation from the implemented EEA rule.
But does protocol 35 require a national provision to the
effect that EEA rules cannot be unimplemented? And if
that is the case, is it “inherent” in a
national provision implementing protocol 35? It is
clearly arguable whether it is for the EFTA Court to
pronounce upon what is “inherent” in provisions
of national law. The interpretation of Sveinbj�rnsdottir
is perhaps even more arguable. The Court here includes in
the national implementation liability of the state, a
rule that is not expressly included in the agreement. It
is a form of “implementation without
implementation”. For the time being, this is limited
to state liability, since this principle “must be
seen as an integral part of the EEA Agreement as
such”. But what about other
principles of Community law such as the duty of loyalty
of the national courts, administrative principles of
proportionality and protection of legitimate
expectations, protection of human rights etc.? Are these
also “integral parts” that must be seen as
implemented as a consequence of the implementation of the
Agreement itself? [15]
It is tempting to ask how this differs from the principle
of direct effect of treaty provisions as found in
Community law. If the primacy entailed in the
implementation of protocol 35 includes the wider scope of
implementation suggested in Sveinbj�rnsdottir, then a
hierarchy of norms is introduced into the EEA agreement.
The main parts of the agreement, including judge made
principles, have a status in national law that amounts to
direct effect and primacy.
The jurisprudence of the EFTA Court in my view shows
that the court is ready to approach the dilemmas inherent
in the conflict between homogeneity and sovereignty by
way of further extending the agreement beyond the scope
of a normal international treaty.
4 Responses in national law
There are two sides of the coin
regarding the effects of the EEA agreement in national
law. I will approach this question from the perspective
of dualist states, that is a state where national
implementing measures are necessary for rules of
international law to take effect in the national legal
system. This is the case of Norway and Iceland, but not
of Liechtenstein, or for that matter, the European
Community. [16]
The starting point in a dualist state is that rules of
international law have to be implemented by national
legal measures. This does not totally exclude that such
rules have any effect in national law. International law
may be drawn upon when interpreting national law, and
national law is often interpreted under a presumption
that it conforms to the international obligations of the
state. A legal conclusion cannot, however, be drawn
exclusively from international sources, and international
legal rules cannot have primacy over domestic rules
without express provisions of national law.
From the point of view of
Norwegian law, the core of the dualist principle has
constitutional status. This follows from � 1 of the
Constitution, which states the independence of the
nation, and several articles that endow the legislative
power to the Parliament. This entails that it is not
possible to state that all international law shall be
directly effective in Norwegian law without changing the
Constitution. [17]
It may also entail that adopting principles that amount
to direct effect and primacy for non implemented rules of
EEA law, may be barred by the constitution. This was the
argument of the Norwegian State in a recent case for the
Norwegian Supreme Court and the Court in a preliminary
ruling on the right of the state to intervene in the case
left the question open. [18]
The case concerns the relationship between national
provisions and a directive that is incorrectly
implemented. The Court has not yet heard the case. It
therefore remains to be seen whether the Court will
pronounce anything to this question, and in that case,
what will be pronounced.
The Icelandic Supreme Court stated in
its ruling in Sveinbj�rnsdottir that it is natural that
the act implementing the main part of the EEA agreement
is interpreted in such a way that an individual has a
claim to that Icelandic legislation is brought in harmony
with EEA rules. Insofar this is not accomplished, it
follows from the act and the fundamental principles of
the EEA agreement that the state undertakes a liability
under Icelandic law. [19]
The court here clearly regards the implemented main part
of the agreement as national Icelandic law, and in this
includes the fundamental principles of the agreement. It
also announces its will to abide by advisory opinions
from the EFTA Court unless there are special
circumstances that require exemption from it.
An interesting point in this judgement is that state
liability is not based on an interpretation of internal
legal sources. Liability follows from the specific
EEA-implementing act and the agreement itself. It is
equally clear that state liability is not part of the
agreement in such a way that it can be said that the
state openly undertook this obligation upon signing the
agreement and implementing it into national law. The
clear fact of the matter is that the EFTA Court, based on
a construction advised the Icelandic Supreme Court to
find the state liable, and the Supreme Court, unable to
find special circumstances to justify a deviation from
this advice, felt obliged to impose this EEA-specific
liability. The legal mumble jumble differs, but the
realities certainly resemble the Community situation
where the right to compensation follows from community
law, and that individuals are entitled to invoke this
right before their national courts.
5 Beyond the Common Market
The EEA Agreement was negotiated and
signed by the European Communities prior to the
establishment of the European Union by the Maastricht
treaty. The treaty of Amsterdam has further developed the
treaties. Treaty reforms are an important part of
developing the economic co-operation between the member
states. Illustrating examples are the Single European act
from 1986 facilitating the establishment of the single
market and the Maastricht treaty revising the freedom of
capital movements and establishing the monetary union. [20]
Treaty reforms not only add new
aspects to the co-operation and concern institutional
developments. Several of the reforms are also within the
scope of the common rules of the EEA Agreement. The new
rules on movement of capital introduced in the Maastricht
treaty affect the Agreement directly, where the rules on
capital are based on the old directive 88/361 on
liberalisation of capital movements. [21] The economic and
monetary policy, whereby Member States shall conduct
their economic policies with a view to contributing to
the achievement of the objectives of the Community,
affect potentially interpretation and application of all
four freedoms. The union citizenship may affect the free
movement of persons. Several of the revisions from the
Amsterdam treaty possibly affect the content and
interpretation of the four freedoms and competition rules
entailed in the EEA Agreement. This is notably the case
for the new article 16 EC on services of general
interest, the protocol on public broadcasting and for
amendments in article 2, 3 and 6 giving potentially more
weight on the cross-sectional obligation to protect the
environment, to promote employment and to promote
equality between men and women. [22]
Changes in the objectives and
policies of the European Community Treaty may affect the
homogeneity of the EEA. It is well established in case
law that differences in objectives may lead to
differences in the interpretation of provisions that are
identical or similar in their wording. [23] To the extent
that changes in the treaties of the EU challenge the
homogeneity of the EEA, the question arises as to by
which mechanisms homogeneity may be re-established, if at
all.
The EEA-agreement does not seek to curb development of
Community law. On the contrary, as set out in the
introduction above, the Agreement contains several
mechanisms to assure its dynamic development alongside
the development of Community law. These mechanisms do
not, however include revisions and amendments of the
treaties establishing the Community and the European
Union. One solution to this is to amend the EEA-agreement
itself to reflect amendments in the treaties of the
Union. This is of course an option. This option makes
clear, however, that a dynamic homogeneity is not
achieved by the EEA-agreement as it now stands. This
conclusion rather admits that the EEA-agreement fails to
meet its most central objective of establishing a dynamic
and homogeneous European Economic Area, based on common
rules and equal conditions of competition. Dramatic as
this conclusion may seem, it is in no way surprising in
light of the importance that treaty amendments have had
and will have in the development of the European Union.
If this is true, then the EEA is eroded a little bit
every time treaty amendments of the EU take effect in
influencing corresponding rules in the Community.
Another option is to let the interpretation of the
EEA-agreement reflect the development in the
interpretation of the corresponding Community provisions.
To a certain point, at least the amendments of the EC
treaty by Maastricht and to some extent Amsterdam were
foreseen in the EEA agreement. The objectives of the EEA
Agreement as stated in the preamble for this reason
differ from the tasks and policies as stated in the EC
treaty at the time of the signing of the agreement.
Recital 10 states a high level of protection concerning
health, safety and the environment as a basis for further
development of the rules. Recital 11 states the
importance of the development of the social dimension,
including equal treatment of men and women, in the
European Economic Area. In a joint declaration to the
agreement, the EFTA states declared their commitment to
the principles and basic rights ensured in the 1989
Community Charter of the Fundamental Social Rights of
Workers. This charter has now been incorporated into art
136 of the EC treaty.
A closer scrutiny of the objectives
and goals of the EEA Agreement may therefore facilitate a
development in the interpretation of its provisions in
line with case law from the ECJ based on the renewed
treaty basis. It seems to me that the interpretation of
article 81 in the Albany case could also be defended in
the EEA context. Here the court found that agreements
concluded in the context of collective negotiations
between management and labour in pursuit of social policy
objectives must, by virtue of their nature and purpose,
be regarded as falling outside the scope of Article 81(1)
of the Treaty. [24]
The Court based its conclusion on Article 2 of the EC
Treaty that after the amendment provides that a
particular task of the Community is to promote throughout
the Community a harmonious and balanced development of
economic activities and a high level of employment and of
social protection. Furthermore, the conclusion was based
on the new article 136 and the agreement on social
policy. Based on the preamble to the EEA Agreement and
the joint declaration of the EFTA states, it could be
held that this is in conformity with the objectives of
the agreement.
There is no doubt that many of the developments in
interpretation of community rules based on an enhanced
weight on social policy, environment and equal rights for
men and women could be accommodated into the
interpretation of corresponding rules in the EEA
Agreement. Such an approach does not, however, solve the
question of to which extent this development should
be reflected into the agreement. To hold that the EFTA
states are under an obligation to let their obligations
be influenced by revisions of the treaties between the
member states of the European Union would certainly be to
give a new meaning to the concept of supranationality.
This would amount to a situation where the EFTA states
were legally bound to developments caused by treaties
concluded by foreign states. It is in no way clear what
such an obligation should entail. Would it be up to the
courts to decide, or would it be an obligation for the
legislator of the EFTA states? New treaties and treaty
revisions in the EU are not matters that may be brought
before the EEA Joint Committee. There is therefore no
cause for implementing the dispute settlement provisions
of article 102.
There are other changes in the treaties that are not
easily reflected in the Agreement by way of its own
formulations of goals and objectives. There is for
instance scant if any basis in the agreement to combat
discrimination based on racial or ethnic origin, religion
or belief, disability, age or sexual orientation. There
can be no basis in the agreement to obligate the EFTA
states to reflect these aims in the interpretation or
application of its provisions.
The arguments above may seem to be of a more academic
than practical nature. The will to find solutions is
presumably high on all sides. The political development
of the EU with higher emphasis on environment, social
policy and services of general interest is easily
supported by mainstream politics in the EFTA Countries.
But this situation may alter. Political priorities may
change both in EFTA states and in the EU. Instead of
convergence one may have divergence. As soon as this
happens, the challenges are much greater, and the
distinction between law and politics will become clearer.
A situation with diverging political priorities is of
course a challenge also to a structure like the European
Union. In the EU it means that the political co-operation
looses pace. Within the EEA where the core of common
rules is burrowed by differences in main objectives, more
is at stake.
If the EFTA-states are under no obligation to let the
changes in Community law be reflected in the agreement,
clearly this must also apply to the other side, the
Community and the member states of the EU. Little by
little homogeneity may then disintegrate. The practical
consequence of this may be for instance that measures
restricting competition to protect for example the
elderly from discrimination in an increasingly risk and
cost based society, may be justifiable in member states
but not an option under the EEA-agreement. Following the
judgement in Polydor, this may open for an interpretation
of the EEA agreement by the ECJ, which allows
restrictions on the import of goods and services from
EFTA states.
The EFTA states voluntary undertaking
to follow the development of the EU could mitigate this
risk. Voluntary adaptation to Community law has been the
road taken by Switzerland in its relation to the
Community. For many purposes this may be a viable option
to a reciprocal agreement. [25]
But the question may then arise of the purpose in having
the EEA Agreement at all. The EEA Agreement may even to a
certain extent hinder this option. Restrictions on
competition and free movement based on later developments
in the basis of the Union may technically be contrary to
the EEA agreement as it stands. Probably the leeway to
protect the environment and equal treatment of men and
women is greater under Community law today than it was in
1992. Does that mean that it is also increased under the
EEA Agreement? In other relations, member states` room to
manoeuvre is decreased. Restrictions on capital movements
and the use of safeguard clauses to protect economic
policies are harder to justify after Maastricht than
before. Clearly that cannot mean increased obligations on
the EFTA states?
The EEA Agreement is an attempt to tie the EFTA-states
to the internal market of the EU, without the EFTA states
having to sacrifice their sovereignty and legal autonomy.
As the analysis above has shown, one may question the
success of the agreement on both these accounts.
It can be argued that the agreement in these respects
fulfilled its goals at the outset. The agreement
replicated Community law at the time by copying all
relevant provisions in the treaties and secondary
legislation, and by adopting the aqui en bloc
through article 6. It was recognised that to take effect
in the autonomous national legal systems, the agreement
had to be adopted, and obligations were provided for this
reason in article 7 and protocol 35. Once this was
undertaken by the EFTA states, homogeneity was ensured by
legal means. Homogeneity was not only a one-sided
undertaking by the EFTA-states to adapt to the single
market of the Community.
In the time that has passed, this
picture has changed. The inherent difficulties in
reconciling homogeneity with autonomy have become more
acute. On the one hand, the development is towards less
autonomy for the national legal systems. The EFTA Court
seeks to influence national implementation by demanding
compensation to individuals for failures in the national
legal systems, and by developing what amounts to direct
effect and supremacy for the main parts of the agreement,
independent of the national implementation. So far this
seems to have been accepted by the courts in Iceland and
Liechtenstein. The question in Norway is still more open.
[26]
On the other hand, the question of whether the EEA
still is based on the same rules as apply within the
single market may be raised. Community law develops in a
way that is not legally reflected within the agreement.
This being the case, homogeneity rests not upon
obligation, but upon voluntary adaptation by the EFTA
states to Community law. It may be argued that this is
not so different from the case with developments in
secondary legislation, which has to be agreed upon by the
EEA Joint Committee to become part of the Agreement. In
this way it is true that substantial parts of the
dynamics of the agreement is always dependent upon
political will. There is, however, a main difference.
When applying the agreement itself, article 102 more
specifically, the EFTA states have a legal claim to
homogeneity, and once they invoke this, they become
legally bound by it. When it comes to the dynamics of
treaty revisions, there is no such legal claim, and the
EFTA states are not legally bound by their voluntary
adaptation. The alternative, that they were legally
bound, would imply that they were bound by the way of
dynamic interpretation of the agreement, and not by
political decision. This would raise serious questions
about sovereignty and legally autonomy, since it would
entail that the EFTA states are bound by treaties
concluded by a group of states in which they are not
included.
So it may be concluded that despite the EEA Agreement
becoming increasingly supranational, this does not
achieve homogeneity. Instead of reducing political and
economic risks by legal obligations, both the obligations
and the risks are increased.
Footnotes
[1]
For a comparison in scope and content between the
EEA-agreement and Community law see Peter-Christian
M�ller-Graff, EEA-agreement and EC Law: A Comparison
in Scope and Content in M�ller-Graff and Selvig
(eds.) The European Economic Area – Norway’s
Basic Status in the Legal Construction of Europe,
Berlin1997 (M�ller-Graff and Selvig 1997). See also
Thomas Bruha, Is the EEA an Internal Market? in
M�ller-Graff and Selvig (eds.) EEA-EU Relations,
Berlin1999 (M�ller-Graff and Selvig 1999).
[2]
For an overview see Fredrik Sejersted, Between
Sovereignty and Supranationalism in the EEA Context
in M�ller-Graff and Selvig 1997.
[3] See
Sejersted in M�ller-Graff and Selvig 1997 and for more
sepcific analysis of the relationship between the EFTA
Court and the ECJ Hans Petter Graver, The Efta Court
and the Court of Justice of the EC: Legal Homogeneity at
Stake? And Carl Baudenbacher, The EFTA Court and
the European Court both in M�ller-Graff and Selvig
1999.
[4]
The one exception to this is in competion law, where ESA
has many of the same compences towards operators inh EFTA
countries as the Commision has within the EU, see
Sejersted in M�ller-Graff and Selvig 1997.
[5]
See H�kon B�rde, The European Economic Area, Norway
and the European Union, in M�ller-Graff and Selvig
1997 and Henrik Bull, Monetary Union and the Capital
Market: The Internal Market for Financial Services,
Norwand the EEA, in M�ller-Graff and Selvig (eds.)
on p. 181 with refernce to St.prp.nr. 100 1991-92.
[6]
B�rde in M�ller-Graff and Selvig 1997.
[7]
M�ller-Graff in M�ller-Graff and Selvig 1997.
[8]
M�ller-Graff in M�ller-Graff and Selvig 1997.
[9]
The simple answer is that this constitutes a breach of
international obligations to be settled under the treaty
it self and according to general principles of
international law. The EFTA court has, however, stated
that the state is liable to provide for compensation for
loss and damage cause to individuals by breaches of the
obligations under the EEA Agreement in case E-9/99
between Erla Mar�a Sveinbj�rnsd�ttir and The
Government of Iceland. It has also been argued that
the obligation to give primacy and direct effect does not
exclude the possibility of direct effect and primacy
without national implementation, see most recently Bruha
in M�ller-Graff and Selvig 1999.
[10]
Se for example Hans Peter Ipsen, Europ�isches
Gemeinschaftsrecht, J.C.B. Mohr (Pauil Siebeck),
T�bingen 1972 pp. 565-567.
[11]
Case 26-62 van Gend & Loos v Netherlands
Inland Revenue Administration 1962 ECR 26.
[12]
Case E-9/97 Erla Mar�a Sveinbj�rnsd�ttir and The
Government of Iceland paragraph 59.
[13]
Case E-9/97 Erla Mar�a Sveinbj�rnsd�ttir and The
Government of Iceland paragraph 63.
[14]
Case E-1/94 Ravintoloitsijain Liiton Kustannus Oy
Restamark paragraph 77.
[15]
For a discussion on the possible inclusion of fundamental
principles of Community law in the EEA agreement see
Sejersted in M�ller-Graff and Selvig 1997 pp. 54-58.
[16]
For this reason I do not agree with Thomas Bruha in
M�ller-Graff and Selvig 1999 pp. 116-117 in that the
ruling of the Court in First Instance in case t-115/94 Opel
Austria Gmbh v. Council 1997 ECR II-39 has
much relevance to the question of direct effect of the
agreement. The Court here pronounces on a rule of community
law on the effect of the international obligations of
the Community in its own legal system.
[17]
See Torkel Opsahl, Noen sider av problemet om overgang
til et "monistisk" system i Norge NOU
1972:16 p. 99-112
[18]
Ruling of the Supreme Court in plenary session 22 August
2000 in Ankesak nr. 55/1999.
[19]
Ruling of the Supreme Court 16 December 1999 my
translation from Danish.
[20]
For an analysis of the dynamics of treaty reforms based
on the case of the Amsterdam treaty, see Ulf Sverdruo,
Precedents and Present Events in the European Union: An
Institutional Perspective on Treaty Reform in Neunreither
and Wiener (eds.) 2000.
[21]
See Henrik Bull in M�ller-Graff and Selvig (eds.) 1999.
[22]
See Peter-Christian M�ller-Graff, The Treaty of
Amsterdam: Content and Implications for EEA-EU Relations,
in M�ller-Graff and Selvig (eds.) 1999.
[23]
See ECJ case 270/80 Polydor, 1982 ECR p. 329,
opinion 1/91 on the EEA Agreement 1991 ECR p. I-6079 and
EFTA Court case E-2/97 Maglite, 1997 REC p. 127.
[24]
Case C-67/96 Albany International BV v Stichting
Bedrijfspensioenfonds Textielindustrie 1999 nyr paragraph
60.
[25]
See Stephan Kux and Ulf Sverdrup, Fuzzy Borders and
Adaptive Outsiders: Norway, Switzerland and the EU,
European Integration, 2000, Vol. 00, pp. 1-34 for a
comparison of the two approaches.
[26]
The issue is different in Liechtenstein due to its monist
approach to international obligations. The Supreme Court
of Liechtenstein has, however, expressely affirmed the
direct effect of the Agreement, se to this Thomas Bruha
in M�lle-Graff and Selvig (eds.) 1999.
[Date of publication in the ARENA
Working Paper series: 15.10.2000]
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