1 Introduction
The development of European cooperation, from the EURATOM treaty of the early 1950s to today’s European Union, may be characterised as an evolution from a co-operation between European states towards a federation of European states; already labelled by the European Court of Justice (ECJ) in 1963 as a “new order of international law” (in case 26/61, Van Gend en Loos).
The establishment of the European Communities, the enlargement from the original six to a community of twelve, and in particular the single market, established by the Single European Act of 1986, together necessitated a closer link both between European states who were not part of the (then) European Communities, as well as between those states and the European Communities. An early unilateral step in this direction was Norwegian Prime Minister Brundtland’s letter to the Norwegian ministries in 1987, requiring that proposals for new legislation should consider relevant community law, and that departures from community law should be explained and justified. The dissolution of the Soviet Union, the fall of the Iron Curtain and the end of the Cold War provided a window of opportunity for the members of the European Free Trade Association (EFTA)(1) EFTA was founded in 1960 by Austria, Denmark, Norway, Portugal, Sweden, Switzerland and the United Kingdom. Finland joined in 1961, Iceland in 1970 and Liechtenstein in 1991. In 1973, the United Kingdom and Denmark left EFTA to join the EC. They were followed by Portugal in 1986 and by Austria, Finland and Sweden in 1995. Today the EFTA Member States are Iceland, Liechtenstein, Norway and Switzerland. to link themselves to the development of the European Communities. The Agreement on the European Economic Area (the EEA Agreement) is one of these links,(2) Oporto, 2nd May 1992. or gateways, and constitutes a development from free trade between markets, to integration of markets.(3) See Peter-Christian Müller-Graff, EEA-Agreement and EC Law, in Peter-Christian Müller-Graff/Erling Selvig eds., The European Economic Area. Deutsch-Norwegisches Forum des Rechts, Band 1, page 17 et seq.
The EEA Agreement was negotiated and signed more or less in parallel with the Treaty on European Union (TEU).
A draft treaty was presented in 1991, and the treaty on European Union was signed in February 1992. The Treaty entered into force in November 1993. The negotiations on what was to be the EEA Agreement were opened in June 1990, and completed in April 1992. The EEA Agreement was signed in May 1992, and the agreement entered into force in January 1994.(4)As for the implications of this for the interpretation of the EEA Agreement, see case E-1/01, Einarsson, para 43. Here the EFTA Court was invited to base its interpretation of art. 14 EEA on an analogous application of Article 6(3) TEU, now Article 4 (2) TEU. This provision stated that the Union respects the national identities of the Member States. The EFTA Court, however, rejected this invitation on the basis that the EEA Agreement contains no corresponding provision, and as the Treaty on European Union was negotiated before the conclusion of the EEA Agreement, it had to be assumed that this discrepancy was intentional.
One of the features of the TEU was its three-pillar structure. The European Communities constituted one of these pillars. The substantive provisions of the EEA Agreement mirror provisions in this first pillar. The two other pillars – the Common Foreign and Security Policy, and Justice and Home Affairs – were not reflected in the EEA Agreement.
The institutional setup of the EEA Agreement reflects this structure. Since the completion of the EEA Agreement, the treaties constituting the European Communities have been changed a number of times, and from a EEA perspective there are two changes in particular that are worth reflecting on: the increase in the European Parliament’s legislative role, and the removal of the three-pillar structure.(5) The three-pillar structure was abolished by the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, effective from 1st December 2009. The main part of the EEA Agreement, however, remains unchanged. And because nothing – from the perspective of the EEA Agreement – has changed, it could be argued that a lot of things have.(6) For a discussion of the impact of these changes on the EEA, see Peter-Christian Müller-Graff, The Treaty of Amsterdam: Content and implications for EEA-EU Relations, in Peter-Christian Müller-Graff/Erling Selvig eds., EEA-EU Relations. Deutsch-Norwegisches Forum des Rechts, Band 2, pp. 11 et seq. See also the excellent treatise by Halvard Haukeland Fredriksen and Christian K. Franklin, Of Pragmatism and Principles: The EEA Agreement 20 years on, [2015] Common Market Law Review 52, pp 629-684.
In case E-9/97 Sveinbjörnsdóttir, the EFTA Court paraphrased the ECJs findings in case 26/62, Van Gend en Loos, and found that the EEA Agreement contains “a distinct legal order of its own”, different both from the legal order of the European Union and from what is usual for agreements under public international law.(7) Case E-9/97, para. 59. The task of this paper is to elaborate upon the characteristics of this legal order.
The EFTA Court has not so far had the opportunity to elaborate upon the features that separate the legal order contained in the EEA Agreement from what is usual for agreements under public international law, but a number can nonetheless be discerned. First, the EEA Agreement presupposes that the EFTA/EEA States will establish an independent surveillance authority to monitor the implementation of the agreement in those EFTA states which are parties, as well as a court to settle disputes over the interpretation of the EEA Agreement, both between the EFTA states and between the EFTA states and the surveillance authority.(8) See Article 108 EEA. Thus, the EEA Agreement establishes a dual surveillance and dispute resolution regime, whereas the European Commission and the ECJ monitor the EU parties to the Agreement, and the EFTA Surveillance Authority (ESA) and the EFTA Court monitor the EFTA parties.
Second, the EEA Agreement establishes a legislative body, the EEA Joint Committee, consisting of representatives of the Contracting Parties.(9) See Article 93 EEA It is not uncommon under international agreements to set up bodies with legislative or quasi-legislative powers. However, as we will see, there are certain features of the legislative powers of the EEA Joint Committee that are both rather unique and of relevance when discussing the sui generis character of the EEA legal order.
Another feature that the EEA legal order shares with most agreements under public international law, is that the effects of the EEA Agreement within the domestic law of the Contracting Parties are determined by domestic law. Hence, even though individuals and undertakings are given – as in EU law – rights and obligations that can be invoked before national courts, the possibility of invoking these rights and obligations is contingent upon other legal orders. Thus, provisions of EEA law have direct effect in the EU Member States by virtue of European Union law. Whether the same provisions have direct effect in the EEA/EFTA States depends on the legal orders of those states. The EEA Agreement does not in itself establish either direct applicability or direct effect.(10)In case C-431/11, UK v Council, the ECJ held that it follows from Article 7 b EEA that regulations made part of the EEA Agreement have direct applicability in the EEA/EFTA States. This is impossible to reconcile with the ECJ’s views in Opinion 1/91 on the EEA Agreement, the wording of Article 7 and the case law of the EFTA court, both prior to and after the decision in case C-431/11. On this point, the judgment in case C-431/11 is therefore to be disregarded. The same goes for supremacy and State liability.