2.1 The institutional structure
One distinctive feature of the EEA legal order is its institutional structure, facilitating a dual, and parallel, international supervision and control regime, with what we may call trajectories from the legal orders of the EEA Member States to the EEA legal order.
Article 109 EEA provides that the European Commission, acting in conformity with the EU treaties, shall monitor the fulfillment of the obligations under the EEA Agreement as far as the European Union and its member states are concerned, while the ESA shall monitor the EFTA states, fulfillment of their obligations.
If the European Commission considers a EU Member State to be in breach of its obligations under the EEA Agreement, that state may be brought before the ECJ under the infringement procedures provided for by Article 258 of the Treaty on the Functioning of the European Union (TFEU). Likewise, where the ESA considers an EFTA State to be in breach of its obligations under the EEA Agreement, that state may be brought before the EFTA Court. The procedures are found in Article 31 of the EFTA Surveillance and Court Agreement (SCA), and mirror Article 258 TFEU.
We find the same dual approach with regard to the application of the competition rules concerning undertakings and the provisions on state aid.(1)See Articles 55 to 58 EEA concerning competition rules applicable to undertakings, and Article 62 EEA concerning state aid.
In the context of European Union law, the EEA Agreement is an association agreement under Article 217 TFEU. Thus, within the EU pillar of the EEA Agreement, EEA-related issues are dealt with through the procedures and mechanisms set up by the EU Treaties. In the EFTA pillar, treaties entered into between the EEA-EFTA States regulate the handling of EEA-related issues. The most important of these treaties is the SCA.(2) The other agreements being Agreement on a Standing Committee of the EFTA States and the Agreement on a Committee of Members of Parliaments of the EFTA States. EEA-related issues are also handled unilaterally within each EEA-EFTA State, in a way which resembles how EU-related issues are discussed and handled within each EU member state. However, as we will see, there are crucial differences as to the impact these discussions may have on the shaping of decisions.
The EU and EFTA pillars meet in four joint bodies. The most important of these is the EEA Joint Committee, established by Article 92 EEA. The EEA Joint Committee, according to Article 98 EEA, has the power to amend the Annexes and a number of the protocols to the EEA Agreement, which entrusts it with the herculean task of providing the legal basis for continuing homogeneity between EU and EEA law, within the areas covered by the EEA Agreement. Thus, the EEA Joint Committee can, to a certain degree, be compared to the EU’s Council, in that the EEA Joint Committee has legislative powers. However, as the amendment of protocols and annexes to the EEA Agreement follows a simplified treaty procedure, it is not a legislative power in its truest sense.
The EEA Joint Committee is also the forum for resolving disputes between the EU and one or more EFTA states, concerning the interpretation or application of the EEA Agreement.(3) See Article 111 EEA.
The other body worth mentioning in this connection is the EEA Council.(4) According to Article 90 EEA, the EEA Council shall consist of members of the Council of the European Union, members of the European Commission and one member of each of the governments of the EFTA States. According to Article 89 EEA, it is responsible for providing the political impetus in the implementation of the EEA Agreement, and also for laying down the general guidelines for the EEA Joint Committee. Thus, the EEA Council may, to a certain extent, be compared to the European Council.
When analyzing the EEA legal order, we see a number of different elements, having their legal basis either in the EEA legal order, in the legal order of the EFTA States, in agreements between the EFTA States, or in the EU legal order. Thus, the institutional aspects of the EEA legal order make it something truly distinct. This impression is confirmed by the other elements in the EEA architecture discussed below.