2.2 Written law
The EEA legal order is based upon the main part of the EEA Agreement. Here we find provisions concerning the institutions, dispute resolution, decision-making procedures and a number of other issues necessary to make the EEA work. More important, when discussing the elements that make the EEA legal order distinct, is the fact that the substantive provisions of the main part of the EEA Agreement mirror the provisions on the same subjects in another international legal order: the EU legal order. This is a rare instance of an international agreement in which some of the parties, the EEA-EFTA States, subordinate themselves to provisions of the legal order of another party to the agreement – in this case the EU legal order.
This becomes all the more evident when we turn our attention to the legislative acts referred to in the annexes to the main part of the EEA Agreement. These acts are regulations, directives and other legislative acts adopted within the framework of the EU legal order. By including them in the EEA Agreement, they also become EEA law.
In the EU legal order, the treaty provisions are often referred to as primary law, and regulations and directives are referred to as secondary law. In the context of EU law, this makes sense as the decisions made by the EU institutions, as well as general legislative acts, are subject to legal review. However, as we shall see, this is not the case in the EEA legal order. Thus, and in spite of the EFTA Court’s use of the term «primary» EEA law when referring to provisions found in the main part of the EEA Agreement,(1) See to that effect, for instance case E-9/14, Otto Kaufmann AG. the use of the distinction between primary and secondary EEA law is neither necessary nor helpful. Rather, it is potentially misleading, as it gives the impression that regulations and directives included in the EEA Agreement are given pursuant to that agreement, which is not the case.