European Economic Area Agreement Research Articles

The Inapplicability of the Bosphorus Presumption to the European Economic Area Agreement: A Risk for the Coherence of Legal Systems in Europe

The European Court of Human Rights holds that the Bosphorus presumption of equivalent protection cannot apply to the European Economic Area (EEA) Agreement – Its reasons focus on EEA Agreement’s lack of primacy, direct effect and adequate enforcement mechanisms – Not applying Bosphorus presumption to EEA Agreement results in the indirect review of EU law by the Strasbourg Court, given that EEA and EU law are substantially identical – Court’s arguments are open to strong criticism – However, its conclusions are correct – They are substantiated by two considerations, which were overlooked by the Court – First, EEA law is to be considered ‘freely entered into’ international law under the Matthews case law – Second, the EFTA Court lacks the power to strike down EEA law breaching upon fundamental rights – Both these consideration are the corollary of the fundamental premises of the EEA Agreement: the retention by EFTA states of sovereign decision-making powers – Refusal to apply Bosphorus presumption to EEA Agreement will likely determine a growing inconsistency between the Convention, EU and EEA law – This entails serious systemic problems

Will genetically modified late blight resistant potatoes be the first GM crops to be approved for commercial growing in Norway?

Last decade's advances in biotechnology, with the introduction of CRISPR, have challenged the regulatory framework for competent authorities all over the world. Hence, regulatory issues related to gene editing are currently high on the agenda both in the EU and in the European Economic Area (EEA) Agreement country of Norway, particularly with regards to sustainable agriculture. During the negotiations on the EEA Agreement, Norway was allowed to retain three extra aims in the Gene Technology Act: "That the production and use of GMO happens in an ethical way, is beneficial to society and is in accordance with the principle of sustainable development". We argue the case that taking sustainability into the decisions on regulating gene edited products could be easier in Norway than in the EU because of these extra aims. Late blight is our chosen example, as a devastating disease in potato that is controlled in Norway primarily by high levels of fungicide use. Also, many of these fungicides are being banned due to negative environmental and health effects. The costs of controlling late blight in Norway were calculated in 2006, and since then there have been new cultivars developed, inflation and an outbreak of war in Europe increasing farm input costs. A genetically modified (GM) cisgenic late blight resistant (LBR) potato presents a possible solution that could reduce fungicide use, but this could still be controversial. This paper aims to discuss the advantages and disadvantages of approving the commercial use of a GM LBR potato cultivar in Norway and compare these against currently used late blight management methods and conventional potato resistance breeding. We argue that a possible route for future regulatory framework could build upon the proposal by the Norwegian Biotechnology Advisory Board from 2019, also taking sustainability goals into account. This could favour a positive response from the Competent Authorities without breeching the European Economic Area (EEA) Agreement. Perhaps the EU could adopt a similar approach to fulfil their obligations towards a more sustainable agriculture?

Die EFTA-Staaten und ihre (un-)komplizierten Beziehungen mit der Europäischen Union

On 1 January 1994 – almost 30 years ago – the Agreement on the European Economic Area (EEA) entered into force. Its purpose is to create a homogeneous and dynamic economic area between the Member States of the European Union (EU) and the members of the European Free Trade Association (EFTA) Iceland, Liechtenstein, and Norway. Today, the EEA Agreement is still the most far-reaching and institutionalised agreement between the EU and non-member states and can therefore be seen as a benchmark for a privileged partnership with the EU. This paper describes how the institutional rules of the EEA and the level of integration of the EEA/EFTA states have changed over time. It shows that developments towards both more integration and more differentiation can be observed in the EEA. It thus addresses various institutional challenges in the relationship between the EU and associated states.

Legal and Administrative Time Limits in the Context of the Latest Amendments of the Act of 14 June 1960 – Administrative Procedure Code

On 3 July 2019 a rule that a deadline is deemed to have been met if, before its expiry, a letter was posted at a Polish post office facility of the designated operator in the meaning of the Postal Law Act or at a postal facility of the operator providing the universal postal services in another Member State of the European Union, the Swiss Confederation or a Member State of the European Free Trade Association (EFTA) – a party to the European Economic Area Agreement, was introduced into the Polish administrative procedure. Prior to the date of the aforementioned amendment coming into force, it was necessary to post a letter at a Polish post office facility of the designated operator in the meaning of the Postal Law Act in order to be able to state that the deadline was met. The interim provisions introducing the above-mentioned changes stipulated that the regulation in the wording before the amendment applies to the factual circumstances that took place before the date of its coming into force. However, by virtue of the judgement of the Constitutional Tribunal of 30 October 2019 also the above-mentioned regulation expired to the extent in which it functioned under the interim provisions. The amendment of the administrative proceedings provisions and the aforementioned ruling of the Constitutional Tribunal made it possible to adjust the administrative procedure in this respect to the constitutional requirements as well as the provisions of the law of the European Union, and ensured the consistency of this regulation with analogous regulations in other proceedings in the Polish legal system.

Bieg terminów proceduralnych w kontekście najnowszych zmian ustawy z dnia 14 czerwca 1960 r. – Kodeks postępowania administracyjnego

On 3 July 2019 a rule that a deadline is deemed to have been met if, before its expiry, a letter was posted at a Polish post office facility of the designated operator in the meaning of the Postal Law Act or at a postal facility of the operator providing the universal postal services in another Member State of the European Union, the Swiss Confederation or a Member State of the European Free Trade Association (EFTA) – a party to the European Economic Area Agreement, was introduced into the Polish administrative procedure. Prior to the date of the aforementioned amendment coming into force, it was necessary to post a letter at a Polish post office facility of the designated operator in the meaning of the Postal Law Act in order to be able to state that the deadline was met. The interim provisions introducing the above-mentioned changes stipulated that the regulation in the wording before the amendment applies to the factual circumstances that took place before the date of its coming into force. However, by virtue of the judgement of the Constitutional Tribunal of 30 October 2019 also the above-mentioned regulation expired to the extent in which it functioned under the interim provisions. The amendment of the administrative proceedings provisions and the aforementioned ruling of the Constitutional Tribunal made it possible to adjust the administrative procedure in this respect to the constitutional requirements as well as the provisions of the law of the European Union, and ensured the consistency of this regulation with analogous regulations in other proceedings in the Polish legal system.

Should Iceland Seek Europen Union and Euro Area Membership?

Iceland is a small, resource rich country in Europe that is highly dependent on foreign trade. According to the World Bank classifications, Iceland is a high income economy, but with a population of a little bit more than 300 thousand inhabitants, is the smallest economy within the Organization for Economic Co-operation and Development (OECD). Iceland is highly dependent on foreign trade, especially on trade with the European Union, where economic and political integration is evolving and the question about the most feasible level of participation is a future challenge for the country. Iceland is a member of the European Free Trade Association (EFTA), the European Economic Area (EEA) and the Schengen area, and the European Union (EU) candidate country until recently, when its government decided to withdraw its EU membership application. Currently, the EEA agreement ensures Iceland access to the EU common market. The question remains, what is the most feasible arrangement for Iceland’s prosperity in the long term? Should it continue to rely on the current arrangement? Should it seek the EU membership in the future and, perhaps, subsequently become part of the Euro Area? What are the possible benefits and disadvantages for Iceland joining the EU and the Euro Area?

The impact of EU law on Norwegian private international law

Norway is not a EU member state, but is associated to the EU through the European Economic Area (EEA) Agreement. The EEA Agreement extends the single market to Norway, but does not cover the area of judicial cooperation. EU law nevertheless has a considerable significance for Norwegian private international law. On the one hand, Norway has ratified and implemented Lugano Convention, Norwegian courts give consideration to EU private international law, and there is a project of codification which is based on the Rome I and Rome II Regulations. On the other hand, substantive EU law on the single market may have an impact on the applicable law, and thus indirectly on the effectiveness of private international law. In particular, the principles of freedom of movement and of establishment, as well as the principle of legal clarity, proved to have significance for the formulation of choice of law rules for company and labour law.

EEA Law and the Climate Change. The Case of Norway

In 2019 the European Economic Area Agreement (EEA) celebrated 25 years of promoting the European integration and cooperation in economic and many other relevant matters. Climate issues were, however, not included in the negotiations of the EEA Agreement. Combating climate change is thus not listed as one of the objectives of the EEA environmental law. Furthermore, the Main Part of the EEA Agreement has not been updated since its entry into force. Still, the Agreement is the most relevant platform for the European cooperation in combating climate change. This article sheds light on the EU/EEA climate law and policy from the perspective of Norway that due to its energy sector is quite unique in the context of the EU climate policy. Moreover, Norway not only participates in most of the EU initiatives, but also takes actions to strengthen the EU/EEA cooperation in climate action and promotes setting ambitious climate goals.

Party Positions on Differentiated European Integration in the Nordic Countries: Growing Together, Growing Apart?

The Nordic countries constitute an interesting laboratory for the study of differentiated European Integration. Even though Denmark, Finland, Iceland, Norway, and Sweden share some historical, cultural, socio-economic and political characteristics, all those countries have ultimately opted for a different kind of relationship with the EU. Whereas Finland, a member of the Eurozone since its inception in 1999, has been considered to be part of the Union’s ‘inner core’ for quite some time, Iceland and Norway, in contrast, have opted to remain outside the EU albeit closely associated via the European Economic Area Agreement. The variation of relationships has also been reflected in Nordic parties’ positioning vis-à-vis European integration in general and differentiation of European integration in particular. Broadly speaking, party families can be distinguished along traditional (e.g., agrarian, Christian democratic, conservative, and social democratic) and modern (e.g., socialist left, green, and populist radical right) ideological orientations. Although political parties belonging to both the traditional and modern Nordic party families have adopted different stances on European differentiated integration, we would assume—against the backdrop of Nordic cooperation—higher levels of transnational cooperation in European matters. Consequently, this article examines the similarities and differences between parties belonging to the same ideological family, and the extent of transnational party cooperation in the Nordic countries. Drawing on a series of interviews conducted with party representatives as well as on official party documents, this article shows that although institutionalized party cooperation mostly reflects divisions between party families, such institutionalization does not include a common vision for European integration. We conclude that the low level of partisan Nordic integration is primarily caused by domestic-level factors, such as intra-party divisions, government participation and public opinion.

Norway

Norway has made substantial progress in strengthening its framework for financial crisis management and bank safety nets since the 2015 FSAP. The Norwegian authorities have implemented the EU framework. The Bank Recovery and Resolution Directive (BRRD) has been transposed into the Norwegian legal framework mainly by amendments to the Financial Institutions and Financial Groups Act and accompanying regulations. Finanstilsynet (the Financial Supervisory Authority of Norway, FSA) has been designated as Norway’s resolution authority. Resolution financing options were broadened by establishing a resolution fund. While the Deposit Guarantee Scheme Directive (DGSD) has yet to be brought into the European Economic Area (EEA) agreement, Norway has, in fact, already transposed it into the Norwegian law. This provides the Norwegian authorities with a broadened and detailed regulatory framework for dealing with weak banks.

Is Hywind Tampen’s State Aid Approval a Kickstart for the Norwegian Offshore Wind Industry?

On 11 March 2020, the EFTA Surveillance Authority (ESA) declared Norway’s measure to support the development of the world’s first medium-sized floating offshore wind turbine, Hywind Tampen, compatible with the European Economic Area (EEA) Agreement. The measure consists of an investment grant of NOK 2,3 billion (equivalent to ca. €205 million) for the construction of this offshore wind farm, covering about 43% of the total costs of the project. The project seeks to reduce Norway’s carbon footprint and help it transition towards a more sustainable energy supply. This ESA Decision is one of many firsts. It constitutes the first approval of State aid for offshore wind projects in the EEA, in contrast to the EU in which projects have received State aid in France, Denmark and Germany, for example. Unlike those cases, in Hywind Tampen support is granted directly to the infrastructure – in the form of investment aid – and not for the subsequent generation and sale of electricity into the system – as operating aid. Hywind Tampen is also ESA’s largest decision, in terms of the amount of aid approved for a single project. Not only is it the world’s first medium-sized floating offshore wind farm, Hywind Tampen is also the first offshore wind farm to power oil and gas turbines, reducing the gas emissions from the extraction of fossil fuels.

The Tale of the Airfreight Cartel Case

For over a decade, airlines have been subject to an EU Commission investigation and court proceedings for their involvement in an international airfreight cartel. This article provides an overview of the key elements of the case in the EU including the follow-on civil litigation. From December 1999 to February 2006, major international airlines coordinated their pricing behaviour on the airfreight market in relation to fuel and security surcharges and refusing payment of commission on surcharges. The alleged cartel was brought to light by Lufthansa under an application for immunity to the European Commission on 7 December 2005. Lufthansa’s immunity application prompted the European Commission to open an investigation into major airlines across the globe in February 2006 which concluded with a Decision on 9 November 2010 imposing fines on eleven airlines. The European Commission Decision’s concluded that the airlines conduct constituted a single complex and continuous infringement prohibited by Article 101 of the Treaty on the Functioning of the European Union, Article 53 of the European Economic Area Agreement and Article 8 of the Agreement Between the European Community and the Swiss Confederation on Air Transport. On appeal, the EU General Court annulled the 2010 Decision on 16 December 2015 due to an inconsistency between the grounds and the operative part. The European Commission nonetheless re-adopted the decision on 17 March 2017 with fines on ten airlines (one airline having paid the original fine and not appealed). **This complex litigation was extended to several EU national civil courts and currently there are ongoing private claims for damages against British Airways plc along with other Addressees of the EU Commission’s decision from Emerald Supplied Ltd. in the UK High Court and against KLM, Air France, Martinair et al. in the Amsterdam District Court. Airfreight, Cartel, SCCI (Single and continuous complex infringement), EU Commission, Decision readoption

Institutional Challenges for External Differentiated Integration: The Case of the EEA

This working paper analyses the institutional challenges related to external differentiated integration in the European Economic Area (EEA). It focuses mainly on the formulation of EEA-relevant EU legislation and its incorporation into the EEA Agreement. The paper shows that over the past 25 years various institutional arrangements have been added to the initial institutional framework of the EEA in order to increase and maintain substantive integration. However, the European Union (EU) has been consistent in protecting the autonomy of its decision making which is why the EEA EFTA States have far-reaching access to EU policy making but never the right to vote. The EEA EFTA States therefore insist on separate EEA decision making whenever possible. This has given them a surprisingly large amount of room for manoeuvre for instance, by deliberately delaying the incorporation of politically sensitive acts, and by making EEA-specific adaptations to EU acts. On the other hand, they were also forced to introduce simplified procedures for EEA decision making in order to cope better with the high legislative dynamics of the EU. These procedures give priority to the efficacy of the EEA over the decision-making autonomy of the EEA EFTA States by establishing a more or less automatic rule transfer from the EU to the EEA. Thanks to its far-reaching functional and institutional integration the EEA provides a good example for the analysis of the legal and political feasibility of external differentiated integration. Above all, the results of the empirical analysis demonstrate how difficult it is to reconcile the integration reservations of non-Member States with the principles of the EU in an institutional framework designed to ensure the long-term good functioning of their relations.

Banishing dominance in Europe: The case for regional cosmopolitanism

How is arbitrary rule – dominance – to be avoided when political differentiation is on the rise in the multilevel constellation that makes up the European Union? The EU is a power-wielding entity, that, due to its democratic deficits, is an instance of arbitrary rule, which differentiation only serves to exacerbate. This article discusses which political framework prevents dominance under conditions of asymmetric and complex interdependence, and economic integration in Europe. Under these conditions, the framework of international law is deficient, as the agreements with the associated non-members – the European Economic Area Agreement (EEA) and Switzerland – document. Here dominance appears to be self-incurred but nevertheless in breach with political freedom. Another is the framework suggested by Jürgen Habermas, of a pouvoir constituant mixte. Also, this framework raises the danger of arbitrary rule, as there is a risk that the autonomy of citizens would be pre-empted by the sovereignty of their states. The article holds the framework of a regional cosmopolitan federation – a rights-based polity with a distinct territorial reach – as more promising.

Approaching Judgment Day: The Influence of Brexit on the EU Pharmaceutical Framework

Though the plans for Brexit keep changing daily at the time of writing of this article, it seems useful to identify and discuss the differences between various types of EU trade agreements with third countries as possible models for a future EU–UK relationship, whatever the outcome. At some point after all the political drama, civil servants and negotiators will need to get down to business and find practical solutions for the new situation. This article examines the impact of such a transition on the integrated EU pharmaceutical industry. First, a state of play chapter details the EU and UK legislation regarding Brexit, possible future agreements and an overview of the pharmaceutical regulatory framework. The focus of the analysis itself is the level of participation in the European Medicine Association on the basis of a European Economic Area (EEA) Agreement (Norway), a Bilateral Agreement (Switzerland), and a Free Trade Agreement (Canada). Within this framework, key regulatory complications of the EU pharmaceutical framework (Market Authorization, Research & Development and Safety Monitoring) are investigated. Finally, the article demonstrates some of the dilemmas and diverging demands of the EU and UK as new trading partners in the pharmaceutical sector.

What is the Norway Model? Mode of Affiliation or Political Compromise?

AbstractBrexit is a high‐stakes political process, but there is still no clear understanding of the political factors that underpin the various affiliation modes that the UK is currently debating. These are treated as quite static constructs, with emphasis on legal detail not the political and societal conditions that make them operate. What does the inclusion of the UK in the European Economic Area (EEA) agreement—which is the core component of the Norway model—do to that arrangement, itself a domestic Norwegian compromise? Will the arrangement continue to function, or will the UK's presence fundamentally alter or even abrogate the arrangement? This article spells out the specific political presuppositions that the Norway model rests on, and notes that the UK cannot emulate these. In addition, it argues that the more closely attached to the EEA agreement the UK is, the more precarious the arrangement will be.

Regulating the invisible: interaction between the EU and Norway in managing nano-risks

Over the last decade, the need for governance of human health and environmental safety risks of nanotechnology (NT) has received increased attention at international, national and EU levels. There were early calls for increased funding of independent research, risk analysis and voluntary or mandatory regulation, but currently overall regulatory efforts have not materialised. One possible explanation is that research has revealed little need to regulate environmental and health safety risks of NT. Alternatively, there is a gap between politics and governance and the evolving state of knowledge. Such a gap can be caused by various factors including change in interests, saliency and organisation. Organisational challenges related to the science–policy interface at national, international and the EU can affect how new knowledge is channelled into decision-making processes. Decrease in public saliency is another possibility. Finally, opposition to regulation among affected producers may have increased and in turn stalled regulation through lobbying. The two explanations are analysed in a multi-level governance context. Norway is chosen as an interesting case: Highly profiled as a frontrunner i.a. in regulating gene technology, but currently awaiting regulations in the EU due to the European Economic Area agreement.

The Future for Public Sector Procurement Law in the Post-Brexit Period

After the UK’s momentous vote to leave the EU, in June 2016, a significant number of public sector officials, began wondering about the future of public procurement in the UK and in the EU, during the post-Brexit period. The consequences of Brexit in this area, as in many others, are in fact difficult to predict; they depend essentially on future political decisions, particularly on the UK’s relationship with the EU. What is clear is that the current procurement regulations will remain in the UK as they are, during the negotiating period , which will probably last until the end of 2019. How will procurement be regulated after that? Certainly, there will be no change in procurement regulations in the EU. What about the corresponding UK regulations? One realistic possibility is that the UK will negotiate a trade agreement with the EU that covers public procurement. Therefore, this could allow the UK to apply the EU procurement regime exactly as it is now. This means that the UK will leave the EU but still be a party to the European Economic Area (EEA) Agreement. Consequently, there will be no change in the procurement regulations in the UK since in essence the EEA applies the same rules on public procurement as the EU does. A second option is for the UK to negotiate another type of trade arrangement with the EU which would certainly include public procurement provisions and it is possible, that these would be the same as those under EU/EEA rules. A third possibility is that the UK will not conclude any specific trade agreement with the EU but that UK trade will be based simply on commitments under the WTO agreements such as the Government Procurement Agreement (GPA) and the General Agreement on Tariffs and Trades (GATT) that currently apply for the UK as part of the EU. A final option is for the UK not to commit to any trade agreements that constrain its strategy for regulating public procurement. This means that with this option it will be difficult to predict the final form of UK public procurement law. All these scenarios are discussed in the present work.

Northern Ireland and Brexit: Avoiding a Hard Border EEA or a Special Protocol?

One of the three preliminary issues for discussion in the Brexit negotiations is Northern Ireland, in particular, the need to avoid damaging the peace process initiated by the Belfast (Good Friday) Agreement. A consequence of that process is the absence of a hard border between Northern Ireland and Ireland which on Brexit will become an external European Union border. Having detailed the nature of Northern Ireland’s trade, this article examines the United Kingdom Government’s Paper on Northern Ireland which suggests that a new customs partnership between the United Kingdom and the European Union, including an exception for the trade of micro, small and medium-sized enterprises, could obviate the need for a return to a hard border. Having examined the Government Paper, this article examines two other possible arrangements, the first of which is a proposal that Northern Ireland accede to the European Economic Area Agreement. This option is then contrasted with a proposal that a Protocol on Trade on the Island of Ireland be concluded. Modelled on Protocol 3 of the original Treaty of Rome which governed trade within Germany, the Protocol would confirm that like the rest of the United Kingdom, Northern Ireland will leave the EU but would allow existing levels of trade and regulatory cooperation between Northern Ireland and Ireland to continue. The Protocol solution could be extended beyond trade so as to afford the EU an opportunity to consolidate its contribution to the peace process in Northern Ireland.

The (Uncertain) Impact of Brexit on the United Kingdom's Membership in the European Economic Area

Until recently, the on-going legal discussions about ‘Brexit’, the United Kingdom’s upcoming withdrawal from the European Union (EU), have predominantly focused on the requirements and consequences of the withdrawal procedure set out in Article 50 of the Treaty on European Union (TEU). A hitherto neglected, though arguably no less important question concerns the effect, if any, that a withdrawal from the EU will have on the UK’s membership in the European Economic Area (EEA): Given that the EEA extends many aspects of EU membership beyond the EU’s borders, resulting in a Common Market ‘light’, a future UK membership in the EEA could – at least from a European business law point of view – effectively result in ‘business as usual’, as a significant share of EU law would continue to apply to UK companies, albeit in form of EEA law. Against this background, it is interesting to note that legal analyses of Brexit generally assume that the UK’s EEA membership will be terminated ipso iure, should the UK decide to withdraw from the EU. According to this view, the UK subsequently could (re-)apply for EEA membership should its government so choose, with such an application having to be accepted by all remaining EEA Contracting Parties – an option commonly referred to as the ‘Norway option’ in reference to Norway’s status within the EEA. The present article challenges the underlying (and often merely implicit) assumption that the UK’s withdrawal from the EU will automatically result in its withdrawal from the EEA, given that the EEA Agreement is a separate international treaty subject to separate legal rules governing withdrawals and effects of possible changes in EU membership. It argues that a withdrawal from the EU will in fact not affect the UK’s continuing EEA membership, as long as the UK does not voluntarily choose to also withdraw from the EEA. It then analyses the post-Brexit situation under the EEA Agreement by addressing its practical application to a number of different areas, as inter alia the free movement of UK companies within the EEA, the future of the ‘European passport’ for UK credit institutions and investment firms, as well as the free (but possibly restrictable) movement of workers in the EEA.