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Square Pegs and Round Holes: The Free Movement of Persons Under EEA Law

  • Christian NK FRANKLIN (a1)
Abstract

Whilst the European Union’s aim of achieving an ‘ever closer Union’ is not an objective of EEA cooperation, homogeneity demands that we follow the same path: as the Union gets ever closer, so too does EEA cooperation, in light of the demands of the fundamental principle of homogeneity. This is particularly well demonstrated by looking at developments in the field of the free movement of persons. The case law of the Court of Justice of the European Free Trade Association (EFTA Court) in this field shows that in situations where homogeneity is put to the test, there seems little to suggest that a more national sovereignty-friendly approach has been adopted than under EU law. Notwithstanding the integral differences between the EU and EEA legal constructs, the EFTA Court has proven highly adept at keeping pace with EU developments in the field through a number of bold and creative interpretations of EEA law, and by using different tools to arrive at uniform conclusions.

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1 This has been ventured elsewhere – see eg Burke, C et al, ‘Life on the Edge: EFTA and the EEA as a Future for the UK in Europe’ (2016) 22(1) European Public Law 69 .

2 See eg Clifton, MJ, ‘EEA: Another Side to Europe’ (2016) 5 European Law Reporter 174 , who argues that an updated version of EFTA could be ‘a natural home for the UK post-Brexit’.

3 [1994] OJ L1/3. Switzerland, although party to the EFTA Convention, is not party to the EEA Agreement. For simplicity’s sake, however, the three EFTA States party to the EEA will hereinafter be referred to collectively as the EFTA States, in line with the definition provided for in Art 2(b) EEA.

4 See eg MJ Clifton, see note 2 above, and C Baudenbacher’s remarks in an interview: P Wintour, ‘European free trade area could be UK’s best Brexit option, says judge’ (Guardian, 1 December 2016), https://www.theguardian.com/politics/2016/dec/01/european-free-trade-area-could-be-uks-best-brexit-option-says-judge.

5 As can be seen in several of the Preamble recitals, and also highlighted in Art1(1) EEA, the aim of the 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’.

6 Arts 1 and 6 EEA, and eg recs 4 and 5 of the EEA Agreement’s Preamble. It is worth noting that the precise nature and import of the EEA principle of reciprocity – according to which procedural and/or substantive rights conferred under EEA law should be the same for EU nationals under the EFTA pillar of the EEA as for EFTA nationals under the EU pillar of the EEA – is rather difficult to ascertain in practice. This is in no small part due to potentially divergent views held by the Court of Justice and EFTA Court as to how strictly its requirements ought to be understood. Adopting a seemingly less strict view, in Kupferberg, 104/81, EU:C:1982:362, para 18, the Court of Justice held that the fact that the courts of one of the parties to a free trade agreement between the EEC and Portugal considered certain of its provisions to have direct effect whereas the courts of the other party did not, ‘is not in itself such as to constitute a lack of reciprocity in the implementation of that agreement’. Adopting a seemingly stricter understanding, however, the EFTA Court held in Schenker v ESA, E-14/11 [2012] EFTA Ct Rep 1178, para 121, that the EFTA Surveillance Authority was required ‘for reasons of reciprocity’ to adopt certain rules concerning access to documents in competition cases corresponding to those applicable to the EU Commission under Regulation 1049/2001.

7 Indeed, the idea of a common EEA court was ruled out altogether following the Court of Justice Opinion 1/91 (EEA Agreement), EU:C:1991:490.

8 Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice, [1994] OJ L344/3.

9 See eg L’Oréal, Joined Cases E-9/07 and E-10/07 [2008] EFTA Ct Rep 258, para 28. Notwithstanding the potentially less burdensome formal duty under Art 3(2) SCA, which merely requires the EFTA Court to take ‘due account’ of the principles laid down in rulings of the Court of Justice after the EEA Agreement’s date of signature.

10 See eg Fonnship, C-83/13, EU:C:2014:2053; and Commission v UK, C-112/14, EU:C:2014:2369.

11 Skouris, P, ‘The Role of the Court of Justice of the European Union in the Development of the EEA Single Market’ in EFTA Court (ed), The EEA and the EFTA Court – Decentred Integration (Hart, 2014), p 7 .

12 Art 92 EEA. There are approximately 5000 EU legal acts currently in force as part of EEA law. The Joint Committee’s decisions encompass not only legislative acts (as defined in Art 289 TFEU), but also many delegated/implementing acts, decisions and recommendations.

13 See eg Art 93 EEA.

14 Agreement on a Standing Committee of the EFTA States of 2 May 1992, http://www.efta.int/legal-texts/committees.

15 Art 6(2) of the Agreement on a Standing Committee of the EFTA States.

16 Art 127 EEA.

17 See eg Opinion 1/92, EU:C:1992:189; and further the Court of First Instance’s decision in Opel Austria, T-115/94, EU:T:1997:3.

18 The Court of Justice has at times seemingly implied that EEA regulations are directly applicable; see eg UK v Council, C-431/11, EU:C:2013:589, para 54, where the Court of Justice stated that as regards an EU regulation, Art 7(a) EEA ‘expressly provides that such an act is ‘as such’ to be made part of the internal legal order of the Contracting Parties, that is to say, without any implementing measures being required for that purpose.’ Further in Fonnship, C-83/13, see note 10 above, para 24, where the Court of Justice further stated that the provisions of the regulation in question were ‘an integral part of the legal order of all of the States that are parties to the EEA Agreement by virtue of Article 7(a) of the EEA Agreement and Annex XIII thereto.’ For the EFTA Court’s view see eg Irish Bank, E-18/11 [2012] EFTA Ct Rep 592, para 122. Compare nevertheless the views of J Kokott and D Dittert, ‘European Courts in Dialogue’, in EFTA Court (ed), see note 11 above, p 46, with the views in the same book of DT Björgvinsson (‘Fundamental Rights in EEA Law’, p 265), and H Bull (‘Shall be Made Part of the Internal Legal Order: The Legislative Approaches’, p 211), and further with Fredriksen, HH and Franklin, CNK, ‘Of Pragmatism and Principles: The EEA Agreement 20 Years On’ (2015) 52(3) Common Market Law Review 629, pp 669670 .

19 Art 7 EEA – the situation concerning implementation is naturally different in the monist EFTA State of Liechtenstein.

20 However, the effects of the Protocol – which is considered equally binding and of the same legal value as the Main Part of the Agreement – may potentially be rendered nugatory by national courts in certain cases: serious conflicts between EEA rules and pre-existing national law will often arise as a result of incorrect implementation of the EEA rules in national law. Primacy arguments can potentially be avoided in cases where the EEA rules have been incorrectly implemented into national law.

21 State liability was established in Sveinbjörnsdóttir, E-09/97 [1998] EFTA Ct Rep 95; for consistent interpretation, see eg Granville, E-13/11 [2012] EFTA Ct Rep 400, para 52; Jan Anfinn Wahl v the Icelandic State, E-15/12 [2013] EFTA Ct Rep 534, para 54; Metacom, E-6/13 [2013] EFTA Ct Rep 856, para 69; Case E-12/13, 11.2.2014, ESA v Iceland, E-12/13 [2014] EFTA Ct Rep 60, para 73; Merrill Lynch, E-28/13 [2014] EFTA Ct Rep 970, para 42.

22 See eg the Norwegian Supreme Court’s rulings in Rt 2005 597; Rt 2005 1536; and Rt 2010 1500; and the Icelandic Supreme Court’s decisions in Sveinbjörnsdóttir, Case 236/1999 (state liability), and Biðskýlið Njarðvík, Case 79/2010 (consistent interpretation).

23 For an excellent appraisal of the actual and potential similarities and differences between the EU and EEA principles of state liability, see HH Fredriksen, ‘The EFTA Court and the Principle of State Liability: Protecting the Jewel in the Crown’, in EFTA Court (ed), see note 11 above.

24 See CNK Franklin, ‘The Principle of Consistent Interpretation (or something that looks like it) and Norwegian Courts’, in CNK Franklin (ed), Effectiveness and Application of EU & EEA Law in National Courts: The Principle of Consistent Interpretation (Intersentia, forthcoming).

25 This was suggested in Rt 2000 1811 (Finanger) and unequivocally demonstrated in Rt 2013 258 (STX). See also Rt 2009 839 (Pedicel), where the Supreme Court tacitly distanced itself from parts of the Advisory Opinion which the Norwegian Market Council had obtained from the EFTA Court.

26 Although the Norwegian Supreme Court has made it clear that it has the authority and a duty to consider independently whether and to what extent an Advisory Opinion is to be followed or not, it is settled Norwegian case law that significant importance is to be attributed to the view of the EFTA Court – at least in cases where the Court itself has made the reference in question. See eg Rt 2000 1811; Rt 2004 904; Rt 2007 1003; and Rt 2013 258. For similar pronouncements made by the Icelandic Supreme Court, see eg H 1999 4429 and H 1999 4916.

27 EFTA States also have the opportunity under Art 34(3) SCA to limit the right to request Advisory Opinions to courts and tribunals against whose decisions there is no judicial remedy under national law.

28 The total number of referrals between 1994 and 2015 (discounting referrals from former EFTA States Austria, Finland and Sweden prior to their joining the EU) is 94.

29 Irish Bank, E-18/11, see note 18 above, para 58, where the EFTA Court held that ‘courts against whose decisions there is no judicial remedy under national law will take due account of the fact that they are bound to fulfil their duty of loyalty under Article 3 EEA. The Court notes in this context that EFTA citizens and economic operators benefit from the obligation of courts of the EU Member States against whose decision there is no judicial remedy under national law to make a reference to the [Court of Justice] (see Ospelt and Schlössle Weissenberg, C-452/01 [1993] ECR I-9743)’. The EFTA Court’s views were further confirmed in Jonsson, E-3/12 [2013] EFTA Ct Rep 136, para 60, Koch, E-11/12, [2013] EFTA Ct Rep 272, para 117, and HOB-vín, E-2/12 [2012] EFTA Ct Rep 1092, para 11.

30 See eg C Baudenbacher, ‘The EFTA Court: Structure and Tasks’ in C Baudenbacher (ed), The Handbook of EEA Law (Springer, 2016), p 157: ‘[i]f there is no clear case law either from the [Court of Justice] or the [EFTA] Court, a [national] court of last resort is basically obliged to make a reference. It is for ESA to enforce that obligation.’ Similarly, G Baur, ‘Preliminary Rulings in the EEA – Bridging (Institutional) Homogeneity and Procedural Autonomy by Exchange of Information’, in The EFTA Court (ed), see note 11 above, p 177, who speaks of a ‘de facto duty to submit’; and S Magnusson, ‘Efficient Judicial Protection of EEA Rights in the ETA Pillar – Different Role for the National Judge?’, in EFTA Court (ed), see note 11 above, pp 122–123, who views the EFTA Court’s decision in Irish Bank as making clear that ‘“whether or not to refer” is not purely optional for the national courts [of last instance of the EEA EFTA States]’, and that ‘national courts cannot be considered to enjoy full discretion with regard to this matter.’ Compare however with the more sceptical views of HH Fredriksen and CNK Franklin, see note 18 above, pp 672–673; and Franklin, CNK, ‘Article 3 EEA’ in F Arnesen et al (eds), Agreement on the European Economic Area: A Commentary ( Nomos/Hart, forthcoming).

31 The EFTA Court has for example consistently rejected pleas from the EFTA States for a more ‘state-friendly’ interpretation of the EEA Agreement than the Court of Justice’s interpretation of corresponding provisions of EU law, letting homogeneity prevail over any temptation to exercise its formal independence from the Court of Justice to pursue a more ‘EEA-specific’ interpretation of the internal market acquis. See eg L’Oréal, Joined Cases, see note 9 above, para 28, where the EFTA Court held that homogeneity required ‘an interpretation of EEA law in line with new case law of the [Court of Justice] regardless of whether the EFTA Court has previously ruled on the question.’ For other examples, see e.g. Herbert Rainford-Towning, E-3/98 [1998] EFTA Ct Rep 205; Hörður Einarsson v the Icelandic State, E-1/01 [2002] EFTA Ct Rep 18; Fokus Bank, E-1/04 [2004] EFTA Ct Rep 11; and EFTA Surveillance Authority v The Kingdom of Norway, E-2/06 [2007] EFTA Ct Rep 102.

32 See eg ESA v Norway (Hydropower concessions), E-2/06 [2007] EFTA Ct Rep 164.

33 Arts 28–30 EEA.

34 Such as the Family Reunification Directive (2003/86/EC [2003] OJ L251/12), and the Long-term Residents Directive (2003/109/EC [2003] OJ L16/44).

35 For more generally on this transformation, and the particular role of the Court of Justice in it, see eg Barnard, C, The Substantive Law of the EU – The Four Freedoms, 5th ed (Oxford University Press, 2016), p 203 ff.

36 Take for example the issue of job-seekers rights to equal treatment, which were initially limited under EU law to matters concerning access to employment. There was no right to equal treatment as far as social benefits were concerned. In Collins, C-138/02, EU:C:2004:172, however, the Court of Justice held that in light of the establishment of EU Citizenship, it was no longer possible to exclude benefits of a financial nature intended to facilitate access to employment. Without any corresponding Citizenship provisions in the EEA Agreement, the same method of interpretation of Art 28 EEA (which mirrors Art 45 TFEU) and/or the Workers Regulation (which is incorporated into the EEA Agreement), would naturally not be possible. That is not to say, however, that it would be impossible to arrive at the same result or outcome under EEA law by using different tools.

37 Such as eg the Workers Regulation (Regulation No 492/2011, [2011] OJ L141/1).

38 Directive 2004/38/EC, [2004] OJ L158/77.

39 Jonsdottir, J, Europeanization and the European Economic Area (Routledge, 2013), p 103 – this book contains an excellent exposé on the underlying politics and discussions involved.

40 Ibid p 105.

41 Joint Declaration by the Contracting Parties to Decision No 158/2007 incorporating Directive 2004/38/EC of the European Parliament and of the Council into the Agreement, http://www.efta.int/sites/default/files/documents/legal-texts/eea/other-legal-documents/adopted-joint-committee-decisions/2007%20-%20English/158-2007-declaration.pdf.

42 Clauder, E-4/11, [2011] EFTA Ct Rep 216.

43 Amending Regulation 1612/68 (Workers Regulation); and repealing Directive 68/360/EEC on movement and residence within the Community for workers of Member States and their families, [1968] OJ L257/13; Directive 73/148/EEC on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services, [1973] OJ L172/14; Directive 90/364/EEC on the right of residence, [1990] OJ L180/26; Directive 90/365/EEC on residence for retired employees and self-employed persons, [1990] OJ L180/28; and Directive 93/96/EEC on the right of residence for students, [1993] OJ L317/59.

44 For more details on the facts surrounding the case, which need not concern us here, see eg Burri, T and Pirker, B, ‘Constitutionalization by Association? The Doubtful Case of the European Economic Area’ (2013) 32(1) Yearbook of European Law 207, pp 218220 .

45 Art 1 Directive 90/364/EEC, and Art 1 Directive 90/365/EEC.

46 Clauder, E-4/11, see note 42 above, paras 43–48.

47 Metock and Others, C-27/08. EU:C:2008:449, paras 59, 82. The EFTA Court may also have drawn a certain inspiration from the decision of the Court of Justice in Lassal, C-162/09, EU:C:2010:592. The Court of Justice implied here that even though Art 16 introduced a new right of permanent residence based on legal residence for a continuous period of five years in the host state, that the interpretative outcome in the case (according to which the continuous periods of five years’ residence completed before the Citizenship Directive’s transposition deadline must be taken into account for the purposes of the acquisition of the right of permanent residence), would in any event have been the same – and even clearer – in the event that the right in question had in fact been traceable to one of the directives which the Citizenship Directive had replaced (paras 33–34).

48 Wahl v Iceland, E-15/12, see note 21 above, paras 74–77.

49 Iceland v Gunnarsson, E-26/13 [2014] EFTA Ct Rep 254.

50 Ibid para 80.

51 Ibid para 81.

52 O and B, C-456/12, EU:C:2014:135.

53 Ibid para 37.

54 Singh, C-370/90, EU:C:1992:296; Eind, C-291/05, EU:C:2007:771.

55 Ibid paras 50–51.

56 Ibid para 56.

57 The decision of the Court of Justice in O and B was delivered on 12 March 2014, almost a month prior to the oral hearing in Gunnarsson (10 April 2014), and more than three months before the EFTA Court’s Opinion was published (27 June 2014).

58 Jabbi v Norway, E-28/15 [2016] (nyr).

59 Art 7 of the Citizenship Directive had been implemented into Norwegian law by Sections 110(2) and 112 of the Norwegian Immigration Act 2008. Sec 110(2) states that: ‘Family members of a Norwegian national are subject to the provisions of this chapter if they accompany or are reunited with a Norwegian national who returns to the realm after having exercised the right to free movement under the EEA Agreement … in another EEA country’. Sec 112 states that: ‘An EEA national has a right of residence for more than three months as long as the person in question (a) Is self-employed, (b) Is to provide services (3) Is self-supporting and can provide for any accompanying family member and is covered by a health insurance policy that covers all risks during the stay’.

60 To its credit, and notwithstanding its relatively light caseload, the EFTA Court is remarkably fast and efficient in dealing with the cases that come before it – averaging approximately eight months per case. There is also the possibility to apply for an accelerated procedure in pressing cases. Another strength of the EFTA Court is that the reasoning of its Opinions and Decisions is usually much more detailed (and hence more transparent) than many decisions of the Court of Justice.

61 Jabbi, E-28/15, see note 58 above, para 53.

62 Ibid para 64.

63 Ibid paras 60–67.

64 Ibid paras 70–71.

65 Ibid para 68.

66 Ibid para 82.

67 See eg S and G, C‑457/12, EU:C:2014:136, para 34; and Chavez-Vilchez, C-133/15, EU:C:2017:354, para 53: ‘Directive 2004/38 is only applicable to the conditions governing whether a Union citizen can enter and stay in Member States other than that of which he is a national. Directive 2004/38 does not therefore confer a derived right of residence on third-country nationals who are family members of a Union citizen in the Member State of which that citizen is a national’. Compare however with the contrary views expressed by Advocate General Szpunar in the latter case, where he argued strongly in favour of a different interpretation (Opinion of Advocate General Szpunar in Chavez-Vilchez, C-133/15, EU:C:2016:659, para 68).

68 Ibid para 60.

69 For many examples of the latter, see eg Baudenbacher, C, ‘The Relationship Between the EFTA Court and the Court of Justice of the European Union’ in C Baudenbacher (ed), The Handbook of EEA Law (Springer, 2016), pp 187190 .

70 Generally on the background to this debacle, see Andenæs, M and Fredriksen, HH, ‘EFTA-domstolen under press’, (2017) 1 Europarättslig tidskrift 205 (available in Norwegian only).

71 See the Norwegian national newspaper VG’s story for example, http://www.vg.no/nyheter/innenriks/norsk-politikk/norsk-toppdommer-kan-bli-byttet-ut/a/23783682/.

72 ESA/Court Committee Decision 2016 No 5 on the reappointment of a Judge to the EFTA Court (1 December 2016).

73 ESA/Court Committee Decision 2017 No 1 on the reappointment of a Judge to the EFTA Court and repealing Decision 2016 No 5 of 1 December 2016 (13 January 2017). Pascal Nobile v DAS Rechtsschultz-Versicherungs AG, E-21/16, 14 February 2017 (nyr).

74 Art 35 Citizenship Directive.

75 This latter reference is quite strange, though, as the genuine residence condition is not provided for in the Directive, and seems based on Art 21 TFEU. See eg O and B, note 52 above, para 53.

76 Jabbi, E-28/15, see note 58 above, para 73: ‘The Court assumes that [Ms Martinsen] stayed legally in Spain for more than three months. If this is not the case, [she] cannot be said to have acted under EEA law for the purpose of creating a derived right as a family member for a third country national. It is for the referring court to establish the respective facts.’

77 Decision of Oslo District Court, Case No 15-052864TVI-OTIR/08, 23 March 2017.

78 Art 7 of Royal Decree 240/2007, and Art 3(c)2ª of Order PRE/1490/201218.

79 Dano, C-333/13, EU:C:2014:2358, para 73; and rec 10 of the Preamble to the Citizenship Directive.

80 See Arts 20–22 of the EFTA Convention, Annex K and Appendix 1–3 attached thereto; http://www.efta.int/legal-texts/efta-convention.

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