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Direct Effect, Supremacy and State Liability - A Comparison between EC Law and the EEA Agreement

Thorvaldsson, Olafur (2003)
Department of Law
Abstract
The aim of the paper is to discuss some of the basic elements of the legal system in EC law in comparison with the EEA Agreement. The conclusions will have special reference to Icelandic law. The reason for this approach is that the EEA Agreement is closely linked with EC law. Therefore it is necessary to begin approaching the basic rules within the EC in order to better understand the EEA system and avoid perplexity. The doctrines of direct effect and supremacy are firmly embodied as foundations of EC law, and renders the Treaty as a constitution for the Member States, which undoubtedly makes EC law so special in the history of legal integration between nations. The development of the doctrine of direct effect will be addressed with... (More)
The aim of the paper is to discuss some of the basic elements of the legal system in EC law in comparison with the EEA Agreement. The conclusions will have special reference to Icelandic law. The reason for this approach is that the EEA Agreement is closely linked with EC law. Therefore it is necessary to begin approaching the basic rules within the EC in order to better understand the EEA system and avoid perplexity. The doctrines of direct effect and supremacy are firmly embodied as foundations of EC law, and renders the Treaty as a constitution for the Member States, which undoubtedly makes EC law so special in the history of legal integration between nations. The development of the doctrine of direct effect will be addressed with special reference to the doctrine of supremacy. The conditions an EC rule must fulfil in order to have direct effect will be deliberated and explained by case law. The different scope of these two doctrines in regard to the Treaty provisions and the secondary legislation will also be addressed. The European Economic Area, consists of the European Community and its Member States and the participating EFTA States, Norway, Iceland and Liechtenstein. The EEA Agreement was meant to retain its nature as an agreement made under public international law. It also had, however, the purpose of the creating and maintaining a homogeneous and dynamic economic area, based on common rules and equal conditions of competition and providing for adequate means of enforcement including at the judicial level. Therefore the participating EFTA States adopted the Community acquis communautaire to a very large extent. The EEA Agreement extends the internal market beyond Community boundaries, by providing the participating states of EFTA with free access to the single European market. Even though the Agreement relates mainly to the adoption of EC rules on Free movement and Competition, the Agreement also deals with integration in various fields other than these economic ones. Therefore the Agreement is undoubtedly more than an ordinary international agreement. This special nature of the Agreement will be discussed from the viewpoint whether direct effect and supremacy are somehow inherent in the ''EEA law'' with citation to EC law. The situation regarding direct effect in EEA law seems at first sight to be quite different from that prevailing in EC law, because the depth of integration less is far-reaching than under the EC Treaty. This paper will cover the main provisions of the EEA Agreement and findings of the EFTA Court along the line that the EEA Agreement does not have direct effect, neither horizontally nor vertically, and that the question of such effects depends therefore on the substance of the national law of the EFTA States. But the questions encountered are not so easily answered, as will be discussed in the paper. The Agreement is a result of complicated and difficult negotiations, which had the aim of reaching common conclusions in matters, which were probably impossible to unify. On the one hand by establishing an international treaty under public international law, but on the other hand to be interpreted parallel with and producing similar results as the corresponding provision of Community law. It will be shown that some provisions under EEA Law can in fact have direct effect in some circumstances, in spite of statements from the EFTA States and regardless of provisions in the Agreement stating the opposite. This analysis is elementary and closely linked to the further discussion in the paper on comparison of State liability within EC law and EEA law. First the doctrine of State liability in EC law will be discussed, and explained why the establishment of that doctrine is considered to have been unthinkable if it were not for the doctrines of direct effect and supremacy. The establishment of that ''same'' doctrine within the EEA law will be covered in continuation. It will be explained why the findings of the EFTA Court lacks the same firm ground as exists in the EC law. It will also be argued that legal certainty calls for amendments of the unclear scope of the EEA Agreement and drastic decisions by the EFTA Court. Some remarks will as well be made about the possibility of EEA law enjoying some kind of supremacy through the EEA implementing Acts of Norway and Iceland. These findings will be addressed in the light of the internationalisation of law and the judicialization of politics. The serious conflicts between the national courts in the Union and the ECJ seem to be over and the doctrine of supremacy of community law prevails regardless of the fact that some Member States still adhere to the doctrine of dualism. In comparison the debate in the EFTA States of conflicts between EEA law with the constitutions of the participating EFTA States has not yet reached any equilibrium. It will be argued that in the light of the legal integration following the EEA Agreement that the doctrine of dualism is retreating. That finding will take place with special focus on Icelandic legal system. It will be argued that in spite of this development the necessary changes on the Icelandic constitution has to be made. The main conclusion of this discussion is described by a practical example: If a client ask a lawyer in Iceland about some subject, that is covered by the EEA Agreement it is necessary for lawyer to look into the EC rules, because if they are not (correctly) implemented into Icelandic law a question of state liability rises, or sometimes the possibility of direct effect. So it is not longer a question for the lawyer of interpreting the Icelandic law, but also a question of &quot&semicfinding&quot&semic the law, which could possible be unpublished and &quot&semicalien&quot&semic to the Iceland legal system. And the methods of interpretation of EEA (EC) law is in many ways different from the general interpretation methods the Icelanders got from Denmark, and have used for the last 100 years or so. (Less)
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author
Thorvaldsson, Olafur
supervisor
organization
year
type
H1 - Master's Degree (One Year)
subject
keywords
European Affairs
language
English
id
1554727
date added to LUP
2010-03-08 15:22:33
date last changed
2010-03-08 15:22:33
@misc{1554727,
  abstract     = {The aim of the paper is to discuss some of the basic elements of the legal system in EC law in comparison with the EEA Agreement. The conclusions will have special reference to Icelandic law. The reason for this approach is that the EEA Agreement is closely linked with EC law. Therefore it is necessary to begin approaching the basic rules within the EC in order to better understand the EEA system and avoid perplexity. The doctrines of direct effect and supremacy are firmly embodied as foundations of EC law, and renders the Treaty as a constitution for the Member States, which undoubtedly makes EC law so special in the history of legal integration between nations. The development of the doctrine of direct effect will be addressed with special reference to the doctrine of supremacy. The conditions an EC rule must fulfil in order to have direct effect will be deliberated and explained by case law. The different scope of these two doctrines in regard to the Treaty provisions and the secondary legislation will also be addressed. The European Economic Area, consists of the European Community and its Member States and the participating EFTA States, Norway, Iceland and Liechtenstein. The EEA Agreement was meant to retain its nature as an agreement made under public international law. It also had, however, the purpose of the creating and maintaining a homogeneous and dynamic economic area, based on common rules and equal conditions of competition and providing for adequate means of enforcement including at the judicial level. Therefore the participating EFTA States adopted the Community acquis communautaire to a very large extent. The EEA Agreement extends the internal market beyond Community boundaries, by providing the participating states of EFTA with free access to the single European market. Even though the Agreement relates mainly to the adoption of EC rules on Free movement and Competition, the Agreement also deals with integration in various fields other than these economic ones. Therefore the Agreement is undoubtedly more than an ordinary international agreement. This special nature of the Agreement will be discussed from the viewpoint whether direct effect and supremacy are somehow inherent in the ''EEA law'' with citation to EC law. The situation regarding direct effect in EEA law seems at first sight to be quite different from that prevailing in EC law, because the depth of integration less is far-reaching than under the EC Treaty. This paper will cover the main provisions of the EEA Agreement and findings of the EFTA Court along the line that the EEA Agreement does not have direct effect, neither horizontally nor vertically, and that the question of such effects depends therefore on the substance of the national law of the EFTA States. But the questions encountered are not so easily answered, as will be discussed in the paper. The Agreement is a result of complicated and difficult negotiations, which had the aim of reaching common conclusions in matters, which were probably impossible to unify. On the one hand by establishing an international treaty under public international law, but on the other hand to be interpreted parallel with and producing similar results as the corresponding provision of Community law. It will be shown that some provisions under EEA Law can in fact have direct effect in some circumstances, in spite of statements from the EFTA States and regardless of provisions in the Agreement stating the opposite. This analysis is elementary and closely linked to the further discussion in the paper on comparison of State liability within EC law and EEA law. First the doctrine of State liability in EC law will be discussed, and explained why the establishment of that doctrine is considered to have been unthinkable if it were not for the doctrines of direct effect and supremacy. The establishment of that ''same'' doctrine within the EEA law will be covered in continuation. It will be explained why the findings of the EFTA Court lacks the same firm ground as exists in the EC law. It will also be argued that legal certainty calls for amendments of the unclear scope of the EEA Agreement and drastic decisions by the EFTA Court. Some remarks will as well be made about the possibility of EEA law enjoying some kind of supremacy through the EEA implementing Acts of Norway and Iceland. These findings will be addressed in the light of the internationalisation of law and the judicialization of politics. The serious conflicts between the national courts in the Union and the ECJ seem to be over and the doctrine of supremacy of community law prevails regardless of the fact that some Member States still adhere to the doctrine of dualism. In comparison the debate in the EFTA States of conflicts between EEA law with the constitutions of the participating EFTA States has not yet reached any equilibrium. It will be argued that in the light of the legal integration following the EEA Agreement that the doctrine of dualism is retreating. That finding will take place with special focus on Icelandic legal system. It will be argued that in spite of this development the necessary changes on the Icelandic constitution has to be made. The main conclusion of this discussion is described by a practical example: If a client ask a lawyer in Iceland about some subject, that is covered by the EEA Agreement it is necessary for lawyer to look into the EC rules, because if they are not (correctly) implemented into Icelandic law a question of state liability rises, or sometimes the possibility of direct effect. So it is not longer a question for the lawyer of interpreting the Icelandic law, but also a question of &quot&semicfinding&quot&semic the law, which could possible be unpublished and &quot&semicalien&quot&semic to the Iceland legal system. And the methods of interpretation of EEA (EC) law is in many ways different from the general interpretation methods the Icelanders got from Denmark, and have used for the last 100 years or so.},
  author       = {Thorvaldsson, Olafur},
  keyword      = {European Affairs},
  language     = {eng},
  note         = {Student Paper},
  title        = {Direct Effect, Supremacy and State Liability - A Comparison between EC Law and the EEA Agreement},
  year         = {2003},
}