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Common Market Law Review

29: 1171-1 198 1992.

1992

Kluwer Academ ic Publishers Printed in the Netherlan ds

THE GREEMENT ON EUROPE N ECONOMIC RE

SVEN NORBERG*

1 Introduction

O n 2 May 1992 in Op orto , Ministers fro m the nineteen EC an d EFT A

Member States an d the E C Com ission signed the Agreement o n a Eu ro-

pean Economic Area EEA). On the same day the Ministers from the

seven EFT A States1 also signed the tw o agreements on th e Establish-

ment of a Surveillance Au thority an d a Cou rt of Justice here referred

to as the ESA-EFTA Cou rt Agreement) a nd o n a Standing Comm ittee

of the EFTA States, through which the EFTA States create among

themselves the necessary institutions and structures required by the

EEA . Thereby a successful end was put to three years hard work , con-

sisting of one year of prepara tory work and almost two years of form al

negotiations. These negotiations, which have been the largest carried

out by any one of the Contracting Parties, have involved directly and

indirectly several thou sand people. T he signed copy of th e EE A Agree-

ment contains in its thirteen languages som e 15,000 pages and has a

weight of abo ut 100 kgs. To this should be added tha t the volume in

only one of the thirteen languages of the som e 1,600 acts of secondary

E

legislation which through a technique of reference have been in-

tegrated int o the Agreem ent, is some 14,000 pages. In tha t perspective

it may even be said that th e negotiations were carried ou t in a surprising-

ly short period of time.

Director, Legal Affairs, EFTA Secretariat. Opinions expressed are those of the

author.

1. Since

1

Sept. 1991 the M ember States of the European Free Trade Association

EFTA) are Austria, Finland, Iceland, Liechtenstein, Norway, Sweden and Swit-

zerland.


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The E EA has, since 1986, an d during th e negotiations as well as in

th e Agreem ent, been characterized as both dynamic an d homogeneou s,

which obviously leads to conside rable political an d legal consequences.

The basic idea behind this am bitious and cumbersome work, which in

practice m ight be looked u pon a s a kind of widening of the internal ma r-

ket, c an only be realized if t he sam e legal rules are applied in a un iform

manner throughout all the 19 countries concerned. It is only thereby

that it will be possible to achieve equal treatment and non-discrimi-

nation of the some 380 million inhabitants in these countries.

In the areas covered by t he Agreement th e results shall thus, in princi-

ple, be the same whether Community rules or EEA rules are applied.

If the individuals and economic operators cannot be guaranteed that

tha t will be the case, it would seem tha t a prim ary objective behind this

work could be jeoparidized. Th e word hom ogeneous therefore does not

only concern homogeneity as to the application of th e EE A rules as such

and the relationship between the EFTA and the EC states, but also

homogeneity between these rules and corresponding EC rules. Fu rthe r-

mo re, homogeneity should not only prevail at the entry into force of the

Agreement, but also during the dynamic development of the Agree-

me nt, in step with the development of the Com munity in corresponding

areas. O bviously, it has been a ma jor challenge for th e negotiators to

secure this in the A greement, w hile at the same time quaranteeing the

independence and decision-making a utono my of the Parties. It should

also be underlined th at the result could hardly be th e intended on e, if

the Con tracting Parties had no t seen to it th at in th e Agreement itself

this objective is very clear.

Although there formally thus will be two se parate legal orders, the

EC law an d the E EA law, the two could, in practice, be said to form

a common European legal system.

The Agreement has 21 Contrac ting Parties, the European Econom ic

Comm unity EEC), the European C oal and Steel Comm unity ECSC),

the twelve EC Mem ber States and th e seven EF TA States. It is applica-

ble between the EC an d its Mem ber States, on the one h and , and the

EFT A States, on the other, bu t also between the EF TA States.

As to the substantive scope of the Agreement, this may, in general

terms, be described as covering all EEA-relevant primary and

secon-


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EE agreement 1173

dary EC rules regarding the four freedoms of the EC internal market

and , in addition, a wide range of accompanying h orizontal an d flanking

policies, i.e. fields such as env ironm ent, research an d developm ent, so-

cial policy, consumer protection, education, statistics, where the EC

has or is developing com mo n rules, policies o r program mes.

The main sub stantive difference between the scope of the E E A an d

that of a m embership in the E C refers to th e absence in the EE A of four

common E C policies. T hus, the E EA has no com mon external trade

policy; it is a fund amen tally improv ed free trade a rea but not a customs

union , which means tha t border controls, although simplified, will not

be abolished. Further, although there is improved liberalization of

trade in agriculture and fish there are n o comm on policies in those two

fields. Finally, there is no common policy on taxation. With this in

mind one may in general terms, a nd subject to certain limited tran sition-

al arrangements, say that the EEA Agreement contains all other rele-

vant su bstantive E C rules. These rules shall, as comm on E EA rules ac-

cording to a g eneral rule of interpretation in Article 6 of the A greement,

without prejudice to futu re developments of case law, in so f ar as they

are identical in substance to correspon ding E C rules, in their implemen-

tation and application, be interpreted in conformity with the relevant

rulings of the EC Co urt of Justice given prior to the date of signature

of the Agreement. Thereby , the relevant E C case law is also taken over

into the Agreement. In the following only a brief accoun t will be m ade

of the composition of the Agreement an d the content of the substantive

parts thereof.

As to structure a n d content, the main part of the EE A Agreement,

129 Articles, is very close to correspon ding provisions in th e T reaty of

Rome. To start with, following the Prea m ble, Pa rt I Articles 1-7) con-

tains the objectives and the m ost im por tant principles fo r the relation-

ship. Then follow, in Part s

I1 an d I11 Articles 8-27 an d 28-46, respec-

tively), the basic rules concerning the four freedoms, in Part IV

Articles 53 -65) provisions concerning competition and other co mm on

rules e.g. procuremen t and intellectual property), in P ar t

V

Articles

66-77) horizontal provisions of impo rtance for the fou r freedom s and

in Pa rt VI Articles 78-88) co-operation outside the fo ur freedoms.

Pa rt VII Articles 89- 114) contains the institutional provisions, P art


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VIII (Articles 115- 117) the financ ial mechanism fo r the less developed

E C countries and , finally, Par t IX (Articles 118- 129) general an d final

provisions. In all areas where this has been possible, the provisions of

the Agreement have been formulated as closely as possible to cor-

responding provisions of E C law, in particular the E EC Treaty, as one

of the means of securing that the interpretation can be the same.

The main p art of the Agreement2 is followed by 49 Pro tocols and 22

Annexes to the Agreement. While the Protocols co ntain rules on m ore

particular questions, such as the origin of good s, customs m atters, trade

in fish or transitional periods, the Annexes provide fo r the integration

into the Agreement of aro un d 1,600 legal acts of secondary E C legisla-

tion, which have been identified as relevant so-called acquis com-

mu nautaire . This is don e throu gh a technique of reference to the pub-

lication of these legal acts in the Official Journ al of t he C omm unities,

which is published in the nine E C languages. T he complete text of these

legal texts is not reproduced in the Agreement itself, but the Annexes

mainly contain the headlines of the legal acts with certain technical

adap tations to the text. T o this end , references to EC institutions, for

instance, are replaced by references to correspon ding EE A o rgans, etc.

In each Nordic EF TA coun try, however, these texts will also be pub-

lished in an authentic translation in the respective national language.

The total volume of these texts is around 14,000 pages.

Th e Final Act of the Agreement co ntains, inter alia, 29 Joint Declara-

tions by all Contracting Parties , two D eclarations by the E C M ember

States and the E FT A States (on faciliation of border controls and o n a

political dialogue on foreign policy issues) and 39 Declarations by one

or m ore Con tracting Parties. In ad dition, the Final Act contains Agreed

Minutes and certain arrangements for the interim period.

It is the intention in this article to focus upo n t he institutional provi-

sions of the E EA Agreement an d thus n ot t o describe the substantive

ones, which could also merit a special presentation .

2 Reproduced as a document in this Review.


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EE agreement

2 egal and institutional issues

2 1

The legal technique and structure of the greement

As mentioned above, the political need to ensure a dynamic and

homogeneous E EA has had far-reaching consequences for th e construc-

tion and drafting of the Agreement. It means that the Agreement must

contain rules which, in their substance, are identical to corresponding

EC rules and that it must be secured that these rules are implemented,

applied and interpreted in conformity with corresponding EC rules. It

also means that it must be possible, while safeguarding the decision-

making autonomy of each of the Contracting Parties, to develop the

rules of the EEA in parallel with corresponding developments of the

EC.

These requirements have led th e negotiators to follow very closely the

model of the EEC Treaty an d other relevant EC legislation first of all

in the drafting of the Agreement an d in the structure thereof. The 129

Articles of the main A greement a re thus mainly structured in the same

sequence as the EEC Treaty. Obviously, provisions of that Treaty

which are not relevant for the E EA , such as the rules regarding the cus-

toms union or other comm on policies which do not exist in the EEA ,

do not appear in the EEA Agreement. On the other hand, the rules

which correspond to rules of the EEC Treaty are worded as closely as

possible to those rules. Since the Agreement, in its Protocols a nd An-

nexes, also contains o ther rules, which either are specific for the EEA

(this concerns in particular th e Protoc ols) or correspond t o secondary

EC legislation (the Annexes), it has been necessary in the Agreement t o

mention here and there particular sets of E EC rules which ar e not spe-

cifically addressed in the EEC Treaty but only in the secondary legisla-

tion. This is the case with rules such as those on pub lic procurement or

intellectual property.

One of the m ajor challenges for the d rafters has been to try , as far

as possible, t o use the legal wording of th e EE C T reaty as drafted in

957in spite of the fact th at developments of case law during the thirty-

five years tha t have lapsed since, could have motivated a m ore up dat-

ed language. T he reasons therefore have been the importance of en-


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suring tha t these rules in the E EA are interpreted in the same way as they

are in the Com munity. Any attem pt to codify case law would other-

wise risk jeopardizing the w hole exercise an d risk freezing the develop-

ment of case law. Obviously, rules on transitional periods in the EC

which are no longer relevant have not been kept.

One element of the technique used has also been t o m ake the objec-

tives of the Contracting Parties very clear and thereby to assist and

guide the interpretation of the rules of th e Agreement.

2.2 The Preamble

In the Pream ble the C ontracting Parties have expressed in sixteen reci-

tals certain ma in principles an d objectives o n the creation of th e EE A.

In these recitals, certain principles are emphasized regarding the posi-

tive effects of the EEA, the privileged relationship between the Con-

tracting Parties, the further development of the E EA , the importance

of the EE A t o individuals, the imp ortance of the flanking policies, such

as environment, the social dimension, consumers' interests, the

strengthening of the scientific an d technological basis of Europe an in-

dustry. Of particular interest in this context may be mentioned the

fou rth recital emphasizing, inter alia, the objective of establishing a dy-

namic and homogeneous Europea n Econom ic Area, based on comm on

rules and equal conditions of competition and providing for the ade-

qua te means of en forcem ent, including at the judicial level. The eighth

recital addresses the im porta nt role that individuals will play in the Eu -

ropean Economic Area, inter alia, through the exercise of the rights

conferred on them by the Agreement.

Another recital in the Preamble recalls that the conclusion of the

Agreement shall in no way prejudge fu ture accession to the E C by any

EFTA Sta te .

In the second but last recital, which was added t o the text after the

first opinion of the E C C our t of Justice of 14 December 1991,3 the

Contracting Parties emphasize the objective to arrive at a nd maintain

3 Opinion 1/91, O.J. 1992, C 110/Annotated by Schermers in this Review at

991-1009.


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EE agreement

1177

a uniform interpretation and application of the Agreement and those

EC rules, which are substantially reproduced in the Agreement and to

arrive at equal treatment of individuals and economic operators as

regards the four freedoms and the conditions for competition.

As can be seen from these examples, the Preamble contains impor-

tan t expressions of the political a m bitions and objectives of the C on-

tracting Parties th at will have to be taken into co nsideration when ap-

plying an d implementing the A greement.

2.3

The objectives

nd

principles of the greement

Similar to the E EC Treaty, Pa rt I of th e Agreement lays down in Arti-

cles 1-7 specific provisions regarding th e objectives and principles.

Thus the aim of th e Agreement, as stated in Article 1(1), is to prom ote

a continuous an d balanced strengthening of trade an d economic rela-

tions between the C ontracting Parties w ith equal conditions of competi-

tion, a nd th e respect for the sam e rules, with a view to creating a hom o-

geneous European Economic Area. In order to attain the objectives

thus set out , the association4 shall furth erm ore e ntail (Article 1(2)), in

accordance with the provisions of the Agreement:

(a) the free m ovement of goods;

(b) the free movement of persons;

(c) the free movement of services;

(d) the free movement of capital;

(e) th e setting up of a system ensuring tha t com petition is no t distorted

and that the rules thereon are equally respected; as well as

(f) closer co-operation in other fields, such as research and develop-

ment, the environment, education and social policy.

Article 2 contains certain definitions. According to one of these, the

term Con tracting Parties (since this Agreement is a mixed Agree-

men t, with both the Member States of th e Comm unity and th e Comm u-

4. The Agreement is concluded on the EC side as an association agreement under

Art. 38 EEC.


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nity itself as Contracting P arties) may with regard to the E C side have

different meanings depending upon the respective competences of the

Com munity an d the EC Mem ber States under Com munity law.5 It can

thus, depending upo n the status of E C law, either mean the Com munity

and the EC Member States, or the Community, or the EC Member

States.

Th e Contracting Parties have also undertaken a corresponding obli-

gation to tha t under Article

5

of the E EC Treaty, an A rticle which has

been the subject of numerous judgments of the EC Court of Justice.

Thus un der A rticle

the C ontracting P arties are obliged to take all ap-

propriate measures, whether general or particular, to ensure fulfilment

of the obligations arising o ut of the Agreement. They shall abstain from

any measu re which could jeopardize the attainment of th e objectives of

the Agreem ent. M oreover, they shall facilitate co-operation w ithin the

framework of the Agreement.

A general prohibition regarding discrimination o n grounds of nation-

ality corresponding to Article 7 of the E EC Treaty is contained in Arti-

cle 4.

Article 5 lays down the important principle that any Contracting

Par ty a t any time may raise a m atter of concern a t the level of the EE A

Joint C om mittee or the EEA Council. This principle, which during the

negotiations has been referre d to as droit dyevocation is also ex-

pressed in A rticles 92(2), as to th e EE A Joint Com mittee, an d 89(2), as

to the EE A Council.

One of the most difficult and delicate issues to negotiate concerned

the question of how t o ensure that provisions of the E EA A greement,

which in their substance ar e identical to provisions of E C law, are also

given such an interpretation. W ith regard to the interpretation of such

provisions on the da te of signature of the A greement it was natural f or

the C ontracting Parties to agree that the interpretation should be in con-

formity with that given until then by the EC Co urt of Justice. The par-

ticular difficulties refer, how ever, to the interest, on the one ha nd, to

keep future interpretations of corresponding EC a nd E EA rules as uni-

form as possible, while at the sam e time preserving the autonom y of the

5 corresponding definition is also contained in the Fourth LomC Convention.


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EE agreement 1179

EF TA States an d their judicial systems. T he solution chosen a nd laid

down in Article

6

of th e EE A Agreement is inspired by corresponding

solutions in th e 1988 Lugano Convention on jurisdiction, recognition

and enforcement of judgments in civil and commercial matters. The

problems in connection with that Con vention w ere similar in relation to

the corresponding 1968 Brussels Convention, and the solutions then

worked out are contained in Protocol 2 t o the Lugano Convention.

As can be seen from Article 6 of the EE A Agreement, the Contracting

Parties have, first of all, declared that on the date of signature of the

Agreement all provisions of the Ag reem entY 6n so far as they a re iden-

tical in substance to corresponding EC rules shall in their implementa-

tion a nd ap plication be interpreted in conform ity with the relevant rul-

ings of the EC Court of Justice. With regard to developments in the

fu ture, the provision makes a reservation in the sense th at what is said

should be without prejudice to futu re developments of case law. This

is an expression of th e need to avoid freezing in the interpretation at

the state as of the da te of signature. In orde r, nevertheless, to em phasize

the objective of the Contracting P arties, also for the future, t o maintain

homogeneity, Article

6

is supported by further language in the Agree-

ment. In pa rticular, mention should here be made of the second but last

recital of the Pream ble, which was mentioned ab ove, a nd of Section

of Chapter

3

of Part VII which will be commented upon later.'

An othe r provision with a similar objective is Article

7

which is similar

to Article 189 of the E EC Treaty. Thu s acts referred t o or con tained in

6

It follows from Art.

2

that the term Agreement means the main Agreem ent,

its Protocols a nd A nnexes as well as the a cts referred to therein.

7. In this context particular mention should also be made of Art. 3 of the above-

mentioned Agreem ent between the EFTA States on the establishment of a Surveillance

Authority and Co urt of Justice. While A rt. 3 1) of tha t Agreement is identical to A rt.

6 of the EEA A greement, Art.

3 2)

reads: In the interpr etation an d application of the

EEA Agreement and this Agreement, the E FT A Surveillance Authority and the EFTA

Court shall pay due account to the principles laid down by the relevant rulings by the

Cou rt of Justice of the Euro pean C omm unities given after the date of signature of the

EEA Agreement and which concern the interpretation of that Agreement or of such

rules of the Treaty establishing the Europ ean Eco nomic Com munity an d the Treaty es-

tablishing the Euro pean Coal and Steel Co mm unity in so far as they are identical in sub-

stance to the provisions of the EEA Agreement or to the provisions of Proto cols to

4

and the provisions of the acts corresponding to those listed in Annexes I and I1 to the

present Agreement .


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1180 No rberg CML Rev. 1992

the Annexes to the EEA Agreement or in decisions of the EEA Joint

Com mittee shall be binding up on the Con tracting Parties and be, o r be

made, part of their internal legal order as follows:

(a) an act corresponding to a EEC Regulation shall as such be

made part of the internal legal order of the Contracting

Parties;

(b) an act corresponding to an EEC Directive shall leave to the

authorities of the Co ntracting Parties the choice of form an d

method of implementation.

Such a provision was necessary not only in order t o secure the correct

implementation of these rules in the C ontracting P arties but also in ord-

er to avoid, inter alia, that , d ue to th e public internationa l law character

of the A greement, especially in m onist Con tracting Parties, acts cor-

responding to EE C Directives would become more binding under EE A

law tha n under E C law in the E C M ember States.

2.4 The institutional issues

Part VII Institutional Provisions (Articles 89-

114

is divided into fo ur

chapters, Chapter 1 the Structure of the Association, Chapter 2 the

Decision-making procedu re, Ch apte r Hom ogene ity, Surveillance pro-

cedure an d Settlement of disputes and Cha pter

4

Safeguard measures.

2.4.1 Chapter 1 The Structu re of the Assoc iation

This chapte r (Articles 89-96), dealing with the structure of the Associa-

tion is, in its turn, divided into four sections each dealing with one of

the joint organs created by the Agreement, EEA Council, the EEA

Joint Com mittee, the EEA Joint Parliamentary Committee and the co-

operation between economic a nd social partners, w hich, inter alia, will

be carried ou t through the E EA Consultative Com mittee. In reading

this Pa rt of th e Agreement it should be kept in mind th at the Agreement

does not foresee any transfer of legislative competence from any Con-

tracting P arty to any organ of the EEA .

As can be seen from a com parison between the provisions on the EE A

Joint Comm ittee and those on the EEA Council, the Agreement fore-


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EE agreement 1181

sees tha t the daily operation of the EE A shall be in the hands of the EEA

Joint Committee. It will be the EEA Joint Committee that adopts the

decisions regarding amendments of the provisions of the Agreement

contained in the Annexes and most of the P roto cols . It will also be the

Joint Com mittee that will be in charge of t he m anagement of th e Agree-

ment. Th e Join t Comm ittee will also have an im portant function with

regard to th e settlement of dispu tes under th e Agreement. T he role of

the EE A Coun cil will mo re be a political one , to give the political impe-

tus an d t o take the political decisions regarding the further development

of the EEA. It may be noted also that, on the Community side, the

presidency in the EEA Council will be held by a member of the EC

Council, while in the EEA Joint Committee it will be the Commission

that will hold the presidency on t he E C side.

The tasks of theEE Coun cil as defined in A rticle 89, shall, in partic-

ular, be t o give the political impetus in the implementation of the A gree-

ment and lay down the general guidelines fo r the EEA Join t Com mittee.

To this end, the E EA Council shall assess the overall functioning and

development of t he Agreement an d tak e the political decisions leading

to am endments of the Agreement. Furthermore, the Contracting Pa r-

ties may raise, in t he E EA Coun cil, any issue giving rise to a difficulty

( droit d'kvocation ). W hile this normally should first be discussed in

the EEA Joint Committee it may, in exceptionally urgent cases, be

raised directly without such a discussion.

The EE A C ouncil shall consist of the mem bers of th e Council of the

European Communities, members of the EC Commission and of one

member of the Governm ent of each of t he EF TA States. Decisions by

the EEA Council shall further be taken by agreement between the C om-

munity, o n the one hand, and the E FT A States, on the other. T he office

of P resident of the E EA Council shall be held alternately, for a period

of six mo nths, by a member of the C ouncil of the European Com muni-

ties and a member of the Government of an EFTA State. The EEA

Council shall meet at least twice a year.

Article

92

establishes the EE Jo int Com mittee, which shall ensure

the effective implementation an d o peration of the Agreement. It shall

to this end ca rry out exchanges of views and inform ation a nd ta ke deci-

sions in th e cases provided for in the A greement. A reference t o the so-

called droit d'kvocation implies tha t the Co ntrac ting Pa rties shall


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Norberg CML Rev 992

hold consultations in the Jo int C om mittee on any point of relevance to

the Agreement giving rise to a difficulty raised by one of them. The

EE A Joint Com mittee shall consist of representatives of the Con tract-

ing Parties. Decisions are taken by agreement between the C om mu nity

on the one hand and the EFT A States speaking with one voice on the

other.

Th e Office of President of th e EE A J oint C om mittee shall be held al-

ternately for a period of six m onth s by a representative of the EC

Com mission representing the Com mu nity and a representative of one

of the E FT A S tates. Meetings ar e to be held at least once a m onth . T he

EEA Joint Committee may also establish sub-committees or working

groups t o assist it in carrying ou t its tasks an d it shall further issue an-

nually a repo rt o n the functioning and development of the Agreem ent.

According to Article 95

the EEA Joint Parliamentary Committee

shall be composed of equal numbers o f on the one han d members of

the Europ ean Parliament and on the other members of parliaments of

the EFTA States. The total number of members of the Committee is

laid down in the Statute in Pro toco l 36 an d will be 66 or 33 fro m either

side.8 Th e tasks of this C om mittee shall be to contribute through dia-

logue an d debate to a better understanding between the Com mu nity

an d the EF T A States in the fields covered by the Agreement. T he Com -

mittee may express its views in the fo rm of rep orts o r resolutions as ap-

propriate. It shall in particular examine the annua l report of the Joint

Com mittee on the functioning a nd the development of the Agreement.

The President of the EEA Council may appear before the EEA Joint

Parliamentary Committee in order to be heard by it.

Article 96 emphasizes the importanc es of

co operation between the

economic and social partners an d that this takes place in an organized

and regular manner between members of the Economic and Social

Committee and other bodies representing the social partners in the

Com mu nity and the corresponding bodies in the EF TA States in order

8. In an Agreement signed in Reykjavik on

20

May

1992

the EF TA States agreed to

establish a Committee of Members of Parliaments of the EFTA States. This Commit-

tee the members of which will be the representatives of the Parliame nts of the EF TA

States in the EEA Joint Parliamen tary Committee will apa rt from addressing EEA

matters also tak e over the tasks with regard to relations between the EFT A States and

the Comm unity which so far have been carried ou t by an E FTA Parliame ntary Commit-

tee of Members of Parliament of the EFTA countries established in 1977


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EE agreement 1183

to enhance the awareness of the economic and social aspects of the

growing interdependence of th e economies of the Con tracting Parties

and of their interests within the context of the EEA. A special EEA

Consultative Com mittee is to this en d established. The Com mittee shall

be composed of equal numbers of on the one han d members of the

Economic and Social Comm ittee of the Com munity and on the other

members of the EFTA Consultative Commitee.

2.4.2 Chapter 11 The Decision making Procedure

This Ch apte r deals in Articles 97-104 with the decision-making

procedure in particular with regard to decisions regarding the future

development of the Agreement in parallel to developments in the EE C.

In order to fulfil the requirement of a hom ogeneous EEA also in the

future it will be necessary for the Con tractin g Pa rties in areas covered

by the Agreement to be able to achieve a joint parallel development

of the legal orders of the Community and the EEA. Obviously these

questions have not been particularly easy to regulate in the Agreem ent

since at the same time it has been necessary to take into acc ount the re-

quirement of the Comm unity that its decision-making a utonom y con-

cerning the development of internal Community law must not be

jeopardized as well as the requirement of the EF TA States to partici-

pate in the decision-making process regarding EEA-relevant new EC

rules. A few essential points in the decision-making procedure of the

EEA may here be emphasized. Article 97 expresses the right for each

Con tracting Party to a me nd its internal legislation in the areas covered

by the Agreement. This can be don e subject to either of two conditions

tha t the EEA Join t C omm ittee concludes tha t the legislation as amend-

ed does not affect the good functioning of the Agree me nt or if the

procedures for the decision-making under the Agreement have been

completed.

Article 98 contains an enumeration of those parts of the Agreement

that are subject to th e particular decision-making procedure under this

Ch apte r. These pa rts are all the 22 Annexes as well as 31 out of the 49

Protoco ls. T he other 18 Protoco ls as well as the provisions of the m ain

Agreement can only be amended thro ugh the convening of a conference

of the Contracting Parties.


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Rev 992

W ith regard t o the decision-making procedure itself, Article 99 pro-

vides th at as soon as new legislation is being draw n up by the EC Com -

mission in a field which is governed by the EE A Ag reem ent, the Com -

mission shall informally seek advice fro m experts f ro m the E FT A S tates

in the same way as it seeks advice from experts of t he E C M ember States

for the elaboration of each proposal (Article 99(1)). W hen transm itting

its proposal to the EC Council the Comm ission shall further transmit

copies thereof to the E FT A S tates . A preliminary exchange of views will

take place at the request of an y of the Contracting Parties in the EE A

Joint Com mittee

(99(2)). All alon g th e very extensive decision-making

procedure in the Com mu nity there will then , in parallel within the E EA ,

be a n intensive information a nd consultation process between the E C

and the EF TA States in the EE A Joint Com mittee (Article 99(3)). It

will, however, through the droit dYC vocation ,be possible to raise a

problem t o the Ministerial level in the E E A C ouncil. The C ontracting

Parties are further under a general obligation to co-operate in good

faith during the information and consultation phase with a view to

facilitating, at the end of the process, the decision-taking in the EE A

Join t Com mittee (Article 99(4)).

The question regarding the participation of experts from the E FT A

States in E C comm ittees set up to assist the E C C ommission, was inten-

sively discussed during the negotiations. In broad terms distinction

could be made between three categories of EC committees, (a) those

assisting the Commission in the exercise of its executive powers, (b)

those assisting the Commission in the management and development

of particular Com munity programm es where EFT A States contribute

financially and (c) other com mittees. In accordan ce with th e provisions

laid down in Article 100, the EC Commission will with regard to

category (a) ensure experts of the E FT A S tates as wide a participation

as possible in the preparatory stage of d raft m easures to be subm itted

subsequently to the com mittees. T he Com mission will hereby refer t o

experts of the E FT A States on th e same basis as it refers to experts of

the EC Mem ber S tates. This is of the utm ost im portance since thereby

it will be possible fo r the C om mis sion, already at an early stage, to take

into account views from the EF TA countries.

Special mo re far-reaching solutions fo r the association of EF TA ex-


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EE agreement 1185

perts have then been worked o ut for th e category (b) committees, i.e.

those established for the differen t EC program me activities in which the

EFTA countries will participate financially (Article 81).

With regard to comm ittees under category (c), i.e. other com mittees

established to assist the Com mission, the

association

of EFT A States

experts will be guided by the need tha t m ight exist in the interest of the

good functioning of th e Agreement (Article 101). Pro toco l

7

contains

already a list of eight such committees. It is envisaged that decisions

concerning such association with further committees will be taken by

the EEA Joint Comm ittee as soon as it starts work.

Article 102 addresses the particu lar problem that arises from , on the

one hand , the principle of decision-making au tonom y of the C ontract-

ing Parties an d, o n the other, th e political desire and need t o m aintain

the homogeneity of the EEA Agreem ent. It concerns, in other w ords,

the particular procedures needed for the adoption of am endments to the

Annexes to th e Agreement. As explained ab ove, the A nnexes contain all

the integrated secondary Community legislation and whenever one of

these legal acts in the Com mu nity, normally EE C R egulations or Direc-

tives, will be am ende d, corresponding am endm ents should also be made

to the Annexes of the EEA Agreement.

Certain general principles regarding the a doption and the e ntry into

force of such amendments a re laid dow n in Article 102(1). It is thus em-

phasized that, in order to quarantee the legal security and the homo-

geneity of the EEA , the EEA Join t Com mittee shall take a decision con-

cerning amendments of the Annexes to the Agreement as closely as

possible to the adoption by the Community of the corresponding new

Community legislation

with a view to permitting a simultaneous appli

cation of the latter a nd of the am endm ents of the Annexes t o the Agree-

ment. From the homogeneity point of view this principle is evidently

very importan t. There should in other words be no delays in relation to

the entry into force of an amendment of a n Annex to the EE A A gree-

ment and the entry into force of the corresponding Com munity rule. T o

this end the Community is under an obligation to inform, as soon as

possible, the other Contracting Parties in the Joint Committee

whenever it adopts an EEA-relevant legislative act.

The C ontracting Parties a re obliged t o make all efforts to arrive at


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1186 Norberg ML Rev 992

an agreement on matters relevant to the EE A Agreement an d special

emphasis is add ed , in particular, t o finding a mutually acceptable solu-

tion where a serious problem arises in an area which, in the EFTA

States, falls within the com petence of the legislator. The Joint C omm it-

tee shall, if nevertheless an agreement on an amendment of an Annex

cannot be reached, examine all further possibilities to maintain the

good functioning of the Agreement and may also take any decision

necessary to this effect. Among such decisions is specially mentioned

the possibility to ta ke notice of the equivalence of legislation. In order

not to extend the discussions in the Joint Committee beyond a reason-

able amo un t of time, it is furthe r required that a decision shall be taken

at the latest at the expiry of a period of six mo nths from the d ate of

referral t o the EE A J oint Com mittee of a decision by the EC Council

or , if th at date is later, on the date of entry into force of the correspond-

ing C om mu nity legislation.

Article

102 5) deals with the consequences if, a t the end of th at tim e,

the Joint Committee has not taken a decision on an am endm ent of an

Annex. In that case the part of the Annex which would be directly af-

fected by the new legislation is regarded as provisionally suspended un -

less the J oin t Com mittee takes a decision t o the contrary. Such a provi-

sional suspension shall take effect six m on ths after th e end of the time

period referred t o above, bu t in n o event earlier th an the date o n which

the corresponding E C act is implemented in the Com munity. Th e Joint

Committee shall pursue its efforts to agree on

a

mutually acceptable

solution in order to terminate this suspension as soon as possible. Pa ra-

graph 6 of Article 102 deals with the practical consequences of this

suspension.

Th e situation where a decision of the Jo int C om mittee can be binding

on a Contracting Pa rty only after the fulfilment of the constitutional re-

quirements is dealt with in Article 103. Decisions taken by the Joint

Com mittee shall, unless otherwise provided f or therein, u pon their en-

try into force, be binding upon the Contracting Parties which are ob-

liged to take the necessary steps to ensure their implem entation an d ap -

plication Article 104).

The above-mentioned provisions regarding decision-making imply,

for the Com munity, th at it will have to t ake into account views of the

EF TA States, both when preparing an d developing proposals for deci-


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agreement 1187

sions as well as when the decisions concerning new C om munity rules are

taken. If this is not don e there might be a risk that th e EF TA States will

not be able to follow the development of EC rules and give their ap-

proval to corresponding new EEA rules.

For the EFT A S tates this would imply that an imp ortant part of the

possibilities for initiatives concerning the future development of the

comm on rules will be in the han ds of the C om mun ity. The EF TA States

will how ever in various ways have the possibility of injecting their

views both informally an d formally a nd discussing new c om mon rules

with the Com mu nity. I n the end they will be able to claim th at they will

maintain their freedom not to accept the proposal to a n amendm ent of

the existing EE A rules. In that sense the situation of a n EF TA State in

the EEA differs from that of a n EC Member S tate in the Comm unity.

An E C M ember S tate can in most area s be overruled by a majority of

the other M ember States and thereby against its own will be boun d by

a new rule. In the E EA the principle of consensus prevails. T o block a

decision on a new E EA rule may howe ver in practice unless the par-

ties canno t agree o n any other solution as described above ultimately

have the result th at a part of a n Annex to the Agreement which would

be affected by the new rules can be provisionally suspended .

2.4.3

Chapter 111 Hom ogeneity Surveillance Procedure and Settle-

ment of Disputes

2.4.3.1 General

With regard to the need to securing a uniform interpretation of the EE A

rules themselves as well as in relation to corresponding E C rules refer-

ence is made t o the a bove comm ents to th e Pream ble as well as to the

general rule of interpre tation conta ined in Article of the Agreem ent.

The question of uniform interpretation is however also intimately

linked to the question of how to arran ge fo r dispute settlement between

the Contracting Parties. As to both of these questions it was already

clear during the exploratory talks preceding the negotiations that in ord-

er to secure legal homogeneity within the EEA some kind of a special

mechanism must be established.


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Th e E F T A side thu s suggested already a t the beginning of th e discus-

sions that a n independent E EA Co urt should be established to function

in conjunction with the E C C ou rt of Justice. A solution to tha t end was

worked out a nd ad opted a t the Jo int Ministerial Meeting in May 1991.

It implied the creation of a n indepen dent EEA Co ur t as well as a C ourt

of First Instance both functionally integrated with the EC Co urt of

Justice. However in an opinion delivered by the E C Co urt of Justice

on 14 December 1991

9

the C our t declared that solution not to be com-

patible with the EE C Treaty. During the following two m onths a new

system f or settlement of d isputes was worked o ut an d finally adopted

by the negotiators on 14 Feb rua ry 1992. In a second opinion delivered

by the E C Co urt of Justice o n 10 April 1992 1° the Co urt declared the

new solution compatible with the EEC Treaty.

The finally-agreed system emphasizes in particular the questions of

preserving the hom ogeneity of the Agreem ent and the settlement of dis-

putes between the Contracting Parties. The section regarding the sur-

veillance procedure under the Agreement underw ent ap art from

changes regarding the judicial mechanism no ame ndm ent. As to the

question of guaranteeing a nd preserving homogeneity in the EE A the

idea of having a joint EEA Court and Court of First Instance had to

be abolished. Instead the EF T A States will establish for their part an

EFTA Court. In order to ensure uniform interpretation a number of

different elements have already been mentioned a bove. Chap ter I11 of

P ar t VII adds thereto im por tant provisions especially regarding the

role of the E EA Join t Co mm ittee. It shall keep under con stant review

the development of the case law of the Co urt of Justice of the Europ ean

Comm unities and the EF TA Co urt as far as provisions of the EE A

Agreem ent which are identical to provisions of C om mu nity legislation

are concerned. Th e EE A Join t Committee may in this context take the

necessary action to preserve the homogeneous interpretation. If a

difference in the case law of the tw o Co urts has been brought before the

Join t Com mittee and the Joint Comm ittee has not succeeded within two

mo nths to preserve the homogeneous interpretation the dispute settle-

9. See note 3 supra

10. Opinion 1/92 O.J. 1992 136/1. Anno tated

y

Schermers supra note 3.


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EE

agreement 1189

ment procedures of Article 111 may be applied. These procedures,

which will be com mented u pon later, contain, inter alia, the possibility

of agreeing to request the E C C ou rt of Justice to give a ruling on the

interpretation.

The surveillance procedure in th e E EA follows the well-known two-

pillar model, where, o n the one han d, the E C Comm ission m onitors the

correct implementation, ap plication a nd inter pretation of E EA rules by

the EC M ember States, and a newly created independent organization

on the EE A side, the EF TA Surveillance Au thority ESA) takes on the

corresponding tasks with regard to the EF TA States. Corresponding to

the judicial c ontrol exercised in the E C by the E C C our t of Justice, the

EFT A Co urt will have such competences a s to the surveillance proce-

dures on the EFTA side.

W ith regard to dispute settlement in general between the C ontracting

Parties, the EE A J oin t Com mittee is competent to settle disputes and

shall, in doing so, examine all possibilities to maintain the good func-

tioning of the Agreement. If, however, a dispute concerns the scope or

duration of a safeguard m easure or the proportiona lity of a rebalancing

measure, an d the Join t Com mittee has not been able to settle the dis-

pute, it may be referred to binding arbitration in accordance with proce-

dures especially laid down in Article 11 4) of the Agreem ent.

2 4 3 2 Homogeneity

This section Articles 105- 107) co nta ins first, in Article 105, provisions

regarding the obligation for the Join t Com mittee to act with a view to

achieving the objective of the Co ntracting Pa rties to arrive a t as uni-

form an inte rpretation as possible of th e provisions of the A greement

and those provisions of C ommu nity legislation which are substantially

reproduced therein. Th e EE A Jo int Com mittee shall keep under cons-

tant review the development of the case law of the Court of Justice of

the European Comm unities an d the EFT A C ourt. Jud gments of these

Co urts shall, therefore , be transmitted to the Jo int Com mittee, which

shall act so as to preserve the homo geneous interp retation of th e Agree-

ment. If the EEA Join t Comm ittee within two month s after a difference

in the case law of the two C our ts has been brought before it, has not

succeeded in preserving the homogeneou s interp retation of the Agree-


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ML

Rev 992

me nt, the procedures laid dow n in Article 11 1 (settlement of disputes)

may be applied. These provisions shall above all be seen as an expres-

sion of the objective of the Contracting Parties to see to it that the

homogeneity of the EE A is really achieved an d preserved. The question

may be raised as to what action the Joint C omm ittee could unde rtake

if a difference in case law were to occur between tha t of th e EC C ourt

of Justice and that of the E FT A C ourt. Evidently the Joint Com mittee

cannot change a ruling of either of the C ourts. It is furthe r underlined

in Pro toco l 48 that decisions by th e Jo int C omm ittee under this Article

as well as under Article 11 1 ma y no t affect the case law of the E C Court

of Justice. Such a decision could, however, am ount t o an amendm ent

of an EEA rule or an approval of an interpretation given by the EC

Court of Justice.

Article 106 contains arran gem ents for the exchange of inform ation

concerning judgments by the E FT A C our t, the EC Co urt of Justice and

the EC Co urt of First Instance a s well as the Co urt s of last instance o f

the E FT A States. This provision, which is inspired by a similar solution

in the Lugano Convention of 1988 on recognition a nd enforcemen t of

judgments in civil cases, provides for the exchange of relevant judg-

ments through the Registrar of the EC Court of Justice, who will also

be responsible for th e classification thereof as well as the drawing up

and publication of translations and abstracts.

Possibilities fo r an E FTA State to allow a court o r tribunal to ask the

E C C our t of Justice to decide on the interpretation of an E EA Rule are

opened through Article 107 and Protocol 34. Any EFTA State is free

to decide whether or not to avail itself of this Protocol and also, if it

would d o so , to what extent it would allow its courts to seek such a deci-

sion. Clearly such a system with binding interp retation s causes constitu-

tional and/or political difficulties for the EFTA States and it remains

to be seen to what extent it will be utilized.

In o rder further to strengthen the legal homogeneity within the EE A ,

the Community has also undertaken to open intervention possibilities

11. Moreov er, under Art.

4

of the above-mentioned Agreement between the EFTA

States on the Establishment of a Surveillance Auth ority and a C ourt of Justice, the

EFT A C ou rt shall have jurisdiction to give advisory opinions on th e interpretation of

the EEA Agreement upon request from a national court or tribun al in an EFTA S tate.


21/28

EE agreement 1191

for the EFT A S tates and the ESA before the EC C ourt of Justice. The

ESA-EFTA Court Agreement contains provisions granting the EC

Commission and the Com mun ity corresponding rights to intervene in

cases before the EF TA Cou rt.

2 4 3 3 Surveillance Procedure

Th e general rules regarding the surveillance procedure under the EE A

are laid dow n in Articles 108- 110. Article 108 states the obligations for

the EFT A States to establish a n independen t surveillance authority the

EFTA Surveillance Authority, hereinafter referred to as ESA) and a

Court of Justice EFT A Court). W ith regard to the surveillance authori-

ty it is furthe r laid dow n that the E FT A S tates shall establish procedures

similar to those existing in the Community, including procedures for

ensuring the fulfilment of obligations under the Agreement and for

control of the legality of acts of the ESA regarding co mp etition. From

this, it follows that the ESA, with regard to its surveillance activities,

will have competences corresponding t o those of the E C Comm ission.

Further details regarding this are laid down in various other p arts of the

EEA Agreement, e.g. in Protocols 21 and 26, which, inter alia, deal

with the powers a nd fun ctions of E SA in the fields of competition and

State aid.

As to the E FT A C ourt , it is also stated that it shall, in accordance

with a se parate agreement between the EF TA States, with regard to the

application of this agreement be com petent, in particular, for: a) ac-

tions concerning the surveillance proc edu re regarding the EFTA States;

b) appeals concerning decisions taken by the EFTA Surveillance

Au thority in the field of com petition ; an d c) settlement of disputes be-

tween two or more EFTA States.

As mentioned above, the EF TA States, on 2 May 1992 in Op orto,

also signed the ESA -EFT A C ourt A greem ent, which lays dow n in detail

the rules regarding the functions and competences of the ES A a nd the

EFTA Court. That Agreement contains, as to surveillance, particular

provisions regarding the general surveillance of the implem entatio n, ap-

plication an d interpretation of the EE A rules by the EF TA States as well

as the special surveillance functions to be carried out in the fields of

com petition, state aid a nd public procurem ent. All these provisions aim

at ensuring that, for the surveillance procedure, the ES A a nd th e EF TA


22/28

119 orberg ML

Rev

992

Co urt really are equipped with correspon ding competences a nd powers

to those of the EC Com mission a nd the EC C our t of Justice and the

Court of First Instance.

While thu s Article 108 obliges the EF TA States to establish two new

institutions which with regard to the surveillance procedure should

have corresponding competences to those of the EC Commission and

E C C ou rt of Justice Article 109 lays down the rules on how the fulfil-

ment of the obligations of all Contracting Parties unde r the EE A Agree-

ment shall be monitored a nd how the EF TA Surveillance Authority and

the EC Commission shall co-operate.

It is thus initially provided t h at the fulfilment of the obligations under

the Agreement shall be monitored by on the one han d the EFT A Sur-

veillance Authority an d on the other the E C Com mission acting in

conform ity with the Treaty establishing the Europe an Economic C om -

munity the Treaty establishing the Europ ean C oal and Steel Communi-

ty and the E EA Agreement. In order t o ensure a uniform surveillance

througho ut the EE A the EFT A Surveillance Au thority and the EC

Comm ission shall co-operate exchange infor m ation and consult each

other o n surveillance policy issues and individual cases. This general ob -

ligation fo r the E FTA Surveillance Authority and th e E C Commission

to co-operate is followed u p in othe r places of the Agreem ent by more

detailed rules in particula r with regard t o the fields of co mpe tition a nd

state aid where Protocols 23 24 and 27 deal specifically with this

subject.

Th e Commission and the E FT A Surveillance Authority shall further

receive any complaints concerning the application of the Agreement

and inform each other of complaints received. Each of these bodies

shall examine all complaints falling within its competences and shall

pass to the other body any com plaints which fall within the competence

of that body. In case of disagreement between the two bodies with

regard to the action to be taken in relation to a complaint or with regard

to the result of the exam ination either of them m ay refer the matter t o

the E E A J oint Com mittee which shall deal with it in accordance with

the dispute settlement procedure of Article 111.

Article 110 con tains rules regarding th e enfo rcem ent of decisions un-

der this Agreement by the EFTA Surveillance Authority or the Com-


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EEA

agreement

1193

mission which impose a pecuniary obligation on persons other than

States. The provision which also applies to such judgments under the

Agreement by the EC Co urt of Ju stice, the C ourt of F irst Instance of

the EC and th e EFT A C ou rt, is modelled upo n Article 192 of the EE C

Treaty.

2 4 3 4 Settlement of disputes

This section, consisting of Article 11 1, lays dow n the rules regarding set-

tlement of disputes. The Article belongs to those which obviously had

to undergo a substantial redrafting when, after the first opinion of the

EC C ourt of Justice, it became clear that th e idea of a joint EE A C ourt

an d Co urt of First Instance had t o be abolished. A s explained above,

the responsibility fo r settling disputes between the C ontrac ting Parties

now rests with the EEA Joint Committee. It should, however, be

recalled that disputes between the C omm unity an d its Mem ber States

are settled internally under Com mun ity law and th at the EF T A C ourt

has been given the competence to settle disputes between two or more

EF TA States. Evidently the good functioning of the co-operation be-

tween the two surveillance authorities will be of vital importance for

avoiding disputes having to be brought to the EEA Joint Committee.

According to Article 11 (1) the Com munity or an EF TA State may

bring a matte r under dispute which concerns the interpretatio n o r appli-

cation of the Agreement before the Joint Committee. In the second

paragraph it is furthe r stated that the E E A Jo int C ommittee may settle

the dispute and that it shall be provided with all information which

might be of use in making possible an in depth exam ination of th e situa-

tion, with a view to finding an acceptable solution. T o this end the E EA

Joint Committee shall examine all possibilities to maintain the good

functioning of the Agreement. It should here be recalled that th e Joint

Com mittee can only act with decisions taken by consensus between, on

the one hand, the EC and its Member States and, on the other, the

EFTA States. This demonstrates that dispute settlement in the EEA

Joint Committee will basically be of a political nature, although such

a political solution may very well be based upon argum ents concern-

ing the correct interpretation of a particular provision of the Agree-

ment.


24/28

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Norberg CM L Rev

992

Tw o kinds of d isputes can , however, under A rticle 11 1 be subject to

particular procedures, if the EE A Join t Comm ittee does not m anage to

agree on the settlement of the dispute. T he first kind would be a dispute

concerning the inte rpretatio n of so-called mirroring legislation (i.e. pro-

visions of the Agreement which in substance are identical to cor-

responding EC rules (Article 11 l(3))). In such a case the C ontrac ting

Parties t o the dispute have the possibility of agreeing to request the E C

Co urt of Justice to give a ruling o n the interpretation of the relevant

rules. If, however, within six months from the da te on which the proce-

dure has been initiated they have no t asked fo r such a ruling an d there

is no agreement on a solution, a Contracting Party may, in order to

remedy possible imbalances, either take a safeguard measure in accor-

dance with Article 112(2) or app ly Article 102

mutatis mutandis

While

the ruling by the EC Court of Justice would be binding as to its legal

interpretation, it would leave the Contracting Parties free to decide

upo n th e political conclusions to be drawn thereof.

Th e oth er case where a special procedure is foreseen (Article 11 l(4))

concerns disputes regarding the scope or du ration of safeg uard meas-

ures taken in accordance with Article 111(3) or Article 112 or the

proportionality of rebalancing m easures taken in accordanc e with A rti-

cle 114. If, in such a case, the Jo int Com mittee after three mo nths has

not succeeded in resolving the dispute, any Con tracting Par ty m ay refer

the dispute to binding arbitra tion under procedures laid do wn in Pro -

tocol 33. The arbitration trib una l may not deal with any question of in-

terpre tation of provisions of mirroring legislation.

2.4.4

Chapter

IV,

Safeguard Measures

O n the E FT A side individual co untries had originally envisaged making

particular exceptions in the Agreement from certain rules contained in

the acquis communautaire. At the beginning of the formal negotia-

tions, the C om mun ity, however, made it clear tha t it could not accept

any such perm anent derog ations; a solution was worked out implying,

on the o ne han d, taking over the acquis com mun autaire fully in the rele-

vant areas, an d, on the othe r han d, protecting individual EFTA States'

vital interests through a combination of transitional periods and

general safeg uard clause. The criteria fo r this clause were agreed upon


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EE

agreement

1195

at the Jo int M inisterial Meeting in May 1991 an d laid dow n in Article

112. Th e clause may thus be triggered by one of th e C ontracting Parties

if serious econom ic, societal o r env ironm ental difficulties of a sectoral

or regional natur e liable to persist ar e arising . Safeguard m easures

shall be restricted in their scope an d d ura tion to w hat is strictly neces-

sary in order to remedy the situation. Priority shall be given to such

measures tha t will least disturb the functioning of this Agreement. Th e

safeguard measures shall apply w ith regard to all C ontracting Parties.

Th e use of the safegu ard clause is, however, connected t o a possibility

for the other Contracting Parties to take proportionate rebalancing

measures if , throu gh the recourse to the safeguard clause, an imbalance

were to arise (Article 114).

2.5 General and inal Provisions

Part

IX,

General and Final Provisions, contains twelve Articles (Arti-

cles 118- 129) of which only a few will be commented upon here.

In addition to the particular procedures regarding decision-making

already mention ed, Article 118 con tains an evolutionary c1ause mak-

ing it possible to develop the relations under th e Agreement by extend-

ing them t o fields no t covered thereby . Th is clause, which is similar to

such clauses contained in most of the Free Trade Agreements (FTAs)

of 1972- 1973 between the EFT A coun tries and the Com mun ities, fore-

sees for such cases a political decision by the EEA Council to open

negotiations between the Contracting Parties.

One of t he issues that preoccupied th e negotiators during the negotia-

tions is the relationship between the E EA Agreement an d the several

hund red Agreements of various kinds an d in various fields tha t prior to

the EEA Agreement had been concluded between all or some of the

Contracting Parties. To the more prominent of such Agreements no

doub t belong the FTA s between the Communities a nd the EF TA coun-

tries. Th e main rule in Article 120 states, in line with genera l principles

of public international law, that, unless otherwise provided in the

Agreement, the application of the provisions of the EEA Agreement

shall prevail over provisions in existing bilateral or mu ltilateral agree-


26/28

1196 Norberg ML Rev

992

ments binding the EC , o n the one han d, an d one or m ore EF TA States

on the other, to the extent th at the same subject matter is governed by

this Agreement . In practice this will mean tha t existing Agreements

falling und er this Article are neither terminated nor suspended, they are

simply not to be applied. In practice this would mean t ha t, with some

exceptions, the EEA Agreement will be applied instead of the FTAs.

The EE A Agreement does not preclude co-operation in the frame-

work of th e Nordic co-op eration, of th e regional union between Swit-

zerland an d Liechtenstein or of the co-o peration between Austria an d

Italy concerning certain neighbouring regions, to the extent that such

co-operation does not impair the good functioning of the Agreement

(Article 121).

A Contracting Party may withdraw from the Agreement provided it

gives at least twelve m on ths no tice (Article 127). Th e other Contrac ting

Parties shall then convene a diplomatic conference in order t o mak e the

necessary mod ifications to th e A greement.

O n certain conditions, it will also be possible fo r other States t o be-

come a party to this Agreement. Thus a Eu ropean State tha t becomes

a member of th e Com mu nity shall apply to become a party t o the Agree-

ment, while a European State that becomes a member of EFTA may

make such an application.

Finally, according t o A rticle 129 the A greement shall enter into force

on 1 Ja nu ary 1993, provided th at all Contracting Parties have deposited

their instruments of ratification or approval before that date. If these

requirements are not met in time, the Agreement will enter into force

on the first day of the second month following the last notification.

The final date for such a notification is 30 June 1993. If that date is

passed w ithout a decision on th e entry into force of th e Agreement, the

Con tracting Parties shall convene a diplomatic conference to assess the

situation.

l

In Agreed Minutes to this Article, the Contracting Parties have

agreed that, if any one of them should no t be prepared to ratify the

Agreement, the signatories shall review the situation. Furthermore,

12. The ESA-EFTA Cou rt Agreement and the Standing Committee Agreement are

supposed to enter into force after ratification at the same time as the E EA Agreement.


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if any one of them

should no t r tify

the Agreement, the remaining Con-

tracting Parties shall convene a diplom atic conference to assess the ef-

fects of the n on-ratification fo r the Agreem ent an d to examine the pos-

sibility of ado pting a protoc ol con tainin g the am endm ents w hich will be

subject to necessary internal procedures. Such a conference shall be

convened as soon as it has become clear th at o ne of the Co ntracting Pa r-

ties will not ratify th e Agreement or a t the latest if the da te of en try into

force of the Agreement is not respected.

3 Some concluding remarks

Three of the most important lessons to be drawn from the so-called

Luxembourg Process , which was initiated after the first joint E C-

EF TA Ministerial Meeting in 1984, bu t w hich from 1989 was gradually

succeeded by the form al negotiations o n the EE A A greement, w as that

the creation of a dynamic and homogeneous EEA would require:

th t

a strong institutional fram ew ork especially with regard t o legal institu-

tions be created, th t instead of specific agreements in selected sectors

that might particularly interest th e Pa rties , large coherent blocks of the

acquis com mu nautaire m ust be taken over, and

th t

all this could only

be achieved through a multilateral agreement between the C om mu nity

and the E FT A States as well as am ong the latter an d no longer through

bilateral agreements.

In the E EA Agreement, the conclusions of these lessons have been

realized in a way t ha t no one could imagine in 1984, or hardly even at

the beginning of 1989 when Pres iden t Delors launched his initiative, but

which seems quite logical not least in the light of the considerable

changes which since have tak en place in the Co mmunity as well as in the

rest of Europe.

The volume and scope of Community legislation and case law in-

tegrated into the Agreem ent an d thus tak en over by the EF T A States is

withou t precedent. Given the present level of integration in the C om mu-

nity, with the almost completed internal market, it would even seem

that hardly any of its present Member States have had to take such a

large step of in tegration in one go as is represented by the E E A Agree-


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me nt. F rom this point of view it would also seem that it would hardly

be possible to get any closer to the s tatu s of m embership in the Com mu -

nity without becoming a me mb er than through the present Agree-

ment.

Th e developments since the beginning of preparations for the negoti-

ations o n the EE A Agreem ent w ere initiated three years ago have also

been such that four EF TA States Austria Sweden Finland and Swit-

zerland have presented form al applications for E C membership. At the

meeting of the Eu rop ean Coun cil in Lisbon at the end of Jun e 1992

the E C Heads of State and Governm ents discussed the future enlarge-

ment of the Community and decided to initiate formal negotiations

with the EFTA States having applied for membership as soon as the

Maastricht Treaty should be ratified and the future E C budget order

decided upo n. It should however not be forgotten th at no ma tter when

the next enlargement can tak e place an d which of the EF TA States take

part therein the EEA Agreem ent has certainly provided an extremely

good a nd useful preparation for such a step . A t the sam e time it secures

all EFTA States a participation in the internal market based on equal

treatme nt a nd non-discrimination. For those EFT A S tates which might

not want t o take the step tow ards accession to the EC the Agreement

could also provide a solution in the longer term.

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Jego Quere