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The fundamental idea and objective of the EEA Agreement is to extend the internal market of the EU to the participating EFTA States, by ‘creating a homogenous European Economic Area’. This chapter describes how legislative homogeneity in areas of relevance to the internal market is a condition for the achievement of this objective. It gives an overview of the decision-making procedures established to realise legislative homogeneity by incorporating relevant EU legislation into the Agreement, and points out that the particular features of these procedures reflect the political and legal needs for the Parties to preserve, on the one hand, the decision-making autonomy of the EU, whilst on the other hand respecting the constitutional principles of sovereignty of the EFTA States. As a case in point and an example of how new challenges linked to meeting these different concerns were overcome, it describes the agreement that was reached on how to extend the EU’s system of Financial Supervisory Authorities to the EEA. The chapter also discusses whether legislative homogeneity is actually achieved. Finally, it is argued that, in spite of criticism that the EEA Agreement undermines the sovereignty of the EEA EFTA States by not offering sufficient participation in the decision-making processes, the political reality is that these States consider their overall interests to be well served by the Agreement, and that their decision to enter into the Agreement and remain part of it is obviously a way of exercising their full sovereignty.
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See http://eur-lex.europa.eu/legal-content/FR/TXT/PDF/?uri=CELEX:11957E/TXT&from=EN (text of the Treaty in French; English text not available on this official site).
The European Union was formally established with the entry into force of the Maastricht Treaty on 1 November 1993; the term European Community is used here for the period preceding this date, and is also the term used in the EEA Agreement. EFTA was founded in 1960 by Austria, Denmark, Norway, Portugal, Sweden, Switzerland and the United Kingdom. Finland became an associated member in 1961 and a full member from 1986; Iceland joined in 1970. Denmark and the UK left EFTA to become members of the EC in 1973; as did Portugal in 1986. Liechtenstein had been associated with EFTA through an agreement with Switzerland, and became a full member in 1991. When the EEA Agreement was signed in May 1992, the EFTA Member States were Austria, Finland, Iceland, Liechtenstein, Norway, Sweden and Switzerland. Switzerland did not ratify the Agreement, following the negative outcome of a referendum in December 1992. The EEA Agreement entered into force on 1 January 1994 (due to outstanding questions regarding their relationship to Switzerland, Liechtenstein only became a full member as of 1 May 1995). Austria, Finland and Sweden left EFTA to become members of the EU in 1995.
Speech before the European Parliament on 17 January 1989. Quoted from Bryn and Einarsson ( 2010), p. 21.
Ibid., pp. 21 f.
All quotes from the EEA Agreement are taken from the printed version published in European Economic Area—Selected Instruments, EFTA 2012. The text of the Agreement is also available on EFTA’s website: http://www.efta.int/media/documents/legal-texts/eea/the-eea-agreement/Main%20Text%20of%20the%20Agreement/EEAagreement.pdf.
The present text will focus on homogenous legislation; homogenous implementation and interpretation will be dealt with in other contributions. See in particular the chapter by Philipp Speitler, Judicial Homogeneity as a Fundamental Principle of the EEA.
My account of the early ideas for a decision-making model is mainly built on an internal briefing, in which I took part, by Norwegian officials to members of the Norwegian Delegation to the EC before the start of formal negotiations. The original model for ‘reciprocal osmosis’ is briefly touched upon, but not discussed or compared to the model that was eventually agreed, in Norberg and Johansson ( 2016), p. 24.
For a more detailed account of these procedures, see Baur ( 2016).
Utenfor og innenfor—Norges avtaler med EU, NOU 2012:2, Oslo 2012, chapter 9; in Norwegian. Quote from p. 196, my translation.
Ibid., in particular chapter 9.3, pp. 170 ff.
EFTA Surveillance Authority, Internal Market Scoreboard July 2016: available at: http://www.eftasurv.int/media/scoreboard/Internal-Market-Scoreboard-No-37.pdf.
Op. cit., para 1.4.
Zurück zum Zitat Baur G (2016) Decision-making procedure and implementation of new law. In: Baudenbacher C (ed) The handbook of EEA law. Springer, Cham/Heidelberg/New York/Dordrecht/London Baur G (2016) Decision-making procedure and implementation of new law. In: Baudenbacher C (ed) The handbook of EEA law. Springer, Cham/Heidelberg/New York/Dordrecht/London
Zurück zum Zitat Bryn K, Einarsson G (eds) (2010) EFTA 1960–2010. Elements of 50 years of European history, EFTA 2010, Geneva Bryn K, Einarsson G (eds) (2010) EFTA 1960–2010. Elements of 50 years of European history, EFTA 2010, Geneva
Zurück zum Zitat EFTA (2016) Surveillance authority, internal market scoreboard. http://www.eftasurv.int/media/scoreboard/Internal-Market-Scoreboard-No-37.pdf EFTA (2016) Surveillance authority, internal market scoreboard. http://www.eftasurv.int/media/scoreboard/Internal-Market-Scoreboard-No-37.pdf
Zurück zum Zitat European Economic Area – Selected Instruments, EFTA 2012 European Economic Area – Selected Instruments, EFTA 2012
Zurück zum Zitat Norberg S, Johansson M (2016) The history of the EEA Agreement and the first twenty years of its existence. In: Baudenbacher C (ed) The handbook of EEA law. Springer, Cham/Heidelberg/New York/Dordrecht/London Norberg S, Johansson M (2016) The history of the EEA Agreement and the first twenty years of its existence. In: Baudenbacher C (ed) The handbook of EEA law. Springer, Cham/Heidelberg/New York/Dordrecht/London
Zurück zum Zitat Utenfor og innenfor – Norges avtaler med EU, NOU 2012:2, Oslo 2012 Utenfor og innenfor – Norges avtaler med EU, NOU 2012:2, Oslo 2012
- Legislative Homogeneity
Dag Wernø Holter
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