Maternity leave case prompts ESA lawsuit against Iceland

The EFTA Surveillance Authority (ESA) has decided to sue Iceland over what it says is inadequate implementation of Protocol 35 to the EEA Agreement. The maternity leave case recently considered by Iceland’s Supreme Court highlights the problem, ESA board member and vice-president Árni Páll Árnason told mbl.is.

“That is why we are bringing this case,” Árni Páll said. He said the Supreme Court’s rulings in the maternity leave case had effectively referred the matter to the authorities. Two opinions by Supreme Court judges have also found no constitutional obstacles to implementing Protocol 35, he said.

Protocol 35 has been discussed for years. Árni Páll, who joined the ESA board in 2022, said the authority had been in talks with Icelandic officials since then. ESA had held back while Iceland worked to resolve the issue, twice during the previous government and twice under the current government, he said. But the authority had also warned officials and Parliament’s Foreign Affairs Committee that it would take action if no steps were taken.

In the maternity leave case, the Supreme Court first found that the woman’s rights under EEA rules could not be secured by interpreting Icelandic law. She later brought a damages claim, and the state was ordered to compensate her because the EEA rules had not been adequately incorporated into Icelandic law.

Árni Páll said the case showed the need for a clear rule giving properly implemented EEA rules priority when they conflict with other Icelandic legislation.

He cited other cases from 2005 to 2010 in which individuals suffered harm because of conflicts between Icelandic law and EEA rules. In the final case, a child suffered permanent lung damage from a candy product. Because of a discrepancy between EEA legislation and other laws, a kiosk in Njarðvík was held liable for damages, while the product’s manufacturer abroad was not.