Legal warnings over EEA priority rule go unheeded
Tuesday 6th October 2026 on 11:01 in
Iceland
A proposal to give rules adopted under the European Economic Area agreement priority over Icelandic law has drawn warnings that it may violate the Constitution, according to an opinion article by Hjörtur J. Guðmundsson published by mbl.is.
The article challenges a report in Morgunblaðið last week that two Supreme Court judges had found no constitutional obstacle to implementing Protocol 35 to the EEA agreement as a priority rule. Árni Páll Árnason, vice-president and board member of the EFTA Surveillance Authority, told Guðmundsson he had been referring to an article by current Supreme Court President Benedikt Bogason and former judge Þorgeir Örlygsson, published in an anniversary volume for the EFTA Court in 2024.
Guðmundsson says that article does not state that implementing Protocol 35 as a priority rule is constitutional. Árni Páll also referred to a memorandum by Örlygsson for the authorities that supports the proposal, but Guðmundsson notes that other legal experts have reached the opposite conclusion.
Among them is former Supreme Court President Markús Sigurbjörnsson. In an article published in an EFTA Court anniversary volume in 2014, he wrote that Iceland’s Constitution does not allow the republic’s sovereignty to be limited by transferring legislative powers to international organisations. Nor, he argued, can domestic laws based on international obligations such as the EEA agreement gain higher status than other legislation for that reason alone. Guðmundsson says this means Parliament cannot constitutionally grant them priority.
Former European Court of Human Rights judge Davíð Þór Björgvinsson made a similar point in a 2004 opinion for the Ministry for Foreign Affairs. He wrote that Protocol 35 had been implemented as a rule for interpreting laws, rather than as a priority rule, because a rule giving it outright precedence was not considered compatible with the Constitution.
Former Supreme Court judge Jón Steinar Gunnlaugsson argued in Morgunblaðið on 11 September that the bill would restrict Parliament’s legislative powers in breach of the Constitution. He wrote that the proposal could not stand unless the Constitution were first amended, and that Parliament had no constitutional authority to pass it as drafted.
Law professor emeritus Stefán Már Stefánsson also warned in Morgunblaðið on 15 October 2025 that it was questionable whether the bill complied with the Constitution’s sovereignty provisions.