Icelandic lawmakers remain divided over EEA Protocol 35

A bill to give properly incorporated European Economic Area rules precedence over conflicting Icelandic laws remains contested, despite being introduced in parliament for the fourth time in four years, Morgunblaðið reported. The dispute was laid bare in more than nine hours of parliamentary debate last week.

The EFTA Court is expected to consider Protocol 35 soon. The debate centres on whether giving EEA rules priority would alter Iceland’s constitutional arrangements. In articles published by Morgunblaðið, former EFTA legal department lawyer Tryggvi Axelsson argued that passing the bill would disregard fundamental assumptions made by the EEA agreement and Iceland’s lawmakers when they enacted it in 1993. Centre Party MP and former justice minister Sigríður Á. Andersen countered that no party to the agreement had complained about Iceland’s implementation in the 33 years since.

Foreign Minister Þorgerður Katrín Gunnarsdóttir said the bill was primarily intended to protect the rights of individuals and businesses under the EEA agreement. It would establish a limited priority rule applying only when two Icelandic legal provisions conflict, and only to EEA rules that had been correctly incorporated into Icelandic law. Parliament could still specify that another law should take precedence, she said.

The minister cited a legal opinion by Þorgeir Örlygsson, a former president of Iceland’s Supreme Court and former judge at the EFTA Court, which concluded that the bill would not restrict parliament’s lawmaking powers and was consistent with the constitution. She also pointed to recent Supreme Court rulings, including a case involving a doctor who had worked abroad and lost maternity leave entitlements under EEA rules. The state was ordered to pay damages.

Andersen disputed that the rulings demonstrated a need for the bill. She said the problem in the maternity leave case was incorrect incorporation of the rules, while the bill would apply only to rules incorporated correctly. She also challenged the minister’s argument about liability in a case involving candy spray, saying Icelandic law had given the injured party greater rights than European rules. The rights of individuals and businesses can conflict, she said, so the issue should not be presented solely as one of individual rights.

Andersen argued that it had been a deliberate choice in 1993 not to give EEA rules the proposed precedence, and that doing so would require a constitutional amendment. She also said comparisons with Norway were misleading because the country had amended its constitution in 1962 to allow transfers of authority to international organisations. “If we want to change the constitution in this respect, we should have that debate, but we should not bypass the constitution,” she said.