Former EFTA lawyer backs call to dismiss ESA case

A request to dismiss the case brought against Iceland by the EFTA Surveillance Authority would be reasonable, former EFTA legal department lawyer Tryggvi Axelsson told Morgunblaðið, mbl.is reported. The case concerns Protocol 35 of the European Economic Area Agreement.

Axelsson was asked to comment on lawyer and former Supreme Court judge Jón Steinar Gunnlaugsson’s view that Iceland’s main defence before the EFTA Court should be a request to dismiss the case. Gunnlaugsson set out that position in an article in Morgunblaðið the previous day.

“I would consider that a reasonable demand. In reality, this is entering into Iceland’s constitutional order,” Axelsson said. He argued that ESA’s role was to ensure legislation was properly implemented where there were shortcomings, but that the case had shifted to a dispute over Iceland’s constitutional system. Addressing the constitution, he said, had not been the aim of the EEA Agreement negotiations.

Axelsson said he believed ESA had exceeded its authority and that a dismissal request should come before a defence on the merits. He said Protocol 35 calls for homogeneity to be ensured in accordance with Iceland’s constitutional order. If the intention were for EU law to take precedence over Icelandic law, he said, the process should start by amending the constitution, which was not the aim when the EEA Agreement was negotiated.

“Does our constitutional system allow that or not? That is the heart of the matter,” Axelsson said. In his view, the constitution was not structured to allow foreign law to take precedence over domestic law. Any move to change that, he said, should be discussed on the proper basis.

He added that tackling delays in implementing European directives would be best done by improving the efficiency of Iceland’s public administration. Some government ministries had substantial work ahead, he said. The administration should examine the issues more thoroughly rather than simply adopting rules unchanged, and could compare its approach with that of other countries.

“The issues are not being explored deeply enough or examined carefully enough,” Axelsson said.