Writer says EEA bill would surrender Iceland’s case before court

Hjörtur J. Guðmundsson argues in an opinion article published by mbl.is that a bill on Protocol 35 of the EEA Agreement would concede in advance to the EFTA Surveillance Authority’s demand that EU rules incorporated into Icelandic law take precedence over domestic legislation.

He says the worst outcome would be for the EFTA Court to reach that conclusion if the bill fails and the dispute is referred to the court. Passing the bill would, in his view, amount to giving up before first allowing the case to be tested in court.

Guðmundsson says Iceland joined the EEA Agreement more than 30 years ago on terms that included implementing Protocol 35 as a rule for interpreting laws, rather than as a rule giving EU-derived legislation priority. He writes that this was one of the main grounds for arguing that EEA membership was compatible with Iceland’s constitution. Making Protocol 35 a priority rule, as the bill proposes, would have required a constitutional amendment, he says, and the Independence Party’s parliamentary group would not have supported the agreement in that case.

He argues that taking the case to the EFTA Court could produce a result in Iceland’s favour, but that the bill would remove that possibility. If ESA considers the bill insufficient, Guðmundsson writes, it could again threaten infringement proceedings against the Icelandic government. He also rejects the claim that Parliament can simply pass laws that conflict with rules adopted through the EEA Agreement, asking why lawmakers would oppose ESA over one EU legal act if they would not challenge the wider body of rules.

Guðmundsson disputes Foreign Minister Þorgerður Katrín Gunnarsdóttir’s argument that it is better to resolve the matter at home than take it to a foreign court. He says the proposed solution would amount to surrender and notes that many disputes involving Iceland have been heard by the EFTA Court, whose role under the EEA Agreement is to resolve disagreements over its interpretation.

He compares the dispute with the Icesave case, arguing that Iceland was then also urged to accept ESA’s demands rather than first testing the matter in court. Iceland ultimately won in the EFTA Court, he writes. Guðmundsson says the Icesave dispute concerned one EU directive on deposit guarantees, while the foreign minister’s bill concerns all legislation incorporated, or to be incorporated, into Icelandic law through the EEA Agreement.