Supreme Court maternity leave ruling did not turn on Protocol 35

A commentary published by mbl.is says a Supreme Court case over maternity leave payments to an Icelandic doctor who had worked in Denmark concerned the implementation of European Union rules, not Protocol 35 to the EEA Agreement. It argues that a bill on the protocol would not have changed the court’s decision.

In its ruling on payments to Anna Bryndís Einarsdóttir, issued on February 28, 2024, the Supreme Court said Regulation (EC) No. 883/2004 had been incorporated into the EEA Agreement but implemented only through general administrative rules. Iceland had not amended Act No. 95/2000 to reflect the resulting obligation to make payments from the fund, the judgment said. The court ruled in favour of the Icelandic state.

Protocol 35 does not appear in the court’s decision on the case. It is mentioned elsewhere in the judgment because Einarsdóttir’s lawyer referred to it in oral arguments. The protocol is also absent from the Supreme Court’s ruling in her subsequent damages case, issued on September 23.

Despite this, Foreign Minister Þorgerður Katrín Gunnarsdóttir has argued that Einarsdóttir’s case concerned Protocol 35 and that her bill would have changed the outcome. After the damages ruling, she wrote on Facebook that the protocol was fundamentally about people’s rights and whether they were protected when tested.

Supreme Court lawyer Jóhannes Karl Sveinsson made a different argument in an article published by Innherji on October 20, 2023, while the case was still before the court. He wrote that it was about a failure to implement an EEA rule properly, adding that the bill would not have solved the problem because the rule had not been implemented.

Supreme Court lawyer and Independence Party MP Sigurður Örn Hilmarsson made a similar point on Facebook on October 7. He wrote that actual losses of rights or legal uncertainty rarely arise from a clash between two clear statutory provisions, and more often result from delays or mistakes in implementation. He said he believed that was what had happened in the maternity leave case.

The bill would require clear legislation

Þorgerður Katrín’s bill says that a clear and unconditional statutory provision must be in place. It provides that such a provision implementing an EEA obligation takes precedence over another general statutory provision if the two conflict, unless Parliament has decided otherwise. The regulation at issue in Einarsdóttir’s case had not been set out in a clear and unconditional statutory provision, as the bill required.