Protocol 35 could require Iceland to amend its constitution

Iceland may need to amend its constitution before introducing Protocol 35 as a rule giving European Economic Area (EEA) law priority over national law, according to a legal analysis discussed in an article published by mbl.is.

The dispute is over whether to implement the protocol as a priority rule, as requested by the EFTA Surveillance Authority, or as an interpretative rule, which was the approach used when Iceland joined the EEA Agreement. The article says a priority rule was considered incompatible with the constitution as it stood, meaning an amendment would be needed to authorise the transfer of powers involved.

The mbl.is article revisits a paper published in the Journal of Legal Studies in 2007 by Ólafur Jóhannes Einarsson, who was then a lawyer at the EFTA Surveillance Authority and is now head of the office of the EFTA Court. The paper examined Protocol 35, including its relationship with Iceland’s constitution.

According to the paper, Alþingi’s approval of the EEA Agreement more than 30 years ago was based on the understanding that membership would not transfer legislative powers. The European Community, the European Union’s predecessor, wanted the agreement’s provisions to take precedence over the national law of EFTA states, while those states opposed transferring sovereign powers. Protocol 35 emerged as a compromise between the positions.

Ólafur wrote that the two positions were difficult to reconcile and could even be incompatible. The article also cites former European Court of Justice judge Pierre Pescatore, who said that the art of negotiating international agreements partly involved concealing irreconcilable disagreements between the parties. Law professor Stefán Már Stefánsson and other legal commentators have also pointed to what they see as a contradiction in Protocol 35: it says legislative powers are not transferred but also requires EEA rules to take precedence.

Arguments that adopting Protocol 35 as a priority rule would not transfer legislative power have included the claim that Alþingi could always pass laws that conflict with EEA rules. Ólafur wrote that the issue could not be resolved on that basis, since such a decision would have consequences under international law, including possible proceedings before the EFTA Court.