Iceland must defend its position in ESA case

Iceland must mount a strong defence against a case brought by the EFTA Surveillance Authority, ESA, over the country’s implementation of Protocol 35, argues Eiríkur S. Svavarsson in an opinion article published by Morgunblaðið.

ESA brought Iceland before the EFTA Court on 30 September, alleging that the country had failed to meet its demands to change the way it implemented the protocol nearly 34 years ago. Svavarsson notes that the case, which ESA has had open since December 2017, was filed exactly one month after a clear majority of Icelanders voted against opening EU accession negotiations.

With Iceland due to submit its defence in just over a month, Svavarsson says it is unclear whether a legal team has been appointed or how the case will be handled. He argues that the government has a duty to defend Iceland’s interests as effectively as possible.

ESA wants Protocol 35 changed from an interpretive rule into a priority rule. That would ensure that Icelandic laws implementing obligations under the EEA Agreement take precedence over other domestic rules if the two are found to conflict.

Svavarsson describes the case as a precedent-setting test of how a protocol attached to the original EEA Agreement was incorporated into Icelandic law. He points out that ESA made no formal objections to Iceland’s approach for 25 years, that the protocol’s preamble says it does not require EFTA states to amend their constitutions, and that no other EEA member state has complained about Iceland’s implementation.

Iceland incorporated Protocol 35 as an interpretive rule because its constitution does not authorise the transfer of legislative power, Svavarsson writes. He says this was done deliberately to ensure the protocol was compatible with the constitution, and that ESA and the EEA states have long known the content of Iceland’s constitution.

Now that ESA has taken the dispute to court, Iceland can present these arguments and ask the EFTA Court to assess them, he says. The court operates within the EEA’s two-pillar system, which does not rely on the direct primacy of European rules, and respects the dualist theory of international law.

Svavarsson says he is not claiming Iceland will win. But he argues that a well-organised defence could secure guidance on fundamental aspects of the EEA Agreement and help shape Iceland’s next steps on Protocol 35.