Does the Bosphorus presumption of equivalent protection apply to the European Economic Area (EEA) Agreement?Footnote 1 More precisely, does it apply to those states party to the European Free Trade Association (EFTA)Footnote 2 which are party to the EEA Agreement (EFTA states)Footnote 3 while giving execution to EEA law?Footnote 4
The European Court of Human Rights in two recent decisions – Holship of May 2021 and Konkurrenten.no of November 2019 – held that it does not, because EEA law does not feature sufficient human rights safeguards, in particular due to shortcomings in the supervisory mechanisms.Footnote 5
Such findings pose several problems of a systemic nature. First, they are likely to place EFTA states at the crossroads between contrasting international obligations, thus harming international cooperation, an interest the Court recognises as worthy of protection.Footnote 6 Second, although the Bosphorus doctrine ‘shields’ significant portions of EU law from the Strasbourg Court’s scrutiny,Footnote 7 the establishment of its jurisdiction over EEA law opens the door to an indirect review thereof. Specifically, under the EEA Agreement, EU market-relevant law is incorporated into the EFTA Pillar, being therein interpreted and applied consistently with the case law of the Court of Justice. Irrespective of the merits of allowing the European Court of Human Rights to exert jurisdiction over EU law, an issue well beyond the scope of this article,Footnote 8 doing so in such a surreptitious manner poses relevant problems.
Thus, due to the serious systemic consequences of the non-application of the Bosphorus doctrine to the EEA system just pointed out and the scant attention the issue has received in the literature,Footnote 9 a deeper analysis is needed. In particular, this article argues that, especially because of their systemic importance, the conclusions of the Court should be substantiated by compelling arguments. However, they are not; rather, the Court’s reasoning is open to rebuttal and criticism.Footnote 10 Nonetheless, the conclusion it reaches is correct. In particular, two arguments, which were overlooked by the Court, are advanced to support such a finding: (a) the fact that the EEA law is ‘freely entered into’ international law;Footnote 11 and (b) the lack of any power by the EFTA Court to strike down EEA law enacted within the EFTA Pillar which is found to breach fundamental rights. Both objections trace back to structural features of the Agreement, namely that EFTA states maintain their sovereignty perfectly intact: consequently, it is unlikely that such difficulties will be overcome.
The article proceeds as follows. The first section provides the relevant background to the main argument by analysing the Court’s decisions in Holship and Konkurrenten.no and discussing the framework of the EEA Agreement. The second section develops the core argument of the article by considering whether EEA law is ‘freely entered into’ international law and whether the conditions for the fulfilment of the equivalent protection presumption are met in the context of the EEA Agreement. The concluding section addresses the systemic consequences of the impossibility of applying the Bosphorus presumption to the EEA Agreement.
The European Court of Human Rights’ decisions in Holship and Konkurrenten.no as a backdoor to the Bosphorus presumption
The European Court of Human Rights first dealt with the issue of the applicability of the Bosphorus presumption to the EEA Agreement in Konkurrenten.no, a case brought by a bus company which had lodged before the EFTA Surveillance Authority a complaint of state aid allegedly benefittng its competitors. Upon the Authority’s refusal to investigate its complaint, Konkurrenten brought the case before the EFTA Court, which dismissed it because it deemed that the applicant lacked locus standi. Thus, in the following proceedings before the European Court of Human Rights, the issue was not whether Norway had breached the Convention by implementing EEA law, but rather whether it was responsible for the alleged denial of access to a court because of the EFTA Court’s dismissal of the applicant’s case. Consequently, Konkurrenten.no falls in the Gasparini line of case lawFootnote 12 rather than in the Bosphorus one,Footnote 13 as the Court itself observes.Footnote 14 Therefore, the Court’s holding that the basis for the Bosphorus presumption is in principle lacking in the context of the EEA Agreement due to a lack of both substantive fundamental rights guarantees and procedural mechanisms aimed at their protection is an obiter dictum.Footnote 15
The Court was again faced with the question of the applicability of the equivalency doctrine to the EEA Agreement in Holship. This case, closely reminiscent of Viking,Footnote 16 was brought by two Norwegian dockworkers unions alleging that the Norwegian Supreme Court had violated their right to collective action under Article 11 of the Convention by holding that the boycott they initiated was unlawful given that it breached Holship’s (a shipping company) freedom of establishment protected under Article 31 of the EEA Agreement, the equivalent of Article 49 TFEU. In this context, the Court stated that ‘for the purposes of this case the Bosphorus presumption does not apply to EEA law’.Footnote 17 Revisiting its previous dictum in Konkurrenten.no, the Court conceded, correctly, that the EEA Agreement features substantive fundamental rights guaranteesFootnote 18 yet still found that it provides insufficient procedural safeguards. This, the Court argued, is because EEA law does not enjoy direct effect and primacy, and because ordinary courts in the EFTA states are under no obligation to request advisory opinions from the EFTA Court; furthermore, advisory opinions are not deemed binding on the referring judge as to the interpretation of EEA law.Footnote 19
Although the findings of the Court in both Holship and Konkurrenten.no are not definitive as to the general non-applicability of the presumption to the EEA Agreement – in Holship the Court expressly limited its findings on the matter to the case at hand and in Konkurrenten.no it held so in an obiter dictum –, still they represent strong indications of its stance on the matter, very likely influencing future deliberations and thus making it relevant to discuss them.Footnote 20 It is worth noting in passing that the same issue might be discussed again in the context of a recently communicated case against Norway – Knihinicki v Norway – concerning the execution of a European Arrest Warrant issued by Polish authorities, whereby the applicant complains of a violation of his right to a fair trial on grounds relating to the risk of a flagrant denial of justice in Poland upon being surrendered.Footnote 21
The refusal by the Court to apply the Bosphorus presumption to the EEA Agreement is discussed further in the next section. This section provides a brief analysis of the ‘EEA system’, resulting from the interaction of the EEA Agreement and the closely related Surveillance Authority and Court Agreement,Footnote 22 concluded between EFTA states only.Footnote 23 Thus, clarification is provided on why the Strasbourg Court considered applying the Bosphorus presumption to EEA law at all.
The EEA Agreement, concluded between the EU, its member states and EFTA states, aims to provide the ‘fullest possible realisation of the free movement of goods, persons, services and capital within the whole European Economic Area, so that the internal market established within the European Union is extended to the EFTA states’.Footnote 24 Accordingly, the principle of homogeneity,Footnote 25 requiring that the law concretely applied in both Pillars of the EEA (namely the EU and EFTA states) be the same, is the fundamental principle of the EEA Agreement. Said principle is further developed by the two principles of legislative and interpretative homogeneity, which respectively require that EU market relevant legislation is transposed in the EFTA states and that such legislation is interpreted consistently with the case law of the Court of Justice.Footnote 26
As to the principle of legislative homogeneity, whereas EU primary law provisions are reproduced in the main body of the Agreement, secondary EU legislation is incorporated into the Annexes. As new EU secondary legislation is enacted, the Annexes are updated by Decisions of the Joint Committee, a body made up of representatives of the EU and of the EFTA states. It is their task to determine, by unanimous agreement, which EU legislation is actually relevant to the functioning of the internal market and therefore to be incorporated into the Agreement.Footnote 27 EFTA states are subsequently under an obligation to transpose such provisions in their domestic systems.Footnote 28
Regarding the principle of interpretative homogeneity, a ‘two Pillar solution’ was adopted on the interpretation of the Agreement, whereby the Court of Justice and the EFTA Court were given this task within the EU and EFTA Pillars respectively.Footnote 29 Although the two Courts are mutually independent, the EFTA Court is required to follow the interpretation of the Court of Justice insofar as the provisions of the Agreement it is called to interpret are substantially identical to EU law provisions.Footnote 30
Overall, as a result of the principles of legislative and interpretative homogeneity, a significant portion of the national legislation in the EFTA states is substantially comprised of EU law, incorporated through the framework of the EEA Agreement and interpreted according to the case law of the Court of Justice. Therefore, in many cases, such as in Holship, the applicable law is the result of the fulfilment by national authorities of EFTA states’ obligations under the EEA Agreement.
Now, the rationale of the Bosphorus presumption is that of realising a ‘compromise between the [European Court of Human Right’s] control of the human rights standard in Europe and the smooth functioning of international cooperation’.Footnote 31 Against this background, the reason why in Holship the parties to the dispute, as well as the Court, considered applying the presumption of equivalent protection to the EEA system should be clear. Indeed, the above-mentioned tension between abiding by EU law obligations and protecting fundamental rights appears to be reproduced under the EEA system. Furthermore, given that EEA law is substantially identical to EU law, one would be tempted to make the case that, if EU law offers an equivalent level of protection, so does EEA law. Teleological arguments are also relevant, as applying the Bosphorus presumption to the EEA would ensure consistency between the legal orders involved, whereas failing to do so would result in systemic problems.
However, as argued in the next section, the issue at hand is far from this straightforward and requires deeper examination.
The Impossibility of Applying the Bosphorus Presumption to the European Economic Area Agreement
As the European Court of Human Rights stated, the Bosphorus presumption of equivalent protection is intended:
to ensure that a State Party is not faced with a dilemma when it is obliged to rely on the legal obligations incumbent on it as a result of its membership of an international organisation which is not party to the Convention and to which it has transferred part of its sovereignty, in order to justify its actions or omissions arising from such membership vis-à-vis the Convention.Footnote 32
Thus, insofar as the state’s conduct is required by international obligations stemming from its membership in an international organisation in whose favour states party to the Convention have limited their sovereignty, the Court will generally refuse to review the merits of the case, on condition that the international organisation at issue provides a level of protection of human rights equivalent to that ensured under the Convention, having regard for both the available substantial safeguards for fundamental rights and effective enforcement mechanisms thereof. The Court, however, reserves the prerogative to fully review the merits of the case if it finds that, in the concrete case at hand, Convention rights were granted a manifestly deficient protection.Footnote 33
In the following, to attempt to answer the question of whether the Bosphorus presumption can apply to the EEA system, the question of whether EFTA states giving execution to EEA law in the domestic legal order can be deemed to act in observance of international obligations flowing from their membership to an international organisation and that of whether the EEA system ensures an equivalent level of protection to that provided under the Convention, will be discussed separately.
It should be noted that the Court, both in Konkurrenten.no and Holship, appeared not to consider the first issue, focusing only on the latter one.Footnote 34
EEA Law as ‘Freely Entered Into’ International Law
As already mentioned, the rationale of the Bosphorus doctrine consists in a ‘compromise’ between the duty of the Court to enforce the Convention and the need not to obstruct international cooperation, deemed an interest worthy of protection.Footnote 35 Indeed, if the Court were to fully review state action which is the result of a previous transfer of sovereign rights to an international organisation, this would often give states parties to the Convention a dilemma on which international obligation to comply with. Thus, if the international organisation at issue provides a comparable protection of human rights to that ensured under the Convention, the Court lowers the intensity of its scrutiny, limiting it to manifest breaches only, thus favouring international cooperation among states parties. Therefore, that state action is the result of a previous transfer of sovereign rights to an international organisation is also the precondition for the application of the equivalency doctrine.Footnote 36 Indeed, when state action – also on the international plane, for example by ‘freely entering into’ international treatiesFootnote 37 – is not the consequence of a previously undertaken obligation there is no countervailing interest to protect by reducing the standard of review: consequently the Bosphorus presumption does not apply and the Court exercises its full scrutiny. This – it is argued – is exactly the case with the EEA Agreement.
In order to clarify what is to be understood as state action taken ‘in compliance with its obligations flowing from its membership of an international organization to which it has transferred part of its sovereignty’Footnote 38 it is useful to contrast the state of affairs in the context of the EEA Agreement, which is discussed in the following, with that in the context of the EU.
If one considers the EU context, it is undisputed that member states, for as long as they remain members of the Union, have transferred part of their sovereign rights to the Union.Footnote 39 Here, the transfer of sovereignty can be appreciated at the stage of the creation of new ‘secondary’ legislation and at that of its application in the domestic legal order.
Indeed, both the creation of secondary law and its subsequent application is the result of a previous limitation of sovereignty by member states, realised by ratifying the EU Treaties: new legislation is passed by EU organs according to procedures established in the Treaties and without member states consenting thereto each and every time, and it is subsequently applied in the domestic legal orders without member states being able to legitimately refuse to do so. In contrast, member states remain responsible for violations of the Convention deriving from primary EU law, as the Treaties are ‘international instruments […] freely entered into’ by member states, and not the product of any previous international obligation.Footnote 40
Whereas the finding that EU member states have transferred part of their sovereign rights to the Union holds true abstractly and generally, thus explaining why the Strasbourg Court has never elaborated much on this aspect of the equivalency doctrine, it might well be that in the concrete case EU member states are allowed some discretion and that the law regulating a case is not entirely determined by EU law: this often happens, for example, in incorporating Directives. In such cases, if the violation of Convention rights is derived from the state exercising its discretion, the Bosphorus presumption will not apply.Footnote 41
Turning to the EEA system, whereas EEA law, once enacted through Joint Committee Decisions, is binding upon the EFTA states, which are required to give full effect thereto in their national legal orders,Footnote 42 the question of whether EFTA states have limited their sovereignty in favour of an international organisation as to the ‘making’ of new EEA law is a more complicated one and is to be answered in the negative.
As to this question, it is doubtful whether the EEA Agreement sets up an international organisation, in particular due to specific features of the Joint Committee, as it reaches its decisions by unanimous agreement,Footnote 43 thus resembling more a treaty body than an organ of international organisation endowed with its own will and distinct from that of the member states.Footnote 44
However, it is premature to draw the conclusion that the Bosphorus presumption cannot apply to the EEA system based on these considerations. Dogmatic approaches are of little assistance in the context of the EEA system due to its particular complexity and to the conceptualisation, by the EFTA Court, of the nature of the EEA Agreement in sui generis terms and, noticeably, a sui generis nature different from that of the EU,Footnote 45 a notion already deemed of little explanatory value.Footnote 46 Therefore, it is more useful to address the question of whether EFTA states have transferred sovereign powers – in particular legislative ones – to EEA institutions by concluding the EEA Agreement.
Regarding this question, it is widely accepted that ‘the EEA Agreement does not entail a transfer of legislative powers’.Footnote 47 Indeed, the negotiating history of the Agreement,Footnote 48 and several provisions thereto – especially the last recital of the Preamble and Protocol No. 35 – clarify that the aim of the Agreement is that of achieving homogeneity in the law regulating the market while preserving the sovereign decision-making power of the EFTA states.Footnote 49
Coherently, decisions of the Joint Committee amending the Annexes to the EEA Agreement and incorporating EU legal acts are to be considered international agreements concluded in a simplified form, thus requiring the consent of all the Parties to the Agreement.Footnote 50 Therefore, although the Parties usually agree as to the incorporation of the relevant EU acts into the Agreement, it is entirely possible that such agreement is lacking: EFTA states have a veto power on the adoption of decisions by the Joint Committee.Footnote 51
In this regard, Article 102, paragraph 5 of the EEA Agreement confirms the free nature of the EFTA states’ choice to consent to the adoption of said decisions by providing for the procedure to be followed in the event that no agreement among the Parties can be found. This finding is further confirmed by Article 103 of the Agreement, which addresses the eventuality whereby the national constitutional law of EFTA states allows for decisions by the Joint Committee to be binding only after the fulfilment of constitutional requirements – namely, parliamentary ratification. Indeed, if EFTA states were under an obligation to consent to decisions of the Joint Committee incorporating EU law, this would make Article 103 EEA Agreement completely moot as parliaments would be called upon to vote on something already binding upon the state as a matter of international law. Finally, the practice of the Joint Committee reinforces the conclusion that its decisions are to be considered freely entered into international agreements. Indeed, the Committee has a certain backlog, which, in some cases, is determined by EFTA states’ opposition to the incorporation of the relevant EU legal acts. In rare but significant cases, delays may even last years:Footnote 52 the incorporation of the Data Retention DirectiveFootnote 53 was halted for as long as it was in effect until the Court of Justice struck it down in Digital Rights Ireland.Footnote 54 The case of the Citizenship Directive, whose incorporations proved extremely complex and lengthy, is also telling in this regard.Footnote 55
It has recently been argued that, despite the considerations above, the Bosphorus presumption should apply to EEA law rather than the latter falling under the Matthews case law.Footnote 56 In particular, it is argued that ‘while there is no legal obligation to accept new EU legislation into the EEA Agreement, its object and purpose depend on this being done’ and that ‘in the 25 years that the EEA Agreement has been in operation, there is still no clear example of a “veto” by the EEA/EFTA states against new EU legislation of EEA relevance’.Footnote 57
These arguments, however, are unconvincing. It is certainly true that the EEA Agreement’s object and purpose depends on EU law being timely and regularly incorporated in the Agreement. This, however, is absolutely compatible with the retention by EFTA states of their sovereignty and with the possibility that, if they were persuaded that a distinct piece of EU law breached individuals’ fundamental rights, they could legitimately – i.e. without breaching any international obligation – prevent its incorporation. In summary, although it is certainly true that the Agreement functions well mainly because ‘EFTA States have come to accept […] life under the hegemony of the EU’,Footnote 58 this is a political issue; from a legal perspective, EFTA states maintain their sovereignty intact.Footnote 59
In conclusion, given that decisions by the Joint Committee are international agreements, to which it is necessary that every Party to the Agreement freely consents, EEA law is to be considered ‘freely entered into’ international law for the purposes of Matthews, thus calling for the European Court of Human Rights to exert its full jurisdiction. This conclusion is only reinforced by the consideration (below, next section) that the EFTA Court cannot strike down any provision of the Agreement, Annexes included, for breach of fundamental rights. If the EFTA states were deemed bound to consent to the incorporation of EU legislation violating individuals’ fundamental rights, the EEA Agreement would be seriously lacking in the protection of fundamental rights given the absence of an effective judicial review system.
The European Economic Agreement Does Not Provide a Level of Protection of Fundamental Rights Equivalent to That under the Convention
The considerations made above should be sufficient to maintain that the Bosphorus presumption cannot be applied to the EEA system. However, as already observed, they were fundamentally overlooked by the Court; furthermore, objections to the application of the Bosphorus presumption such as those raised above could be deemed unconvincing or overcome. It is not moot, therefore, to discuss whether the EEA system can be deemed to offer an equivalent protection to that ensured under the Convention, and specifically whether it encompasses sufficient substantial safeguards and mechanisms for their enforcement.
Regarding substantial fundamental rights guarantees, the EEA system surely affords an equivalent level of protection to that offered by the Convention, as the Court appeared to acknowledge in Holship. Indeed, as widely observed,Footnote 60 the EFTA Court has long recognised the status of fundamental rights as general principles of EEA law, guiding the interpretation of EEA law, in particular by referring to the Convention as interpreted by the Strasbourg Court.Footnote 61 Furthermore, the EFTA Court is required to interpret EEA law consistently with the case law of the Court of Justice: given that the latter interprets EU law in light of fundamental rights, and in particular of the EU Charter of Fundamental Rights, this means that the interpretation of EU law that the EFTA Court is required to follow is already informed by fundamental rights.Footnote 62 Finally, in the very few cases in which it has not followed the Court of Justice’s lead in interpreting EEA law, the EFTA Court has done so to ensure that the fundamental rights of the individuals concerned were fully secured.Footnote 63
Concerning the supervisory mechanisms available within the EEA system, as already mentioned, the European Court of Human Rights in Holship, building on its previous decision in Konkurrenten.no, refused to apply the Bosphorus presumption ‘given […] the absence of supremacy and direct effect, added to which is the absence of the binding legal effect of advisory opinions from the EFTA Court’.Footnote 64 As anticipated, this reasoning is unconvincing.
As to primacy and direct effect, the Strasbourg Court appears to overemphasise their relevance in a manner inconsistent with its case law on the Bosphorus doctrine.Footnote 65 In particular, in its most recent decisions, the attention of the Court is mainly devoted to the ‘deployment of the full potential of the supervisory mechanism provided for by European Union law’,Footnote 66 fundamentally referring to the preliminary ruling mechanism under Article 267 TFEU: direct effect and the primacy of EU law are hardly mentioned.Footnote 67 Furthermore, and also due to the Court’s lack of motivation on the point, it is difficult to understand the relevance of primacy and direct effect as to the protection of fundamental rights in the context of the review of EU member states’ actions in strictly implementing EU obligations. Indeed, whereas ‘direct effect can […] be defined as the capacity of a norm of Union law to be applied in domestic court proceedings [and] primacy (or supremacy) denotes the capacity of that norm of Union law to overrule inconsistent norms of national law in domestic court proceedings’,Footnote 68 the precondition for the application of the Bosphorus presumption, as discussed above, is that states’ conduct consists of them strictly giving effect to their international obligations, irrespective of why they do so. In a way, direct effect and primacy address problems which have already been ‘solved’ as the state has been deemed to have acted strictly in execution of its international obligations. In particular, if the reference to primacy and direct effect is aimed at affirming the particular ‘bindingness’ they supposedly convey to EU law, it is well established that the availability of more or less effective enforcement mechanisms does not affect the binding nature of an international law obligation.Footnote 69 Thus, EFTA states are no less bound by EEA law than their EU counterparts are with respect to EU law due to the absence of the principles of direct effect and primacy in the EEA system.
More generally, however, the soundness of requiring the EEA system to encompass doctrines which are very specific to EU law, such as those of primacy and direct effect, in order to be considered as securing an equivalent protection to that ensured under the Convention is doubtful. This is because the assessment of equivalence should be centred upon the question of whether the EEA system, with its own peculiarities, is comparable to the Convention system, and not on whether it shows identical features to that of the EU.
Once such a perspective is adopted, it must be acknowledged, for example, that the concrete effect of the so-called principle of statutory primacy, requiring EFTA states to enact through ordinary legislation a provision whereby EEA law is to prevail over contrasting ordinary legislation, though not allowing for primacy over constitutional norms,Footnote 70 has worked well in providing for consistency between national and EEA legal orders. It is argued that this is demonstrated by the fact that, over the entire period the Agreement has been in place, no significant clashes between national legal orders and the EEA one have been registered.Footnote 71
Apart from the lack of primacy and direct effect, the Strasbourg Court finds the supervisory mechanism established in the EEA system insufficient given that: (a) national courts of last instance are under no obligation to refer interpretative questions to the EFTA Courts;Footnote 72 and (b) advisory opinions rendered by the EFTA Court are not binding upon referring courts. Under both these aspects, the preliminary ruling mechanism enacted under Article 34 of the Surveillance and Court Agreement surely presents serious shortcomings, as held by the European Court of Human Rights.Footnote 73
Many arguments have been proposed to substantiate a duty for national courts of last instance to refer interpretative questions to the EFTA Court. These have drawn on the principle of loyalty enshrined in Article 3 of the EEA Agreement,Footnote 74 that of homogeneity – as the refusal to put the matter before the EFTA Court could determine inconsistencies in the interpretation of EEA law across the EU and EFTA Pillar, or even within the EFTA Pillar itself.Footnote 75 Furthermore, the principle of reciprocity, requiring that equal access to justice to individuals across the entire EEA is ensured, has also been invoked;Footnote 76 so has Article 6 of the European Convention on Human Rights.Footnote 77 Despite such a scholarly proposal, the reality remains that such a duty does not exist within the EFTA Pillar of the EEA, as recognised by the EFTA Court itself, though somewhat ambivalently.Footnote 78
As for the non-binding nature of advisory opinions, this is supported by the wording of Article 34 of the Surveillance and Court Agreement, which affirms that ‘the EFTA Court shall have jurisdiction to give advisory opinions on the interpretation of the EEA Agreement’. In contrast, Article 267 TFEU uses the notion of ‘preliminary ruling’. However, although national Courts have consistently affirmed the non-binding nature of EFTA Court decisions, it is generally accepted that the EFTA Court is a qualified interpreter of EEA law and thus referring courts are to follow its decisions and can only disregard them provided they have compelling reasons to do so, thus achieving in substance a very similar outcome.Footnote 79
In summary, both shortcomings of the supervisory mechanism in place in the EEA system are problematic as they determine potentially severe limitations to individuals’ access to the EFTA Court through preliminary references, in a context where direct actions for annulment in the guise of the proceedings devised under Article 263 TFEU are not envisioned. This is especially significant as in the Bosphorus case law, the importance of the preliminary ruling mechanism is also considered a counterbalance to the difficulties in asserting standing under Article 263 TFEU.Footnote 80
In Avotiņš, however, the Court adopted a less formalistic approach to the requirement of the full deployment of supervisory mechanisms, holding that it would be useless to subject the application of the Bosphorus presumption to the referral of preliminary questions to the Court of Justice even in cases where ‘no genuine and serious issue arises with regard to the protection of fundamental rights by EU law’, or where the Luxembourg Court had already intervened on the issue.Footnote 81 Building on that decision, it has been observed that the supervisory mechanism in place in the EEA system, despite the above-mentioned shortcomings, can be generally and abstractly deemed adequate for the purposes of the Bosphorus doctrine – with the caveat that whether it has been fully deployed in the concrete case must be verified – because it appears to function well in practice.Footnote 82 Such a proposal could also be framed as entailing an incentive for national courts to refer to the EFTA Court and to respect its decisions, thus progressively improving the functioning of the referral mechanism under Article 34 of the Surveillance and Court Agreement and individuals’ access to the EFTA Court. This observation should be taken seriously, given that the assessment of the equivalency in the level of fundamental rights protection should consider the actual practice of the law – it is this, after all, that ultimately affects individuals’ fundamental rights. Engaging in such discussion would, however, lead to extremely difficult terrain, that of the review of the concrete practice in Norway, Iceland and Liechtenstein. Evidence of the difficulty of such an ‘on the field’ assessment is the existing strong divergence in the scholarship regarding the good functioning of the advisory opinion mechanism devised under Article 34 of the Surveillance and Court Agreement.Footnote 83
Despite the different opinions concerning the deficiencies of the supervisory mechanisms in the EEA system, the decisive consideration in deeming such mechanisms insufficient, once again overlooked by the Strasbourg Court, is the lack of any power of the EFTA Court to review the validity of EEA law, either that inscribed in the main part of the Agreement or that incorporated in the Annexes, against fundamental rights standards.Footnote 84
In the scholarly debate, the finding of the lack of any such powers of the EFTA Court is not unanimous; however, contrasting opinions appear unconvincing. Indeed, it has been argued that the EFTA Court would refuse to apply a decision of the Joint Committee incorporating EU law deemed to be seriously flawed under the fundamental rights perspective.Footnote 85 It has also been suggested that the EFTA Court could solve cases of EEA law conflicting with fundamental rights by ‘holding that the overarching objective of homogeneity between EU and EEA law does not allow for the directive to be applicable in the EEA in a situation where it would have to be considered invalid and therefore inapplicable in the EU’.Footnote 86
The first objection to such proposals is that no provision in the EEA or in the Surveillance and Court Agreement can be found to such an effect and that the EFTA Court has never even hinted at such a possibility.Footnote 87 Moreover, the second argument above (regarding the EFTA Court’s refusing to apply EEA law whose ‘parallel’ in the EU would have to be considered invalid) would be seriously at odds with the principle of the autonomy of EU law and that of the interpretative monopoly of the Court of Justice: a court different than the Court of Justice would rule, though somewhat in obiter, on the respect by EU law of a fundamental rights standard, something which implies and presupposes an interpretation of the EU norm at issue.Footnote 88 Finally, holding that the EFTA Court, established under the Surveillance and Court Agreement – a treaty to which only Norway, Liechtenstein and Iceland are party – could strike down or refuse to apply decisions of the Joint Committee means that an institution established by only some of the parties to a treaty could unilaterally affect the validity and effectiveness of provisions thereof, which is an extremely problematic conclusion.
Thus, it must be concluded that the EFTA Court cannot strike down any provision of EEA law as enacted in the EFTA Pillar which breaches fundamental rights. Consequently, the EEA system cannot be deemed to fulfil the conditions for the applicability of the presumption of equivalent protection as developed by the European Court of Human Rights. Indeed, it should be clear that the requirement that fundamental rights are ‘a condition of the legality of Community [here: EEA] acts’Footnote 89 cannot be met under the supervisory mechanism in place in the EEA system.
Concluding Remarks: the Inapplicability of the Bosphorus Presumption of Equivalent Protection to the European Economic Area Agreement and its Systemic Consequences
This article has discussed the question of whether the Bosphorus presumption of equivalent protection is applicable to EFTA states. The European Court of Human Rights stated that it does not deem the Bosphorus presumption to be applicable in the EEA context: as has been argued, such a conclusion is correct, although the reasoning supporting it is open to criticism. In particular, as it was argued, the European Court of Human Rights overlooks two decisive issues which would give its findings much firmer ground. First, EEA law incorporated into the EEA Agreement is ‘freely entered into’ international law; second, the EFTA Court cannot strike down EEA law which breaches fundamental rights. If these arguments are considered, the conclusion that the Bosphorus presumption cannot apply to the EEA Agreement appears inescapable.
Such a conclusion, however, leads to unfortunate systemic consequences, resulting in an asymmetry among the two Pillars of the EEA: whereas EU law is ‘shielded’ from review by the Strasbourg Court, except in the event of manifest breach, the Court enjoys full jurisdiction over corresponding EEA law enacted in the EFTA Pillar, although it is substantially identical to the former due to the principle of homogeneity. Overall, this results in the indirect review of EU law by the European Court of Human Rights.
This entails the risk of EFTA states facing contrasting international obligations: those stemming from the EEA Agreement and those from the Convention. This situation is potentially worsened by the likely exploitation by way of strategic litigation of the above-mentioned asymmetry. This is because refusing to apply Bosphorus to the EEA system opens the door to the indirect review of EU law against Convention standards by challenging the corresponding and substantially identical legislation in the EFTA Pillar of the EEA.
Furthermore, such a conclusion is not without consequences as far as the EU is concerned, especially due to the relevance of the European Convention on Human Rights under EU law,Footnote 90 despite the Court of Justice clearly relying on the Charter as the primary source of fundamental rights.Footnote 91 Indeed, Article 52(3) of the Charter requires that Charter rights which correspond to those guaranteed by the Convention are given the same meaning and scope as those therein enshrined.Footnote 92 Article 53 of the Charter should also be mentioned, although its effectiveness has been reduced by the Melloni judgment.Footnote 93 Finally, the Convention has long been recognised by the Court of Justice,Footnote 94 and more recently also by Article 6(3) TEU, as a source of general principles of EU law.Footnote 95 Accordingly, the Convention is ‘internalised’ in the EU legal order through the above-mentioned provisions, thus preserving the principle of autonomy of EU law:Footnote 96 consequently, the Convention, as interpreted by the Strasbourg Court, indirectly influences the validity and the interpretation of EU law.
It is quite likely, therefore, that claimants before the Court of Justice will invoke decisions by the Strasbourg Court’s finding that EEA law as enacted in the EFTA Pillar breaches Convention rights as authoritative statements as to the violation of the Convention by the corresponding EU law provision, eventually asking the Court of Justice to change its case law. Indeed, such judgments, despite formally having as their object EEA law as enacted in the EEA Agreement and as interpreted by the EFTA Court, would nonetheless substantially concern, due to the principle of homogeneity, provisions of EU law as interpreted by the Court of Justice. However, it is quite unlikely that the Court of Justice will accept such submissions given its stance towards the autonomy of EU law and its own interpretative monopoly thereof.Footnote 97
If the perspective of the individual concerned, rather than that of the legal system, is adopted, then this state of affairs might well result in situations where individuals operating in the EFTA Pillar can have recourse to the European Court of Human Rights, whereas individuals operating within the EU who face the same situation and are affected by the very same norm, instead, cannot.
The consideration of the disparity in available remedies to individuals in a substantially identical situation highlights the limits of the Bosphorus doctrine. Indeed, it foregrounds the question of whether the Bosphorus compromise leads to an excessive sacrifice of fundamental rights protection for the sake of international cooperation.Footnote 98
Moreover, insofar as EU member states’ joint actions, taken within the framework of the EU, are ‘shielded’ from review by the Strasbourg Court, it raises the question of the equality of states under international law and, more specifically, under the Convention.Footnote 99 The fact that, especially in light of the case law pertaining to the EEA Agreement, the Bosphorus presumption appears to be of very difficult application to any form of international cooperation among states parties to the Convention other than the EU only reinforces such concerns.
The non-application of the Bosphorus presumption to the EEA Agreement, an inescapable necessity as a matter of law, is surely cause for concern regarding the coherence of legal systems in Europe. The subsequent developments will have to be managed carefully by all Courts involved; however, it also constitutes a ‘stumbling block’ in the fundamental rights architecture of Europe, further highlighting the limits of the Bosphorus doctrine and favouring a critical reassessment of it.