chapter  5
17 Pages

European citizenship and free movement of persons

One of the key questions posed in this study relates to the extent to which the EU can ensure that its policies are downloaded in a non-member state, such as Iceland. In other words, which incentives and/or sanctions apply with respect to EU policy adoption? As noted in Chapter 3, the EEA Agreement contains various clauses which allow the EFTA states to participate in EU cooperation without formally giving up their sovereignty. The right to refuse EU legislation was, for example, seen as an important protection against the loss of sovereignty by the EFTA states.1 Nevertheless, it is questionable whether they can actually ‘veto’ the incorporation of a piece of legislation into the EEA Agreement, as Article 102 of the EEA Agreement threatens a partial suspension of the Agreement if the EFTAns refuse. As argued in Chapter 3, this provides a relatively strong incentive for the EFTA states to agree to the adoption of EU rules because of their dependence on access to the internal market. This clause, therefore, gives the EU considerable leverage over the EFTA states and makes it difficult, if not impossible, for them to use their right of refusal. This chapter examines how Article 102 works in practice. Most pieces of legislation are adopted without dispute and so Article 102

has seldom been put to the test. However, one issue that has increasingly begun to spark conflict is the question of EEA-relevance. The EEA Agreement was drafted in the early 1990s and has a strong focus on the internal market and the four freedoms. Thus, it covers the majority of the old pillar I, albeit with certain exemptions. The EU has, however, evolved since then. New concepts, such as EU citizenship, have been introduced and expanded upon. Directives have become more comprehensive, often spanning diverse areas, which can pose problems in defining EEA-relevance.2 In many cases some elements of EU legislation may be applicable to the EEA while others are not.3 This can make the task of determining EEA-relevance a difficult one. In some cases the EU has been more eager to incorporate acts into the EEA Agreement, while the EFTA states have not been as enthusiastic.4 But can the EFTAns prevent the EEA from expanding into new areas which were not perhaps envisioned in the original Agreement? Or is there an element of ‘mission creep’ in the EEA framework?