The EFTA Court and fundamental rights protection

Abstract

The EEA Agreement contains no catalogue of fundamental rights, which reflects the situation under EU law prior to the entry into force of the Charter. Thus, it fell to the EFTA Court to shape fundamental protection in the EFTA pillar of the Agreement. After gradual development, it is now settled case law that fundamental rights form part of the general principles of EEA law, which are applicable to all situations governed by EEA law. An examination of the EFTA Court's case law reveals that the ECHR and the judgments of the ECtHR play a key role in determining the scope of the general principles. The ECtHR has recognized that fundamental rights protection in the EFTA pillar of the EEA is comparable to their legal status according to EU law before the Charter came into force. The entry into force of the Charter and its impact on fundamental rights protection leads to the question of whether it will be possible to maintain homogeneity. The view advanced in this article is that in most cases maintenance of homogeneity is achievable.