Abstract
Article 1 EEA establishes a ‘homogeneous European Economic Area’ that entails ‘the free movement of persons’. Nationals of the EEA EFTA States are afforded rights of movement and residence, regardless of whether they are economically active. The CJEU has characterized the legal status of EEA nationals as ‘objectively comparable’ with that of EU citizens. Differences between the rights protection afforded in the EEA EFTA pillar and the EU pillar will constitute discrimination. EU secondary legislation that pursues the aim of the fullest possible realization of the free movement of persons falls within the scope of Article 1 EEA and shall be implemented through Articles 98 and 102 EEA. The detailed regulation provided for by such measures makes Article 1(2)b EEA sufficiently precise and unconditional to be relied upon before courts. It affords EEA EFTA nationals a primary, written and individual right to free movement that is homogeneous with Article 21.1 TFEU.
Introduction
The Agreement on the European Economic Area (EEA) was enacted in 1992, before the entry into force of the Treaty of Maastricht and the introduction of the Union citizenship. The EEA Agreement extends the Internal Market of the EU, to the three EEA EFTA states, Iceland, Liechtenstein and Norway. 1 Article 1 EEA establishes that the aim of the EEA Agreement is to create a dynamic and ‘homogeneous European Economic Area’ with equal competition and respect of the same rules. It stipulates that in order to attain its objective, ‘the association shall entail … (a) the free movement of goods; (b) the free movement of persons; (c) the free movement of services; (d) the free movement of capital’.
Article 1 EEA defines the European Economic Area in a manner that corresponds to the definition of the Internal Market in the Treaty on the Functioning of the European Union (TFEU) Article 26.2. The preamble to the EEA Agreement refers to its foundational principles as the ‘four freedoms’ – a clear reference to the acquis communautaire. The account of former President of the CJEU, Vassilious Skouris, is that while ‘the arrangement appears to encompass two distinct single markets, in reality we are considering a unique market with two sets of slightly different integration mechanisms’. 2
In the very first ruling on the EEA Agreement in the EU pillar, the Court of First Instance noted that the EEA ‘involves a high degree of integration, with objectives which exceed those of a mere free-trade agreement’. 3 In the seminal judgment in Ruska Federacija v. IN, the Grand Chamber of the CJEU observed that the EEA EFTA states have ‘a special relationship with the European Union, which goes beyond economic and commercial cooperation’. 4 Similarly, the EFTA Court observed from the very beginning that ‘the scope and the objective of the EEA Agreement goes beyond what is usual for an agreement under public international law’. 5 Recently in A v. B, the EFTA Court further substantiated that view by adopting a reasoning which resembles that of the CJEU in Ruska Federacija v. IN. 6
The free movement of persons is a ‘fundamental principle’ that ‘forms part of the core’ of the EEA Agreement. 7 The goal of the contracting parties was to ‘arrive at an equal treatment of individuals and economic operators.’ 8 The text, objective and context of Article 1 EEA send a strong signal that the legal status of a national of an EEA/EFTA state is ‘objectively comparable with that of an EU citizen’ as far as the right to move and reside within the European Economic Area is concerned. 9
The subject of the present article is whether the EEA Agreement confers free movement rights that are fully comparable to those afforded to EU citizens pursuant to Article 21.1 TFEU. The EEA Agreement lacks a parallel provision. An ‘objectively comparable’ right to free movement of persons within the whole EEA requires the identification of a different yet identical legal basis.
The CJEU has ruled that the treaty rights on the free movement of workers, the freedom of establishment and the free movement of services are ‘directly effective’. This means that Articles 45, 49 and 56 TFEU are sufficiently clear and unconditional to confer rights on individuals, even in the absence of secondary legislation. While the text of these treaty rights is geared towards different kinds of economic activity, they also contribute substantively to the realization of the free movement of persons. The EEA Agreement mirrors these rights. The jurisprudence of the CJEU and the EFTA Court confirms that the rights of EEA primary law are interpreted and applied in a manner that ensures uniformity with EU law. In practice, the reach of free movement for economically active persons is the same throughout the European Economic Area. 10
A contentious question has been whether the EEA Agreement provides for a ‘homogeneous European Economic Area’ also with respect to persons that are economically inactive. Certain principled and practical challenges remain.
To start with the obvious, it is clear that the EEA Agreement can never provide for a European Union citizenship. The Union citizenship has several components: the free movement of persons, the right to vote and stand as a candidate in elections, the right to diplomatic protection, the right to petition the European Parliament and the right to apply to the Ombudsman, the right to write to any EU institution or body in one of the 24 official EU languages and to receive a response in the same language, the right to access European Parliament, Council and Commission documents – and not least, the formal citizenship status itself. 11
In the absence of a similar concept to that underpinned by Articles 20 and 21 TFEU, it has been questioned whether the EEA Agreement can provide for movement rights identical to those that derive from EU citizenship. 12 Some have argued that Article 21 TFEU broke the link between free movement and economic activity and transformed what had been a European Economic Community into a European Union. 13 In contrast, it is maintained, ‘the scope of the [EEA] Agreement is limited to activities of economic nature (cf. the European Economic Area)’. 14 Concerns have been voiced that a similar development of EEA law will be a court-made amendment lacking sufficient legal basis. 15 An opposite and influential position is that challenges caused by the absence of a mirroring provision are largely resolvable due to the centrality and force of the principle of homogeneity and its requirement of aligning the two pillars. 16
The EFTA Court has sought to bridge the gap by relying on the Citizens’ Directive 17 which has been transposed into EEA law, supported by an unwritten general principle of free movement. While the constructive approach of the EFTA Court aims for homogeneity in substance, it does not resemble the legal reasoning of the CJEU and is partly at odds with the wording of the directive. 18 Article 3.1 of the directive expressly stipulates that it is not applicable against the home state. 19 Nevertheless, the EFTA Court applies it by analogy to such situations, 20 which is controversial, and has provoked criticism for being contra legem. 21 The subtleties of its case law add complexity and leave unanswered the question of whether the gap between the two pillars is of a technical nature only, or if unbridgeable differences remain. 22 The answer is related to that of justification. One important analysis ends on a positive note and concludes that ‘the EFTA Court deserves a great deal of praise for its efforts in seeking to bridge the widening gaps between EU and EEA law’. 23 At the same time it recognizes that opinions are divided and notes that ‘[w]hether the EFTA Court's approach should be lauded or criticized is naturally a matter of personal and political opinion’. 24 A recent contribution concludes that the developments in EEA law can be understood as ‘a tale of judicial overreach or activism’, or, alternatively, as homogeneity being achieved ‘even beyond the originally restricted goals of economic integration of the founding agreement’. 25 Former judge Christiansen of the EFTA Court maintains that homogeneity is the ‘main issue’, but also that a ‘limit to EEA homogeneity must be accepted’. 26
Another difference between the EEA and the EU legal order is that the EEA Agreement does not establish autonomous bodies with law-making powers. The EU Treaties impose an obligation on the EU legislature to establish 27 and complete 28 the Internal Market, by providing for the fullest possible realization of the free movement of persons through the enactment of secondary legislation. Article 102 EEA provides for the continuous implementation (or copying) of EU legislation. Article 1 EEA decides which EU legislation should be implemented in this manner. Again, the question is whether ‘the free movement of persons’ corresponds to the similar notion in EU law, or whether the scope of the EEA Agreement is more circumscribed.
The hypothesis of the present article is that Article 1 EEA possesses a huge potential for bridging the gap between the EU and the EEA legal orders. Recital five of the preamble to the EEA Agreement reiterates the substance of the obligation of EU law of establishing and completing the Internal Market, by confirming that the EEA Agreement aims to provide for ‘the fullest possible realization of the free movement of goods, persons, services and capital within the whole European Economic Area’. We aim to show how Article 1 EEA makes these aims operational and provides strong justification for the homogeneous interpretation of the free movement of persons. We also suggest further refinement of the approach of the EFTA Court. We shall argue that a fundamental right of free movement of persons can be based directly on Article 1.2(b) EEA. The Article has become sufficiently precise and unconditional to be relied upon by individuals before the courts. These issues have not been subject to discussion in the legal literature.
The link between the ‘fundamental freedom’ of free movement of persons, Article 1.2(b) EEA and recital 5 to the preamble has recently and for the first time been expressly recognized by the EFTA Court, but it does not constitute the basis of its current approach and has not yet been further explored or developed. 29 A recent, concurring development is that the CJEU has clarified for the first time that the corresponding provision in Article 26 TFEU ‘applies only to situations governed by EU law for which the Treaty lays down no specific rules’. 30 The CJEU made a reference to its case law on the application of the principle of non-discrimination. 31 As is well known, Article 18 TFEU is fully capable of providing an individual right but applies only in the absence of specific prohibitions of discrimination. 32 Similarly, Article 26 TFEU will yield to Article 21 TFEU. As a matter of homogeneity, it appears timely and necessary to examine whether Article 1 EEA is applicable in the absence of a ‘specific rule’ similar to Article 21 TFEU within the EEA legal framework.
The present article will proceed as follows. Section 2 takes the words of Article 1 EEA as the starting point. Pursuant to a literal reading, free movement of ‘persons’ means the free movement of persons. Section 3 examines the objective of Article 1 EEA. The creation of the European Union pursues a more far-reaching political ambition than the EEA Agreement. Still, in the practical and legal sense, the EEA EFTA states and the EEA EU states pursue a common enterprise of establishing an area without internal borders. The latter, functional objective guides the interpretation and application of the free movement of persons within the extended Internal Market. Section 4 examines the context of Article 1 EEA. There cannot exist diverging principles of free movement of persons within the EU and the EFTA pillars. Cross-pillar differences will constitute discrimination on the basis of nationality. Section 5 explores the intimate link between Article 1 EEA and the notion of ‘EEA relevance’ pursuant to Article 102 EEA. Section 6 explains why the Citizens’ Directive applies within the EEA without any reservations. Section 7 examines how Article 1 EEA performs the role of a gap closer and guardian of the objectives of the contracting parties. Section 8 argues that the conditions for the exercise of the free movement of persons, and their limitations, have been clarified to such extent that Article 1.2(b) EEA has become sufficiently precise and unconditional to be relied upon before courts. It affords EEA EFTA nationals a primary, written and individual right to free movement that is homogeneous to Article 21.1 TFEU. Section 9 concludes.
The text of Article 1 EEA
Article 1 EEA stipulates that the EEA Agreement ‘shall entail … the free movement of persons’ in accordance with the provisions of the agreement. The text is markedly different compared to, for example, the agreement between EU and Turkey which provides for freedom of movement for ‘workers’. 33 In Demirkan, the CJEU referred to the text and purely economic purpose of the EU-Turkey agreement and remarked that it does not establish ‘any general principle of freedom of movement of persons’. According to the Court, the EU-Turkey agreement cannot foster the ‘development of economic freedoms for the purpose of bringing about freedom of movement for persons of a general nature which may be compared to that afforded to European Union citizens under Article 21 TFEU’. 34
In contrast, Article 1 EEA provides a written, overarching and general principle, the text of which is clear to the extent that further interpretation may appear superfluous and unnecessary. The ‘free movement of persons’ means free movement of persons, absent of any distinction between the economically active and the non-active within the framework of the extended Internal Market. 35 The judgment of the EFTA Court in Campbell provides a striking contrast to the account of the EU-Turkey association in Demirkan. According to the EFTA Court, ‘freedom of movement for workers represents a specific expression of the general right to move and reside freely within the EEA’. 36 In Criminal proceedings against N the EFTA Court noted that ‘one of the fundamental objectives of the EEA Agreement … is to encourage the movement of persons within the EEA and their integration into the society of other EEA States’. 37 The observation confirms that the special relationship pursues a common aim which goes beyond purely economic aims. 38
What then, is there to discuss? For the sake of argument: Imagine that Article 1.2(b) EEA had been deemed to be sufficiently clear and unconditional to have direct effect, similarly to what the ECJ has declared with regard to article 21.1 TFEU. 39 If that were the case, would anyone argue that there is a difference in scope and reach between the two? Probably not.
The strongest argument against relying directly on Article 1.2(b) EEA would be that the general principle of free movement of persons is too general: Article 1 EEA is not sufficiently unconditional and precise to provide rights that individuals can rely upon before a court. The duties on states remain discretionary and voluntary. While the ‘fullest possible realization’ of the free movement of persons that is provided for by Article 1.2(b) EEA and foreseen by the preamble to the EEA Agreement has been carried out within the EU legal order under Article 21.1 TFEU, a similar development has yet to occur within EEA law. Article 1 EEA cannot be compared to that Article. Instead, it corresponds to Article 26.2 TFEU which according to Article 27 TFEU merely sets out objectives, not justiciable rights. 40
We shall return to the rights-producing capability of Article 1 EEA in section 8. First, we shall examine more generally how Article 1 EEA defines the objective and context of the EEA Agreement and provides justification to the homogeneous interpretation of the free movement of persons.
The objective of Article 1 EEA
A homogeneous European Economic Area
The EEA Agreement is founded upon the same values as the European Union.
41
Its objectives are described as goals that shall actively be pursued. The first recital to the preamble asserts that the contracting parties are: CONVINCED of the contribution that a European Economic Area will bring to the construction of a Europe based on peace, democracy and human rights.
The term ‘construction’ is reflected by the dynamic formulation of Article 1 EEA, which asserts that the aim of the EEA Agreement is the ‘continuous and balanced strengthening (…) with a view to creating a homogeneous European Economic Area’.
The creative element is a main difference compared to static treaties that merely introduce contractual rights and obligations. Not only is the acquis of the EEA important as such: it is also a means to realize something bigger than the sum of its parts. From a static rights perspective, it could be argued that to the extent that the free movement of persons is slightly more contained within EEA law, compared to EU law, the rights are only marginally different. Fundamentally, however, even marginal differences would indicate that the contracting parties had failed to realize their objectives. A ‘homogeneous European Economic Area’ is not a matter of degrees. 42 Even if separate areas are quite similar, they remain separate. As will be further explained in section 3.B, the contracting parties aimed to bar inherent institutional asymmetries from affecting the substantive law of the EEA.
Notwithstanding the similarities to EU law, the EEA Agreement does not refer to the aim of realizing ‘an ever closer Union’. Nor could it. By necessity, the pace of that process can only be orchestrated from the inside. From the pragmatic point of view of external relations, the Union exports its values by integrating an outsider. 43 The EEA EFTA states confirm their ability and readiness to adapt in exchange for access to the Internal Market, whatever its current state of realization is. It is noteworthy that unlike Article 1 of the arrangement between the EU and the United Kingdom, which refers to ‘the Parties’ autonomy and sovereignty’, the EEA Agreement makes no mention of such principles. 44
The dynamic objective of the contracting parties marks a difference to other association agreements, which is well understood by the CJEU. In Grimme, the Court noted that the fourth EFTA state, Switzerland, rejected membership of the EEA. Instead, it chose the route of bilateral arrangements in selected areas. Therefore, Switzerland ‘did not join the Internal Market of the Community the aim of which is the removal of all obstacles to create an area of total freedom of movement analogous to that provided by a national market’. 45 The interpretation of the rules of EU law relating to its internal marked could not be ‘automatically applied by analogy’ to the interpretation of the bilateral agreement. 46
In contrast, the CJEU has constantly emphasized that Article 1 EEA aims to extend the ‘Internal Market’. 47 The latter notion was introduced by the Single European Act (SEA) and substituted that of a ‘common market’. As Weatherill explains, the new label was ‘convenient camouflage (…) shorthand for the area of shared purpose, i.e., deepened economic integration’. 48 The ‘Internal Market’ is not only a package of rules but a legal concept, defined as an area without internal frontiers, which comprises a set of constitutional principles such as indivisibility, unity, uniformity, common values and mutual trust. The legal concept was underpinned by the biggest invention of the SEA – Article 100a EEC, today Article 114 TFEU – which provided for the enactment of harmonizing legislation by qualified majority voting. This ensured the dynamism that the aim of ‘fullest possible realization …’ in the preamble to the EEA Agreement foresees and corresponds to.
Opinion 1/91 on divergences in aims and context
While the EEA Agreement is not an ordinary free trade agreement, opinions have differed with regard to its precise nature. It has been recalled that it is ‘limited to elements primarily connected to economic integration’. 49 It has also been maintained that whether ordinary or not, it is still a trade agreement. 50 The position of the Icelandic and Norwegian Government is that compared to EU law, a more contained and less dynamic application is required. 51
The different views can be traced back to the origins. In one of its remarks in Opinion 1/91, the CJEU noted that the EEA Agreement ‘is concerned with the application of rules on free trade and competition in economic and commercial relations between the Contracting Parties’. 52 In contrast, the CJEU explained, ‘the objective of all the Community treaties is to contribute together to making concrete progress towards European unity’. 53 In this sense the acquis is a means not an end. Also noting the absence in EEA law of the principle of supremacy, and the unclear status of the principle of direct applicability, the CJEU feared that the divergences in aims and context would ‘stand in the way of the achievement of the objective of homogeneity’. 54
The reasoning in Opinion 1/91 must be understood in light of the context and objective of that decision. The CJEU provided grounds to explain why it considered the proposed EEA Court to interfere with its own autonomy. It opined that the institutional set up of the proposed EEA Court with eight judges in total, including five from the Court of Justice, would undermine its own autonomy and was incompatible with the Treaties. Its observation that it would be ‘very difficult, if not impossible, for those judges, when sitting in the Court of Justice, to tackle questions with completely open minds where they have taken part in determining those questions as members of the EEA Court’ seems convincing. 55
A non-contextual application of the statements in Opinion 1/91, was tested and rejected at the first possible occasion. In Opel Austria, the Court of First Instance remarked that the ‘Contracting Parties’ objective of establishing a dynamic and homogeneous EEA has not been diminished by the Court of Justice in Opinion 1/91’. 56 When autonomy is at stake, the question is not if homogeneity is possible to achieve, but whether there is a potential risk that differences may occur.
The potential risks that the CJEU identified did not materialize. The Single European Act demanded and fostered the ‘completion’ of the Internal Market by the end of 1992. Before the enactment of the SEA, it is true that the CJEU took an active role, and that occasionally, the overarching objectives referred to in Opinion 1/91 guided its interpretation of the acquis. But as Weatherill observes, the SEA clarified matters, and the Internal Market became an end rather than a means. 57 Its realization created the interdependence and trust amongst the Member States which has been a catalyst for integration in other fields. The substitution of the principle of unanimity by the mechanism of qualified majority transformed the EU into a supranational organization in its true sense. However, these are political achievements and constitutional heritage rather than operative, interpretative guidelines.
That the potential risks created by differences in the respective aims have been avoided, is in fact, what a careful reading of Polydor would suggest. Absent of constitutional rhetoric, 58 that judgment emphasized the difference between the aim of eliminating restrictions on trade between the contracting parties (such as in Grimme above) and the more ambitious objective of uniting ‘national markets into a single market having the characteristics of a domestic market’. 59 As confirmed by the recent judgment of the CJEU in Alchaster, 60 the latter corresponds to the aim of the European Economic Area.
Inherent constitutional asymmetries remain, due to the absence of law-making powers within the EEA pillar and the corresponding differences with regard to the principles of supremacy and direct applicability. 61 Such structural and institutional differences do not suggest that substantive homogeneity is impossible. To the contrary: when the proposal for an EEA Court was quashed by Opinion 1/91, the contracting parties inserted an additional recital to the preamble that clarifies the link to the concept of the Internal Market and amplifies the homogeneity objective. 62 The aim of substantive homogeneity is not restricted by the structural shortcomings but compensates for them.
As observed by Lenaerts, the notion of direct effect is occasionally used indifferently, to cover both ‘direct applicability’ (whether a provision requires implementation as a legal instrument) and ‘direct effect’ (whether the substance of a provision may be relied upon by an individual in order to make a claim). 63 In Opinion 1/91 the notion is used in the former, institutional sense. In accordance with Lenaerts’ approach, we use it in the latter, substantive sense. Importantly, in Fjarskipti the EFTA Court clarified that although the institutional structure of the EEA Agreement differs from EU law in the sense that national implementing measures are required, 64 substantive issues remain fully homogeneous: Whether Article 1 EEA has ‘direct effect’, that is, whether it is capable of creating rights that individuals can invoke before the courts, depends on whether it is ‘sufficiently clear, precise and unconditional’. 65 The latter is identical to the requirements of EU law.
The homogeneous free movement of persons
The substantive objectives that are shared between the Internal Market and the European Economic Area guide the interpretation of ‘the free movement of persons’. The so-called ‘passive’ freedom to provide services, which affords recipients of services a right to go to another member state, has always been a proxy for ‘European citizenship’.
66
This explains why the judgment of the CJEU in Demirkan rejected the existence of such right under the EU-Turkey agreement. By reference to the ‘purely economic’ objective of that agreement, the Court ruled that the free movement of services could only be invoked when the activity in question was the corollary of the exercise of an economic activity.
67
It emphasized that: By contrast, under European Union law, protection of passive freedom to provide services is based on the objective of establishing an internal market, conceived as an area without internal borders, by removing all obstacles to the establishment of such a market. It is precisely that objective which distinguishes the Treaty from the [EEC-Turkey] Association Agreement, which pursues an essentially economic purpose.
68
The citizenship-dimension of the passive right to receive services is highly present in the seminal ruling of the CJEU in Ruska Federacija v. IN. IN was a Russian citizen who fled to Iceland, was granted asylum as a political refugee and acquired double citizenship. He then travelled to Croatia for holiday but was arrested at the border, as the Russian federation requested his extradition. That would undoubtedly ruin the holiday and amounted to a restriction on the right to receive services, as amongst other things, IN was a bus passenger. Unlike its approach to the EEC-Turkey agreement in Demirkan, the CJEU ruled that Article 36 EEA (services) had to be given the same interpretation as Article 56 TFEU. 69 The ruling confirms that the EEA Agreement shares the same objectives as the Internal Market of the EU.
The subsequent judgment of the EFTA Court in Criminal proceedings against N asserted that EEA nationals have benefitted from the passive right to receive services ever since the entry into force of the EEA Agreement in 1994. 70 While the ruling relies on Article 36 EEA (services), the contrast to Demirkan shows that in itself, that provision can be interpreted either way. The specific interpretation and application of Article 36 EEA that both the CJEU and the EFTA Court have opted for is an application of Article 1 EEA. ‘Persons’ includes any EU or EEA national, whether economically active or not. Accordingly, the interpretation and application of Article 36 EEA is constructed to provide for the fullest possible realization of the free movement of persons.
The context of Article 1 EEA
Homogeneity's foundation and benchmark
Article 1 EEA introduces the principle of homogeneity by affirming that the contracting parties concluded the EEA Agreement ‘with a view to creating a homogeneous European Economic Area’. A key question is what the notion of homogeneity refers to – homogeneous to what? We shall approach the principle of homogeneity as a matter of contextual interpretation and show why it contributes to the creation of what the CJEU describes as a ‘special relationship’. 71
A narrow understanding of the principle of homogeneity would be that of internal consistency: EEA rules should be applied in the same manner towards both EEA nationals and EU citizens, but not necessarily in an identical manner as within the EU pillar. A somewhat wider, but still reductionist reading, is that the principle of homogeneity is given concrete expression by Article 6 EEA and is mainly a principle of uniform interpretation. 72 A third possibility is that the legal concept of the Internal Market is homogeneity's benchmark. In its response to the judgments of the EFTA Court on the free movement of persons, the Norwegian Supreme Court framed the issue as a choice ‘between homogeneity in interpretation and homogeneity in results’. 73
To understand the notion of homogeneity as a mere requirement of internal consistency within the EEA would negate the obvious relationship between EEA law and EU law. Article 1 EEA applies the notion of homogeneity in a manner which precedes the definition of the EEA – and it refers to something that is both preexisting and external to it. Understood in this sense, the principle of homogeneity appears as an amplified version of the general principle of contextual interpretation.
Turning to Article 6 EEA, that provision does not use the notion of ‘homogeneity’, but stipulates that the EEA Agreement shall be interpreted in conformity with the relevant rulings of the CJEU given prior to the date of signature. We concur with the Norwegian Supreme Court that Article 6 is merely an ‘implication of the homogeneity principle’. 74 Obviously it is of huge practical importance, as in most cases uniform interpretation will also produce homogeneity in result. In hard cases, however, the question of homogeneity's foundation and benchmark becomes pressing.
The EFTA Court has been clear: ‘The objective of abolition of obstacles to the free movement of persons is also reflected in Article 1(2) EEA and the then Article 3(c) of the Treaty Establishing the European Economic Community.’ 75 The CJEU has been even clearer: ‘the law governing the EU Internal Market is to be extended as far as possible to the EEA, with the result that nationals of the EEA States concerned benefit from the free movement of persons under the same social conditions as EU citizens.’ 76 As the Norwegian Supreme Court correctly implied, Article 1 EEA is the foundation. 77
Concerning homogeneity's benchmark, Article 1 EEA must be interpreted and applied in conjunction with Article 102 EEA. The latter introduces the updating mechanism which is the prerequisite for the realization of the objectives of Article 1 EEA. Article 102.1 EEA prescribes that ‘[i]n order to guarantee the legal security and the homogeneity of the EEA’, the EEA Agreement shall be constantly amended through the implementation of ‘corresponding new Community legislation with a view to permitting a simultaneous application’. The first paragraph makes crystal clear that the law of the Internal Market of the EU is the context against which homogeneity is assessed. Further, Article 102.3 stipulates that the contracting parties ‘shall make all efforts to arrive at an agreement on matters relevant to this Agreement’. The latter implies that the principle of homogeneity is applicable not only to rules that are ‘identical in substance’, but to any issue that is ‘relevant to this Agreement’.
The free movement of persons extended to the EEA
The EFTA Court has repeatedly held that the aim of ‘establishing a dynamic and homogeneous European Economic Area can only be achieved if EEA/EFTA and EU nationals and economic operators enjoy, relying upon EEA law, the same rights in both the EU and EFTA pillars of the EEA’. 78 This corresponds to the broad understanding of the principle of homogeneity advocated above.
With regard to the implementation of EU legislation, the judgment of the CJEU in UK v. Council confirms the approach taken by the EFTA Court. The case concerned the legal basis for the decision to extend regulation 883/2004 to the European Economic Area. 79 The advocate general opined that Articles 45 and 48 TFEU were not applicable, as they are strictly confined to the free movement of ‘union citizens’ within the ‘internal market’. 80 As a matter of ordinary interpretation this is correct. Still, the CJEU reached the opposite conclusion. The context demanded the field of application of Article 48 TFEU to be construed expansively, to provide for the free movement of persons throughout the entire European Economic Area. The reasoning of the Court pursues a vision of cross-pillar homogeneity. 81
A principle of cross-pillar homogeneity justifies that the different treatment of EEA nationals compared to EU citizens is regarded as discrimination on the basis of nationality. 82 And indeed, in the seminal judgment in Ruska Federacija v. IN, the grand chamber observed that Article 4 of the EEA Agreement requires equal treatment for persons ‘“within the scope of application” of the agreement’. 83 It ruled that unless the unlucky Russian-Icelandic traveller was afforded the same protection against extradition as nationals of the EU Member States, it would amount to a restriction of his passive right to receive services pursuant to Article 36 EEA. 84 As a matter of contextual interpretation, his bus ticket was all inclusive. Whether such broad comparison would have been possible in the absence of Article 1 EEA, and its confirmation that the free movement of persons comes within the scope of the EEA Agreement, is hard to say. The complex amalgam upon which the CJEU constructed its ‘objectively comparable’ paradigm may be taken to suggest the opposite. 85 The more important point is that Article 1 EEA makes a contextual understanding of homogeneity fully justified and directs the future application of the free movement of persons. 86
The scope of Article 1 EEA and ‘the free movement of persons’
Scope versus current reach
The text of Article 1 EEA establishes that the free movement of goods, persons, services and capital comes within the scope of the EEA Agreement without any limitations or reservations whatsoever. Recital 5 to the preamble confirms that the contracting parties were ‘determined’ to provide for ‘the fullest possible realization’ of the fundamental right to free movement. The potential reach is unrestricted and absolute, which makes it necessary to distinguish between the scope of the EEA Agreement on the one hand, and its current realization on the other. Article 1 EEA is a legal basis that foresees, justifies and demands future developments.
The EEA Agreement was modelled upon the Treaty Establishing the European Economic Community (EEC). 87 Article 3(c) EEC stipulated that the Community ‘shall include, as provided in this Treaty and in accordance with the timetable set out therein … an Internal Market characterized by the abolition, as between Member States, of the obstacles to the free movement of persons, services and capital’. The transformation of the principle into judiciable rules that individuals can rely upon, is a gradual, not to say an eternal, process. Due to the new spirit created by the Single European Act and its mechanism of majority voting, the Community was well equipped to carry out the realization of the fundamental freedoms.
The contracting parties to the EEA Agreement were fully aware of the difference between the scope and objectives of the EEA Agreement on the one hand, and the actual realization of the fundamental freedoms on the other. The text of Article 1 EEA foresees a process of ‘continuous and balanced strengthening’. Article 102 EEA, which introduces the mechanism for the updating of the EEA to adapt to developments in EU law, uses similar words. This is explained as the notion of ‘EEA relevance’ which is the corollary of the objectives and scope introduced by Article 1. In other words: While the EEA Agreement does not establish bodies with law-making powers, the broad scope of Article 1 EEA defines the reach of the ‘law taking’ obligation created by Article 102 EEA.
Below we shall discuss whether the scope of ‘the free movement of persons’ was subject to any limitations when the EEA Agreement was drafted and entered into force. In that regard, it is irrelevant whether the operative rules that provided for its realization introduced conditions and proportionate restrictions. As a matter of scope, the question is whether ‘the free movement of persons’ pursuant to Article 1 EEA covers all aspects of that right. If all persons (both the economically active and the non-active) and all matters (to move and reside) are covered, any new EU regulation governing the free movement of persons comes within the scope of the EEA Agreement.
The personal scope of Article 1 EEA (ratione personae)
European citizenship was called for by the European Commission at the Summit conference in 1972, won further support at the Summit in 1974 and was taken a long step forward by the Tindemans Report on European Union in 1975. 88 Two elements formed the core of that concept: a general right to travel freely between Member States and special, political rights.
As early as in 1982, Evans provided an elaborate scholarly account of how the application of free movement law developed in the 1970s to correspond to the emerging concept of citizenship and to further its realization. 89 The instrumental ‘factors of production approach’ was substituted by a fundamental rights approach that aimed to bring Community law closer to its Peoples. Drawing on Evans’ account, we will explain how the Treaty provisions on the free movement of services and workers contributed to the realization of the general principle of free movement of persons.
In 1964, the Council enacted secondary legislation granting movement rights to recipients of services. 90 The advocate generals were sceptical. AG Trabucchi noted that ‘the practical effect [of a broad interpretation of the free movement of services] is to extend the right of freedom of movement to all nationals of the Member States because every one is actually or potentially a recipient of services’. This would be contrary to the text and structure of the Treaty, he submitted. 91 The CJEU clarified the matter before the EEA Agreement was negotiated and signed. In Luisi and Carbone, it ruled that ‘the freedom to provide services includes the freedom, for the recipients of services, to go to another member state in order to receive a service there, without being obstructed by restrictions’. 92
In the absence of a de minimis limitation, a right to travel to receive service provides a general and unlimited right to free movement for persons. Most people will receive transport services at the point of entry, like the bus passenger in Ruska Federacija v. IN. If they carry a mobile phone, they will automatically be offered roaming services. Travellers will also, at least potentially, receive different services at a later stage. 93 The requirement of economic activity is reduced to a mere fiction if it is always and automatically met and the host state is precluded from asking questions about the services the persons concerned intend to receive. 94
Evans further describes how Directive 68/360 fostered an extension of the personal scope of free movement. 95 The directive implemented the right to free movement for workers by granting rights of entry and residence when taking up an offer of employment. When it was enacted, the Council entered into an informal agreement that Community nationals would be admitted to a Member State other than their own for a minimum of three months, to look for work. 96 Job seekers are not economically active, which explains why the text of article 45.3 TFEU grants the right to move for the purpose of accepting ‘offers of employment actually made’. The notion of ‘worker’ remains economic only in the thin and rhetoric sense if its substantive economic core, that you have to work to be a worker, is abolished. However, in Antonissen the Court observed that a strict interpretation of what is now Article 45.3 TFEU ‘would jeopardize the actual chances that a national of a Member State who is seeking employment will find it in another Member State, and would, as a result, make that provision ineffective.’ 97 That finding can only be justified in the spirit of the free movement. As Evans observed, the scope of free movement of persons is not made dependent on economic activity, but ‘on the individual's willingness to make a statement to immigration officials [about seeking work] which is not necessarily true’. 98
The above analysis shows that long before the EEA Agreement was drafted and entered into force, it was established that the directly effective Treaty rights afforded nationals a right to move, whether they were economically active or not. Pursuant to Article 1 EEA, the personal scope of ‘the free movement of persons’ must be understood accordingly. In fact, the most intriguing question both in EU law and EEA relates to the ratione materiae. Does Article 1 EEA comprise not only a right of movement, but also of residence?
The substantive scope of Article 1 EEA (ratione materiae)
The substantive scope of the enforceable Treaty rights is not unlimited. In Zhu and Chen the CJEU ruled that ‘the right of residence of persons receiving services by virtue of the freedom to provide services is coterminous with the duration of the period for which they are provided.’ The freedom to receive services cannot serve as a basis for a right of residence of indefinite duration. 99 The said limitation does not derive from the personal scope of free movement law. The plaintiffs were indeed covered by the right to receive services. In the substantive sense, however, there is quite a gap between receiving a service and establishing permanent residence.
The process of realizing the free movement of persons in the 1970s and 1980s acknowledged the uncertainties and potential shortcomings of the operative treaty rights. Secondary legislation was enacted to ensure the completion of the Internal Market. Three directives are of particular interest in our regard: Directive 90/365/EEC concerned the right of residence for employees and self-employed persons who have ceased their occupational activity. 100 Directive 90/366/EEC concerned the right of residence for students. 101 Directive 90/364/EEC on the right of residence provided such right to any national of a Member State. 102 All the directives included derived rights for family members.
Students have not yet become economically active. Retirees are no longer economically active. Article 1 of the residence directive covered everyone else. The objective of the directives ‘was to complete Community law (…) by extending the right of residence to those European citizens who do not as yet have that right on the basis of existing Community law’.
103
The preparatory works explain that: It would be politically unacceptable to create an area without frontiers in which, according to the Single European Act, the free movement of persons is guaranteed (EEC Treaty, Article 8a) without allowing the beneficiaries of that right to reside where they wish in the Community.
104
The Internal Market was thus ‘completed’ in the sense that it covered all nationals: the economically active as well as the non-active, and all aspects of movement: both entry/exit and residence. The completion did not derive from the enactment of the Maastricht Treaty and its concept of Union citizenship, but from the Single European Act and the concept of free movement of persons. The inclusion of the three directives in the EEA Agreement, confirms that economically inactive persons are within the scope of Article 1 EEA. 105
Confirming the scope of Article 1 EEA by the implementation of Directive 2004/38
The Citizens’ Directive concerns ‘the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States’, or in short: the free movement of persons. According to its preamble, the directive codifies existing Community instruments to remedy the sector-by-sector, piecemeal approach to the right of free movement and residence. Until the enactment of a Treaty provision on Union citizenship, the Community was plagued by the subtleties of the different legal bases that provide for the realization of the free movement of persons. The bottom was reached when the Students’ Directive was found to be invalid. Its enactment relied on Article 235 EEC, a legal basis that is available only when no other provision of the Treaty is applicable. The problem was not a lack of a legal basis, but that there were too many. 106
The same subtleties do not exist within the framework of the EEA Agreement. Pursuant to Article 102 EEA, the question is merely whether novel EU regulation is ‘EEA-relevant’, that is, whether it comes within the scope of the agreement as defined by Article 1 EEA. The EEA relevance of the Citizens’ Directive was confirmed by the decision of the EEA Joint Committee, which implemented the directive into the EEA Agreement with the adaptation that the words ‘Union citizen(s)’ shall be replaced by the words ‘national(s) of EC Member States and EFTA States’.
107
In a joint declaration attached to the implementing decision, the contracting parties first stated the obvious: The EEA Agreement does not introduce a concept of Union citizenship nor does it provide a legal basis for political rights of EEA nationals. They then asserted that: The EFTA States recognise that it is of importance to EEA nationals making use of their right of free movement of persons, that their family members within the meaning of the Directive and possessing third country nationality also enjoy certain derived rights (…)
The statement describes the free movement of persons as a ‘right’. Further, it acknowledges that the derived rights of family members are a corollary to that right. It confirms that as a matter of free movement of persons, the directive applies in full within the European Economic Area. 108
While the Citizens’ Directive clarified and continued existing rights, it has been noted that it also introduced some ‘new’ rights: the right of residence for up to three months and the right of permanent residence for EEA nationals and family members who have resided legally for a continuous period of five years in the host Member State. 109 Franklin points to the fear among the EEA EFTA States that this ‘would lead to a de facto broadening of the scope and objectives of the EEA Agreement itself through the backdoor’. 110
It suffices to note that the personal scope of Article 1 EEA comprises any national whether economically active or not, while the substantive scope covers rights of movement and residence. Further, the objective of the Citizens’ Directive to ‘strengthen the right of free movement and residence’ corresponds to the objective of Article 1 EEA to promote a ‘continuous and balanced strengthening’ of ‘the free movement of persons’ to provide for its fullest possible realization. 111
Article 1 EEA as a gap closer
The challenge of derived rights of third-country nationals
At the outskirts of the substantively homogeneous area of free movement of persons, a highly technical question has posed difficulties to both the CJEU and the EFTA Court: that of derived rights of family members from third countries that accompany economically non-active citizens who have exercised their right to free movement and return to their home state.
In O and B, the CJEU confirmed first that neither Article 21.1 TFEU nor the Citizens’ Directive confer autonomous rights on third-country nationals. 112 Second, it explained that since it follows from general principles of international law that a state cannot refuse its own nationals the right to (re-)enter its territory and remain there, the Citizens’ Directive does only govern the conditions of entry and residence of a Union citizen in a Member State other than the Member State of nationality. 113 This creates a lacunae. Since the beneficiary cannot invoke the directive against the home state, the derived rights of family members are cut off too. The Court ruled, however, that a derived right of residence may, in some circumstances, be constructed directly upon Article 21(1) TFEU.
The CJEU observed that the purpose of a derived right of residence in the home state is to promote and make effective the right of entry and residence in the host state. In the absence of complete rights of return, the citizen could be discouraged from leaving his home state in the first place, because of the prospect of not being able to continue the family life that was established or strengthened in the host state. 114 Thus, there is a need to remedy the gap. 115
The CJEU noted that the conditions that govern the derived right of residence upon return should not be stricter than those that apply under the directive. This is obvious. The reason that technically, the directive does not cover the Union citizen's return to the home state, is that such return is not subject to any conditions at all. Conversely, the purpose is not to eliminate the derived rights of family members, or to impose stricter conditions than those that would be applicable against a host state.
Upon these considerations, the Court based the derived right of residence upon return on Article 21.1 TFEU and applied the conditions of the directive by analogy, in conjunction with that provision. 116 As the notion of ‘analogy’ acknowledges, such teleological interpretation comes close to Court-made legislation. According to the judgment in Baumbast, it is not only the text of Article 21.1 TFEU which makes that Article sufficiently precise and unconditional to be relied on before a Court, but also the conditions established by secondary legislation. 117 Absent of the analogous application of the conditions of the directive, Article 21 TFEU would not be applicable either.
The EFTA Court's preservation of homogeneity in Jabbi
The EFTA Court was posed with a similar challenge in Jabbi.
118
The Court noted that a gap between the two EEA pillars has emerged since the signing of the EEA Agreement in 1992. This gap has widened over the years. The EU treaties have been amended four times since then, while the EEA Main Agreement has remained substantially unchanged. This development has created certain discrepancies at the level of primary law.
119
Still, the EFTA Court followed the result in O and B and ruled that, by analogy, the conditions of the Citizens’ Directive govern the situation when an EEA national returns with the family member to his home state. 120 As the judgment acknowledges, ‘the ECJ reached its conclusion on a legal basis not existing in the EEA’. 121 Therefore the ruling poses two questions. First: In the absence of a provision similar to Article 21.1 TFEU, what is the EEA-right, the exercise of which is governed by the conditions of the directive? Second, how can homogeneity be justified?
The basic and undisputed starting point is that EEA law affords EEA nationals a right of residence in any other EEA State than the home state. 122 A straightforward reasoning is that the rejection of derived rights of family members against the home state upon return would interfere with and undermine the right to move freely from the home EEA State to another EEA State in the first place. In other words, a right against the home state can be constructed to be the corollary of and a prerequisite for, the effective enjoyment of the rights against the host state. To undermine the latter would breach of the duty of loyalty. 123
While such technical arguments explain why the EFTA Court simply had to fill the gap, and are prominent in the judgment, they do not provide the full explanation. Jabbi relies on three justifications that are far more principled.
First, the EFTA Court introduced its reasoning by emphasizing that: ‘The free movement of persons is one of the fundamental freedoms of the EU internal market.’ 124 The statement acknowledges the context to which the EEA Agreement corresponds. It clearly hints at the existence of an identical principle within EEA law, as previously acknowledged in Wahl. 125
Secondly, the Court emphasized that ‘[t]he objective of abolition of obstacles to the free movement of persons is also reflected in Article 1(2) EEA and the then Article 3(c) of the Treaty Establishing the European Economic Community (“EEC”).’ In the same vein it observed that the aim of recital 5 to the preamble to the EEA Agreement ‘to provide for the fullest possible realisation of the four freedoms’ include the free movement of persons. 126 As a matter of loyal interpretation the Court is obliged to make every effort to comply with the directions of the contracting parties.
Third, and perhaps most importantly, the EFTA Court referred to the principles of homogeneity and contextual interpretation and remarked that without independence in its adjudication, no court can claim legitimacy. 127 The EFTA Court had to distinguish itself from the technicalities of O and B to preserve a ‘homogeneous European Economic Area’ pursuant to Article 1 EEA. The EFTA Court's application of the principle of homogeneity corresponds to that of the CJEU in seminal judgments such as UK v. Council and Ruska Federacija v. IN. Article 1 EEA is the underlying principle which justifies creative reasoning to close the gap, in conformity with the objectives of the contracting parties.
Can individuals rely on Article 1 EEA before a court?
Why it matters
The remaining question is whether Article 1.2(b) EEA confers a general right to move and reside, which individuals can rely on before a court. The direct effect of Article 1.2(b) EEA has never been analyzed, neither in legal theory nor in the practice of the CJEU or the EFTA Court.
A preliminary observation is that the EFTA Court has confirmed that the objective of the successor of the residence directive, the Citizens’ Directive as made part of EEA law, is to ‘facilitate and strengthen the exercise of the primary and individual right to move and reside freely within the territory of the EEA States …’. 128 This is a paraphrase of the judgment of the CJEU in in Metock, which continues ‘… that is conferred directly on Union citizens by the Treaty’. 129 Similarly, the judgment in O and B continues ‘… that is conferred directly on Union citizens by Article 21(1) TFEU’. 130 Only one provision can provide for such right at the level of EEA primary law: Article 1.2(b). The written principle provides stronger justification for achieving homogeneity in result than an unwritten, court-made principle.
Another observation is that although the EFTA Court has managed to achieve homogeneity in result, its current approach does not reflect its big words. While justified, a double analogy contra legem is not a fundamental principle but a last resort. 131 It is difficult to foresee and understand what the legal basis is, and what the conditions are. Complications increase further because the main part of the EEA Agreement is implemented in national law as such, while the double analogy derived from of the Citizens’ Directive is not implemented at all. 132 We assume that it is rather difficult to translate a double analogy into a clear, statutory rule.
Lastly, being a fundamental principle, the recognition of Article 1 EEA as such will provide general guidance to any issue relating to the free movement of persons, 133 not limited to the technical difficulties that fostered the clarifications in Jabbi. To mention one pressing issue, the EEA relevance of the Zambrano-line of case law remains unclear. 134 Implicitly, Article 1 EEA does not only concern the free movement of persons, but also their (constitutional) status. Or, what if the EEA EFTA States start offering citizenship to foreign investors? 135
Sufficiently clear and precise
The first question is whether Article 1.2(b) EEA is sufficiently clear and precise. Its relevant parts stipulate that: In order to attain the objectives set out in paragraph 1, the association shall entail, in accordance with the provisions of this Agreement: … the free movement of persons
The CJEU's judgment in Baumbast is an important comparison. The Court ruled that Article 21.1 TFEU is sufficiently clear and precise to confer on every citizen the right to reside within the territory of the Member States.
136
Article 21.1 reads: Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.
Article 1.2(b) EEA is not less clear than Article 21.1 TFEU. It is well-established that ‘persons’ includes all EEA nationals, whether economically active or not. ‘Free movement’ affords the right to move. Every source of EU and EEA law confirms that the right to move also encompasses the right to reside.
In fact, the EFTA Court's current approach proves the clarity of Article 1.2(b). In the absence of Article 21.1 TFEU, the double analogy contra legem is far from self-evident. As shown by the analyses above, it is justified by Article 1 EEA and the principle enshrined therein and could not have been reached in its absence. In the words of the Norwegian Supreme Court the reasoning of the EFTA Court ‘must imply that the States have also accepted that there is a corresponding underlying right … The Citizens’ Directive therefore only consolidated a right that already existed in the EEA’. 137
Unconditional
The second question is whether Article 1.2(b) is unconditional. One objection is that Article 1.2(b) is comparable to Article 26.2 TFEU and that pursuant to Article 27 TFEU ‘the free movement of persons’ is merely an objective.
In this respect it is important to recall the inherent asymmetries between the EEA Agreement and the EU legal order. Article 27 refers to Article 26.2 as objectives that shall be pursued in the legislative process. Conversely, as the EEA Agreement does not establish lawmaking bodies, Article 1.1 and 102 EEA replaces the detailed objectives of the TFEU with that of homogeneity. Thereafter, Article 1.2 EEA introduces ‘the free movement of persons’ not as an objective, but as something that the Agreement ‘shall entail’. The latter notion appears unconditional. Article 28 EEA (workers), which affords a judiciable right, applies the same notion.
Further, the case law of the CJEU seems to suggest that Article 26.2 TFEU is not merely an objective. The question of its direct effect was raised in Wijsenbeek. The case concerned Article 7a EC (now Article 26 TFEU), which required the completion of the Internal Market by the end of 1992. The Court held that no obligation to abolish border controls arose automatically at the expiry of the period. 138 It held that ‘such an obligation presupposes harmonisation of the laws of the Member States governing the crossing of the external borders of the Community, immigration, the grant of visas, asylum and the exchange of information on those questions’. 139 One reading is that on the one hand, Article 26.2 TFEU cannot take effect in the absence of secondary legislation that specifies the conditions for its application but ‘have direct legal effect only in conjunction with those provisions’. 140 On the other hand, the right in itself does not need to be reproduced to take effect. If that is correct, the recent judgment in Nor Vest Pro can be read as confirmation that the conditions that were awaiting in Wijsenbeek are now in place, so that Article 26.2 TFEU has achieved a rights-producing function. 141
A second and related objection is that Article 1.2(b) is a mere reference provision due to its reservation that free movement shall be entailed ‘in accordance with the provisions of this Agreement’. Notably, however, that reference corresponds to the even stronger reservation in Article 21.1 TFEU. Right-producing provisions such as Article 31 EEA (establishment) and Article 36 EEA (services) contain a similar reference. Still, they have been deemed to be sufficiently unconditional to be relied on before courts.
The CJEUs reasoning in Baumbast corresponds closely to the understanding of Wijsenbeek and Nor Vest Pro set out above. It is not the text of Article 21.1 TFEU that makes the right therein clear and unconditional, but that enforceable ‘limitations and conditions’ are in place. 142 In other words, it is the enactment of the Citizens’ Directive that provides for the direct effect of the right derived from primary law. 143 The analogous application of the conditions of the directive in O and B transformed Article 21.1 TFEU into an operative rights provision also with regard to derived rights against the home state. Article 1 EEA is not different in this regard and should therefore be regarded as unconditional.
Conclusion: ‘Objectively comparable’?
The current article has shown that Article 1 EEA justifies a homogeneous application of ‘the free movement of persons’ within the European Economic Area. Further, we have argued that Article 1.2(b) has become sufficiently clear, precise and unconditional to perform a rights-producing function and be relied upon by individuals before the courts. The EFTA Court has not yet taken this final step but relies on what we have referred to as a ‘double analogy contra legem’ constructed upon the Citizens’ Directive. While that label may sound critical, we agree that until now, a careful approach has been wise.
The sovereignty of the EEA EFTA States is no reason for concern or deference. We have shown that ever since the entry into force of the EEA Agreement, the notion of ‘persons’ included any EEA national, whether economically active or not. Still, it is the CJEU that is the guardian of the ‘area without internal borders’. As far as the free movement of persons is concerned, the Internal Market is interrelated with the Area of Security, Freedom and Justice. 144 Due to the inherent asymmetries, the EFTA Court possesses no jurisdiction to figure out the inter-dependency of Articles 3.2 and 3.3 TEU.
It is only recently that the CJEU has confirmed that nationals of the EEA EFTA States, that are also associated to the Schengen acquis, are ‘objectively comparable’ to EU citizens to which, in accordance with Article 3.2 TEU, the Union offers an area without internal frontiers, in which the free movement of persons is ensured. 145 One aspect of the development is that the CJEU has confirmed that, indeed, the acquis surrounding EEA EFTA nationals fulfils the Wijseenbeek requirements for direct effect. 146 The EFTA Court could not have said the same, but it can certainly figure out the consequences, within its pillar of jurisdiction.
There has been a response. The EFTA Court has embraced the CJEU's holistic approach to the EEA Agreement. 147 Further, it has acknowledged openly and for the first time that ‘according to Article 1(2)(b) of the EEA Agreement, read in the light of the fifth recital thereof, the freedom of movement for persons constitutes one of the fundamental freedoms of the Internal Market and forms part of the core of the EEA Agreement.’ 148
We have shown that Article 1 EEA makes the response of the EFTA Court fully justified. The next step of the gradual development of the ‘dynamic and homogeneous European Economic Area’ would be to leave the double analogy contra legem to history and to confirm that Article 1 EEA affords a right to free movement that individuals can rely on before the courts. When that happens, EEA EFTA nationals will be ‘objectively comparable’ to Union citizens.
Footnotes
Declaration of conflicting interests
The authors declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.
Funding
The authors disclosed receipt of the following financial support for the research, authorship and/or publication of this article: This work was supported by the Norges Forskningsråd, (grant number 325328).
