The Drama of the EEA - Comments on Opinions 1/91 and 1/92
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Abstract
The Agreement creating a European Economic Area (EEA), negotiated between the European Community, its Member States and the countries forming the European Free Trade Association (EFTA),2 and signed 2 May 1992, will parallel the Single Market as of 1 January 1993, subject to ratification. Due to be finalized in October 1991, the whole undertaking, and especially its judicial mechanism, were fundamentally called into question by the European Court of Justice (hereinafter ECJ, or the Court) on 14 December 1991.3 Its amended version, resubmitted to the ECJ in February 1992, finally found the Court's modulated approval.4
The principles defined in this context by the Court go far beyond the scope of the agreement actually concerned. The Court's interpretation of the objectives of the Community as opposed to those of the EEA, its analysis of scope and content of judicial mechanisms created by international agreements, the position of `mixed' association-agreements and of the legal instruments for their implementation in the Community legal order are all of significance for the further development of the `Constitutional Charter of a Community based on the rule of law'.5
In order to faithfully report the different stages of the `EEA-Drama', I shall start by exposing the antecedents, negotiating history and content of the Draft EEA Agreement as it stood when first submitted to the ECJ (I); after this, the three most important issues raised by the Court's ruling in Opinion 1/91 shall be presented by summarizing the Court's appreciation (II.A), then analyzing its scope and possible meaning (II.B) (II); I will then describe the main aspects of the Agreement's renegotiated version (III) and proceed, as above, to a summary and analysis of the three major topics which, in Opinion 1/92, restate, modulate or develop the Court's initial evaluation (IV).
This analysis should permit conclusions concerning the constitutional significance of these Opinions. First, the Court may have construed the Community's objectives as creating an obligation of attaining European Union, but this will not prevent the EEA's realization; second, the Court found a practicable solution combining the institution of international tribunals by Agreements concluded by the Community and its Member States with the preservation of the autonomy of the Community legal order; third, the Court practically completed its prior work of reducing the distinctions between `communautaire' and `mixed' agreements and modified the doctrine of `implied powers' in order to permit the delegation of implementing powers to Community institutions, by way of international agreements, in areas exceeding the Community's material jurisdiction. In some of these fields, there may be indications of the emergence of `higher', foundational norms of primary Community law (V).
I. Prologue - The History of the EEA6
The Contracting Parties' economic relations had been governed since 1972-73, the date of the Community's first enlargement, by Free Trade Agreements (FTAs) between the Community and the individual EFTA countries. In April 1984, at a ministerial meeting convened in order to celebrate the FTAs' final implementation, the Ministers and Community Representatives issued the `Luxembourg Declaration'7 in which they stressed the importance of strengthening cooperation and ultimately creating a `dynamic and homogeneous European Economic Space'.8 Although this expression was never clearly defined, its underlying idea was to parallel the EC's completion of the Single Market, from which the EFTA countries feared imminent exclusion, by providing, in the form of a single agreement concluded between both trading blocs, a comprehensive material and institutional framework exceeding the FTAs.
The years following the Luxembourg Declaration, successful in various forms of informal cooperation, did not bring the EES into realization. The decisive signal came in January 1989, when Commis
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