Table of Contents: I. Introduction. – II. Attribution of conduct and the European Court of Human Rights case-law on international organisations. – II.1. European Court of Human Rights review of MS-attributed conduct. – II.2. European Court of Human Rights review of IO-attributed conduct. – III. The European Court of Human Rights’ first stab at the EEA: Konkurrenten.no v. Norway. – IV. The equivalent protection doctrine and its (in-)applicability to the EEA/EFTA system. – IV.1. The EEA Agreement’s lack of a written catalogue of fundamental rights. – IV.2. The lack of EEA law principles of direct effect and supremacy. – IV.3. Other EEA/EFTA peculiarities that might justify non-application of the equivalent protection doctrine. – IV.4. Preliminary conclusion on the applicability of the equivalent protection doctrine to the EEA. – V. The (in-)applicability of Matthews to the EEA/EFTA system. – V.1. Matthews and its relationship to the equivalent protection doctrine. – V.2. Open-ended commitments and the EEA/EFTA system. – VI. A jack-in-the-box in the relationship between the CJEU and the European Court of Human Rights?
Abstract: In the scholarly debate about the relationship between the European Court of Human Rights and the CJEU, the potential impact of the Agreement on the European Economic Area (EEA) is often overlooked. Unless the European Court of Human Rights’ equivalent protection doctrine is extended to the EEA, the door is open for indirect ECHR review of all the parts of EU law that have been made part of the EEA Agreement and as such implemented into the national laws of the participating European Free Trade Association (EFTA) States. The impact of CJEU case-law in the EFTA pillar of the EEA is such that this will come very close to full (albeit indirect) scrutiny of the CJEU’s protection of fundamental rights within the EU’s internal market. An extension of the equivalent protection doctrine to EEA law admittedly presupposes a novel approach to the question of whether an international treaty establishes a system that offers a level of human rights protection equivalent to that of the ECHR, and to the limitation to strict legal obligations established in Bosphorus. Nevertheless, we submit that the European Court of Human Rights ought to rethink its apparent opposition to the idea. This will also offer an opportunity to clarify the relationship between the judgments in Matthews and Bosphorus with regard to obligations flowing from international treaties to which Member States have freely entered into.
Keywords: European Court of Human Rights – CJEU – EFTA Court – EFTA States – EEA – equivalent protection.