Kandidatnummer: 202 og 213

The EEA Agreement.

A threat to Norwegian Democracy?

Bacheloroppgave 2016
Bachelorstudium i administrasjon og ledelse
Høgskolen i Oslo og Akershus, Institutt for offentlig administrasjon og
velferdsfag.
Abstract
In the Norwegian Official Report NOU 2012:2, Outside and inside. Norway’s Agreements
with the EU, the research committee described Norway’s relationship to the EU as “[…]
based on an association without membership, whereby it has undertaken to adopt and comply
with a significant proportion of EU policies and rules without itself becoming a member”
(NOU 2012:2, 296)

As indicated in the statement above, Norway is not a member of the European Union, but
enjoys a close cooperation with the EU through various agreements. Over the years, Norway
has adopted and implemented nearly three-fourths of all EU legislative acts, which in turn
have significantly affected the political and legal structures of the nation. The purpose of this
thesis is to examine how one of Norway’s most comprehensive international agreements, the
Agreement on the European Economic, has affected the democratic system in Norwegian.
The idea is to use both legal and political science methods in a coherent framework to assess
the impact of such Agreement on Norway’s democratic values.

Sammendrag
I Europautredningens rapport NOU 2012:2, Utenfor og innenfor. Norges avtaler med EU, ble
Norges forhold til EU beskrevet som “[…] basert på en tilknytning uten medlemskap, der
man har forpliktet seg til å overta store deler av EUs politikk og regler og etterleve dette på
samme måte, men uten å selv være medlem” (NOU 2012:2, 296)

Norge er i dag i en posisjon hvor man ikke er medlem av den Europeiske Union, men fortsatt
drar nytte av et tett samarbeid med EU gjennom et mangfold av avtaler. Landet har opp
gjennom årene implementert nærmere tre fjerdedeler av EUs lover, noe som igjen har påvirket
den politiske og juridiske strukturen/systemet i Norge. Formålet med denne besvarelsen er å
undersøke hvordan en av Norges mest omfattende internasjonale avtaler, EØS-avtalen, har
påvirket det Norske demokratiet. Tanken bak oppgaven er å bruke både juridiske og
samfunnsfaglige metoder i et enhetlig rammeverk, for å kunne vurdere/bedømme betydningen
EØS-avtalen har hatt på det Norske demokratiet.

Høgskolen i Oslo og Akershus, Institutt for offentlig administrasjon og velferdsfag

Oslo 2016
Table of contents
1. Introduction 4
1.1 Background 4
1.2 Research question 4
1.3 Research method 5
1.4 Structure 5
2. Democracy 6
2.1 Direct and representative democracy 6
2.2 Democracy in Norway 7
3. Norway and the European Union 10
3.1 The European Union 10
3.2 The relationship between Norway and the EU 12
4. The EEA Agreement 13
4.1 General 13
4.2 Structure of the EEA Agreement 13
4.3 Implementation of EU legislation 14
4.4 The principle of homogeneity 15
4.5 The four freedoms 15
4.6 Cooperation outside the four freedoms 17
4.7 The institutional structure 18
4.8 Adopting and incorporating EU legislation 19
4.9 The reservation right (“veto right”) 21
5. The democratic challenges of the EEA Agreement 23
5.1 National sovereignty 23
5.2 Sovereignty of the people 24
5.3 Constitutional challenges of the EEA Agreement 25
5.4 Accountability 27
5.5 Transparency 29
6. Alternatives to the EEA Agreement 31
6.1 Full EU membership 31
6.2 The Swiss option: Bilateral Agreements 33
7. Conclusion 35
References

2
1 Introduction
1.1 Background
When this thesis is finalized in May 2016, it is a little over a month before the referendum on
the UK’s membership in the European Union (“EU”) will take place. In UK, this membership
has been intensively debated as many are of the opinion that being an EU member reduces the
national sovereignty and independence. Some argues that the continuously expansion of this
supranational organization has led to a greater impact on the UK than originally envisioned
when the UK voted “yes” in the referendum in 1975 (Wheeler, Hunt, 2016). The question
whether the UK can still have influence in the EU without being a member has been an
important topic discussed in the debate on the UK’s affiliation to the Union. If they chose to
leave the EU, they have expressed a desire to enter negotiations with the EU, to build a
relationship through an agreement like other non-members have done. The EEA Agreement or
a similar agreement could be a possible solution for the UK. However, Norway’s cooperation
with the EU through the EEA agreements have by many Britons’ been described as a loss of
sovereignty, as Norway has no say in setting the rules they are obligated to follow. Such a
solution might be difficult to accept for the politicians and citizens in the UK (Piris, 2016, 6).
The work carried out in the thesis is highly topical in the context of the UK’s referendum, as it
provides a research of how Norway, which is a non-member, is affected by the EU through the
form of association it has agreed upon.

Norway is not a member of the EU, but has through numerous agreements chosen a close
cooperation with the EU and its Member States in fields such as economy, security and society
(NOU 2012:2, 64-76). Against this background, the aim and purpose of this thesis is to examine
one of the most important and comprehensive international agreements Norway is a party to,
the Agreement on the European Economic Area (the “EEA Agreement”), and assess how it
may represent a challenge to the Norwegian democratic system.

1.2 Research question

On the basis of Norway’s close cooperation with the EU, and the country’s current
implementation of nearly three-fourths of EU legislation, the research question of this thesis
will be: “How does the EEA Agreement affect the Norwegian democratic system?” In our
attempt to answer this question, we will examine whether it is possible to be affiliated with the
EU without subsequently accepting a significant loss of sovereignty and independence.

4
1.3 Research method
The research method in this thesis is based on an interdisciplinary approach: The thesis carries
out a legal analysis of the EEA Agreement, and uses indicators and concepts customary in
political science to assess the impact of the EEA Agreement on Norwegian democratic system.
The idea is to use both legal and political science methods to construct a coherent framework
of analysis. We argue that without legal analysis it is not possible to properly understand the
EEA Agreement. On the other hand, studying democracy requires that concepts of political
science are being taken into account. For the purpose of examining the impact of the EEA
Agreement on the Norwegian democratic system, we have chosen to utilize the following key
democratic indicators that will form the basis of our discussion: National sovereignty,
sovereignty of the people, constitutional legitimacy, accountability and transparency.

The authors behind the literature used as a basis for this thesis are active in organizations
promoting polarized views on the EEA and the EU, which necessitates some degree of caution
in our evaluations of said material. On this basis we have cross-referenced our different sources
of information as much as possible; in order to present both sides of the various issues and to
our best extent present them in an objective manner.

1.4 Structure
This thesis is structured as follows:
Chapter 2 provides for a brief explanation of democracy. The reader will be presented with a
basic understanding of the term democracy and the main features of the democracy system in
Norway. Chapter 3 includes a brief explanation of the EU and how Norway is connected to this
organization. In chapter 4 we take a closer look at the EEA Agreement, carrying out a legal
analysis. Chapter 5 provides for a discussion of the most essential challenges the EEA
Agreement brings to Norwegian democracy. In this part we look at how the EEA Agreement’s
premises relates to the democratic indicators mentioned in the previous paragraph. In chapter
6 we will briefly assess some possible alternatives to the EEA Agreement, presenting a
selection of alternative forms of affiliation that in theory are possible given a hypothetical
scenario where Norway choose to withdraw from the EEA Agreement. In the last part of thesis,
we present the main findings and use these to answer the questions that forms the basis of this
thesis.

5
2 Democracy
Democracy is a form of government that defines a structure of allocating political authority
within a territory (Malnes, 2015, 13). Its origins date back to Ancient Greek civilization, when
the inhabitants of Athens overthrew the tyrant Persistratos around 500 B.C. (Ringvej, 2015,
49-57 ) The word democracy originates in Greek as a combination of the words demos (people)
and kratia (authority) and can directly be translated to “representation a government by the
people and for the people” (Hanssen, Helgesen, Vabo, 2012, 44).1 Democracy describes a form
of government in which the people participate directly or indirectly in the political process,
therefore having the power to “influence important societal decisions” (Hovde, Svensson,
2015).

2.1 Direct and representative democracy

Scholars distinguish between two models of representation: Direct and representative
democracy. Direct democracy is a form of government in which the citizens directly participate
in the political process. Through a voting process citizens express their individual point of view
on legislative- and policy initiatives by which they are governed (Hansen, Helgesen, Vabo,
2012, 42). In comparison to direct democracy, representative democracy is a form of
government in which the citizens delegate the decision-making powers to individuals or
political parties through elections. The elected parties are given the authority to act on behalf
of the citizens. (Hansen, Helgesen, Vabo, 2012, 44). In a representative democracy, the citizens
are not directly involved in the decision-making process but delegate the power to the elected
representatives of which the majority of the people believes are the best to represent them
(Hanssen, Helgesen, Vabo, 2012, 42-51).

Especially during the latter half of the 20th century globalization, hereunder international and
transnational organizations and cross-boundary cooperation have become integral to the world
economy. This is one of several aspects in today’s developed states that present severe
challenges in exercising an ideal form of direct democracy. Harald Grimen (2004) states that
a direct democracy can work in relatively small societies, but will become unwieldy when said
societies exceed a certain size. In order to make the democracy effective and functional, the
author arguments for the need of having a smaller selection of elected representatives that acts

1
In this work the expression form of government is used with a broad meaning, indicating both the relationship
between governors and citizens, and the relationship among institutions. For the distinction of these two concepts
see, e.g., Elia 1970.

6
on behalf of the larger population (Grimen, 2004, 355). Freedom and equality are the basis of
assuring the quality of a legitimate representative democracy. Therefore, it is imperative to
guarantee that people are sovereign and have equal political rights, i.e. equal rights to vote.
This will ensure the citizens’ freedom to elect the candidates that will represent them in
government at local-, national- and international levels through free and fair elections between
competing political parties acting on behalf of public interests. Like the majority of states in
Europe, Norway can be defined as a representative parliamentary democracy.

2.2 Democracy in Norway

Norway is a constitutional monarchy in which the king is the head of state.2 However, the
king’s political power has decreased through history, especially when the parliamentary system
of government was introduced in 1884. Consequently, the Norwegian king has only little
political power in the government of Norway today (Hanssen, Helgesen, Vabo, 2012, 64).3 The
legislative and executive power is centered within the institutions that are directly or indirectly
elected by the people, thus making Norway a representative parliamentary democracy. Norway
qualifies as such because its citizens elect which of the political parties are given seats in the
parliament, which in Norway is called the “Storting” (Hanssen, Helgesen, Vabo, 2012, 62). As
mentioned earlier, it can also be characterized as a constitutional democracy, because the
democratic principles and structures together with the power and restrictions of the government
are set forth in the Norwegian Constitution from 1814 (the “Constitution”). The Norwegian
Constitution is the second oldest written constitution in the World that is still in force and effect
(Stortinget, 2015). It consists of fundamental provisions on how the state of Norway is to be
governed and the values that the rules of the Constitution have been based upon. It is also
imperative to consider the manner in which the courts and the political actors have interpreted
regulations set out in the Constitution over the years (Hanssen, Helgesen, Vabo, 2012, 61).

The Constitution addresses the relationship between the citizens and the government. In
addition, it defines and regulates the relationship and distribution of authority and tasks
between the Storting (the parliament), the Regjering (the executive body) and the Norwegian

2
According to Art.3 of the Norwegian Constitution: “The executive power is vested in the King.”
3
A parliamentary system of government is a form of government in which the Parliament is given power over the
executive branch. The Executive branch is appointed by the Parliament and its legitimacy is based on support
from the Parliament. Parliamentarism was formally incorporated into the Constitution in 2007 (Stortinget, 2009).

7
judiciary (Hanssen, Helgesen, Vabo, 2012, 63).4 It was originally founded on the important
democratic principles of separation of powers and sovereignty of the people as well as of
protection of fundamental human rights (Nordby, 2015, 204-206). This makes the Constitution
one of the most important legal sources in the Norwegian democratic system.

The principle of separation of powers embedded in the Norwegian Constitution, is a result of

Montesquieu’s (1689-1755) idea according to which the “power has to be separated between
governmental institutions in order to avoid abuse of power” (Midgaard, Rasch, 2004, 56;
Grimen, 2004, 26). As set out in Arts. 3, 49 and 88 of the Constitution, the political power of
the Norwegian government is divided into three branches with separate and independent
responsibilities. However:

“[..]in order to create a balance between and to secure a uniform/integral government,

the branches are not entirely separated. Each institution/organ should to some extent
take part in the other institutions tasks” (Tverberg, 2014).

When the Norwegian parliamentary system of government emerged due to a constitutional

crisis in 1884, the balance of power changed (Nordby, 2015, 207). In 1884, the Storting
strengthened its position and was granted more power and control over the executive body, the
Regjering.5 The members of the Regjering, that were formerly appointed and held accountable
by the king, nowadays are appointed and held accountable by the Storting (Nordby, 2015, 207-
210). The parliamentary system also represents an empowerment of the sovereignty of the
people, consequently strengthening the democratic system. Sovereignty of the people is
important in regard to a legitimate democracy. It is a principle according to which the power
of the government has its basis in the will of the citizens, making it a government by the people
and for the people (Hanssen, Helgesen, Vabo, 2012, 44). The strengthening of the people’s
autonomy and self-determination due to the emergence of the parliamentary system resulted
from the increase of power of the Storting, being the only institution in which the members are

4
According to Art. 88 of the Norwegian Constitution, the judicial branch of the government consists of the courts
and the Supreme Court. Their function is to maintain law and order in Norway.
5
According to Art. 49 and 75 of the Norwegian Constitution, the Storting is the only directly elected national
organ with legislative and supervisory power. The citizens of Norway are given the power to elect the
representatives to the Storting, which acts on behalf of the citizens, through a free and confidential election for a
period of four years (Stortinget, 2015). The Regjering is the executive body with the political powers and function
of implementing Norwegian laws. It also has an initiating and preparatory function according to part B of the
Norwegian Constitution.

8
directly elected. In contrast, the members of the Regjering are appointed by the Storting and as
such, indirectly elected by the people.

In conclusion, Norway has a representative parliamentary system in which the Constitution is

the legal framework that promotes and guarantees important (democratic) principles. But what
happens with the Norwegian democracy in a globalized international setting? How do
increased transnational cooperation, associations and agreements affect the political structure
and government in Norway? These are some of the questions that have inspired the research
further carried out in the next chapters of this thesis.

9
3 Norway and the European Union
In accordance with increased connectedness brought forward by leaps in development of
communication technology, the world has become increasingly more globalized with cross-
boundary cooperation and other various transnational and international forms of associations
(Østerud, 2006, 144-161). Furthermore, the majority of European countries are in today’s
situation members of the EU, thus committing themselves to a constitutionally regulated
transnational cooperation (Eriksen, Fossum, 2015, 2). Norway is not a member but enjoys a
close cooperation with the EU through various agreements.

3.1 The European Union

The European Union is an economic and political partnership currently comprised of 28
Member States. The existence of the European Union was rooted in a desire to establish peace
and prosperity in Europe after the massive destructions caused by the two world wars
(Stemsrud, 2015, 18). The book, Europe recast: A history of European Union, explains the
EEC/EU as follows:

“The countries that formed and joined the three European Communities, the basis of
the EU, chose to limit their own sovereignty in favor of collective peace, economic
integration and a supranational governance”. (Dinan, 2014, 1)

a) Institutions, aims and values of the EU

The institutional framework of EU consists of seven institutions which, according to Art. 13(1)
of the Treaty of the European Union (the “TEU”), aim to ensure consistency, effectiveness and
continuity of the EU’s policies and actions.6 The most important institutions of the EU are the
European Parliament, the Council, the European Council, the Commission and the Court of
Justice of the European Union (Borchardt, 2010, 42-45).

The EU aims to develop an area of freedom, security and justice and to promote the economic
and social growth in order to strengthen Europe’s power of influence on the world stage.7 It

6
Art.13(1) TEU: “The Union shall have an institutional framework which shall aim to promote its values,
advance its objectives, serve its interests, those of its citizens and those of the Member States, and
ensure the consistency, effectiveness and continuity of its policies and actions. The Union's institutions shall be:
The European Parliament, the European Council, the Council, the European Commission, the Court of Justice of
the European Union, the European Central Bank and the Court of Auditors.”
7
Art.3 TEU, sets out aims of the EU.

10
was founded on the values of respect for human dignity, liberty, democracy, equality, the rule
of law and respect for human rights. A nation that wants to become a member of the EU is
required to respect these values in order to be considered eligible for admission (Borchardt,
2010, 20). As mentioned above, the Member States in the EU have bound themselves to partly
transfer their sovereignty to the EU’s institutions, as the latter establish a transnational
cooperation with common laws and obligations that needs to be upheld by the government of
all the Member States. An important aspect is that the EU has been given competences from
the Member States in certain areas, and where EU law takes precedence over conflicting
national law (Borchardt, 2010, 120).

b) The legal framework of the EU

The primary source of EU law consists of the treaties that establish the EU, the treaties of
accession and the amending treaties. The treaties lay down the fundamental principles of the
EU by creating the constitutional framework and establishing the procedures of the legislative
process and the distribution of competence among the EU’s institutions (Borchardt, 2010, 79).
EU’s secondary legislation comprises regulations, directives, decisions, recommendations and
opinions.8 Regulations are directly applicable for the Member States and is legally binding in
their entirety. This means that such legal acts that has been passed directly becomes a part of
and has legal effect in the national legal system of each Member State (Borchardt, 2010, 88-
89). A directive sets out binding objectives that the Member States are obliged to adhere to.
The national authorities in each Member State are free to choose form and method used when
they are implementing the objectives set out in the directives. Recommendations and opinions,
collectively known as “soft law”, are non-binding instruments used by the EU in order to
influence the Member States or certain institutions (Borchardt, 2010, 89-96).

Summarized, the EU is a wide supranational organization that aims to ensure national and
global interests and create a strong and stable position for Europe in the World. Common laws
and obligations for its members are laid down by a comprehensive framework consisting of i.e.
Treaties, regulations and directives which becomes legally binding for all its members. Norway
is not a member of the EU, but has enjoyed a close cooperation with the EU for decades. But
how is this relationship structured?

8
Art. 288, TFEU: “To exercise the Union's competences, the institutions shall adopt regulations, directives,
decisions, recommendations and opinions.”

11
3.2 The relationship between Norway and the EU
Norway has applied for full membership to the European Economic Community (“EEC”),
respectively, the European Union four times. Both in 1962 and in 1967, when Norway applied
together with Great Britain, Denmark and Ireland, the then French president Charles de Gaulle
put a veto on the British application and the enlargement of the EEC and, consequently, all
applications were rejected. Charles de Gaulle left presidency in 1969, marking a possibility for
European countries to apply (again) for membership in the EU (Frisvold, 2015, 62). The next
times Norway applied for membership, both in 1972 and in 1994, the majority of the citizens
voted against accession in referenda, respectively with 53.6 and 52.2 per cent (Seierstad, 2014,
42, 255)

On this basis Norway is currently not a member of the European Union, but is however
connected to it in various economic, political and socially related areas. The relationship
between Norway and the EU is unique due to the specific form of association. As stated in the
Official Norwegian Reports NOU 2012:2: Utenfor og innenfor. Norges avtaler med EU (“NOU
2012:2”):

“Norway's relations with the EU are based on association without membership,

whereby it has undertaken to adopt and comply with a significant proportion of EU
policies and rules without itself becoming a member” (NOU 2012:2, 296).

Today Norway is connected to the to EU and its Member States through several agreements
and has adopted nearly three-fourth of the EU legislation (NOU 2012:2, 35). The framework
for the Norwegian cooperation with and connection to the EU is formed by a diversity of
agreements relating to, inter alia, Norway’s participation in EU’s Internal Market or
cooperation in other areas such as justice and home affairs, research and development, energy
and climate (NOU 2012:2, 36). Whereas the EEA Agreement and the Schengen Agreement are
certainly the most prominent agreements and as such, well known by most Norwegian citizens.
It is however necessary to acknowledge that other agreements are also tying Norway to the EU,
which seen together as a whole are influential on the prior’s economy, politics and society.

12
4 The EEA Agreement
The EEA Agreement can be defined as the cornerstone of Norway’s relationship with the EU,
as it is the most important and comprehensive economic agreement, establishing a unique form
of association with the EU and its Member States (NOU 2012:2, 19).

4.1 General
The European Economic Area (“EEA”) brings the 28 EU Member States and three of the
EFTA states, Iceland, Liechtenstein and Norway (the “EEA EFTA States”)9 together in a
common economic area that aims to promote cross-border trade with equal conditions for
competition and a uniform application of rules.10 The EEA was established by the EEA
Agreement, a multilateral agreement which replaced the previous bilateral agreement between
Norway and the EC on free trade of industrial goods from 1973 (NOU 2012:2, 44). The EEA
Agreement was signed on 2. May 1992 in Porto and entered into force on 1 January 1994
(Sejerstad et al. 2011, 34-35). It strengthened the economic relationship between the EEA
EFTA States and the EU through an expansion of the previous free trade agreement, and covers
a wider range of economic aspects than the previous bilateral trade agreement between Norway
and the EC. The EEA Agreement provides the EEA EFTA States with full access to the EU’s
Internal Market as established by the EU Treaties, and sets forth common standards for the
trade of goods, the provision of services and the free movement of persons and capital in
addition to competition rules (Stemsrud, 2015, 27).

4.2 Structure of the EEA Agreement

The EEA Agreement consists of the main agreement with 129 articles, 22 annexes, 49
protocols. Whereas the protocols contain specific rules, the annexes consist of both primary
and secondary EU legislations such as the treaties, regulations, directives and decisions, as well
as case-law from the Court of Justice of the European Union that is of relevance to the EEA
(Blanchet et al. 1994, 13). The main agreement is divided into nine parts. Whereas part I sets
out general objectives and principles of the EEA Agreement, Parts II to VI contain fundamental

9
The European Free Trade Association (“EFTA”) is an intergovernmental organisation set up for the promotion
of free trade and economic integration to the benefit of its four Member States (Norway, Iceland, Liechtenstein
and Switzerland) (EFTA, 2013). Whereas Switzerland is an EFTA state, it is not a party to the EEA Agreement.
Switzerland has rejected the EEA Agreement in a referendum in 1992 and has chosen to adopt bilateral agreements
with the EU.
10
According to Art. 1(1) of the EEA Agreement, its general objective is to “...promote a continuous and balanced
strengthening of trade and economic relations between the Contracting Parties with equal conditions of
competition, and the respect of the same rules, with a view to creating a homogeneous European Economic Area.”

13
provisions relating to the EU’s Internal Market which have to be adopted by the EEA EFTA
States in order to secure a homogenous development and a uniform application throughout the
EEA. Further, Part VII consists of institutional provisions which do not form part of EU
legislation but regulate the institutional structure of and the decision making process in the
EEA. Finally, Part VIII refers to the establishment of a financial mechanism and Part IX
contains general and final regulations customary for international multilateral agreements
tailored to the unique nature of the EEA.

4.3 Implementation of EU legislation

a) Directives and regulations in the EU
EU directives and regulations form part of the secondary law of the EU. According to Art.
288(1) of the Treaty on the Functioning of the European Union (“TFEU”), a regulation is a
legal act that shall have general application and "[…] be binding in its entirety and directly
applicable in all Member States." As such, EU regulations are directly applicable, become
immediately enforceable and is not required to be transposed into national law. In contrast, EU
Directives leave the choice of form and methods of their respective implementation to the
competent authorities of each Member State, consequently requiring a separate legal act for
their incorporation into national law (Art. 288(2) TFEU).

b) Implementation of EU legislation in the EEA

In order to ensure a uniform application of laws with respect to the EEA EFTA States’
participation in the EU’s Internal Market, the EEA Agreement also sets forth obligations for
these countries to incorporate EU legislation into their respective legal system. When the EEA
Agreement was signed in 1992, the EEC/EU required it to be dynamic in order to enable a
parallel development with the EU on the common areas in context of the EEA Agreement
(Baudenbacher, 2016, 355). This means that the EEA Agreement continually develops in
accordance with amendments of existing provisions and the adoption of new EU legislation
that is of relevance for the EEA. The recognition of having a dynamic agreement can be found
in the preamble and in Art.7 of the EEA Agreement which sets out the binding effect of EU
regulations and directives on the parties to the EEA Agreement (including the EEA EFTA
States and, as such, Norway).11 EU Regulations referred to or contained in the Annexes to the

11
According to Art. 7 of the EEA Agreement , “acts referred to or contained in the Annexes to this Agreement or
in decisions of the EEA Joint Committee shall be binding upon the Contracting Parties and be, or be made, part
of their internal legal order as follows : (a) an act corresponding to an EEC regulation shall as such be made

14
EEA Agreement or in decisions of the EEA Joint Committee shall be binding upon the parties
to the EEA Agreement and, as such, be part of Norway’s legal system (Art. 7(a) of the EEA
Agreement). On the other hand, the choice of form and method of implementation of EU
Directives is left to the competent authorities of the contracting states (Art. 7(b) of the EEA
Agreement). Therefore, the mechanisms of implementation of EU directives and regulations in
the national legal systems of the EEA EFTA States as set out in Art. 7 of the EEA Agreement
essentially correspond to the principles set forth in Art. 288(1) and (2) TFEU. On this basis one
can say that the prerequisites for ensuring development of the economic area in accordance
with the development of the EU, as well as the obligations that derives from the EEA
Agreement, makes it almost impossible for the EEA EFTA not to adopt new EU legislation
(Sejersted et. al, 2011, 195-197).

4.4 The principle of homogeneity

In connection with the contracting parties’ obligation to implement EU legislation in order to
achieve a uniform interpretation and application of EU law in the EEA, the EEA Agreement is
further based on the underlying principle of homogeneity (Blanchet, et al. 1994, 36). According
to this principle, the form of association established by the EEA Agreement should be built
upon a common set of rules applicable to all economic participants in the EEA in order to avoid
disparities that could interfere with the aims of the EEA Agreement (Eriksen, 2015, 87-89).
The significance of such principle for the EEA is underlined by multiple references to
homogeneity in the EEA Agreement.12 In particular, in addition to several references in its
preamble, Art. 1(1) of the EEA Agreement emphasizes the importance of "equal conditions of
competition, and the respect of the same rules, with a view to creating a homogeneous
European Economic Area.” Furthermore, in order to ensure a uniform interpretation, the
provisions of the EEA Agreement that are identical in substance to corresponding EU primary
law are to be interpreted in conformity with the relevant rulings of the Court of Justice of the
European Union.

4.5 The four freedoms

The four freedoms, free movement of goods, capital, services and workers, set out in the Treaty
of Rome of 1957, form the basis of the EU’s Internal Market (TEU, Art,3). EU legislation on

part of the internal legal order of the Contracting Parties; (b) an act corresponding to an EEC directive shall
leave to the authorities of the Contracting Parties the choice of form and method of implementation.”
12
Arts. 1(1), 105 and 106 and recitals 4, 6 and 15 in the preamble of the EEA Agreement.

15
the four freedoms is furthermore an essential part of the EEA Agreement, covering EU
regulations related to the four freedoms and competition, as well as horizontal and flanking
policies with the purpose of strengthening economic and social relations between the EEA
EFTA States and the EU (Eriksen, Fossum, 2015, 1-14). Art. 1(2) of the EEA Agreement sets
out six measures that need to be taken to achieve the objectives13, including extending the EU’s
four freedoms to the EEA EFTA States.14 As concluded by Europautredningen, the committee
that wrote the NOU 2012:2, EU and its Member States are extremely important for the
development of the Norwegian value creation and the economic growth.

“Norway is through the Agreement integrated in EUs Internal Market, which creates
a common market for transboundary (cross-border) trade of goods and services
together with a common/joint European labour market and a market for capital and
establishment” (NOU 2012:2, 321)

The free movement of goods, which entails an elimination of quantitative restrictions on import
and export, are significant importance for Norwegian economy.15 More than 80 percent of
Norwegian export goes to the EU, and more than 60 percent of Norway’s imported goods
originates from the EU, thus making it Norway's largest and most important economic trading
partner (NOU 2012:2, 322). All the four freedoms have contributed to a stable development of
the Norwegian economy through increased trade, capital, opportunities for employment and an
expansion of international relations (NOU 2012:2, 323). As the provisions of the EEA
Agreement aim to erase national borders and restrictions on trade and other important aspects
of economy it has been necessary to establish additional rules for competition in order to ensure
equal and fair conditions and respect for the same rules.16

Some provisions of the EEA Agreement are worth mentioning for the impact they have on the
economic area. Art. 4 of the EEA Agreement, pursuant to which “[…] any discrimination on

13
The six measures, set out in Art.1(2) of the EEA Agreement cover the four freedoms, competition rules and
other fields of cooperation between the contracting parties.
14
The EU legislation related to the Four Freedoms can be found in part II and III of the EEA Agreement.
Additionally, part V contains EU legislation on other areas which are of relevance to the four freedoms. Specific
measures relating to the four freedoms are also incorporated into some of the annexes of the Agreement. See
www.efta.int
15
Free movement of goods is regulated in part II of the EEA Agreement. The basic principles related to this
freedom can be found under chapter 1. Chapter 2 and 3 contain specific provisions that can be found in the annexes
and protocols of the EEA Agreement.
16
See: http://www.efta.int/eea/eea-agreement/eea-basic-features

16
grounds of nationality shall be prohibited”, is an important provision in relation to EEA
nationals. It is an important protection right, especially in the context of the free movement of
persons across national borders. Its aim is to secure that the EEA citizens can move freely
across the EEA without being directly or indirectly discriminated on the grounds of nationality
and that they shall not be treated differently in regard to any work conditions such as
employment, working time, remuneration and other working and employment conditions that
are of significant matter. (Davies, 2012, 73). A further expansion of the protection from
discrimination can be found in Art. 69 of the EEA Agreement, which aims to prevent gender-
based discrimination and to ensure that men and women are treated equal in regard to payment
at work.

In short, the four freedoms are significant to the EEA promoting trade and economic growth
and safeguarding equal treatment of Norwegian and EU citizens and companies across borders
within the EEA.

4.6 Cooperation outside the four freedoms

The EEA Agreement also addresses cooperation in areas outside the four freedoms. Such
cooperation is regulated in part 6 (Art. 78-88) of the EEA Agreement, and the EEA EFTA
States have voluntarily initiated a closer cooperation in fields such as, inter alia, research and
development, the environment, education and social policies, tourism, civil protection
(collectively known as “flanking” policies)17 (Eriksen, Fossum, 2015, 11).18 Cooperation
within these fields does, on the contrary to the provisions concerning the four freedoms, neither
impose any obligations to incorporate EU legislation nor grant any rights to veto a proposal.
Most of the legislation within these areas are given through what is commonly known as “soft
law”, which are legal tools such as guidelines, recommendations and action plans (NOU
2012:2, 90). Norway has, with regard to the option for cooperation in other areas (given in Art.
78 of the EEA Agreement), extended the relationship with the EU through participation in EU
Agencies and roughly twenty EU activities, i.e. EU projects and programs such as the European
Environment Agency (EEA), European Aviation Safety Agency (EASA), Erasmus + program
and Creative Europe program (NOU 2012:2, 90)

17
Art. 78 of the EEA Agreement opens up for the possibility to voluntarily establish new agreements of
cooperation with the EU based on a desire and an initiative from the EEA EFTA States (NOU 2012:2).
18
Legal acts and agreements made in areas outside the four freedoms are normally incorporated into Protocol 31
(the protocol on cooperation in specific fields outside the four freedoms) to the Agreement. (Meld.St.5 (2012-
2013)); see: www.efta.int

17
All of what has been mentioned above provides a picture of the high level of integration and
attachment of Norway to EU policies, despite not being a member. Norway has chosen to agree
upon a form of association where the country has to incorporate and implement EU rules
concerning both the EU’s Internal Market as well as legislation in a variety of other areas.
However, the EEA Agreement does not cover EU policies in areas such as common agriculture
and fisheries policies, customs union, common trade policy, common foreign and security
policy, justice and home affairs or the monetary union.19

4.7 The institutional structure

The EEA Agreement also contains specific regulations concerning the institutional framework.
The institutional arrangement of the EEA association is based on a two-pillar structure with
individual EEA EFTA institutions and EU institutions on separate sides. The formal structure
gathers the EU institutions on one side, the EFTA institutions composed by representatives
from the three EFTA States on the other side and joint EEA institutions in between (Sejersted,
2011, 141). The EFTA Secretariat, The EFTA Standing Committee, the EFTA Surveillance
Authority, and the EFTA Court are important institutions within the EFTA pillar. These
institutions have several responsibilities: in particular, ensuring that the EFTA States fulfill
their obligations as well as providing judicial and advisory functions. Further, the EFTA also
have two advisory institutions, the EFTA Consultative Committee and the EFTA Parliamentary
Committee, which serve important functions for the cooperation between the EFTA States and
the EU.

The joint institutions of the EEA are described in part VII of the EEA Agreement. It consists
of the EEA Council, the EEA Joint Committee, the EEA Joint Parliamentary Committee and
the EEA Consultative Committee. The EEA Council meets twice a year, and is comprised of
members from the EU council and the EU Commission, as well as Foreign Ministers from the
EEA EFTA States. Its function is to give political direction to-, and managing the overall
function and development of the EEA Agreement.20

The EEA Joint Committee is, according to Art. 93, composed of representatives from the
European External Action Service (EEAS), an observer from the EFTA Surveillance Authority

19
See www.efta.int
20
The EEA Agreement, Arts. 89, 90 and 91 establishes and regulates the EEA Council.

18
(ESA), and representatives from the three EEA EFTA States (usually at ambassadorial level).
It is portrayed as the most important institution in the EEA, and has been established in order
to ensure an effective management of the EEA Agreement. To this matter the EEA Joint
Committee meets on a regular basis, and has the power to make decisions concerning the
incorporation of EU legislation into the EEA Agreement.21 In addition the EEA Joint
Committee is also, as defined in Art.111(1), the institution in which the contracting parties can
bring up matters of dispute concerning the interpretation or application of the EEA Agreement.
The Joint Parliamentary Committee and the EEA Consultative Committee are two advisory
bodies. Their function is to contribute to a better understanding of the fields covered by the
EEA Agreement, and consult between the social parties in the EEA EFTA states (Sejersted et
al. 2011, 143-145).22

In conclusion, the EEA Agreement outlines an institutional structure that allows the EFTA
States to participate in the decision-making process that concern the economic area through
joint institutions. However, this structure does not seem to prevent the Agreement from having
a significant impact on the sovereignty of the EFTA States, as we will elaborate in the following
chapter.

4.8 Adopting and Incorporating EU legislation

In order for EU legislation to be applicable in the EEA EFTA states, such legislation has to be
incorporated into either an Annex or a Protocol of the EEA Agreement (NOU 2012:2, 93).
According to Art. 102 of the EEA Agreement, the EEA Joint Committee has the authority to
decide if new EU legislation is of relevance to the EEA and if such legislation should become
a part of the EEA Agreement. Precisely, EEA Joint Committee has the competence to amend
an Annex, and such amendment should be as close as possible to the adaption of the
corresponding new EU legislation. Furthermore, Art. 102 states that the Contracting Parties
shall make efforts to reach an agreement on matters relevant to the EEA agreement.

This means that the task of the EEA Joint Committee is to decide which parts of new EU
legislation are relevant for the EEA and, if so how to incorporate such legislative acts in the

21
EEA Agreement, Art.92 (1): “It shall ensure the effective implementation and operation of this Agreement. To
this end, it shall carry out exchanges of views and information and take decisions in the cases provided for in this
Agreement.” Art.94(2): “In order to fulfill its functions, the EEA Joint Committee shall meet, in principle, at least
once a month.”
22
EEA Agreement, Arts. 95 and 96(2).

19
EEA Agreement. For that, unanimity is required (NOU 2012:2, 85-95). In relation to the voting
for decisions in the EEA Joint Committee, the EEA EFTA States are obligated to correlate their
votes in the EFTA Council to fulfil the requirement set out by Art. 93 of the EEA Agreement
(Stemsrud, 2015, 91). The cooperation might also be extended in areas not covered by the EEA
Agreement, if it is desired or considered to be beneficial for the contracting parties, as stated
in Art. 118 of the EEA Agreement.

As regards Norway, all the legal acts under the EEA Agreement have to be incorporated into
the Norwegian legal systems by the competent Norwegian authorities given that the principle
of direct effect does not apply (NOU 2012:2, 118). The process of implementing EU legislation
can be divided into three main stages. It starts with the EU creating new legislation through the
EU’s legislative procedure. This step is followed by a process in the EEA Joint Committee
where decisions concerning the incorporation of new EU legislation into the EEA Agreement
are discussed. Representatives from both the EEA EFTA States and the EU discuss whether
the new legislation is of relevance to the EEA Agreement and if it should be incorporated under
an EEA Annex or Protocol. Decisions in this process depend on consensus on the EFTA side,
and in the EEA Joint Committee. Finally, Norway implements the legal acts which, as a
consequence, become a part of Norway’s national laws (Sejerstad et al. 2011, 179). The main
principle is, as mentioned above, that EU legislation should be implemented in order to ensure
homogeneity and a uniform application of laws in the EEA. The main principle is, as mentioned
earlier, that EU legislation should be implemented in order to ensure homogeneity and a
uniform application of laws in the EEA. Important in this regard is the loyalty principle,
defined by Art.3 of the Agreement, according to which Norway is obliged to take appropriate
measures in order to achieve new obligations arising in the Agreement. This principle also
makes it clear that the contracting parties should try to avoid any measures that could jeopardize
the accomplishment of the EU objectives.

EU legislation is a source of international law that is binding for the nation and has to be
adopted and incorporated by the Norwegian authorities in order for it to become a part of the
Norwegian legal system. The process of implementing the provisions is not done by one single
general act, but through many individual decisions conducted by the Storting or the Regjering
(NOU 2012:2, 120). The general requirements for the implementation process of the EU legal
acts into the EEA can be found in Art. 7 of the EEA Agreement. Most of the relevant EU legal
acts are directives. According to Art.7(b) of the EEA Agreement, the authorities are relatively

20
free to determine form and method of implementation as long as they achieve the goals set out
by the EU directive. For Norway it is however important to follow the EU principles of a loyal
and clear implementation in order to achieve the aims and objectives of the given legal act.
There are two techniques used to accomplish the aims set out by the EU: reference to the law
or the reproduction of the law into the Norwegian legal system (NOU 2012:2, 120-121). By
referring to the EU law, the competent authority adopts a provision referring to an EU article
and determines it to be part of Norwegian law. The advantages of this method are that the
wording in the respective agreements is the same as in the EU Treaties and that the Norwegian
law maintains the principle of loyalty with the EU. The main part of the EEA Agreement is
referred to in the Norwegian legal system in the EEA Act of 1992.23 Also, the regulations are
directly implemented by referring (Art. 7 (a) of the EEA Agreement).

On the other hand, Directives are often reproduced, keeping in mind the aim of the objectives
set out by the EU, when they are incorporated into the Norwegian system. By reproducing an
EU legal article and use a different wording and form than the original article, the law can
become more suitable for the Norwegian legal system, as it is adjusted to its national structure.
The EFTA states also have to abstract from all national legislations that abstain from the EU
legislations adopted by the EEA agreement (NOU 2012:2, 120).

4.9 The reservation right (“veto right”)

Uniformity entails that the EEA EFTA states are obliged to adopt EU legal acts in matters
relevant for the EEA to mirror the legislation in the EEA. The principle of uniformity makes it
difficult for the EEA not to accept new EU legislation, and Art. 102(3) of the EEA Agreement
obligates the EEA EFTA States to “make every effort to a find a mutually acceptable solution
where a serious problem arises in any area which, in the EFTA states, falls within the
competence of the legislation.”

The EEA Agreement formally grants the EEA EFTA States the right to reserve themselves
from implementing new EU legislation into the EEA Agreement. The opportunity for the EEA
EFTA States to reserve themselves from new EU legislation is set out in Arts. 102 and 93 of
the EEA Agreement and is often referred to as “the right to veto”. The principle found in Art.

23
The EEA Act of 1992: Law about the incorporation of the EEA Agreement into the Norwegian legal system.
See: https://lovdata.no/dokument/NL/lov/1992-11-27-109.

21
93 of the EEA Agreement states that the EEA EFTA states are obligated to speak “with one
voice” when new EU legislation is incorporated (NOU 2012:2, 100-101). This means that all
EFTA states must perform the measures required to find a mutual agreement upon new EU
legislation to be implemented in the EEA agreement. Furthermore, Art. 102(5) of the EEA
Agreement grants to the EEA EFTA States the right to reject EU legislation. As a consequence
of the use of the right to veto by an EEA EFTA State, the respective legal act does not become
a part of the EEA Agreement and as such, of the national legal system of the respective EEA
EFTA State. The suspension of a legal act is regulated in Art. 102(5) of the EEA Agreement,
according to which the EEA Joint Committee “should pursue its efforts to agree on mutually
acceptable solutions in order for the suspension to be terminated as soon as possible”. This
article does however only form a temporary right to veto since the EEA EFTA States are forced
to find a solution. The right to veto has never been used by Norway because of the extreme
consequences it entails and the possible negative reactions it might cause, depending on how
important the area of this Agreement is considered (Jervell, 2002, 79).

To summarize, the EEA Agreement is important for Norway’s economic and social relations
to the EU and its Member States, and has been brought forward on the basis of common values
and interests as well as an understanding for the need of cooperation in order to find solutions
to shared- and global challenges (NOU 2012:2, 18). As a result of the Agreement’s dynamic
principle however, Norway have been obligated to adopt and implement an increasing share of
EU legislation since the Agreement was signed in 1992. In total Norway has adopted more than
8000 EU regulations, which in turn has impacted the country’s democratic system and the
national legal system (NOU 2012:2, 80).

22
5 The democratic challenges of the EEA Agreement
In the previous chapters we have explained the Norwegian democratic system, and analyzed
the legal framework of the EEA Agreement. In this chapter we will take a closer look at how
the EEA Agreement affect the democratic system. For this we will utilize the democratic
indicators mentioned in the beginning of the thesis; national sovereignty, sovereignty of the
people, constitutional legitimacy, accountability and transparency.

5.1 National Sovereignty

National sovereignty entails that in an independent state in which the government exercises
control over the political interests and operates without external influence or intervention to the
internal affairs (Østerud, 2006, 151-155). Nowadays, national sovereignty and the thought of
national independence is challenged by the expansion of cooperation across borders and the
establishment of international and supranational organizations. As a result of this, nation states
generally considered sovereign are still subject to external influence, subsequently ceding some
of their national sovereignty (Østerud, 2006, 109). The EEA Agreement have bound Norway
to a supranational organization, thus giving rise to potential problems for its national
sovereignty. A first issue is that Norway is obligated to incorporate EU provisions without
being able to participate or influence the decision-making process or the process of developing
new legislation. Therefore, the EEA Agreement has established an asymmetric relation as
Norway only is the receiver of such legislation. Naturally, this affects the national political and
legal system (Eriksen, Fossum, 2015, 3).

Secondly, as some authors have suggested, even though the EEA Agreement formally respects
national sovereignty, Norway has agreed to transfer some of their competence to the EFTA and
EEA organs dealing with the acquisition of EU legislation and control over the obligations laid
down in the EEA Agreement (Eriksen, 2015, 85-101). However, in practice, the most
significant transfer of power seems to be the transfer of power to the EU itself, as it is the
organization that decides, develops and shapes the legal acts Norway has agreed to incorporate
(Fossum, 2015, 15-156; NOU 2012:2, 820). Thus, in other words, a transfer of power and
authority from a national to an international level, significantly affecting the national political
structure, has taken place. As stated in the NOU 2012:2: “The EEA Agreement marked a change
in the political structure in Norway. It is represented through a move of power form national
to supranational level” (NOU 2012:2, 827). The consequence of this transfer is that the

23
political power given to the Storting through the Constitution has been reduced as it has lost
some of its legislative and supervisory powers, specifically with regards to the matters covered
by the EEA Agreement. Many of the legal acts in the Norwegian political system today have
been developed by the EU, thereby reducing the power of the Storting which is limited to only
approve and implement such legislation (NOU 2012:2, 821). According to commentators, the
EU legal system is dominant, influences and limits Norway’s national sovereignty as well as
the sovereignty of the people (NOU 2012:2, 820). This means that while the EEA Agreement
may formally respect the sovereignty, the reality is that it entails serious problems in regard to
fundamental values in a democracy.

5.2 Sovereignty of the people

As written in the second chapter, an important aspect of a democracy is the citizens’ autonomy
as the legitimacy of a democracy is based upon the will of the people (Hanssen, Helgesen,
Vabo, 2012, 45). The citizens of Norway are through the Constitution granted the right to self-
determination; to express their opinions and participate in electing the people they want to
represent them in the government (Hanssen, Helgesen, Vabo, 2012, 62). It is fundamental for
a democracy that the citizens participate or are represented, thus have a say, in the process of
decision-making with regard to matters that affect them. Another important aspect related to
democracy and the citizens’ rights is the idea of accountability, meaning that the citizens shall
be able to hold the representatives responsible for their actions (Eriksen, 2015, 84). The EEA
Agreement regulates and grants Norwegian citizens the same rights and duties as EU citizens,
thus the citizens’ security as ensured by the laws has been strengthened with this Agreement
(NOU 2012:2 827).

However, the EEA Agreement entails some problems relating to the peoples’ sovereignty.
First, the Storting has partly transferred its legislative power to the EU institutions, but Norway
does not have any representatives in these EU institutions. This is a breach of the democratic
principle embedded the Constitution, according to which the citizens shall have the right and
freedom to decide who they want to represent them and rule on behalf of them.24 Norwegian
citizens are also subject to the EU and its legislation without having the possibility to influence
the decision-making procedures or the enactment of EU legal acts that are implemented to the
Norwegian legal system that affects them. Second, since Norway does not have any

24
The Norwegian Constitution, Art. 49.

24
representatives in the EU, it is impossible for Norwegian citizens to hold anyone responsible
(Eriksen, 2015, 85-86). Norwegian citizens are bound to adhere regulations enacted by the EU,
a higher authority in which they have no representatives, where they have no formal right to
affect, influence or hold the EU accountable for their actions. This situation is in clear violation
of the prioritization of popular sovereignty in the Norwegian Constitution.

5.3 Constitutional challenges of the EEA Agreement

The Norwegian Constitution is central to the country’s democracy, because it establishes and
regulates the framework of the political power and guarantees the citizens’ freedom. According
to the Norwegian Constitution, Norway is a free and independent nation, where the government
aims to ensure the will and interests of the people.25 The Norwegian government cannot enter
into any cooperation or form of association that challenges or violates the legal standing of the
Constitution. Participation in international organizations that could mean a transfer of
sovereignty or competence from the Storting, the Regjering or the judiciary branch must
happen in accordance with the requirements set forth in the Constitution (Holmøyvik, 2015,
137).

The mechanisms outlined by Art. 115 (previous Art.93) of the Norwegian Constitution was
used when Norway approved the EEA Agreement in 1992. This Article requires that decisions
concerning formal transfer of competence to an international organization require three-fourth
majority in the Storting. The transfer of competence can, according to this Article, only happen
to an international organization of which Norway is a member or will become a member.
Furthermore, it is also specified that the transfer of sovereignty is possible only within a
“specific field”.26 The use of Art. 115 was based on the fact that Norway was transferring
competence to EFTA Surveillance Authority (ESA) and the EFTA Court in regard to decisions
concerning competition regulations, and that this transfer was done under a specific field within
the EEA (Holmøyvik, 2015, 140). Norway is however not a member of the EU, or any EU
agencies. Subsequently, the utilization of Art. 115 in the aforementioned matter is problematic
when a substantial transfer of sovereignty to the EU institutions or an EU Agency occurs.

25
The Norwegian Constitution, Art.1.
26
The Norwegian Constitution, Art.115: “In order to safeguard international peace and security or to promote
the international rule of law and cooperation, the Storting may, by a three-fourths majority, consent that an
international organisation to which Norway belongs or will belong shall have the right, within specified fields, to
exercise powers which in accordance with this Constitution are normally vested in the authorities of the nation,
although not the power to alter this Constitution. For the Storting to grant such consent, at least two thirds of its
Members shall be present, as required for proceedings for amending the Constitution.”

25
Transfer to EFTA bodies is possible, since Norway belongs to that Association, but transferring
to the EU would mean a breach since Norway is not a member.

Another issue is that the procedure in Art. 115 has only been used in 1992 when Norway signed
the EEA Agreement. The Storting and the Regjering have since then used art.26(2), which only
requires a simple majority in the Storting and, when they on several occasions have transferred
competence to the EEA, as well as EU institutions and EU Agencies (Holmøyvik, 2015, 137-
152). This has been justified on the grounds that the transfer of competence in the individual
decisions are of-, and have been interpreted by the Storting or the Regjering to be of “minimal
impact” on the power upheld by the Norwegian government (NOU 2012:2, 236, 856).
Nevertheless, Norway has agreed upon a form of association where the nation is subject to a
major part of EU legislation, and where EU provisions under the EEA Agreement takes
precedence over national law in case of a conflict between national law and EU law.27
Holmøyvik (2015), criticizes the legal basis of the principle of minimal impact, which in his
opinion, undermine the Norwegian legal system and the sovereignty of the people (Holmøyvik,
2015, 137-143). The dynamic aspect of the EEA Agreement is also problematic in regard to
the requirement of transfer only within a “specific field” and the interpretation of “minimal
impact”, as the EEA Agreement is continuously expanding both geographically and in material.

Some experts are of the opinion that the juridical procedures and the current practice used to
transfer competence to international authorities can be criticized because it lacks a strong basis
and a tailored article that can regulate the agreements between Norway and the EU
(Holmøyvik, 2014, 58). A possible solution debated in the media is the possibility to use Art.
121 in the Norwegian Constitution, to either amend the current Arts. 26 or 115 or enact a new
provision that is more adjusted and suitable for the transfer of competence in accordance with
the various Agreements between Norway and the EU today (NOU 2012:2, 233).

In short, the current set of relations between Norway and the EU creates some problems of
constitutional law. The mechanisms used in practice by the Storting (simple majority) is not
compatible with the transfer of sovereignty that occurs, while the procedures of Art.115, which

The EEA Act of 1992, Art. 2: “Legal provisions that serves to fulfil Norway’s commitment according to the
27

Agreement, shall in case of conflict take precedence over other provisions regulating the same matter.”

26
allows the transfer, in theory cannot be used for relations with the EU since Norway is not a
member as required by this constitutional regulation.

5.4Accountability
The principle of accountability in a democracy is the citizens’ ability to hold the elected parties
in the government responsible for the political actions, more precisely the tasks they are elected
to do. The principle is fundamental for a representative democracy, as it gives the citizens the
competence to place responsibility and bring matters of injustice and mistakes to light
(Midgaard, Rasch, 2004, 185). The people should be able to monitor the authorities, as a
democratic state is run by the people and for the people.

The European Parliament is the only directly elected EU institution, where each Member State
elect its representatives to promote their respective national interests within the organization
(Sejerstad, et al. 2011, 133). The principle of accountability is achieved by procedures whose
aim is to control how the representatives serve their countries’ interests. The EU’s practice of
control allows the EU citizens an entry into governmental activities in Brussels, and the ability
to influence them (NOU 2012:2, 832). Democratic control of the EU institutions is just one the
European Parliament’s tasks within the EU. The EU commission (“the Commission”) have to
be approved by the Parliament, and the parliament can raise distrust against the commission
during its time in office. In addition, the Parliament monitors the EU Council (“the Council”).
The citizens’ right to vote give them an indirect opportunity to decide who controls the other
branches in the EU, and are able to hold the representatives accountable for their actions.

As an EEA member only, Norway do not have the option to influence the government branches
in the EU or hold representatives accountable according to democratic principles, even though
the representatives in the EU Parliament put forth the legislations that are implemented in the
Norwegian legal system (Eriksen and Fossum, 2014, 21). In other words, the provisions
implemented in the Norwegian legal system are made without participation or influence from
any elected Norwegian representatives, which subsequently do not allow Norwegian citizens
to exercise the practice of control. Even though the EFTA states have to approve the legal acts
before they are implemented in the Norwegian legal system, their right to veto is severely
limited (NOU 2012:2, 100-106) Immanuel Kant stated that “Citizens’ dignity are respected as
long as they are included as equals in a self-legislative society”, meaning that the citizens
should be allowed participation in the process of making the laws that govern them in order to

27
maintain the principles of democracy (Eriksen, 2014, 38-39) Citizens should furthermore use
their given right to choose political representatives they trust to promote their interests, and
give said representatives the power to make the legal framework for the society. The people
should therefore be allowed to indirectly make the laws governing their own society, and the
laws should only be legitimized if they are a result of public debates and a free and fair election
(Hanssen, Helgesen, Vabo, 2012, 46). On this basis, the implementation of EU legislations
without allowing participation from the citizens are violating the principle of autonomy, which
is based on citizens’ ability to legislate as outlined above. (Eriksen, 2014, 39). Critical sources
describe the European Union’s relationship with Norway as a democratic weakness with the
slogan “no implementation without representation” in the matter of legal implementation
(Olsen, 2014, 149).28

It is worth mentioning, that even though Norway is not a EU member thus lacking legislative
influence in the EU, there are still forums within the EEA structure that allows Norway to
promote its national interests before the legal acts are finalized and enacted. Norway is invited
to meetings, hearings, and has representatives in the Commission’s expert groups. In addition,
the Norwegian experts and bureaucrats participate in several committees within the EU system.
The real impact of these groups are however limited, as their recommendations are not legally
binding (Eriksen, 2014, 40). Lobbying is an alternative channel for Norwegian organisations,
media and politicians to promote Norway’s national interests in the aforementioned EU
legislative forums. (Yngsland, Ask 2015, 68).

The democratic challenges as outlined above still remain, as legal acts are formed and enacted
without any Norwegian representation, nor the possibility for the Norwegian citizens to hold
the authorities responsible for the content of the laws. Norwegian citizens are however only
granted the right to hold their own government accountable for the implementation of the laws,
and the EEA Agreement’s impact on Norwegian society. In other words, when looking at the
democratic deficit Norway suffers by not being represented in the EU, it would be logical for
the political parties to put it on their agenda and in their political programs. However, the
political parties in Norway tend to avoid questions about the EEA Agreement. NOU 2012:2
explains that there are unwritten normative rules the political parties in the executive branch
are obliged to adhere to in order to maintain stability within the Regjering and ensure the

28
From the famous slogan in the American revolution: “no taxation without representation.”

28
majority of votes in the Parliament (NOU 2012:2 s. 272). This means that even though political
parties in government may disagree on matters related to the EEA agreement, these issues are
subdued to maintain alignment in the executive branch. Due to the government’s deliberate
avoidance of questions and critique related to Norway’s current association with the EU, the
Norwegian citizens are subsequently deprived from receiving information about new EU
legislation.

5.5 Transparency
Transparency is another essential democratic principle for citizens’ right to hold the elected
parties accountable for their actions. Transparency International defines transparency as:
“characteristic of governments, companies, organisations and individuals that are open in the
clear disclosure of information, rules, plans, process and actions.”29

As stated in the Norwegian Constitution, Art. 100, the government’s responsibility is to lay
down the conditions for, and ensure open and informative debates on important political
aspects. In the context of the EU this is important in order to grant the Norwegian citizens the
opportunity to proclaim their opinions about the EEA agreement and the EU in general.
Furthermore, facilitating the foundation for an open debate is important in order to increase
general knowledge and interest about the topic. As outlined at the end of the previous chapter
however, the Norwegian government subdues or down-prioritizes an open and informative
debate on matters regarding the country’s relation to the EU and EEA Agreement.

In this situation the media becomes the principal provider of information on recent
developments of this supranational organization. It shares information and knowledge to the
public, thus being able to cause awareness in the public sphere (Overland, Tørdal). Thereby the
media plays an important role in order to create a debate and inform the people about the EEA
Agreement, new EEA legislations and the EU in general. It is fundamental to a functioning
democracy that the citizens are informed of the actions done by their elected government. The
democratic principle of transparency, and the practice of participation, requires the citizens to
possess a level of knowledge about governmental activities. (NOU, 2012:2, 284).

29
Transparency International is a global collaboration against corruption. For more information, see:
https://www.transparency.org

29
According to a survey conducted by Europautredningen/Sentio (2011) most Norwegians claim
that their knowledge on the EEA and EU are generally low, and find it hard to differentiate
between the two (NOU 2012:2, 283). The dynamic nature of the EEA agreement has led to a
continuous expansion of legislation and influence in the Norwegian society (NOU 2012:2,
285). Furthermore, people who responded to the aforementioned survey find the EU/EEA to
be a complicated organizational system, and subsequently the Norwegian role difficult to
understand. Since the signing of the EEA Agreement in 1992, coverage of the agreement in
Norwegian media has declined (Slaatta, 2011, 9). The media debate during the past 20 years
have been largely orientated around full EU membership. Tore Slatta describes the Norwegian
media coverage about the EU and the EEA agreement as “concealed and delayed” (Slatta,
2011, 10-13; NOU 2012:2, 287). By concealing he argues that the media presents the EEA
agreement as less important than it actually is.

The lack of interest among the Norwegian people in matters related to the EEA and the EU
leads to less media coverage, and consequently to people losing their interest in matters relevant
to the EEA and EU. Although Norwegian media present in Brussels have access to a lot of
information due to the transparency in the EU’s organizational structure, this information rarely
conveyed to the Norwegian public due to the circumstances outlined above (NOU 2012:2, 885-
888). The technical details of the EEA-agreement, and the EU in general, is difficult to convey
in a manner that is understandable to the general public (NOU 2012:2, 287). The Norwegian
media coverage and reports are also often delayed due to the time necessary to make decisions
in the EEA, and for Norway to implement new legislations. When a new law is implemented
in Norwegian legislations, the decision has already been made in the EU, thus the possibility
to influence it is already severely limited.

In short the Norwegian public’s participation in EEA and EU relevant matters is therefore likely
to remain low, thus leading to a democratic deficit.

30
6 Alternative forms of Association
The EEA Agreement brings Norway closer to the EU, but it also entails many democratic
challenges. The way in which the EEA Agreement affects Norway is a topic that has been
intensely debated and is highly controversial as the UK currently finds itself in a position close
to leaving the EU. The previous Norwegian Minister of Foreign Affairs, Jonas Gahr Støre, was
of the opinion that although the Norwegian democracy suffers under the EEA Agreement,
withdrawing from it could entail severe negative consequences for the Norwegian economy
and welfare (DN, 2012). Others are of the opinion that Norway would be better off terminating
the EEA Agreement, opting for an alternative form of association. In this chapter, we will
present a brief explanation of two hypothetical alternatives to the EEA Agreement: Full EU
membership and the Swiss bilateral option

6.1 Full EU membership

In the previous chapters we have shown that the EEA Agreement has serious consequences for
the Norwegian democracy. The close cooperation with the EU has left Norway in a position
where it has agreed to implement nearly three-fourths of EU legislation without participating
in the legislative process at EU level or having any right to vote in EU institutions. Eriksen
(2015) states that the EEA Agreement presents an asymmetric relation where Norway and the
other EEA EFTA States are subject to a transnational authority in which they have little real
influence (Eriksen, 2015, 89). An obvious alternative that potentially could solve these
problems would be for Norway to receive full EU membership.

As a member of the EU, Norway would have both representation and voting rights in the EU
institutions and as such, the possibility to participate in the decision-making and in the
legislative process. Further, Norway would send representatives from its national and local
authorities to the various EU institutions. Therefore, it would be given the opportunity to ensure
that the national interests are preserved. However, the accession of Norway to the EU would
entail a transfer of even more sovereignty and competences, in particular with regard to areas
in which Norway is not subject to the EU’s policy today. As mentioned in chapter 4, there are
many areas in which Norway does not have cooperation with the EU. As a full EU member,
Norway would, like the other Member States, be obligated to comply with and implement EU
legislation concerning such areas. Thus, Norway would be required to adopt all EU legislation

31
in areas such as fishery or agriculture and would most likely have to become a part of the
Monetary Union (EMU) (Alternativerapporten 2012, 111).

It is difficult to give a precise forecast on how such membership would affect Norway.
Moreover, any speculations in this regard would have to be based on other Member States’
relation to the EU. Some experts take the view that full EU membership could have positive
effects for Norway’s economy and trade as it is proven that the Member States are trading and
investing more among each other than with Norway and the other EEA EFTA States. Further,
the application of different custom rates in the EEA EFTA States affects the trade and other
economic relations with non-members (Frisvold, 2014, 215-216). Europabevegelsen takes the
view that Norway would benefit from a full membership given that it would directly participate
in a transnational organisation in which common interests and values are secured, and where
Norway would have more influence on finding solutions for worldwide challenges.
Europabevegelsen also states that Norway would be part of the EU’s efforts to increase the
solidarity and prosperity, as well as create peace in Europe.30

On the other hand, Norway has through the EEA Agreement already full access to the EU’s
Internal Market (NOU 2012:2, 64). EU membership could therefore further reduce national
sovereignty and independency, as it would entail being subject to a transnational system and
its legislation in areas that are not covered by the EEA agreement today. In addition, Norway
could be obligated to join the Monetary Union with common currency and monetary policy. In
this context, some opponents of the Norwegian EU membership believe that this would
jeopardize Norway’s stable economy and the measures implemented by the Norwegian
government in order to develop and strengthen the Norwegian welfare state
(Alternativerapporten, 2012, 129-132).

In short, there are both advantages and disadvantages of becoming a full EU member. If the
Norwegian authorities were to change the current situation and considered applying for full EU
membership, it would be necessary to carefully weigh the advantages and disadvantages in
relation accordingly.

30
Europabevegelsen is an organization that aims to ensure and develop close cooperation in Europe. For more
information, see: http://www.europabevegelsen.no/derfor-sier-vi-ja/.

32
6.2 The Swiss option: Bilateral Agreements
The EEA Agreement is certainly more comprehensive than any other bilateral agreement
between the EU and a non-member. Like Norway, Switzerland has rejected full membership
in the EU, but has on the contrary chosen an alternative form of association compared to
Norway and the other EEA EFTA States: The relationship between Switzerland and the EU is
defined by two sectoral bilateral agreements (the "Swiss Bilateral Agreements") that are based
on the principle of equivalence of legislation between the two contracting parties and voluntary
adaption (Gstöhl, 2015, 23).31 On several occasions, the Swiss Bilateral Agreements have been
presented to and in Norway as an alternative solution to the comprehensive EEA Agreement.
In accordance with the Swiss Bilateral Agreements, Switzerland and the EU have agreed upon
close cooperation only in specific areas where the EU and Switzerland share mutual interests
(Lavenex, Schwok, 2015, 39).

Whereas the EEA Agreement is a broad and dynamic agreement, the Swiss Bilateral
Agreements may be characterized as sectoral and static (Lavenex, Schwok, 2015, 38). Based
on the bilateral sectoral approach, the relationship between the EU and Switzerland was
established with shared jurisdiction in specific areas in which close cooperation was of mutual
interest. Besides two specific exceptions, the Swiss Bilateral Agreements are static in nature
given that the necessary measures and adoption of legislation were laid down at the time of
conclusion of the agreements (Lavenex, Schwok, 2015, 39).32 Furthermore, it is important to
mention that while the EEA EFTA States are dependent upon each other on matters relating to
the EEA Agreement, Switzerland does not have to rely on acceptance from any other nations
(Vahl, Grolimund, 2006, 76). The institutional structure of the relationship between the EU and
Switzerland also differs from the one established by the EEA Agreement. Whereas the control
and monitoring of the implementation of the EEA Agreement has been transferred to the EFTA
Surveillance Authority and the EFTA Court, Switzerland has not transferred any competences
to any transnational or intergovernmental authorities in a comparable way. Switzerland itself
is responsible for ensuring that the Swiss Bilateral Agreements are adopted and implemented.
With all of this in mind, some have concluded that this “[…] leaves Swiss authorities with more

31
The Swiss Bilateral Agreements, Bilateral I and Bilateral II, were negotiated between 1994 and 2004. Bilateral
I of 1999 was the first set of bilateral agreements negotiated between Switzerland and the EU and consists of
seven bilateral agreements. Bilateral II of 2004 comprises nine agreements and one declaration of intent (Vahl,
Grolimund, 2006, 24-30).
32
The two exceptions, the bilateral agreement on air transport and the agreement on Switzerland’s association
with the Schengen and Dublin Agreement, provide for a dynamic arrangement with future EU legislation and
directives (Lavenex, Schwok, 2015,40).

33
autonomy and control than what is the case with the EEA Countries” (Eriksen, Fossum, 2015,
11).

However, it is important to note that while the bilateral approach might formally give
Switzerland more autonomy and control, this form of association may also entail negative
implications for the affected parties. For instance, Switzerland also adopts EU legislation in
areas covered by the Swiss Bilateral Agreements and does not, like Norway, have any
representatives, formal ability to influence or other options to participate in the preface of the
decision-making procedure in the EU institutions. In some areas, Switzerland is also subject to
the “dynamic” aspect of EU law. Whereas Norway and the other EEA EFTA States are granted
full participation within EU’s Internal Market, Switzerland has only limited access due to the
specific and sectoral approach set out in the Swiss Bilateral Agreements. Moreover,
Switzerland’s participation in EU programs and agencies is even more limited than the EEA
EFTA States due to the mere fact that Switzerland has rejected becoming a party to the EEA
Agreement (Vahl, Grolimund, 2006, 90).33

As concluded by Eriksen and Fossum (2015), each non-Member State that enjoys a close
association with the EU experiences loss of sovereignty to a certain extent (Eriksen, Fossum,
2015, 234, 239). They further take the view that the form of association, whether bilateral or
multilateral, does not imply any significant difference regarding the loss of sovereignty or self-
determination (Eriksen, Fossum, 2015, 239-242).

In conclusion, it could be assumed that it is almost impossible to be affiliated to the EU without

being affected by this supranational organization. Any form of association would in practice
entail a transfer of some sovereignty. Norway has in theory some hypothetical alternative
options regarding the association to the EU. Two alternative options have been portrayed in
this chapter and it is important to emphasize that, as pointed out above, each of such options
has specific advantages and disadvantages.

33
In 1993, the European Commission stated that “[…] it would be inappropriate for Switzerland to obtain all the
advantages of an Agreement which it has rejected” (Vahl, Grolimund, 2006, p. 90-91).

34
7 Conclusion
The purpose of this thesis was to examine the impact of the EEA Agreement on the Norwegian
democratic system. The work was carried out by conducting a legal analysis of the EEA
Agreement in conjunction with the utilization of democratic indicators from political sciences,
to elaborate on how the EEA Agreement have influenced various important factors of the
Norwegian democratic system.

The EEA Agreement is one of the most comprehensive international agreements in Norwegian
history. In chapter 4 we have explained how this Agreement grants Norway, and the two other
EEA EFTA States, full access to the EU’s Internal Market. Seeing as the EU is one of Norway’s
largest trading partners, this is naturally of great significance to the Norwegian economy.
Nevertheless, by signing the EEA Agreement the Norwegian government has also accepted the
adoption and incorporation of a significant amount of EU legislation into the Norwegian legal
system. Norway has incorporated EU legislation in fields relating to the EU’s four freedoms as
a pre-requisite for the EEA Agreement. In addition, due to the institutional structure of the
EEA, there has been necessary to establish specific provisions to regulate and ensure uniform
application of legislation within the EEA. The dynamic nature of the EEA Agreement, set forth
by the EU, has however obligated Norway to continuously having to implement an ever
increasing amount of new EU legislation. In addition to Norway’s voluntarily initiated
cooperation with the EU in areas of mutual interest outside the four freedoms. this has led to a
situation where the EU’s legislation and policies have become a significant part of Norway’s
own national body of laws.

The main finding in this thesis is that the nature and conditions of EEA Agreement is in
violation of fundamental aspects of the Norwegian democratic system. The Norwegian
Constitution proclaims that Norway is an independent state, and that external influence and
obligations that may threaten its democratic political and judicial system must be avoided. By
accepting the EEA Agreement, Norway has however formally and practically transferred a
significant portion of its sovereignty to a supranational organization, which Norway is not a
member of. This impacts Norway’s national and popular sovereignty, as well as giving rise to
issues related to important democratic factors such as accountability and transparency. Norway
and its citizens have subsequently been made subjects to legislation enacted by an authority, in
which they have no formal right to influence or hold the representatives in the EU institutions

35
accountable for the results of their political actions. Furthermore, the juridical mechanisms and
procedures used to justify the transfer of sovereignty are in themselves questionable, thus
giving rise to problems for the legal standing of the Norwegian Constitution. Although, the
EEA Agreement formally respects sovereignty, its reality has been portrayed very differently.
On the other hand, one may ask if there is possible for a nation to be fully sovereign in today’s
international community.

Today’s international community is dominated by globalization, where transnational

cooperation lay the foundations for growth and stability in the global economy. Additionally,
cooperation between nation states is necessary in order to find joint solutions to issues that
reach beyond national borders. Although the EEA Agreement poses juridical challenges to the
Norwegian democratic system, some argue that that a withdrawal from the Agreement could
entail even bigger problems. A substantial portion of the Norwegian economy depends on the
export and import of goods and services, in which the EU is Norway’s most important trading
partner. NOU 2012:2 concludes that the EEA Agreement has contributed to economic growth,
an increase of jobs and increased purchasing power, in addition to a modernization of the
Norwegian economy and strengthening of its competitive edge and value creation (NOU
2012:2, 808). Thus, Norway is in many ways dependent on continued trans-border cooperation
in order to maintain its position internationally. Scholars are also of the opinion that the ability
to maintain full national independence is impossible in todays globalized international
community, and subsequently also impossible for a developed country to be fully sovereign.

One can ask whether the perceptions of an ideal democracy that the Norwegian Constitution is
based upon are outdated, and whether we must accept ceding of sovereignty as a necessary
measure in order to enable trans-border cooperation.

Summarized, Norway have transferred sovereignty to the EU, and formed close ties to this
supranational organization without being a member. In this situation, the nation has become
subject to EU legislation and policies, which pose issues to the Norwegian Democratic system
assessed against fundamental democratic principles. However, Norway’s relations to the EU
through the EEA Agreement has been both a prerequisite and beneficial for the development
and growth of the Norwegian economy, suggesting that a renewed debate and evaluation is
needed to identify strengths and weaknesses in the current agreement in order to better
safeguard Norway’s constitutional democratic principles.

36
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