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Anjum Shabbir
Anjum Shabbir
7th April 2020
External Relations & Trade Justice & Litigation

Op-Ed: “EEA nationals enjoy the same protection as EU citizens when they exercise the freedom of movement” by Magnus Schmauch

Last Thursday, on 2 April 2020, the Court of Justice delivered its ruling in the case Ruska Federacija (C-897/19 PPU), which concerns the question how the principle of non-discrimination and the Court’s Petruhhin (C-182/15) case law should be applied when a citizen of an EFTA State, which is a member of the European Economic Area (commonly referred to as an ‘EEA/EFTA State’), makes use of the right to move freely within the EEA and travels to an EU Member State. In the judgment, the Court of Justice has provided another building block in the principles of homogeneity and, implicitly, of reciprocity.

The person at the epicentre of the case is I.N., a Russian national who became a national of Iceland, an EEA/EFTA State, on 19 June 2019, after having been granted asylum as a refugee there in 2015. On 30 June 2019 he was arrested by Croatian authorities while on holiday, crossing the frontier between Croatia and Slovenia by bus with his family. The arrest took place under an international wanted persons notice issued on 20 May 2015 by Interpol’s Bureau in Moscow.

The Croatian constitution precludes extradition of its own nationals, but not of non-nationals like I.N., when, as is the case with Russia, there is no extradition treaty.

EU law and EEA law

The EEA Agreement extends the four freedoms, the rules on competition and financial markets law (minus  the Banking Union) to three EFTA States: Iceland, Norway and Liechtenstein. This includes secondary legislation, such as the citizenship directive.

In order to further integration, the Schengen acquis has been extended to these countries through a series of bilateral agreements between the EFTA States and the EU.

This creates a complex, multi-layered legal system. The procedure to incorporate secondary legislation into the EEA Agreement goes through a joint committee, the EEA Joint Committee, where the EFTA States have one vote and the EU have one vote. This committee has the power to change the wording of secondary legal acts and make the entry into force conditional on national legislation in the EFTA States.

Regardless of these differences, rules that are identical are to be interpreted in a similar way (the principle of homogeneity). Rights that are granted in the EU pillar should mirror those in the EFTA pillar and vice versa (the principle of equality). There should be equal rights for EU citizens and nationals of EFTA States (the principle of reciprocity).

Nevertheless, there are also some fundamental differences. There is no direct effect in EEA law, but regulations can be directly applicable. This is compensated by a more generous approach on State liability, which differs, as it must, from how the same principle is applied in EU law. Moreover, there is no ‘EEA citizenship’ in the EEA Agreement. There is no legal obligation for courts in the EFTA States to refer cases to the EFTA Court, and advisory opinions delivered by the EFTA Court are not formally binding on the referring court. Finally, the Charter of Fundamental Rights does not apply in EEA law (when the EFTA Court referred to the Charter in the Clauder (E-4/11) and Posten Norge (E-15/10) judgments, some scholars in EEA/EFTA States responded with unease and even, as I witnessed myself on some occasions, with aggressive contempt).

The Petruhhin case law and EU citizenship

The Petruhhin judgment, delivered by the Court of Justice in 2016, concerned the potential extradition to Russia of an Estonian national, who had exercised his right to freedom of movement within the EU.

The Court of Justice found that Article 18 TFEU and Article 21 TFEU must be interpreted as meaning that, for the purposes of applying an extradition agreement concluded between a Member State and a third State, nationals of another Member State must benefit from the rule which prohibits the extradition by the first Member State of its own nationals.

More specifically, the Court of Justice concluded that Article 18 TFEU and Article 21 TFEU must be interpreted as meaning that, when a Member State to which an EU citizen, a national of another Member State, has moved receives an extradition request from a third State with which the first Member State has concluded an extradition agreement, it must inform the Member State of which the citizen in question is a national and, should that Member State so request, surrender that citizen to it, in accordance with the provisions of Council Framework Decision 2002/584/JHA on the European arrest warrant, provided that that Member State has jurisdiction, pursuant to its national law, to prosecute that person for offences committed outside its national territory. Where a Member State receives a request from a third State seeking the extradition of a national of another Member State, that first Member State must verify that the extradition will not prejudice the rights referred to in Article 19 of the Charter of Fundamental Rights of the European Union.

The principles of homogeneity and reciprocity – ensuring similarities

The principles of homogeneity and reciprocity belong to the fundamental principles of the EEA Agreement. They can, inter alia, be found in the fourth recital of the EEA Agreement, which gives expression to the objective of establishing a dynamic and homogeneous EEA, ‘based on common rules and equal conditions of competition and providing for the adequate means of enforcement including at the judicial level, and achieved on the basis of equality and reciprocity and of an overall balance of benefits, rights and obligations…’.

There are many dimensions to these principles but suffice to say that the main goal is to ensure that there is a legal homogeneity not only in the rules to apply but also in the result to be achieved. Where the rules are the same, the principle of homogeneity applies. Where the rules may be different, or of a similar scope, the principle of reciprocity extends the interpretation of the rules so as to ensure a similar outcome.

EEA States and the Schengen acquis – similarities by different means

Since the EFTA States Norway and Iceland are not Member States, their association with the implementation, application and development of the Schengen acquis, follows from the aforementioned agreement with the EU from 18 May 1999.

Although Framework Decision 2002/584/JHA on the surrender procedure does not apply to Iceland and Norway, a bilateral agreement has been concluded with the European Union on the surrender procedure, which entered into force on 1 November 2019.

EU Citizenship and EEA law – differences

One of the key issues in the judgment is how the Court of Justice applies its Petruhhin case law, which is built upon the dual principles of free movement and citizenship in Article 21 TFEU in the context of EEA law.

While EEA law extends the principle of free movement to nationals of states that are contracting parties to the EEA Agreement, there is no recognition in EEA law to such a thing as ‘EEA citizenship’.

The issue of citizenship is more complex than the prohibition on the grounds of nationality, since there is a similar provision to Article 18 TFEU in the EEA Agreement, which also contains a similar prohibition in Article 4 EEA.

The lack of an ‘EEA Citizenship’ is not purely technical. When the Citizenship Directive was made part of the EEA Agreement, the Contracting Parties amended the wording of the Directive, noting that the concept of ‘Union Citizenship’ is not included in the EEA Agreement. Most importantly, the words ‘Union citizen(s)’ were replaced by the words ‘national(s) of EC Member States and EFTA States’. Finally, the Contracting Parties added a declaration emphasising this issue. The EFTA Court has interpreted these provisions in the Wahl (E-15/12), Gunnarsson (E-26/13) and Jabbi (E-28/15) cases, adopting a careful step-by-step approach, respecting these differences but stressing the principle of reciprocity. As a result, the Court would have to base its conclusion on a different legal basis from the rules on citizenship that it applied in the Petruhhin case.

No fork in the road for the EEA

The judgment of the Court of Justice has a freshness and sobriety to it that is well known from some of the classics in its case law. It has all the elements of a good ‘ECJ vintage’: the individual in prison facing an unclear destiny, the unclear legal situation concerning the extent of judicial protection and the applicability of fundamental rights, and some unexplored grandes lignes in the relationship between EU law and EEA law.

The court has mastered these issues by doing what it does best, returning to the roots of the EEA Agreement and its role in the EU legal system. That the EEA Agreement as a mixed agreement is a part of EU law has long been taken for granted, but the Court’s statement is clear: the situation in the case ‘falls within the scope of the EEA Agreement and, consequently, of EU law’” (paragraphs 49 and 54). As the Court notes, under the existing case law on the EEA Agreement, it is for the Court to ‘ensure that the rules of the EEA Agreement which are identical in substance to those of the FEU Treaty are interpreted uniformly within the Member States’ (paragraph 50). And since the Court in the Cowan (186/87) case had already held that the freedom to provide services includes the freedom for the recipients of services to go to another Member State in order to receive a service there and that tourists must be regarded as recipients of services, this would also apply to I.N. Thereby, the principle of homogeneity is respected and also provides the basis for the subsequent assessment by the Court of the issue of fundamental rights.

In the final step of the answer to the referring court, the Court of Justice applied the principles of the Petruhhin case in full by analogy. It is too long to refer here in full. Suffice to say that the Court referred to the bilateral agreements between the EU and the EEA/EFTA States on the Schengen acquis and the surrender procedure, stressing the similarities and the special relationship between the EU and the EEA (paragraph 75). Important elements were that the situation was objectively the same as in the Petruhhin case (paragraph 58), and that the legal rules applicable were also ‘very similar to the corresponding provisions’ in EU law (paragraph 74). As such, the Court engages in an implicit application of the principle of reciprocity, as the legal protection of EU citizens is extended to an EEA/EFTA national.

So, there we are. First, there is the fact that the Court of Justice chose to refer to the principle of homogeneity and stayed silent on the principle of reciprocity, although these are both mentioned in the recitals of the EEA Agreement. This can be seen as a sign that the Court still remains cautious and sends a signal to the EEA/EFTA States in the EFTA pillar of the EEA: there still remains something to be proved before reciprocity can be assumed. Second, it is nevertheless clear that EEA/EFTA nationals can rely on the rules on free movement when they travel abroad to the EU Member States. And as long as the material rules applicable are identical to the corresponding union law rules, the underlying constitutional differences between EU law and the legal position of the EEA/EFTA States in the EEA Agreement will play a limited role. For now.


Magnus Schmauch, PhD, former legal secretary at the EFTA Court, Senior legal advisor at Finansinspektionen (Swedish Financial Supervisor). The opinions expressed are the personal view of the author.


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