Three recent articles


Fundamental Rights of the Individual in EEA Law: The Tension between the ECHR Standards and the EU Charter.

Published in Free Movement of Persons in the Nordic States. EU Law, EEA Law, and Regional Cooperation. Bloomsbury Publishing 2023.

Concluding remarks: Tensions between the EEA Agreement, national constitutions and the Charter have arisen and may arise in the future. This is mainly due to two factors. The first is the difference in the legal nature of the EEA Agreement compared to the EU legal system. Second, the reach of the Charter is wider, compared to the ECHR and national constitutions, in terms of the rights and principles specifically listed. On the first point, it should be reiterated that, despite the differences in legal nature of the EEA Agreement on the one hand and the EU on the other, it has survived and served its purpose well in most respects. There have been difficulties due to these differences, as the examples given in this chapter show, and it is to be expected that these difficulties will continue. So far, they have been overcome without any major long-lasting problems, through political compromises, as in the case of incorporation of Directive 2004/38, and judicial activity and interpretations at the national level and by the EFTA Court, albeit being somewhat stretched at times, with the aim of achieving homogeneity between the
two systems. What matters from the point of view of individuals and economic operators is the outcome and whether rights are equally protected, not the way in which it is reached. As to the second point, it is argued, moreover, that on the basis of the national constitutions, various international instruments, and in particular by their commitment to the ECHR and the case law of the ECtHR, the EFTA states have the right tools to adjust, for the purpose of honoring any commitment under the EEA Agreement, to any obligations fl owing from the provisions of the Charter, in the field of the four freedoms, as interpreted by the CJEU.


Interpretation of Judgements: European Court of Human Rights. Published in Oxford Public International Law: Home ( (pdf)

Concluding remarks: This entry discusses situations in which the ECtHR is involved in interpretation of its own judgments in relation to their enforcement on the national level. It is suggested that this is relevant in three types of situations. The first is Article 46 (3) of the Convention which provides the CM with the possibility refer to the Court questions concerning interpretation of a judgments in relation to its enforcement. The second is the Article 46 (4) under which the CM can bring enforcement procedure against the respective state with a view of obtaining the Court’s opinion as to whether a state has failed in abiding by a judgment. This involves an interpretation of the judgment as it must identify and interpret the legal obligations flowing from that judgment. The third aspect is linked to the enforcement of pilot-judgments of the Court.

The first two provisions were inserted into the ECHR by Protocol 14 to the Convention. It was believed that this might assist the CM to effectively execute judgments mainly in situations where a judgment might call for response of the respective State doing more than simply paying damages and legal costs with the aim of eradicating the problem and preventing similar violations. It is fair to say that these measures have not turned out be of the practical value hoped for when they were implemented. It is hard to pinpoint the actual reasons for this. The measures under Article 46 (3) and (4) are relatively narrow in scope, although for somewhat different reasons. What they have in common is that both raise questions as to the different roles of the CM and the Court and separation of powers between the two where it is for the Court to give final judgments and the CM to execute them. In very general terms it is suggested that the preparations and view expressed in the Explanatory Report manifest a certain reluctance to give the Court further powers to interfere with the execution of judgments as this is seen as being a ‘political’ matter especially in situation where reaction to a judgment requires a response on the national level beyond paying of damages and costs. These considerations may also explain what may seem to be a certain hesitation on behalf of the CM to make use of these measures.

 III. EEA and the Presumption of Equivalent Protection of Human Rights. Publised in Liber Amicorum Robert Spano Anthemis s.a 2022.

Concluding remarks:  This paper offers some reflections on the relevance of the presumption of equivalent protection of human rights developed in the Bosphorus- judgment for the EEA Agreement, primarily in the light of the Holship-judgment of the ECtHR. The judgment could possibly be viewed as a move from the Bosphorus in the sense it may signal a more assertive ECtHR towards the EU.  Another approach is that the case represents some retreat form the position taken in the AS v. Norway where the ECtHR rejected to apply the presumption of equivalent protection of fundamental rights in the context of the EEA Agreement. The Holship-judgments may however signal that the ECtHR is moving closer to accept it to some degree the applicability of the principle in the context of the EEA Agreement. Interestingly, either way, it would seem that the EU and the EEA Agreement are moving closer to each other from the perspective of the ECtHR when it comes to the protection of fundamental rights.

Davíð Þór Björgvinsson, prófessor lagadeild HA.

This entry was posted in Juris Prudentia. Bookmark the permalink.