The Fundamental Principles of EEA Law by Carl Baudenbacher

Author:Carl Baudenbacher
Language: eng
Format: epub
Publisher: Springer International Publishing, Cham

2.2 Priorities in Developing the EEA Agreement

The legislative process leading to the adoption of secondary legislation is only one—and often not the most consequential—way in which the EEA Agreement is developed and applied in practice. This is all the more so at a time when many key legislative initiatives, such as those currently relating to the Digital Single Market,8 are highly controversial and thus unlikely to lead to all-encompassing clear-cut solutions in the near future.

Sven Erik Svedman sets out in his chapter on Prosperity9 how the EEA Agreement must be seen and used as a living instrument if it is going to remain relevant and be an enabling, rather than a stifling, force for the future. He makes the point that even the very notion of what constitutes prosperity, and thus of what sort of values are to be fostered by the EEA Agreement, has shifted since the conclusion of the Agreement. Economic and technological progress have led to new realities with which the application of the EEA Agreement needs to be kept up to date.

The development of the Internet, and the ever-wider adoption of web-based applications, have made cross-border streaming of audio-visual content and ride-sharing applications technically possible, thereby exposing traditional broadcasters and taxi companies to competition . Improvements in logistics permitting cheap and swift residential deliveries of all manner of products, from books and office supplies to pharmaceuticals and consumer electronics, have brought traditional retailers from bookshops to pharmacies under pressure. The accession of 13 additional Member States with significant income disparities has led to brain-drain, causing upheavals in many job markets in established Member States.

In many instances, the consequence has not merely been an increase in competition in a given sector, but rather the first time that the incumbents, such as national broadcasters, locally licensed taxi companies and pharmacies, have had to deal with a competitor at all. The lobbying power of entrenched stakeholders, combined with understandable reluctance on the part of local and national regulators to embrace these changes in the absence of a clear idea of what they will lead to, often lead to an unquestioning application of ill-fitting legal instruments designed for a different era.

These are situations where, in the absence of timely legislative initiatives, primary EEA law can, if applied sensibly, provide solutions. Many of the provisions of the EEA Agreement, as well as general principles of EEA law, operate in a way which fundamentally permit a flexible approach. Prohibition on restrictions on the fundamental freedoms are, for example, drafted in sweeping terms and subject to equally sweeping exceptions and justifications. Restrictions may be justified based on an open-ended list of policy grounds, subject to a proportionality review. The EEA Agreement has a natural deregulatory bias to the extent that the application of pre-existing national regulations to new situations is subject to scrutiny. States must thus keep them under review and be prepared to justify their application. Frequently, this may lead to the conclusion that the changes which have made new business models possible have, at the same time, also reduced the need for regulation.

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