The EEA Agreement in a Revised EU Framework for Welfare Services by Karin Fløistad

Author:Karin Fløistad
Language: eng
Format: epub, pdf
ISBN: 9783319950433
Publisher: Springer International Publishing

The Advisory Opinion of the EFTA Court

The EFTA Court concluded in Gunnarsson that Article 7(1)(b) of the Directive must be interpreted as granting the moving person not merely a right of residence in relation to the host state but also a right to move freely away from the state of nationality:[t]he latter right prohibits the home State from hindering such a person from moving to another EEA State.83

This represents a significant divergence from the CJEU’s position regarding rights stemming from the Directive. The EFTA Court observed that less favourable treatment in the state of nationality of persons who have moved compared to those who have remained would constitute a hindrance on the right to move freely. This is familiar terminology from the CJEU’s case law on the right to move freely, which, under the Union citizenship provisions, includes, as already demonstrated, the non-economically active person.84

Arguably, the EFTA Court’s diverging interpretation of the Directive maintained substantive parity with EU law, ensuring equal levels of protection for individual rights throughout the EEA.85 The applied methodology is highly unusual. This is the first time the EFTA Court has applied secondary legislation to grant rights under the EEA legal order that did not accrue by virtue of an identical provision within the EU legal order. Divergence compared to the EU legal order on an identical point of law has materialised previously under the EEA Agreement. This has, however, led to a more narrow range of available rights. The Gunnarsson case is the first case where the EFTA Court has interpreted EEA law to entail more extensive rights than what follows from a settled interpretation of an identical provision by the CJEU. This has a range of implications, which will be returned to in the following sections. The same approach was taken in the later Jabbi case.

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