If Not EEA State Liability, Then What? Reflections Ten Years after the EFTA Court's Sveinbjörnsdóttir Ruling

On the basis of this comparison, the ECJ concluded that identical wording of EC and EEA law was no guarantee of homogeneity. Since there were no other mechanisms that would secure homogeneity, the ECJ did not consider the fundamental principles of direct effect and primacy to be safeguarded. On the contrary, it assumed that these principles were "irreconcilable with the characteristics of the [EEA] agreement." The final conclusion was therefore that "the divergences which exist between the aims and context of the agreement, on the one hand, and the aims and context of Community law, on the other, stand in the way of the achievement of the objective of homogeneity in the interpretation and application of the law in the EEA." As a consequence of ECJ Opinion 1/91, a new version of the institutional chapter of the EEA Agreement was negotiated, which provided for the establishment of a structurally independent EFTA Court. [CONT]