Christa Tobler presents at the conference of the EFTA Court
On 15 October 2021, the EFTA Court held its annual conference in Luxembourg, this year under the title 'People in the EEA'. The EFTA Court is in charge of cases arising under the law of the European Economic Areas (EEA) in the EEA/EFTA states Iceland, Liechtenstein and Norway. Christa Tobler was invited to talk about 'Free movement of persons beyond EU law, with a particular focus on the EEA'.
The presentation looked into the differences in the free movement regimes under the Ankara Association Law, the EU-Swiss Agreement on the Free Movement of Persons and the EEA, as compared to EU law, and on what these differences mean for the interpretation of these agreements. Particular attention was paid to the EFTA Court’s case law on return cases involving persons who are not economically active. According to the EFTA Court, in the specific context of EEA law, such cases fall under Directive 2004/38 (different from CJEU case law). According to the EFTA Court, Art. 7(1)(b) of Directive 2004/38 implies a right to leave the home state in order to take up residence elsewhere. According to the EFTA Court, this also implies that the state of origin may not deter its nationals from moving (Gunnarsson). As explained in earlier writing of Christa Tobler, the EFTA Court, using an approach that could be termed a reversed Polydor principle, in situations where the EEA rules and the EU rules are not the same due to the lack of EEA provisions corresponding to Arts. 20 and 21 TFEU, interprets Directive 2004/38 differently from the CJEU in order to arrive at the same result as EU law on the rights of persons who are not economically active. Such a finding may seem problematic from the perspective of other external regimes of EU law, in particular the EU-Swiss Agreement on the Free Movement of Persons.
Updated version: Christa Tobler, Free Movement of Persons in the EU v. in the EEA: Of Effect-Related Homogeneity and a Reversed Polydor Principle’, in: Nathan Cambien/Dimitry Kochenov/Elise Muir (eds.), European Citizenship under Stress. Social Justice, Brexit and Other Challenges, Leiden: Brill Nijhoff 2020, 482-507.