Judicial protection in the EFTA pillar of the EEA: Reconcilable with the enhanced status of fundamental rights in the EU post-Lisbon?

The EEA Agreement between the EU and its Member States on the one hand (EU pillar) and Norway, Iceland and Liechtenstein on the other hand (EFTA pillar) extends the internal market established within the EU to the EFTA pillar. In the latter, the EFTA Court is the highest judicial authority, comparable to the Court of Justice of the EU (CJEU) in the EU pillar. Although based on the CJEU’s procedural rules, the EFTA Court’s rules on legal standing are stricter and its judicial powers are more limited. In two recent cases the European Court of Human Rights (ECtHR) superficially addressed the judicial protection in the EFTA pillar, without reaching a definitive conclusion on its compatibility with the right to an effective remedy, thereby avoiding a norm conflict between the ECHR and EU law. It is furthermore unclear whether and how the differing judicial protection can be justified in light of the principle of equal treatment, given the CJEU’s finding that an EEA EFTA citizen’s situation is “objectively comparable” with that of an EU citizen. The question subsequently arises how long the ECtHR will be able to circumvent having to pronounce itself on its compatibility with the ECHR and how the CJEU would rule when confronted with questions of compatibility with the Charter of Fundamental Rights. Therefore, this research aims to assess whether the EU can integrate third countries into its internal market without requiring judicial protection on par with that offered within the EU.