Politicians all around the world are usually very skilled in making headlines by announcing statements that do no create formal rights or procedures in practice. Strangely enough, this old trick seems to work because the notions of access to justice, formal procedures, exercising rights, etc. Are usually ignored by the ordinary people, simply because they are not needed in day-to-day life.
Research made in the ‘70s by the father of the world “access-to-justice” movement, Mauro CAPELLETTI, proved that the first obstacle in this fight for justice for all citizens in the world was precisely this ignorance. The normal citizen usually lives in a state of happy ignorance of how to exercise his/her rights until problems arise. And by the time they appear, it can be too late. His research, which occupied at least 7 volumes of legal papers and contributions from all around the world, showed that our legal systems created most obstacles for the defense of a particular kind of claims (small claims) and for a precise kind of persons (isolated individuals). We citizens were called “one-shot players” in contrast to the “repeat-player litigants”, that is to say, administrations, multinationals, and all kinds of companies who enjoyed much more procedural advantages due to the frequency of close encounters with the system and the amount of money and resources they dedicated to the defense of their rights.
Know your rights
The European integration process could have even aggravated this problem without realizing it. It is a fact that European Union (EU) and European Economic Area (EEA) legal orders have created thousand of new rights for Icelandic and European citizens. Rights that we should know about and that we should claim before administrations if necessary.
For instance, we now have free movement of goods, services, capital and persons throughout a vast area that includes 25 countries plus the three EEA territories including Iceland. The European Union tells us that we should go and work abroad, study in another country, buy an imported car and spend our holidays in the sun. But when problems arise we are all powerless because we do not know how to enforce the new rights we have. It is therefore extremely important for all of us to be aware that, finally, there are some mechanisms and procedures designed at a European level to help us exercise the new rights that have been given to us.
One of the most important mechanisms at European level is the complaint procedure before the EFTA Surveillance Authority. In fact, complaints can be presented before this institution for violation of European rules by any EEA governments, including Iceland. This is one of the possibilities already in place to exercise our new rights.
Anyone may lodge a complaint with the EFTA Surveillance Authority against an EFTA State arising from any measure (law, regulation or administrative action) or practice attributable to an EFTA State, which the complainant considers incompatible with a provision or a principle of EEA law.
How to sue your government
To be admissible, a complaint must simply relate to an infringement of EEA law by an EFTA State. The procedure that follows is rather simple and it is usually finished within one year. If the Authority considers that the national provisions or actions raised in the complaint may constitute an infringement of EEA law, it addresses a letter of formal notice to the EFTA State concerned, requesting it to submit its observations by a specified date.
In the light of the reply or absence of a reply from the EFTA State concerned to the letter of formal notice, the Authority may decide to address a reasoned opinion to that State, clearly and definitively setting out the reasons why it considers there to be an infringement of EEA law and calling on the EFTA State to comply with its obligations in EEA law within a specified time period (normally two months).
If the EFTA State fails to comply with the reasoned opinion, the Authority may decide to bring the case before the EFTA Court. Normally, the Court will rule on a case, brought by the Authority, also within a year.
Thanks to this procedure, all Icelandic nationals and residents in Iceland can have a proper access to justice at European level. Thanks to a simple mechanism such as the complaint, it is therefore possible to claim for the benefits and rights derived from the European integration process if an State does not happen to respect them.
Elvira Mendez Pinedo is a lawyer and doctor in European Law. Following a marriage to an Icelandic citizen, she moved to Iceland in 2001