(Why) did the EEA countries accept a guillotine clauses at a later date than the original Agreement?

Question

Wikipedia says (alas without citing a clear source) that

EU also has guillotine clauses in the EEA agreements with Norway (2001), Iceland (2001), and Liechtenstein (2008), which must directly accept both existing and added EU directives within several fields relating to trade (except food) free movement and the internal market. Refusing such directives would give the EU the right to terminate the entire EEA agreement and so the EEA countries have avoided doing so.

On the other hand, in a UK parliamentary report that was discussing the EEA (as option for the UK), it was said that

Dr Sverdrup explained that while existing non-EU EEA countries might find this appealing, the “main framework of the EEA Agreement has never been renegotiated” in the “past 25 years”.

This was due to a number of factors. First, non-EU EEA countries “basically think that they cannot get a better deal”. When the EEA agreement was signed in 1992, EFTA had seven countries while the EU had twelve. Now, however, the “EU consists of 500 million people and the EEA is only five million”. A second reason was that “sentiments in the EU” would not favour such an approach. It was “not very likely” that an “EU member country [would] accept being outvoted by a non-member.” Finally, any change to the Agreement would have to be ratified by all the signatories, which was “not very easy”. Bearing all these factors in mind, Dr Sverdrup concluded that Norway had accepted that “we have what we have, and it is very difficult to negotiate it ‘up’ or ‘down’.”

This latter info kinda seems to contradict what Wikipedia says, albeit not directly. If the main EEA treaty was not renegotiated in 25 years, how and why where those guilloite clause(s) added (as Wikipedia claims)?

Answer 1

The dates noted in the Wikipedia article are the dates of each country's accession to the Schengen area. These dates must represent a broadening in the scope of the guillotine clauses to reflect the newly increased breadth of participation in institutions related to the EU. In particular, joining the Schengen acquis adds to the scope of the guillotine clauses any directives and regulations concerning the Schengen acquis.

This also explains why the clauses did not constitute a renegotiation of the EEA agreement. That agreement does not mention participation in the Schengen system, and has no provisions related to border controls on persons.

The countries accepted the new terms because doing so was a condition of joining the Schengen area.

Answer 2

@phoog is correct that the original EEA also has sectorial guillotine albeit called "right of reservation". It was made more explicit in the Schengen extension. According to a 2012 report commissioned by the Norwegian government:

Norwegian authorities can seek special adaptations or exemptions from EU rules. Moreover, Norway and the other EFTA States must vote on all the new laws that are taken into the agreement. Formally speaking, the Norwegian authorities can refuse to do this, and so is not bound to do so. This is what is called the “right of reservation” [opt out], or sometimes the “right of veto”.

In practice the latitude that these possibilities offer has turned out to be extremely limited. When new laws are adopted by the EU and incorporated into the EEA Agreement this is done through a process within the EFTA Secretariat and in the EEA Joint Committee and its subcommittees. Here, purely technical adjustments occur, which entail that references are changed from “EU” to “EEA” etc. But it is very difficult to get the EU to accept substantial adjustments or exceptions that break with the principle of homogeneity, and it has become more difficult over the years. Iceland and Liechtenstein have, it is true to say, gotten a number of exceptions with respect to the fact that they are so small that a number of the EU rules simply are not relevant for them, in addition to exceptions based on Liechtenstein’s relationship to Switzerland. But for Norway, being a state of a more normal size, there is no claim to this. Through the entire period of 1992-2011 Norway has only gotten 55 material exemptions, amongst more than 6000 new pieces of legislation, and most of these were agreed many years ago. In practice, the possibility of opt-outs is not compensation for the democratic deficiencies of the EEA Agreement.

And neither is the right of reservation. In the 18 years that have passed since the EEA Agreement entered into force none of the three EFTA states have voted against a single of the 6000 new EU legislative acts that have been incorporated into the agreement. If a Norwegian political party wishes to do this, it would normally be put on the agenda for hearings in the Storting’s European Affairs Committee. A review of all of the hearings from 1994-2011 reveals that in 18 years there were only 17 cases where use of the right of reservation was tabled, but never with sufficient support to pass through.

Even if the existence of the right of reservation is viewed to be important for political and constitutional reasons, and even if the EFTA States at any point in time are free to use it, it has never been viewed as a routine measure for use by the EFTA States to reject laws that they do not like. Any veto would be a breach of the basic principle of homogeneity. Moreover, the EEA Agreement is constructed so that EFTA States cannot simply deselect parts of the Agreement in which they would otherwise participate. Use of the right of reservation will according to the procedure, lead to the relevant part of the agreement (defined as the effected part) being taken out of force, unless the EU decides otherwise. It seems that in the EU the attitude to the right of reservation has if anything become more restrictive throughout the years.

Under the Schengen Agreement, there is no right of reservation, just a Guillotine clause. Here too, Norway formally must vote for the adoption of new legislation from the EU, and up until now this has happened 158 times since the agreement entered into force in 2000. But were Norway to vote against a new legislative act, the entire agreement would collapse. Under the Schengen Agreement there is no special possibility for exemptions and adaptations

And from a more recent (2015) source, Norway actually tried to use this right of reservation over some postal directive, but the source is not clear on the ultimate outcome. Actually, the BBC says that Norway eventually relented on that too after a change in government.