Prof. Dr. Carl Baudenbacher President of the EFTA Court
The contribution of the EFTA Court to the establishment of a homogeneous and dynamic European Economic Area
EFTA Seminar Brussels Spring 2008 Contribution of the EFTA Court
A. Introduction
B. Homogeneity between EEA and EC law as a paramount goal of the EEA Agreement
C. EC constitutional principles in particular
D. Judicial dialogue with the Community courts
F. Conclusions A. Introduction
I. EEA
Extension of the EC internal market to the EFTA States as far as possible (Art. 1 EEA; ECJ Ospelt [2003]; EFTA Court ESA v Iceland [2003])
Two pillars (EC and EFTA) with law that is largely identical in substance
Homogeneity goal
Reciprocity expectations of both sides
Individuals and economic operators as main protagonists: Free access to the markets in both EEA pillars A. Introduction
II. EFTA Court
Third European jurisdiction (after ECHR and ECJ/CFI/CST)
Example of judicialization of international law (compare: 1972/1973 Free Trade Agreements)
From 7 to 5 to 3 judges (+ 6 ad hoc judges)
A three judges court is a small court
Cabinet system A. Introduction
II. EFTA Court
Secrecy of deliberations and of vote
Appointment and reappointment of judges by common accord of Governments
No Advocate General
Modern language regime: English in direct actions; English and the language of the referring court in preliminary reference proceedings A. Introduction III. A rough start
First version of the EEA Agreement: An EEA Court consisting of ECJ judges and EFTA judges
ECJ Opinion 1/91: Incompatibility with EC law of the EEA Court; difference between EC Treaty and EEA Agreement with respect to goals and context; no direct effect and no primacy; interpretation of the EEA Agreement according to the rules of the Vienna Convention
Final version of the EEA Agreement: A structurally independent EFTA Court. Approved by ECJ in Opinion 1/92
How relevant is Opinion 1/91 today? B. Homogeneity
I. Statutory principle
Article 6 EEA
"Without prejudice to future developments of case law, the provisions of this Agreement, in so far as they are identical in substance to corresponding rules of the Treaty establishing the European Economic Community and the Treaty establishing the European Coal and Steel Community and to acts adopted in application of these two Treaties, shall, in their implementation and application, be interpreted in conformity with the relevant rulings of the Court of Justice of the European Communities given prior to the date of signature of this Agreement." B. Homogeneity
I. Statutory principle
Article 3 II SCA "In the interpretation and application of the EEA Agreement and this Agreement, the EFTA Surveillance Authority and the EFTA Court shall pay due account to the principles laid down by the relevant rulings by the Court of Justice of the European Communities given after the date of signature of the EEA Agreement and which concern the interpretation of that Agreement or of such rules of the Treaty establishing the European Economic Community and the Treaty establishing the European Coal and Steel Community in so far as they are identical in substance to the provisions of the EEA Agreement or to the provisions of Protocols 1 to 4 and the provisions of the acts corresponding to those listed in Annexes I and II to the present Agreement." B. Homogeneity
II. General principle?
ECJ Ospelt (2003): ECJ responsible for homogeneity
EFTA Court ESA v Iceland (2003): Reference to ECJ Ospelt
ECJ Bellio Fratelli (2004): Both courts are responsible
EFTA Court Fokus Bank (2004): Reference to ECJ Bellio Fratelli B. Homogeneity
II. General principle?
ECJ Keller Holding (2006) and subsequent cases: Bellio Fratelli formula
EFTA Court Norwegian Waterfalls (2007): Presumption that identically worded provisions are to be interpreted in a homo- geneous way (in casu: Article 125 EEA) B. Homogeneity
III. EFTA Court going first
Reasons: EFTA Court is not overburdened; short handling time for cases; high degree of economic and societal development of EFTA States; ESA bringing fresh legal questions; national courts referring fresh legal questions; to a limited extent forum- shopping
Consequence: Special responsibility of the EFTA Court B. Homogeneity
IV. Result
EFTA Court following ECJ (and CFI) case law
Adoption of basic structures and principles (but “creative homogeneity”: LO [2002] and Ladbrokes [2007] as examples)
ECJ and CFI taking into account EFTA Court case law in certain circumstances C. EC Constitutional Principles I. EC law
Direct effect (ECJ van Gend en Loos [1963); primacy (ECJ Costa v ENEL [1964]); State liability (ECJ Francovich [1991] and Brasserie du Pêcheur [1996]); Conforming interpretation (ECJ Marleasing [1990])
II. EEA law on the books
Individual rights and judicial defense of these rights; reciprocity (Preamble to the EEA Agreement)
Homogeneity
Article 7 EEA and Protocol 35 EEA C. EC Constitutional Principles
III. EEA law in Action
ECJ Opinion 1/91: No direct effect and no primacy
Quasi-direct effect in the EFTA pillar (EFTA Court Restamark [1994])
Direct effect in the EC pillar (CFI Opel Austria [1997])
Quasi-primacy in the EFTA pillar (EFTA Court Einarsson [2002])
Conforming interpretation in the EFTA pillar (EFTA Court Karlsson [2002]; A [2007]) C. EC Constitutional Principles
III. EEA law in Action
State liability (EFTA Court Sveinbjörnsdóttir [1998], ECJ Rechberger [1999]; EFTA Court Karlsson [2002]; Icelandic Supreme Court Sveinbjörnsdóttir [1999]; Swedish Supreme Court Andersson [2004]; Norwegian Supreme Court Finanger II [2005]; Liechtenstein Supreme Court Tschannett [2006] - annulled by the State Court [2007]); Case Nguyen pending before the EFTA Court (reference by the Oslo City Court). C. EC Constitutional Principles
IV. Conclusions
Protection of individual rights in both EEA pillars essentially equal
ECJ never made reference to Opinion 1/91 in an EEA law context
No big difference between the EC Treaty and the EEA Agreement with regard to effect and primacy
No application of the interpretation rules of the Vienna Convention
Judicial dialogue (roughly 50 cases in particular in the fields of free movement of goods, State monopolies, labour law, TV without frontiers, insurance law, IP law, food law, State aid law, competition law, free movement of services and freedom of establishment, tax law and free movement of capital) D. Case studies on judicial Dialogue with the Community courts
I. The precautionary principle in foodstuff law
ECJ Sandoz (1983); EFTA Court Kellogg's (2001);
CFI Pfizer Animal Health and Allpharma (2003): references to EFTA Court Kellogg’s;
ECJ Monsanto (2003); ECJ Commission v Denmark (2003): references to EFTA Court Kellogg’s; D. Case studies on judicial Dialogue with the Community courts
I. The precautionary principle in foodstuff law
ECJ Commission v Netherlands (2004): reference to EFTA Court Kellogg’s;
ECJ Bellio Fratelli (2004): references to EFTA Court Kellogg’s;
EFTA Court Pedicel (2005): references to the existing ECJ and CFI and EFTA Court case law D. Case studies on judicial dialogue with the Community courts
II. Repackager of pharmaceuticals adding his own design under the Trademark Directive D. Case studies on judicial dialogue with the Community courts
II. Repackager of pharmaceuticals adding his own design under the Trademark Directive
ECJ Bristol Myers Squibb (1996)
EFTA Court Paranova (2003) (reference from the Supreme Court of Norway)
Request for a preliminary ruling of the ECJ in Boehringer Ingelheim II by the England and Wales Court of Appeal (2004): Reference to EFTA Court Paranova D. Case studies on judicial dialogue with the Community courts
II. Repackager of pharmaceuticals adding his own design under the Trademark Directive
Advocate-General Sharpston in Boehringer Ingelheim II (2006): Suggestion that the ECJ follow EFTA Court Paranova
ECJ Boeringer Ingelheim II follows EFTA Court Paranova (2007)
German Supreme Court follows ECJ Boehringer Ingelheim II and EFTA Court Paranova (2007) D. Case studies on judicial dialogue with the Community courts
III. Discriminatory taxation of dividends
ECJ Manninen (2004): Inbound dividends EFTA Court Fokus Bank (2004): Outbound dividends
Advocate-General Geelhoed Test Claimants IV (2006) and Denkavit (2006): Outbound dividends; suggestion that the ECJ does not follow EFTA Court Fokus Bank
ECJ Test Claimants IV, Denkavit, Amurta (2007): Slightly different result than EFTA Court Fokus Bank, no reference D. Case studies on judicial dialogue with the Community courts
IV. Free movement of capital and freedom to provide services
EFTA Court Íslandsbanki (2000): Free movement of capital and free movement of services: Center of gravity test
ECJ Fidium Finanz AG (2006): Free movement of capital and free movement of services: Center of gravity test, reference to EFTA Court Íslandsbanki, but different outcome E. Conclusions
I. EEA Agreement works smoothly on the judicial level; EFTA Court case law is based on ECJ case law
II. EFTA Court is not overburdened, but often faces fresh legal questions
III. Homogeneity is no one way street
IV. EFTA Court gives input to ECJ/CFI case law
V. Reciprocity expectations have largely been fulfilled