Prof. Dr. President of the EFTA Court

The contribution of the EFTA Court to the establishment of a homogeneous and dynamic

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 [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 [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]; 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 )

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