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To Read the Report of the EFTA Court 2020 REPORT OF THE EFTA COURT 2020 eftacourt.int Reproduction is authorised, provided that the source REPORT is acknowledged. The recommended mode of citation of the EFTA Court’s case law is either of the following: – Casenumber,namesoftheparties(option1). – Casenumber,dateofthejudgment,namesofthe OF THE parties(option2). EFTA Court 1rueduFortThüngen EFTA COURT L-1499Luxembourg www.eftacourt.int 2020 Concept and Design by Imprimerie Centrale, Luxembourg Printed by Imprimerie Centrale, Luxembourg 4 | Foreword Foreword | 5 Theyear2020willberememberedfortheCOVID-19pandemic,whichhas hadamajorimpactallovertheplanet.TheoperationsoftheEFTACourt were no exception, as we had to close the premises when Luxembourg enteredintolockdowninMarch2020.Fortunately,theCourtwasableto continue to function close to normal and we have continued to deliver judgmentsthroughoutthepandemic.Afewdaysbeforethelockdown was announced, we were able to hold two oral hearings at the Court. Subsequently, the pandemic required us to organise hearings via video conference, which, thanks to the effort and dedication of our staff, were successful.In2020weorganisednineoralhearingsinsuchamanner andmorearescheduledforearly2021.Toensuretheaccessibilityand transparency of the hearings, they have been streamed live on the Court’s website. I would like to take this opportunity to express my gratitude to everyone who participated in the hearings, and to those who helped make them possible. LastyearsawseveralnoteworthyjudgmentsfromtheEFTACourt. I would,inparticular,liketohighlightthatinCampbell, following questions from the Supreme Court of Norway, the Court concluded that the EEAlegalcontexthadnotchangedsinceour2016judgmentinJabbi. Therefore,theCourtconfirmedourconclusionthatArticle7ofthe 6 | Foreword Foreword | 7 Directive2004/38/ECshouldbeinterpretedasalsoimposingobligations the results of transactions and their effects, and accordingly that real on the home State. In Scanteam the Court declined the invitation from transactions could come therewithin. the Norwegian Government to conclude that the Norwegian Complaints In other developments, the Grand Chamber of the Court of Justice of BoardforPublicProcurementdidnotfulfiltherequirementstobe the European Union dealt with the interpretation of the EEA Agreement considereda“court”forthepurposesofArticle34oftheSurveillance initsjudgmentinIN(C-897/19).TheCourtofJusticeheldthatanational and Court Agreement. In reaching that conclusion, we took note of the of an EEA EFTA State, which also implements and applies the Schengen constitutional traditions of the EFTA States and the important role bodies acquis,isinasituationobjectivelycomparablewiththatofanEUcitizen such as the Complaints Board play in the application of EEA law. towhom,inaccordancewithArticle3(2)TEU,theUnionoffersanarea Upon a request from the Liechtenstein Board of Appeal for Administrative offreedom,securityandjusticewithoutinternalfrontiers,inwhichthe Matters,theCourthandeddownitsfirstjudgmentontheinterpretationof free movement of persons is ensured. theGeneralDataProtectionRegulation(GDPR).Thequestionsreferred, Lastyear,theCourtregistered17newcasesofwhich2weredirect concerned anonymisation in an adversarial general procedure to hear actionsand15wererequestsforanadvisoryopinion.Oneofthedirect a complaintundertheGDPR,andfurthernationalappellateproceedings, actionsisacasebroughtbyTelenoragainstESA’sdecisiontofinethe aswellastheextentoftherequirementundertheGDPRthatcomplaints company112millionEURforabreachofthecompetitionrulesofthe should be free of charge. EEA Agreement. This case is undoubtedly one of the largest and most InthefirstcriminalcasereferredtotheEFTACourtfromNorway, complex cases ever brought before the Court, as evidenced by the fact Borgarting Court of Appeal sought advice on the interpretation of what thatthechallengeddecisionrunstowellover300pages.Threeofthe constitutes market manipulation. We held that the assessment of requests for an advisory opinion concern the legal implications of the theconceptmustbebasedonobjectivefactorsandconsiderationof so-calledNAVcase,whichhasgeneratedconsiderablemediaattention 8 | Foreword Contents | 9 Contents inNorway.Inthefirstofthesecases,theSupremeCourtofNorway FOREWORD 5 posedanunprecedentednumberofquestions(16)totheEFTACourt. CASESUMMARIES 11 Theothertwoareontheexportabilityofunemploymentbenefits. Case E-5/19,CriminalProceedingsagainstFandG 12 As regards our cooperation with national courts, I would like to note Case E-3/19,GableInsuranceAGinKonkurs 16 that in the last two years the Supreme Court of Norway has referred Case E-6/19,CriminalproceedingsagainstHandI 19 4 casestotheEFTACourt,whichisamostwelcomedevelopment.As Case E-4/19, Campbell v The Norwegian Government, represented by the always, the Liechtenstein courts have been very active in asking for ImmigrationAppealsBoard(Utlendingsnemnda–UNE) 21 advisory opinions. Last year, I observed that the requests received from Case E-7/19, Tak-Malbik ehf. v The Icelandic Road and theIcelandicPublicProcurementComplaintsCommitteewerethefirst CoastalAdministrationandÞrótturehf. 23 requests received from Iceland in two and a half years, which I noted Case E-8/19, Scanteam AS v The Norwegian Government, representedbytheMinistryofForeignAffairs 26 wasacauseforconcern.Inthesecondhalfof2020,wereceivedtwo Case E-6/20,PintailAGvFinanzmarktaufsicht 29 newrequestsfromtheReykjavíkDistrictCourt,whichIsincerelyhope Case E-9/19,AbeliaandWTWASvEFTASurveillanceAuthority 31 is the beginning of a positive trend in that respect. Joined Cases E-11/19 and E-12/19, Adpublisher AG v J and Adpublisher AG v K 33 Páll Hreinsson Case E-13/19, Hraðbraut ehf. v mennta- og menningarmálaráðuneytið, President VerzlunarskóliÍslandsses.,Tækniskólinnehf.,andMenntaskóliBorgarfjarðarehf. 36 Case E-10/19,BergbahnAktiengesellschaftKitzbühelvMeledaAnstalt 39 NEWSANDEVENTS 43 JUDGESANDSTAFF 49 10 | Case Summaries Case Summaries | 11 2020 Case Summaries 12 | Case Summaries Case Summaries | 13 Criminal Proceedings against F and G Case E-5/19 (Directive 2003/6/EC – Market manipulation charges against F and G for allegedly – Harmonisation – Real transactions – False manipulating the bond market on the and misleading signals – Securing the price Oslo Stock Exchange (Oslo børs). at an abnormal or artificial level – Legitimate F was an advisor and manager of a reasons – Dissemination of information) bond fund and G was a bond broker in a brokerage firm. It remained undis- Judgment of the Court puted that the transactions in question of 4 February 2020 were real in the sense that they trans- ferred expense and risk with full effect The case concerned a request from between independent parties. Oslo the Borgarting Court of Appeal (Bor- DistrictCourtacquittedbothFandG. garting lagmannsrett) for an advisory opinion concerning the interpretation The Borgarting Court of Appeal referred of the definition of market manipula- five questions to the Court which tionaccordingtoDirective2003/6/EC sought to clarify the interpretation of on insider dealing and market manipu- the concept of market manipulation, as lation(marketabuse)(“theDirective”). definedinArticle1(2)oftheDirective. ØKOKRIM appealed against the Oslo The Court held that as real transac- District Court’s judgment on criminal tions may be capable of giving false or 14 | Case Summaries Case Summaries | 15 misleading signals to the supply of, traded in an auction mechanism, but exist.Aninvestormaybenefitfromthe Directivetoconsiderinformationtobe demandfor,orpriceoffinancialinstru- that has come into being through direct defence in the second subparagraph of disseminated, in the case that an ments, they are not excluded from the negotiations between two of several Article1(2)(a)oftheDirectiveprovided investor has given information regard- scopeofthefirstindentofArticle1(2) brokerage houses. It was for the refer- that the condition of a legitimate rea- ing a potential transaction to a broker (a)oftheDirective.Theassessmentof ring court to determine whether the son and the transaction’s conformity in order for it to be passed on to one or false or misleading signals must be price has been secured. Factors for the with an accepted market practice is more other investors in the market, or basedonobjectivefactorsandconsid- court to take into account included the fulfilled. the broker actually has passed on such eration of the results of transactions nature and type of the market in ques- information. « and their effects. In examining whether tion,thetypeandpricingofthefinan- The Court further held that it is not a transaction conveys false or mislead- cial instrument traded on the market, compatible with Article 1(2)(c) of the eftacourt.int/cases/e-05-19/ ing signals, the real interest in buying whether the market and the relevant and selling the security in question, financialinstrumentischaracterisedby whilenotbyitselfanecessaryorsuffi- low liquidity in trading, and the informa- cientelementinfindingmarketmanip- tion available to market participants, ulation,maysupportafindingofsuch including the means by which informa- objectivefactors. tion on trades is made available. It was for the national court to assess, in light The Court held that the determination of the investor’s behaviour as a whole, of an “abnormal” or “artificial” price the legitimate reasons within the mean- within the meaning of the second ing of the second subparagraph of Art- indentofArticle1(2)(a)oftheDirective icle1(2)(a)oftheDirective.Legitimate may be established on the basis of an reasons include
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