REPORT OF THE EFTA COURT 2019

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: – Case number, names of the parties (option 1). – Case number, date of the judgment, names of the OF THE parties (option 2).

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Looking back on the year 2019, it has been a successful one for the Court and the EEA Agreement as a whole. I am pleased to observe that we witnessed an increase in the caseload of the Court, with 13 new cases being registered, of which 12 were requests for an advisory opinion. Of these cases, five stem from quasi-judicial and administrative bodies outside the regular Court system. This represents an interesting development, which I believe is reflective of the important role these bodies play in the application of EEA law in the EFTA States. We also witnessed first requests from both the Icelandic and Norwegian Public Procurement Complaints Boards.

The request from the Icelandic Tribunal was the first request for an advisory opinion received from in well over two years, and it is now more than two-and-a-half years since a request has been received from an Icelandic court. This represents a considerable cause for concern, and we can only hope that this tendency will not continue for much longer.

As regards judgments handed down in 2019, Fosen-Linjen II is the most noteworthy. The Norwegian decided to request a second advisory opinion from the EFTA Court, seeking clarification concerning 6 | Foreword Foreword | 7

the applicable standard of liability for the “positive contract interest” (loss thus fell outside its scope. Accordingly, the Court’s conclusion was that of profits). The EFTA Court found that “Article 2(1)(c) of the Remedies was not in breach of the Directive. Directive does not require that any breach of the rules governing public Turning to the cases that are presently pending, I am pleased to see that procurement in itself is sufficient to award damages for the loss of profit we have already received the first questions concerning the interpretation to persons harmed by an infringement of EEA public procurement rules”. of the General Data Protection Regulation, probably the most significant Another significant judgment was rendered in the case of D and E, E-2/19. piece of legislation recently incorporated into the EEA Agreement. This case concerned the relationship between the Residence Directive and the sectoral adaptations applicable to in the field of free In other developments, the European Court of Human Rights dismissed a movement of persons, which are of great importance to Liechtenstein. case against Norway, in its Decision in Application no. 47341/15, in which The conclusion was that the sectoral adaptations could not have the the applicant alleged that the EFTA Court declaring his challenge against effect of depriving EEA nationals, to whom Liechtenstein has a granted ESA’s decision inadmissible, amounted to an infringement of his right to a residence permit, of rights provided for under the Directive even if a fair trial. The Court of Human Rights noted, in particular, that the EFTA that permit was granted without Liechtenstein being under an EEA law Court was set up to operate as a judicial body similar to the CJEU, with obligation to grant it. the same essential procedural principles. The alleged violation could, therefore, not be attributed to structural shortcomings of the EFTA Court Lastly, in the so-called parental benefits case, E-1/18, the Court dismissed regime. Furthermore, the Court of Human Rights noted that the application the EFTA Surveillance Authority’s (ESA) plea that held that the parental in the case did not disclose any appearance of manifest deficiencies in benefit scheme established by the Norwegian National Insurance Act the protection of the applicant’s Convention rights. was in breach of the Equal Treatment Directive. The Court held that the scheme did not concern “employment and working conditions” within The EEA Agreement celebrated its 25th anniversary last year. Amongst the meaning of Article 14(1)(c) of the Equal Treatment Directive, and the events held to celebrate this important milestone in the life of the 8 | Foreword Contents | 9 Contents

EEA was an anniversary conference held jointly by the Court and the FOREWORD 5 EFTA Surveillance Authority in Brussels last spring. The conference CASE SUMMARIES 11 was a great success, with over 300 people in attendance and a host of distinguished speakers. Case E-2/18, C v Concordia Schweizerische Kranken- und Unfallversicherung AG, Landesvertung Liechtenstein 12 An occasion such as this anniversary represents a good opportunity Case E-3/18, EFTA Surveillance Authority v Iceland 15 to reflect upon the future as well as the past. I am an optimist when Case E-4/18, EFTA Surveillance Authority v Iceland 17 it comes to the future of EEA law. The reason is that I see a clear Case E-5/18, EFTA Surveillance Authority v Iceland 19 willingness on the part of the EFTA States to make it work. They have Case E-6/18, EFTA Surveillance Authority v Iceland 21 shown themselves to be responsible and solution oriented with regard Case E-1/17 COSTS, Nettbuss AS v Konkurrenten.no AS 24 to the incorporation of legal acts in the Agreement, and when it comes Case E-1/17 COSTS II, The County of Aust-Agder v Konkurrenten.no AS 27 to the subsequent implementation in the national legal systems, the Case E-7/18, Fosen-Linjen AS v AtB AS 30 findings of ESA’s last Internal Market Scoreboard showed that the EFTA Case E-2/19, D and E 34 States have all improved upon their performance in transposing EEA Case E-1/18, EFTA Surveillance Authority v The Kingdom of Norway 37 directives into national law. The contribution of national judges should Case E-1/19, Andreas Gyrre v The Norwegian Government, also be acknowledged, as their awareness and dedication to their role represented by the Ministry of Children and Equality 40 as EEA law judges is instrumental in the effectiveness of the Agreement.

I would like to end with these words, which I believe both aptly describe NEWS AND EVENTS 45 the past of the EEA and which should also guide us for the future. JUDGES AND STAFF 53 Páll Hreinsson President 10 | Case Summaries Case Summaries | 11

2019

Case Summaries 12 | Case Summaries Case Summaries | 13

C –– V –– Concordia Schweizerische Kranken- und Unfall- versicherung AG, Case E-2/18 Landesvertung

Liechtenstein (Regulation (EC) No 883/2004 – but resides in another EEA State, Article 24 – Pensioner residing outside where the State of residence has competent State – Benefits in kind in the refused benefits in kind to the pen- place of residence – Reimbursement sioner because those benefits fall out- procedure) side the scope of its social security system. Judgment of the Court of 14 May 2019 The Court held that when a pensioner is not entitled to benefits in kind in the The Princely Court of Liechtenstein EEA State of residence, because the (Fürstliches Landgericht) referred benefits fall outside the scope of its questions to the Court which sought to social security system, the pensioner clarify the interpretation of Regulation is entitled, pursuant to Article 24(1) of (EC) 883/2004 (the Regulation) of the the Regulation, to receive the benefits European Parliament. The Princely in kind provided at the expense of the Court questioned whether Article 24 of institutions referred to in Article 24(2) the Regulation provides a mandatory of the Regulation. This means that procedure for the provision of benefits when a pensioner is entitled to bene- in kind to an insured pensioner who fits in kind under the legislation of a receives a pension from one EEA State single EEA State, the cost shall be 14 | Case Summaries Case Summaries | 15 EFTA Surveillance borne by the competent institution of the State of residence. The Court also Authority that EEA State, in accordance with the held on the basis of both the Imple- reimbursement procedure set out in menting Regulation and the Regulation –– V –– Article 35 of the Regulation and Regu- that if the competent institution does lation (EC) No 987/2009. not provide the pensioner with infor- mation as to the reimbursement pro- Iceland For pensioners to be permitted to cedure to be followed, that must not make a claim directly to the competent adversely affect the pensioner’s rights institution in the EEA State under vis-à-vis the institution. whose legislation the pension is paid, they must be able to demonstrate that It would be contrary to the purpose of they are not entitled to receive the ben- protecting people residing in an EEA Case E-3/18 efits from the State of residence, in State other than the competent EEA accordance with Article 24(1) of the State, to prohibit an EEA State from Regulation. Moreover, in accordance granting better protection than that (Failure by a Member State to fulfil its the modalities of the electronic com- with Article 76 of the Regulation, the arising from the application of Article obligations – Failure to implement – plaint form and on the modalities of pensioner has a right to submit claims 24, which applies to situations where Regulation (EU) 2015/1051) the cooperation between contact for reimbursement directly to the com- the pensioner is not entitled to benefits points provided for in Regulation (EU) petent institution in the EEA State in kind under the legislation of the EEA Judgment of the Court No 524/20143 of the European Parlia- under whose legislation the pension is State of residence. « of 14 May 2019 ment and of the Council on online dis- paid, in particular, but not only, if they pute resolution for consumer dis- have been refused reimbursement by eftacourt.int/cases/e-02-18/ The EFTA Surveillance Authority initi- putes), as adapted to the Agreement ated proceedings against Iceland for under its Protocol 1, and under Arti- failing to fulfil its obligations under the cle 7 EEA, by failing to adopt the meas- Act referred to at point 7ja of Annex ures necessary to implement the Act XIX to the EEA Agreement (Commis- within the time prescribed. sion Implementing Regulation (EU) 2015/1051 of 1 July 2015 on the Article 3 EEA imposes upon the EFTA modalities for the exercise of the States the general obligation to take all online dispute resolution platform, on appropriate measures, whether gen- 16 | Case Summaries XXX | 17 EFTA Surveillance eral or particular, to ensure fulfilment The question whether an EFTA State Authority of the obligations arising out of the has failed to fulfil its obligations must EEA Agreement. Under Article 7 EEA, be determined by reference to the situ- –– V –– the EFTA States are obliged to imple- ation as it stood at the end of the ment all acts referred to in the Annexes period laid down in the reasoned opin- to the EEA Agreement, as amended by ion. Thus it was ruled that Iceland Iceland decisions of the EEA Joint Committee. failed to implement the Regulation in The lack of direct legal effect of those the time prescribed. « acts makes timely implementation cru- cial for the proper functioning of the EEA Agreement. eftacourt.int/cases/e-03-18/ Case E-4/18

(Failure by a Member State to fulfil its Directive 2009/22/EC (Regulation on obligations – Failure to implement – consumer ODR), as adapted to the Regulation (EU) No 524/2013) Agreement under its Protocol 1, and under Article 7 EEA, by failing to adopt Judgment of the Court the measures necessary to implement of 14 May 2019 the Act within the time prescribed.

The EFTA Surveillance Authority initi- Article 3 EEA imposes upon the EFTA ated proceedings against Iceland for States the general obligation to take all failing to fulfil its obligations under Act appropriate measures, whether gen- referred to at point 7d, 7f and 7j of eral or particular, to ensure fulfilment Annex XIX to the EEA Agreement (Reg- of the obligations arising out of the ulation (EU) 524/2013 of the European EEA Agreement. Under Article 7 EEA, Parliament and of the Council of 21 the EFTA States are obliged to imple- May 2013 on online dispute resolution ment all acts referred to in the Annexes for consumer disputes and amending to the EEA Agreement, as amended by Regulation (EC) No 2006/2004 and decisions of the EEA Joint Committee. 18 | Case Summaries Case Summaries | 19 EFTA Surveillance The lack of direct legal effect of those ­situation as it stood at the end of the Authority acts makes timely implementation cru- period laid down in the reasoned opin- cial for the proper functioning of the ion. Thus it was ruled that Iceland –– V –– EEA Agreement. failed to implement the Regulation in the time prescribed. « The question whether an EFTA State Iceland has failed to fulfil its obligations must be determined by reference to the eftacourt.int/cases/e-04-18/

Case E-5/18

(Failure by a Member State to fulfil its 2009/22 (EC)) as adapted to the Agree- obligations – Failure to implement – Directive ment under its Protocol 1, and under 2013/11/EU) Article 7 EEA, by failing to adopt the measures necessary to implement the Judgment of the Court Act within the time prescribed, or in any of 14 May 2019 event, by failing to inform the EFTA Sur- veillance Authority thereof. The EFTA Surveillance Authority initi- ated proceedings against Iceland for Article 3 EEA imposes upon the EFTA failing to fulfil its obligations under Act States the general obligation to take all referred to at point 7d, 7f and 7k of appropriate measures, whether gen- Annex XIX to the EEA Agreement (Direc- eral or particular, to ensure fulfilment tive 2013/11/EU of the European Parlia- of the obligations arising out of the ment and of the Council of 21 May 2013 EEA Agreement. Under Article 7 EEA, on alternative dispute resolution for con- the EFTA States are obliged to imple- sumer disputes and amending Regula- ment all acts referred to in the Annexes tion (EC) No 2006/2004 and Directive to the EEA Agreement, as amended by 20 | Case Summaries Case Summaries | 21 EFTA Surveillance Authority –– V –– Iceland

Case E-6/18

(Failure by a Member State to fulfil its the environment), as adapted to the obligations – Failure to implement – Agreement under its Protocol 1, and Directive 2014/52/EU) under Article 7 EEA, by failing to adopt the measures necessary to implement Judgment of the Court the Act within the time prescribed, or of 14 May 2019 in any event, by failing to inform the EFTA Surveillance Authority thereof. The EFTA Surveillance Authority initi- ated proceedings against Iceland for Article 3 EEA imposes upon the EFTA decisions of the EEA Joint Committee. be determined by reference to the situ- failing to fulfil its obligations under Act States the general obligation to take all The lack of direct legal effect of those ation as it stood at the end of the referred to at point 1a of Annex XX to appropriate measures, whether gen- acts makes timely implementation cru- period laid down in the reasoned opin- the EEA Agreement (Directive eral or particular, to ensure fulfilment cial for the proper functioning of the ion. Thus it was ruled that Iceland 2014/52/EU of the European Parlia- of the obligations arising out of the EEA Agreement. failed to implement the Regulation in ment and of the Council of 16 April EEA Agreement. Under Article 7 EEA, the time prescribed. « 2014 amending Directive 2011/92/EU the EFTA States are obliged to imple- The question whether an EFTA State on the assessment of the effects of ment all acts referred to in the Annexes has failed to fulfil its obligations must eftacourt.int/cases/e-05-18/ certain public and private projects on to the EEA Agreement, as amended by 22 | Case Summaries Case Summaries | 23

decisions of the EEA Joint Committee. be determined by reference to the situ- The lack of direct legal effect of those ation as it stood at the end of the acts makes timely implementation cru- period laid down in the reasoned opin- cial for the proper functioning of the ion. Thus it was ruled that Iceland EEA Agreement. failed to fulfil its obligations under Act referred to at point. « The question whether an EFTA State has failed to fulfil its obligations must eftacourt.int/cases/e-06-18/ 24 | Case Summaries Case Summaries | 25 Nettbuss AS –– V –– Konkurrenten.no AS

Case E-1/17 COSTS

(Taxation of costs – Recoverable costs – ­dispute concerning the costs to be recov- the services of more than one lawyer, to There are no further requirements as to Default interest) ered, the Court shall, on application by the extent that this results in duplication the manner in which the evidence shall the party concerned and after hearing of work and thus higher legal fees in be presented. In particular, there are no Order of the Court the opposite party, make an order. total, those extra costs are not recover­ conditions for when the account of the of 26 July 2019 able, since they cannot be considered hours should have been drafted. Expenses necessarily incurred by the necessarily incurred for the purpose of The case concerned an application for the parties for the purpose of the proceed- the proceedings. The Court found that the evidence taxation of costs awarded by the Court to ings, including the remuneration of law- submitted by Nettbuss in the case Nettbuss AS (“Nettbuss”) in its order of yers, shall be regarded as costs which The costs claimed must be substanti- was, in principle, sufficient to substan- 22 December 2017 in Case E-1/17 Konkur- are recoverable from the party ordered ated by evidence that is sufficiently pre- tiate the cost claims made and lacked renten.no v EFTA Surveillance Authority, to pay the costs, pursuant to Article 69(b) cise and detailed so as to enable an neither such an appropriate level of where Konkurrenten.no's application for RoP. Thus, recoverable costs are limited, assessment by the Court. The only detail nor such a level of precision the annulment of a decision by ESA was first, to those incurred for the purpose of requirement in that regard is that the which would prevent the Court from dismissed as inadmissible. the proceedings before the Court and, evidence presented must substantiate carrying out its assessment. second, to those which are necessary for the claims made by an applicant and be Article 70(1) of the Court's Rules of that purpose. While a party to a case sufficiently precise and detailed so as When taxing recoverable costs, the ­Procedure provides that if there is a before the Court is free to make use of to enable an assessment by the Court. Court, in the absence of EEA provisions 26 | Case Summaries The CountyCase Summaries of | 27 Aust-Agder laying down fee scales, makes an Having regard to the fact that both par- unfettered assessment of the facts of ties to the case were Norwegian com- –– V –– the case, taking into account the pur- panies, the Court saw no need to con- pose and nature of the proceedings; vert the costs claimed to euro, Konkurrenten.no AS their significance from the point of pursuant to Article 71 RoP. view of EEA law as well as the difficul- ties presented by the case; the amount Under Article 70(1) RoP, the obligation of work generated by the proceedings to pay default interest and the fixing of for the lawyers involved; and the finan- the applicable rate fall within the juris- cial interests which the parties had in diction of the Court. As Nettbuss had the proceedings. claimed default interest, default inter- est could be granted for the period As to the hourly rate claimed by between the date of notification of the Nettbuss, the Court found that the order of taxation of costs and the date Case E-1/17 COSTS II claimed hourly rate, which presup- of actual recovery of the costs. The posed that the work was carried out by Court found that the applicable rate of an experienced lawyer in the relevant default interest should be calculated (Taxation of costs – Recoverable costs – Article 70(1) of the Court's Rules of field, was justified. The fact that remu- on the basis of the Norwegian Central Default interest) Procedure provides that if there is a neration at this rate was taken into Bank's policy rate in force on the first dispute concerning the costs to be account required a strict assessment calendar day of the month in which Order of the Court recovered, the Court shall, on applica- of the total number of hours' work payment was due, increased by three of 26 July 2019 tion by the party concerned and after essential for the purposes of the pro- and a half percentage points. « hearing the opposite party, make an ceedings. Having regard to the hourly The case concerned an application for order. rate and the various stages of the pro- the taxation of costs awarded by the ceedings in the case, the Court found Court to the County of Aust-Agder Expenses necessarily incurred by the that the claimed total of hours was ("the County") in its order of 22 Decem- parties for the purpose of the proceed- somewhat excessive and, accordingly, ber 2017 in Case E-1/17 Konkurrenten. ings, including the remuneration of lowered the amount. eftacourt.int/cases/e-01-17-costs/ no v EFTA Surveillance Authority, where lawyers, shall be regarded as costs Konkurrenten.no's application for the which are recoverable from the party annulment of a decision by ESA was ordered to pay the costs, pursuant to dismissed as inadmissible. Article 69(b) RoP. Thus, recoverable 28 | Case Summaries Case Summaries | 29

costs are limited, first, to those When taxing recoverable costs, the hours claimed was excessive in view Under Article 70(1) RoP, the obligation incurred for the purpose of the pro- Court, in the absence of EEA provi- of the limited scope of the proceed- to pay default interest and the fixing of ceedings before the Court and, sec- sions laying down fee scales, makes ings. The Court noted that a reasona- the applicable rate fall within the juris- ond, to those which are necessary for an unfettered assessment of the facts ble number of hours indicated in the diction of the Court. As the County had that purpose. While a party to a case of the case, taking into account the invoices were listed as being for the claimed default interest, default inter- before the Court is free to make use of purpose and nature of the proceed- purpose of discussions amongst the est could be granted for the period the services of more than one lawyer, ings; their significance from the point County's counsel. In light of these fac- between the date of notification of the to the extent that this results in dupli- of view of EEA law as well as the diffi- tors, the Court lowered the amount of order of taxation of costs and the date cation of work and thus higher legal culties presented by the case; the hours that could be claimed as it con- of actual recovery of the costs. The fees in total, those extra costs are not amount of work generated by the pro- sidered that not all of the hours could Court found that the applicable rate of recoverable, since they cannot be con- ceedings for the lawyers involved; and be deemed necessary for the purpose default interest should be calculated sidered necessarily incurred for the the financial interests which the par- of the proceedings in Case E-1/17. on the basis of the Norwegian Central purpose of the proceedings. ties had in the proceedings. Bank's policy rate in force on the first Having regard to the fact that both par- calendar day of the month in which The costs claimed must be substanti- As to the hourly rate claimed by the ties to the case were Norwegian com- payment was due, increased by three ated by evidence that is sufficiently pre- County, the Court noted that Konkur- panies, the Court saw no need to con- and a half percentage points. « cise and detailed so as to enable an renten.no had accepted that the recov- vert the costs claimed to euro, assessment by the Court. The County erable lawyers' fees in the case could pursuant to Article 71 RoP. eftacourt.int/cases/e-01-17-costs-2/ provided partially redacted invoices of reasonably be assessed on the basis the law firm that represented it. Those of the hourly rate claimed by the invoices set out an overview of the County. Taking into account that Arti- hours worked at the different stages of cle 66(5) RoP provides that a decision the proceedings, and of the hourly rate on costs shall be in accordance with charged by counsel. The Court found the agreements of the parties, where that the evidence submitted by the the parties come to such an agree- County in the case was, in principle, suf- ment, the Court considered it equitable ficient to substantiate the cost claims to accept the hourly rate in question made and lacked neither such an appro- for the purposes of the case. priate level of detail nor such a level of precision which would prevent the Court Having regard to the facts of the case, from carrying out its assessment. the Court found that the number of 30 | Case Summaries Case Summaries | 31 Fosen-Linjen AS –– V –– AtB AS Case E-7/18

(Public procurement – Directive 89/665/EEC – made in a tender procedure. The dis- Claim for compensation for the loss of profit – pute in the case had already been sub- Gravity of the breach – Principles of equivalence ject to a request for an advisory opinion and effectiveness) to the Court in Case E-16/16 Fosen-­ Linjen AS v AtB AS ("Fosen-Linjen I"). Judgment of the Court of 1 August 2019 In its request for an advisory opinion, citing the importance of dialogue The case concerned a request from the between the EFTA Court and national Supreme Court of Norway (Norges courts, the Supreme Court of Norway Høyesterett) for an advisory opinion sought a clarification of the Court's concerning the interpretation of Council judgment in Fosen-Linjen I. Directive 89/665/EEC ("the Remedies Directive"). The case before the referring As to the admissibility of the request court concerned an appeal against a for an advisory opinion, the Court judgment of the Court of recalled that Article 34 SCA estab- Appeal (Frostating lagmannsrett), which lishes a special means of judicial coop- dealt with a claim for damages brought eration between the Court and national by Fosen-Linjen against AtB for errors courts with the aim of providing 32 | Case Summaries Case Summaries | 33

national courts with the necessary As it was evident that the Supreme effectiveness of Article 2(1)(c) of the be relevant in the assessment of interpretation of elements of EEA law Court of Norway was not seeking to Remedies Directive, a person harmed whether a particular breach is suffi- to decide the cases before them. contest the validity of Fosen-Linjen I, by an infringement of public procure- ciently serious. However, the obligation Under this system of cooperation, but merely seeking clarification as to ment law should, in principle, be able to to make reparation for loss or damage which is intended as a means of ensur- whether Article 2(1)(c) of the Remedies seek compensation for loss of profit. caused to individuals cannot depend ing homogenous interpretation of the Directive required that any breach of on a condition based on any concept EEA Agreement, a national court or tri- the rules governing public procure- The Court noted that the standard of of fault going beyond that of a suffi- bunal is entitled to request the Court to ment in itself was sufficient for there to liability is not harmonised by the Reme- ciently serious breach of EEA law. give an advisory opinion on the inter- be a basis of liability for a head of dam- dies Directive. However, according to Accordingly, the Court considered that pretation of the EEA Agreement. The age which concerned the "positive the principle of State liability, an EEA the requirement of a sufficiently seri- Court therefore emphasised that it is contract interest", the Court found that State may be held responsible for ous breach as a minimum standard is important that questions on the inter- the request was admissible. breaches of its obligations under EEA sufficient for the purposes of safe- pretation of the EEA Agreement are law when three conditions are met: guarding the rights of individuals, since referred to the Court under the proce- As to the substance of the case, the firstly, the rule of law infringed must be it is the threshold applied for the award dure provided for in Article 34 SCA if Court recalled that, in the absence of intended to confer rights on individuals of damages for injuries caused by fail- the legal situation lacks clarity. EEA rules governing the matter, it is for and economic operators; secondly, the ure to act on the part of the EEA the legal order of each EEA State, in breach must be sufficiently serious; States, and where it is the result of the The Court found that, pursuant to Arti- accordance with the principle of the and, thirdly, there must be a direct adoption of a legislative or administra- cle 34 SCA, a further request in the procedural autonomy of the EEA causal link between the breach of the tive act in breach of EEA law. same case may be justified, inter alia, States, to determine the criteria on the obligation resting on the state and the when the national court encounters basis of which harm caused by an damage sustained by the injured party. The Court therefore found that the difficulties in understanding or apply- infringement of EEA law in the award of answer to the question referred must ing the judgment, when it refers a fresh public contracts must be assessed. As Further, the Court held that compli- be that Article 2(1)(c) of the Remedies question of law, or when it submits such, EEA States enjoy discretion in ance with the principle of effectiveness Directive does not require that any new considerations which might lead determining the criteria on the basis of requires, in particular, that national breach of the rules governing public to a different answer to a question which damage for loss of profit arising rules cannot subject the award of procurement in itself is sufficient to submitted earlier. However, the Court from an infringement of EEA law on the damages to a finding and proof of fault award damages for the loss of profit to noted that it is not permissible to use award of public contracts is determined or fraud. This does not mean that cer- persons harmed by an infringement of the right to refer questions as a means and estimated, provided that the princi- tain objective and subjective factors EEA public procurement rules. « of contesting the validity of an earlier ples of equivalence and effectiveness connected with the concept of fault judgment. are respected. In order to ensure the under a national legal system cannot eftacourt.int/cases/e-07-18/ 34 | Case Summaries Case Summaries | 35

D and E

Case E-2/19

(Free movement of persons – Sectoral also an EEA national, join her in In its findings, the Court recalled that EEA Joint Committee and made indef- adaptations for Liechtenstein – Right of ­Liechtenstein within the framework of due to its specific geographical situa- inite by the 2004 EEA Enlargement residence – Derived right of residence for family reunification had been rejected tion, under the sectoral adaptations to Agreement, subject only to a review family members – Directive 2004/38/EC) by the Liechtenstein authorities. Annexes V and VIII to the EEA Agree- every five years. ment, Liechtenstein is entitled to main- Judgment of the Court It was not disputed in the case that D tain a system of prior authorisation for It was undisputed between the parties of 13 November 2019 was an EEA national that satisfied the the taking up of residence in Liechten- to the proceedings that D was not sub- conditions in Article 7(1)(a) of Directive stein, as well as annual quantitative ject to the system established under The case concerned the right to family 2004/38/EC as a worker, and that she limits. This exemption was originally the sectoral adaptations, nor was the reunification under Directive 2004/38/EC was residing in Liechtenstein on the laid down in Protocol 15 to the EEA residence permit which was granted to (the Residence Directive) for D, an EEA basis of a valid residence permit. There- Agreement, which lapsed on 1 Janu- D counted towards the number of per- national, who had been granted a resi- fore, based on the wording of Directive ary 1998. The current exemption fol- mits available under that system. dence permit under national law in her 2004/38/EC alone, E would have a right lows from sectoral adaptations to capacity as the spouse of a third coun- of residence in Liechtenstein pursuant Annexes V and VIII to the EEA Agree- While Liechtenstein is not under any try national resident in Liechtenstein. A to Article 7(1)(d) of that directive in her ment, which were provisionally intro- obligation to grant a residence permit request by D to have her daughter E, capacity as D's family member. duced by Decision No 191/1999 of the to an EEA national outside of the 36 | Case Summaries EFTA SurveillanceCase Summaries | 37 Authority ­system provided for in the sectoral Accordingly, the Court held that the adaptations, the sectoral adaptations sectoral adaptations to Annexes V and –– V –– cannot be interpreted as precluding VIII to the EEA Agreement, in particular the EEA rights of EEA nationals to Point III thereof, do not deprive the whom Liechtenstein has granted resi- family member of an EEA national, The Kingdom dence permits on other grounds and who has a valid residence permit and who reside there. The Court found is residing in Liechtenstein, of the right of Norway that the sectoral adaptations cannot to accompany or join the EEA national serve as a basis for undermining in Liechtenstein on the basis of Article rights, which are granted to EEA 7(1)(d) of Directive 2004/38/EC, even nationals by virtue of EEA law and con- though the residence permit that the cern the exercise of their residence in EEA national in Liechtenstein holds is Case E-1/18 Liechtenstein. Accepting the use of the not granted on the basis of the system quantitative limit system to create two provided for in the sectoral adapta- separate classes of EEA nationals tions. « (Directive 2006/54/EC – employment and ily during periods of parental leave residing in Liechtenstein based on the working conditions – parental benefits) after the birth or adoption of a child. nature of their residence permits would This parental benefit scheme renders require a clear legal basis in the sec- Judgment of the Court a father’s entitlement to parental bene- toral adaptations, which is not present. eftacourt.int/cases/e-02-19/ of 13 December 2019 fits during a shared period of leave dependent on the mother’s situation, The EFTA Surveillance Authority whereas a mother’s entitlement to (“ESA”) sought a declaration that by parental benefits is not similarly maintaining in force provisions such dependent on the father’s situation. as Section 14-13, second and third par- agraphs, and Section 14-14, first para- A scheme of parental benefits may graph, of the Norwegian National come within the scope of the Equal Insurance Act, Norway had failed to Treatment Directive Article 14(1)(c) if fulfil its obligations under Article 14(1) its subject matter is employment and (c) of Directive 2006/54/EC (“Equal working conditions, including dismiss- Treatment Directive”).  These provi- als and pay. This is the case when the sions concern benefits granted primar- scheme is necessarily linked to an 38 | Case Summaries Case Summaries | 39

employment relationship by its aim Where benefits may be obtained inde- EEA States must afford the right to concerned, and which are obligatorily and function and the conditions for pendently of an employment relation- parental leave to both parents on equal applicable to general categories of obtaining benefits under the scheme. ship, they are not necessarily linked to grounds except for a specific period of employees as well as to other benefi- However, the Equal Treatment Direc- an employment relationship. Addition- protection granted to the mother. How- ciaries. Such schemes give employees tive is not rendered applicable merely ally, according to Section 14-6 of the ever, it is optional for EEA States to and other beneficiaries benefits that because the conditions of entitlement Norwegian National Insurance Act, provide for continued entitlements to are determined not by the employment to receive benefits may affect employ- benefits do not purely have employ- relevant social security benefits. relationship between the employer and ment and working conditions. ment and working conditions as their the worker, but by considerations of subject matter. The amount of bene- The concept of "pay" under the Equal social policy. If the purpose of parental benefits is to fits paid under the Norwegian Treatment Directive cannot be provide income support, then the National Insurance Act can be calcu- extended to encompass social secu- Consequently, ESA’s application was parental benefits at issue do not lated not only from the income of an rity benefits which are directly gov- dismissed. « directly affect the employment rela- employed parent, but also from other erned by statute to the exclusion of tionship of parents. Income support is sources such as the income of any element of negotiation within the in and of itself unrelated to an employ- self-employed persons, benefits undertaking or occupational sector eftacourt.int/cases/e-01-18/ ment relationship, and does not received from the social security directly affect the parents’ right to scheme, or remuneration obtained parental leave. during military service. 40 | Case Summaries Case Summaries | 41

Andreas Gyrre

–– V –– The Norwegian Government, represented by the Ministry of Children and Equality Case E-1/19

(Directive 2005/29/EC – Unfair internal market (“the Directive”), and in business-to-consumer commercial practices particular its point 9 of Annex I. – Annex I – Point 9 – Stating or otherwise creating the impression that a product can The referred question arose following legally be sold when it cannot) an action brought by Mr Andreas Gyrre, who was the chairman and sole Judgment of the Court owner of Euroteam AS, whereby a par- of 14 December 2019 tial review of a decision taken by the Norwegian Market Council to impose The Court answered a question a fine of NOK 200,000 on Mr. Gyrre referred by Borgarting was requested. Euroteam AS had ­( Borgarting lagmannsrett) regarding the engaged in the marketing and resale of interpretation of Directive 2005/29/EC tickets to the London 2012 Olympic and concerning unfair business to con- Paralympic Games. The unauthorised sumer commercial practices in the resale of tickets for the London 2012 42 | Case Summaries Case Summaries | 43

Games was prohibited under criminal Under Article 5(2)(b) of the Directive, law. It is also immaterial if the national be sold where there is a national legis- law in the UK. Any tickets sold by unau- the term "consumer" is understood as legislative prohibition in question is lative prohibition in either the EEA thorised dealers were void and subject the average consumer, who is reason- subsequently found to be contrary to State of sale, the EEA State of perfor- to seizure or cancellation without ably well informed and reasonably EEA law. mance, or both, is considered an unfair refund or entry to a session. observant and circumspect, taking into commercial practice. « account social, cultural and linguistic Therefore the Court ruled that giving The Directive provides that “[s]tating or factors. the impression that tickets may legally eftacourt.int/cases/e-01-19/ otherwise creating the impression that a product can legally be sold when it Point 9 of Annex I prohibits a trader cannot” falls within the category of from marketing a good or a service by misleading commercial practices omitting to clearly inform the con- which are in all circumstances consid- sumer of the existence of legal provi- ered unfair. This includes situations in sions which may restrict the sale, pos- which a trader states or otherwise cre- session or use of that given product. ates the impression, based on the As a result, point 9 encompasses a overall impression conveyed to the commercial practice involving the sale average consumer at the time of the of a product, which is subject to legal transactional decision that a product restrictions as to its use, irrespective of can legally be sold when it cannot. It whether those legal restrictions apply does not have a bearing on that either at the place of sale or at the assessment whether such a national place of use. legislative prohibition, as in the present case, applies in either the EEA State of The Court considered that the term sale or the EEA State of performance ‘legally’ in point 9 of Annex I, read in or in both. conjunction with Article 2(k) of the Directive, must be interpreted as refer- The fine imposed on Mr. Gyrre was ring to the law in force at the point in based on an alleged violation of the time that a consumer makes a trans- Norwegian legislative provisions imple- actional decision. It is immaterial that menting Article 5 and point 9 of Annex a trader may consider certain legisla- I to the Directive. tive provisions to be contrary to EEA 44 | News and Events News and Events | 45

2019

News and Events 46 | News and Events News and Events | 47

Visit to the Icelandic Visit to the European Court of Human Rights Lunchtime talk with Dr. Andrea Jelinek Judge Hammermann Court of Appeals speaks at the University of Innsbruck 25 January 2019 7 February 2019 26 March 2019 4 and 5 April 2019

On 26 March 2019, Dr. Andrea Jelinek, Director of the Austrian Data Protection Authority, gave a lunchtime talk entitled “The General Data Protection Regulation – a new mode of cooperation among European Data Protection Authorities”. In her talk, Dr. Jelinek gave an inside perspective on the current and ever evolving field of data protection. « On 25 January 2019, Dr Páll Hreinsson, President of the EFTA Court, and Ólafur Jóhannes Einarsson, Registrar, along with two legal secretaries, Ólafur On 4 and 5 April 2019, Judge Bernd Ísberg Hannesson and Sindri Hammermann spoke at the University M. Stephensen, visited the Icelandic of Innsbruck at a conference entitled Court of Appeals (Landsréttur) which On 7 February 2019, all three EFTA and Arnfinn Bårdsen, judges at the “25 Jahre Europäischer Wirtschafts- was established on 1 January 2018. Court judges, along with the Registrar, European Court of Human Rights, and raum – Ein Integrationsszenarium auf They met with the 15 judges of the and the six legal secretaries of the Registrar Roderick Liddell. The dem Prüfstand,” marking the EEA Court of Appeals and their legal Court, visited the European Court of Presidents, judges and registrars of Agreement’s 25th anniversary. Judge secretaries. The Registrar gave a Human Rights. They were greeted by both Courts spoke about current legal Hammermann provided a view from lecture on how and when national Guido Raimondi, President of the issues regarding human rights and the EFTA Court on the panel “Gerichte courts request advisory opinions from European Court of Human Rights, EEA law, inter alia about the legal und Kontrolle”. The other speakers on the EFTA Court. The President spoke Vice-PresidentsLinos-Alexandre  status of human rights in EEA law and this panel were Bente Angel-Hansen, about current legal issues with regard Sicilianos and Angelika Nussberger, as the new Protocol 16 to the European President of the EFTA Surveillance to the EEA Agreement and the well as Róbert Spanó, Carlo Ranzoni Convention on Human Rights. « Authority, and Univ.-Prof. Dr. Peter Icelandic legal system. « Bußjäger, Judge of the Liechtenstein Constitutional Court and Professor at the University of Innsbruck. « 48 | News and Events News and Events | 49

25 years of the EEA Agreement – Conference Lunchtime talk with Lunchtime talk with Ms Thérèse Blanchet Dr. Thomas Dünser 14 June 2019 19 June 2019 8 October 2019

On Friday 14 June 2019, the EFTA strong”, took a closer look at the past, lunchtime talk entitled “Could using Court and the EFTA Surveillance the present and the future of the EEA the EFTA pillar help the Schengen Authority held a conference, cele- Agreement, what makes the EEA a Associates deepen their cooperation brating the 25th Anniversary of the EEA success, and how it compares to other with the EU in JHA matters?” Agreement, at Concert Noble in the models of integration. The second heart of Brussels’ European District. panel focused on competition and In her talk, Ms Blanchet presented the consumers in the EEA, elaborating on audience with her unique insight into The conference was well attended, what 25 years of EEA competition rules the two-pillar structure, which with over 300 registered participants, have delivered to consumers, and the characterises the EEA Agreement and including members of the EFTA States’ continued role of the EEA institutions the relationship between the pillars. supreme courts, the EU institutions, in this regard. The final panel, “People Furthermore, Ms Blanchet discussed representatives from governments, at work in the EEA”, examined how EEA whether the EFTA pillar could prove business associations and trade law affects and reflects the changing useful in terms of helping the EEA/ unions, practitioners and academics. work environment, what challenges EFTA States and , as and opportunities have arisen for EEA On 19 June 2019, Dr. Thomas Dünser, On 8 October 2019, Ms Thérèse members of the Schengen Agreement, After a short opening ceremony, the citizens in the workplace over the last Director of the Office for Financial Blanchet, Director-General of the Legal to deepen their cooperation in matters conference was divided into three 25 years, and what part EEA law plays Market Innovation of the Liechtenstein Service, Legal Counsel of the Council relating to justice and home affairs panels. The first panel, titled “the EEA in the changes we have seen and those Government, gave a lunchtime talk and of the European Council, gave a policy, such as the Dublin Regulation. « Agreement – 25 years and still going to come. « entitled “Blockchain, Token Economy and Regulation in Liechtenstein.”

In his insightful exposé, based on his experiences leading the “Blockchain Act” project in Liechtenstein, Dr. Dünser emphasised that the term “Token Economy” summarises a very important development in the digitalisation of our economy and society, driven by Blockchain technology. Dr. Dünser discussed the first comprehensive proposal for a regulation of the “Token Economy” which has recently been published by Liechtenstein. « 50 | News and Events News and Events | 51

Visit to the Icelandic Judicial Administration Lunchtime talk with Dr Matthew Broad Visit of the Deputy 1 November 2019 20 November 2019 Prime Minister of the Principality of Liechtenstein to the On 1 November, President Hreinsson EFTA Court and Registrar Einarsson visited the 21 November 2019 Icelandic Judicial Administration. They met with Icelandic judges and gave presentations on the EFTA Court’s function and procedure, with a special emphasis on requests for an advisory opinion, as well as discussing ongoing developments regarding the rule of law and judicial independence at European level. «

On 21 November 2019, Dr Daniel Risch, Deputy Prime Minister of the Principality of Liechtenstein, and On 20 November 2019, Dr Matthew to open negotiations with the then so- Gerlinde Gassner, Secretary General Broad, Lecturer in the History of called “Inner Six” members of the of the Ministry for Infrastructure, International Relations at Leiden European Economic Communities in Economic Affairs and Sport of the University, gave a lunchtime talk entitled order to establish new foundations for Principality of Liechtenstein, paid a “EFTA as a promoter and guarantor of their economic relations. visit to the EFTA Court. They were democracy”. The talk took place on the welcomed and hosted by Judge Bernd 60th anniversary of the day on which In his talk, Dr Broad shed light on how Hammermann. « representatives of , Denmark, the EFTA States, acting through EFTA, Norway, Portugal, , Switzerland have played an important and active and the United Kingdom adopted the role in promoting and guaranteeing text of the Convention establishing the democracy in Europe in the period European Free Trade Association since EFTA’s foundation, facilitated by (EFTA), and declared their willingness its ostensibly apolitical nature. « 52 | Judges and Staff Judges and Staff | 53

2019

Judges and Staff 54 | Judges and Staff Judges and Staff | 55

Judges and Staff

The members of the Court in 2019 were as follows: In addition to the Judges, the following persons were employed by the Court in 2019: Mr Per CHRISTIANSEN (nominated by Norway) Mr Bernd HAMMERMANN (nominated by Liechtenstein) Ms Candy BISCHOFF, Administrative Assistant Mr Páll HREINSSON, President (nominated by Iceland) Ms Harriet BRUHN, Senior Administrative and Financial Officer Mr Birgir Hrafn BÚASON, Senior Lawyer Administrator The judges are appointed by common accord of the Governments of the EFTA Mr Thierry CARUSO, Caretaker/Driver States. Mr Michael-James CLIFTON, Legal Secretary Mr Ólafur Jóhannes EINARSSON, Registrar Mr Ólafur Jóhannes Einarsson is the Registrar of the Court. Ms Hrafnhildur EYJÓLFSDÓTTIR, Personal Assistant Mr Gjermund FREDRIKSEN, Financial Officer Ms Ingeborg Maria GUNDEM, Legal Secretary Ad hoc Judges of the Court are: Mr Ólafur Ísberg HANNESSON, Legal Secretary Ms Theresa HAAS, Legal Secretary Nominated by Iceland: Ms Annette LEMMER, Receptionist/Administrative Assistant Mr Benedikt Bogason, hæstaréttardómari (Supreme Court Judge) Mr Sindri MAGNÚSSON STEPHENSEN, Legal Secretary Ms Ása Ólafsdóttir, University of Iceland (Professor) Mr Tomasz MAZUR, Administrative and Financial Officer Ms Katie NSANZE, Administrative Assistant Nominated by Liechtenstein: Ms Silje NÆSHEIM, Personal Assistant Ms Nicole Kaiser, Rechtsanwältin (lawyer) Mr Håvard ORMBERG, Legal Secretary Mr Martin Ospelt, Rechtsanwalt (lawyer) Mr Jørgen REINHOLDTSEN, Legal Secretary Ms Kerstin SCHWIESOW, Personal Assistant Nominated by Norway: Ms Sharon WORTELBOER, Administrative Assistant Mr Ola Mestad, University of (Professor) Ms Lisa Josephine ZERMANN, Legal Secretary Ms Siri Teigum, Advokat (lawyer)