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Ljz Juristen-Zeitung LJZ LIECHTENSTEINISCHE JURISTEN-ZEITUNG Eigentümer, Herausgeber und Verleger: Vereinigung Liechtensteinischer Richter (VLR), Vaduz, c/o Fürstliches Landgericht, FL-9490 Vaduz, Spaniagasse 1 Heft 1 März 2020 41. Jahrgang Inhaltsverzeichnis Abhandlungen Teil 1: Abhandlungen Teil 2: Beiträge zum Jubiläum «25 Jahre EWR» Peter Bussjäger: Aktuelles aus der Rechtsprechung Andrea Entner-Koch: Connecting Liechtenstein to des Staatsgerichtshofes 2016 – 2019 ........................ 104 Europe – ein facettenreiches Zusammenspiel ......... 2 Mathias Walch: Zum Missbrauch der Vertretungsmacht Sabine Monauni: Liechtenstein und die EU: Mehr im Liechtensteinischen Stiftungsrecht ...................... 111 als eine reine Wirtschaftsbeziehung ......................... 3 Rechtsprechungsübersicht .................................. 124 Henri Gétaz: Der Europäische Wirtschafsraum: Mitteilungen ............................................................ 125 eine resiliente institutionelle Konstruktion .............. 7 Fachliteratur ........................................................... 126 Bernd Hammermann: Liechtenstein: 25 Jahre EWR-Gerichtsbarkeit .................................. 11 Frank J. Büchel: Die Rolle der ESA im EWR ........... 21 Amtliche Christina Neier: Der EWR-Beschlussfassungs- Liechtensteinische Entscheidungssammlung (LES) prozess in Recht und Praxis ..................................... 26 Staatsgerichtshof ........................................................ 1 Judith Sild: Die Herausforderungen für das Verwaltungsgerichtshof ............................................. 15 EWR-System durch die «Agenturisierung» des Unionshandelns ......................................................... 34 Fürstlicher Oberster Gerichtshof .............................. 20 Christian Frommelt: Ist die EWR-Mitgliedschaft Fürstliches Obergericht ............................................. 45 ein Souveränitätsgewinn? Über ein Narrativ und dessen aktuelle Bedeutung ....................................... 41 Halvard Haukeland Fredriksen: 25 years after Liechtenstein saved the EFTA Court: the case for reform .................................................... 50 Georges Baur: Unmittelbare Wirkung und Vorrang im EWR: Schutz einer abstrakten Souveränität der EFTA- Staaten oder konkreter Rechtschutz für Bürger und Unternehmen? .................................................... 56 Sarah Schirmer: Die Durchsetzung des EU- und EWR- Beihilferechts vor nationalen Gerichten ......... 65 Stefan Barriga/Esther Schindler: Die EWR-rechtliche Dimension des Brexit .............. 75 Helen Lorez: Liechtenstein und der EWR-Finanzierungsmechanismus ............................. 82 Andreas Th. Müller: EWR-Recht und Extraterritorialität ............................ 91 Thomas Bischof: SOLVIT – Effiziente Problemlösung im EWR ............................................ 97 50 Abhandlungen LJZ 1/20 25 years after Liechtenstein saved the Norwegian government. 3 The sustainability of this solu- EFTA Court: the case for reform tion, not least with regard to the EU’s trust in the judicial set-up of the EEA Agreement post 1995, was very much Professor Dr. Dr. Halvard Haukeland Fredriksen, in doubt. This was particularly so because the list of ad University of Bergen hoc judges agreed by Iceland and Norway included Ice- landic and Norwegian citizens only, thus guaranteeing 1. Introduction an all Icelandic-Norwegian court to deal with any dispu- Liechtenstein’s 25 years anniversary as a member of the tes concerning Iceland’s and Norway’s fulfilment of their European Economic Area (EEA) is an opportunity both EEA law obligations. If the two regular judges could not to recall how Liechtenstein’s accession on 1 May 1995 agree, the ad hoc judge was to be chosen from the list essentially saved the EFTA Court, and to discuss the cur- by lot, with the inherent risk of a politically sensitive case rent need for reforms of the Court and the procedural against e.g. Norway being decided by a court with a ma- framework within which it operates if the success of the jority of Norwegian members, or vice versa concerning EEA is to be extended to the next 25 years. 1 Iceland. As the EEA Agreement’s objective to integrate the EEA/EFTA States into the EU’s internal market rests 2. 1995: Liechtenstein as the saviour of on the Court of Justice of the EU (CJEU) being willing to the EFTA Court interpret EEA law in line with its own interpretation of When Austria, Finland and Sweden became members corresponding provisions of EU law, it was clear from of the European Union on 1 January 1995, only Iceland the very beginning that the EFTA Court’s ability to gain and Norway were left in the EFTA-pillar of the EEA. The the trust of the CJEU was a sine qua non for the success three key EEA/EFTA institutions in the architecture of of the EEA Agreement. 4 the EEA – the Standing Committee of the EFTA States If an all Icelandic-Norwegian EFTA Court could have (with the EEA section of the EFTA Secretariat), the EFTA convinced the CJEU of the merit of the EEA in the same Surveillance Authority (ESA) and the EFTA Court – were way as the Icelandic-Liechtenstein-Norwegian EFTA originally planned to serve an EFTA-pillar of seven states. Court eventually did, we will never know. Much to the The Swiss “no” to the EEA Agreement in 1992, and the relief of the governments of Iceland and Norway, the resulting uncertainty as to Liechtenstein’s participation Liechtenstein electorate confirmed its will to participate in the EEA, was a considerable blow to the EFTA-pillar, in the EEA also without Switzerland in a referendum on but not one that threatened the whole set-up. An EFTA 9 April of 1995, thus allowing for the entry into force of Court with seven judges would have been even better the EEA Agreement for Liechtenstein on 1 May that year. than the five-member court that was inaugurated on 1 Fortunately, no case happened to be brought before the January 1994, but no one questioned the ability of the EFTA Court in the first four months of 1995, so that the EFTA Court to function with five judges. This was very provisional solution was never put to the test. The rest, different with the departure of Austria, Finland and Swe- as far as the first 25 years of the EEA is concerned, is a den only twelve months later, as it left the EFTA-pillar by now well documented history. The EFTA Court de- with only two members and, consequently, the EFTA monstrated its commitment to a homogeneous EEA by Court with only two judges. 2 rejecting pleas from the EEA/EFTA States for EEA-specific The pragmatic provisional solution found by Iceland (“State-friendly”) exceptions from the CJEU’s interpreta- and Norway, pending a much-hoped for Liechtenstein tion of corresponding provisions of EU law on numerous accession to the EFTA-pillar of the EEA, was to entrust occasions, and strengthened the enforcement of EEA law the remaining Icelandic and Norwegian judge with the at the national level through EEA-versions of the EU law task to elect a third judge, on a case by case basis, from principles of State liability for breaches of EU law and a list established by common accord by the Icelandic and the principle of EU-conform interpretation of national law. 5 The CJEU responded in kind by shelving the initial scepticism towards the EEA voiced in its Opinions 1/91 1 Some of the proposals in this paper was originally presented in EEA I and 1/92 EEA II, opting instead for an interpretation the speech “The EEA 25 Years On: Resting on the laurels or fa- of the EEA Agreement which essentially puts citizens and cilitating mutual trust and dynamic homogeneity also in future?”, Joint ESA and EFTA Court celebratory conference, Brussels 14 June 2019, but they have since been honed as a result of cons- tructive critique from several colleagues. 3 Article 12 of the Agreement between Iceland and Norway Adjus- 2 The same considerations applied, and still applies, to the num- ting Certain Agreements Between the EFTA States, 29 December ber of college members of the EFTA Surveillance Authority, but 1994. The text of the agreement is reproduced in Annex II of the that is outside the scope of this contribution. As to the Standing Report of the EFTA Court 1 January 1994 – 30 June 1995. Committee of the EFTA States, and thus the EFTA Secretariat, the 4 See, e.g., Carl Baudenbacher, The EFTA Court in Action, German number of EEA/EFTA states was less of a concern as long as the Law Publishers (2010), as well as numerous other books and remaining states would continue to provide the secretariat with articles by the same author, who served as the EFTA Court judge sufficient resources. However, the Standing Committee has in nominated by Liechtenstein for almost 23 years, 15 of which as recent years been entrusted by the EU-side with certain adminis- the Court’s president, and who better than most understood the trative tasks that it will not be able to fulfil with less than three importance to the EEA of the EFTA Court’s standing in the eyes member states, see further Halvard Haukeland Fredriksen and of the CJEU. Johanna Jonsdottir, Comments on Art 3 of the Standing Commit- 5 See, e.g., Halvard Haukeland Fredriksen, “The EFTA Court 15 tee Agreement in Finn Arnesen et.al. (eds.), The Agreement on Years On”, International and Comparative Law Quarterly 59 the European Economic Area – a Commentary, 2018. (2010), pp. 731–760. LJZ 1/20 Abhandlungen 51 economic operators from the EEA/EFTA States on the the EEA Agreement in general and the EFTA Court in same footing
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