The Handbook of EEA Law This Is a FM Blank Page Carl Baudenbacher Editor

The Handbook of EEA Law ThiS is a FM Blank Page Carl Baudenbacher Editor

The Handbook of EEA Law Editor Carl Baudenbacher EFTA Court Luxembourg City Luxembourg

ISBN 978-3-319-24341-2 ISBN 978-3-319-24343-6 (eBook) DOI 10.1007/978-3-319-24343-6

Library of Congress Control Number: 2015957128

Springer Cham Heidelberg New York Dordrecht London © Springer International Publishing Switzerland 2016 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made.

Printed on acid-free paper

Springer International Publishing AG Switzerland is part of Springer Science+Business Media (www.springer.com) Preface

There are few monographs on the law of the European Economic Area. This Handbook seeks to rectify this situation by comprehensively addressing the breadth of law encompassed by the EEA Agreement for the benefit of practitioners, legal scholars and students alike. The extension of the European Union’s Single Market by the Agreement on the European Economic Area, in 1994, was a singular achievement. The Agreement binds 31 countries: the 28 EU Member States and 3 EFTA countries, Iceland, Liechtenstein and Norway. This Handbook may prove to be a source on which to teach a course on litigation before national courts and the EFTA Court. Moreover, students may find it approachable and absorbing. Primar- ily, however, this work is intended to give practitioners and legal scholars a real understanding of the subject matter of the EEA Agreement, its nuances and the role it plays in the national legal orders of Iceland, Liechtenstein and Norway. Strong focus is put on the jurisprudence of the two EEA courts and in particular that of the EFTA Court. The book is divided into 12 parts and each chapter has been written by a judge, noted practitioner or eminent academic in their respective fields from across the EEA and beyond. Part I introduces the main features of the EEA Agreement and sets the Agree- ment into its historical context. Part II—Genesis of EEA Law—provides an overview of the decision-making procedure in the European Economic Area, from the creation of EU law to incorporation into the EEA Agreement and implementation in the EEA/EFTA States. It also tackles the consequences that may occur if no agreement can be reached on the incorporation of an EU legal act into the EEA legal order and the consequences of a failure to unanimously agree in the EEA Joint Committee on the incorporation of an EU act. Part III—Institutions and Procedure—describes the organs of the EFTA pillar of the EEA: the EFTA Surveillance Authority and the EFTA Court. The first President of ESA, Knut Almestad, aptly called these two institutions ‘the quintessence of the EEA Agreement’. The part illustrates in detail the relationship between the two-sister EEA judicial institutions: the EFTA Court and the Court of Justice of

v vi Preface the European Union, in terms of the judicial dialogue between the judges and advocates general, and the cross-pollination of jurisprudence. It goes on to consider the EEA enforcement system. Parts IV–VI look at the EEA from the ground up. The EFTA pillar is considered from the perspective of the national authorities, national courts and practising Bars of Iceland, Liechtenstein and Norway. Parts VII–XII comprehensively address the material breadth of the EEA Agree- ment. Part VII focuses on the general principles and the general prohibition of discrimination on grounds of nationality, while Part VIII addresses the fundamental freedoms. Part IX considers competition law, a core element of the EEA single market, from both the Brussels and a national perspective, State aid, public procurement law and the twin principles of transparency and openness and their prime application in the form of access to documents. Part X moves on to further areas of economic law by focussing on ﬁnancial services, gambling, intellectual property and tax law as well as mutual administrative and legal assistance. Part XI addresses the law of natural and economic resources and the Handbook closes in Part XII with an examination of social protection and public health. I would like to thank the contributors for their efforts in distilling their expert knowledge into their respective chapters. Particularly, I would like to extend a special thanks to my Legal Secretary, Michael-James Clifton, LL.B. (EU), LL.M. Adv., Barrister, who not only co-authored the chapter on access to documents, but also coordinated the publication of the handbook on my behalf, proof- read and revised each chapter and liaised with both the publishers and fellow contributors and ensured the book’s timely production.

Luxembourg City, Luxembourg Carl Baudenbacher 20 November 2015 Abbreviations

AA Agreement Adjusting Certain Agreements between the EFTA States AAA Ankara Association Agreement CFP Common Fisheries Policy Commission European Commission Court of Court of Justice of the European Union Justice EASA European Aviation Safety Agency EBA European Banking Authority EC European Communities ECB European Central Bank ECHR European Convention of Human Rights ECtHR European Court of Human Rights ECJ Court of Justice of the European Union ECJ RoP Rules of Procedure of the Court of Justice of the European Union ECSC European Coal and Steel Community EEA European Economic Area/EEA Agreement EEAS European External Action Service EEC European Economic Community EES European Economic Space EEZ Exclusive Economic Zone EFTA/EEA Iceland, Liechtenstein, and Norway States e.i.f. Entry into force EIOPA European Insurance and Occupational Pensions Authority EMU Economic and Monetary Union ESA EFTA Surveillance Authority ESMA European Securities and Markets Authority Euratom European Atomic Energy Community Eurostat Statistical Ofﬁce of the European Union

vii viii Abbreviations

EU European Union FTA Free Trade Agreement GATT General Agreement on Tariffs and Trade GDP Gross domestic product HS International Convention on the Harmonized Commodity and Coding System IMF International Monetary Fund IOSCO International Organization of Securities Commissions IP Intellectual Property JCD Joint Committee Decision MFN Most Favoured Nation MoU Memorandum of Understanding NCA National competition authority NIMIC National IMI (Internal Market Information) Coordinator OECD Organisation for Economic Co-operation and Development OJ Ofﬁcial Journal of the European Union RoP Rules of Procedure of the EFTA Court SCA Agreement between the EFTA State on the Establishment of a Surveillance Authority and a Court of Justice SEC United States’ Securities and Exchange Division SME Small and medium sized enterprise TAA Transitional Arrangements for a period after the Accession of certain EFTA States to the European Union TEU Treaty on the European Union TFEU Treaty on the Functioning of the European Union TRIPS The Agreement on Trade-Related Aspects of Intellectual Property Rights UCITS Undertakings for collective investment in transferable securities UNCLOS United Nations Convention on the Law of the Sea VAT Value Added Tax WTO World Trade Organization ZPO Zivilprozessordnung (Liechtenstein Civil Proceedings Act) Content Overview

Part I History and Main Features of the EEA Agreement The History of the EEA Agreement and the First Twenty Years of Its Existence ...... 3 Sven Norberg and Martin Johansson

Part II Genesis of EEA Law Decision-Making Procedure and Implementation of New Law ...... 45 Georges Baur Suspension of Parts of the EEA Agreement: Disputes About Incorporation, Consequences of Failure to Reach Agreement and Safeguard Measures ...... 69 Georges Baur The Notion of ‘Opting Out’ ...... 85 Knut Almestad EEA Main Agreement and Secondary EU Law Incorporated into the Annexes and Protocols ...... 95 Halvard Haukeland Fredriksen

Part III Institutions and Procedure The EFTA Surveillance Authority ...... 113 Frank Bu¨chel and Xavier Lewis The EFTA Court: Structure and Tasks ...... 139 Carl Baudenbacher The Relationship Between the EFTA Court and the Court of Justice of the European Union ...... 179 Carl Baudenbacher

ix x Content Overview

Dispute Resolution Under the EEA Agreement ...... 195 Christa Tobler

Part IV National Authorities in the EFTA Pillar Attorney General of Norway ...... 211 Pa˚l Wennera˚s Attorney General of Iceland ...... 225 Einar Karl Hallvarðsson Liechtenstein EEA Coordination Unit ...... 241 Andrea Entner-Koch and Thomas Bischof

Part V National Courts in the EFTA Pillar Norwegian Courts ...... 257 Thomas Christian Poulsen Icelandic Courts ...... 277 Sku´li Magnu´sson Liechtenstein Courts ...... 293 Wilhelm Ungerank

Part VI The Practicing Bar in the EFTA Pillar Norwegian Bar ...... 309 Thomas Nordby and Kristoffer Nerland Icelandic Bar ...... 319 Stefa´n Geir Thorisson Liechtenstein Chamber of Lawyers ...... 331 Mario Frick

Part VII General Principles and Prohibition of Discrimination on Grounds of Nationality General Principles ...... 349 Pa´ll Hreinsson General Prohibition of Discrimination on Grounds of Nationality ..... 391 Halvard Haukeland Fredriksen

Part VIII The Fundamental Freedoms Free Movement of Goods ...... 415 Peter-Christian Mu¨ller-Graff Content Overview xi

Right of Establishment and Freedom to Provide and Receive Services ...... 437 Philipp Speitler Free Movement of Persons ...... 473 Kjartan Bjarni Bjorgvinsson€ Free Movement of Capital ...... 501 Per Christiansen

Part IX Competition Law and Related Matters Competition Law: The Brussels Perspective ...... 523 John Temple Lang Competition Law: A National Perspective ...... 547 Siri Teigum State Aid ...... 575 Michael Sa´nchez Rydelski Public Procurement ...... 605 Magnus Schmauch The Principles of Transparency and Openness, and Access to Documents ...... 625 Romina Polley and Michael-James Clifton

Part X Further Areas of Economic Law Financial Services Law ...... 659 Francesco A. Schurr and Johannes Gasser Gambling Law ...... 687 Simon Planzer Intellectual Property Law ...... 703 Ole-Andreas Rognstad Tax Law ...... 721 Richard Lyal Mutual Administrative and Legal Assistance ...... 749 Andreas Batliner and Heinz Konzett

Part XI Law of Natural and Economic Resources Natural Resources ...... 763 Knut Almestad Energy Law ...... 773 Dirk Buschle and Birgitte Jourdan-Andersen xii Content Overview

Part XII Social Protection and Public Health Social Policy Law ...... 809 Catherine Barnard The Precautionary Principle ...... 839 Alberto Alemanno Index ...... 853 Contents

Part I History and Main Features of the EEA Agreement The History of the EEA Agreement and the First Twenty Years of Its Existence ...... 3 Sven Norberg and Martin Johansson 1 The Development of the EFTA–EU Relationship ...... 4 1.1 Introduction ...... 4 1.2 Discussions on Economic Cooperation Within the OEEC ...... 5 1.3 The Creation of the European Communities ...... 6 1.4 The Creation of the European Free Trade Association ...... 8 1.5 Attempts to Create a Single European Market ...... 11 1.6 The Free Trade Agreements ...... 14 1.7 The Luxembourg Declaration on the EES ...... 15 1.8 The Luxembourg Follow-Up ...... 17 1.9 The Delors Initiative ...... 21 1.10 The EEA Negotiations ...... 26 1.11 The EEA Agreement Concluded ...... 31 1.12 Final Comment on the Conclusion of the EEA Agreement ...... 31 2 Some Developments Since the Entry into Force of the EEA Agreement on 1 January 1994 ...... 32 2.1 Changes in Composition on the EFTA Side ...... 32 2.2 The Situation of Switzerland ...... 34 2.3 The Application of the EEA Agreement: Dynamism and Homogeneity in Practice ...... 35 3 The Future of the EEA ...... 41 References ...... 42

xiii xiv Contents

Part II Genesis of EEA Law Decision-Making Procedure and Implementation of New Law ...... 45 Georges Baur 1 Introduction ...... 45 1.1 General Remarks ...... 45 1.2 Two-Pillar System ...... 47 1.3 Homogeneity ...... 51 1.4 The Role of the EFTA Secretariat ...... 53 2 Decision-Making Process ...... 53 2.1 The Notion of EEA Relevance ...... 53 2.2 Decision Shaping ...... 56 2.3 Exemptions, Derogations and Adaptations ...... 57 2.4 Procedure Prior to Adoption of Decisions by the Standing Committee ...... 60 2.5 Preparation of a JCD ...... 61 2.6 Constitutional Requirements and Entry into Force of JCDs ...... 63 3 Some Remarks on National Implementation ...... 66 4 Conclusion ...... 67 References ...... 67 Suspension of Parts of the EEA Agreement: Disputes About Incorporation, Consequences of Failure to Reach Agreement and Safeguard Measures ...... 69 Georges Baur 1 Introduction ...... 69 2 Failure to Reach Agreement on the Amendment of an Annex ...... 70 2.1 Duty of Consultation Between the Contracting Parties ...... 70 2.2 Possible Suspension of Part of an Annex to the EEA ...... 71 2.3 Practical Examples ...... 73 3 Safeguard Measures ...... 74 3.1 General Safeguard Measures ...... 74 3.2 Sector-Speciﬁc Safeguard Measures ...... 76 3.3 A Disputed Case: Fisheries ...... 80 4 Conclusion ...... 82 References ...... 83 The Notion of ‘Opting Out’ ...... 85 Knut Almestad 1 The Historical Context ...... 85 2 The Basic Premises of the Discussion ...... 86 3 The Duty of the Contracting Parties to Include New Relevant Legislation ...... 87 4 The Question of Relevance ...... 89 4.1 The Material Scope of the Agreement ...... 89 4.2 The Territorial Scope of the Agreement ...... 90 Contents xv

5 Possible Institutional or Constitutional Restraints ...... 92 5.1 On the EU Side ...... 92 5.2 In the EEA/EFTA States ...... 92 6 Summing Up ...... 94 Reference ...... 94 EEA Main Agreement and Secondary EU Law Incorporated into the Annexes and Protocols ...... 95 Halvard Haukeland Fredriksen 1 The Architecture of the EEA Agreement ...... 95 2 The Substantive Rules of the Main Agreement: An Overview ...... 96 3 The Substantive Rules in the Protocols and Annexes: An Overview ...... 97 4 The Relationship Between the Main Agreement and Its Protocols and Annexes ...... 98 4.1 Article 119 EEA ...... 98 4.2 The Existence of Derogations in the Annexes from Provisions of the EEA Main Agreement ...... 99 4.3 The Lack of Judicial Review of the Validity of the Decisions of the EEA Joint Committee to Amend the Agreement ...... 99 4.4 Article 98 EEA on the Competence of the EEA Joint Committee ...... 100 4.5 The EU Law Perspective: Another Kind of Primary and Secondary EEA Law? ...... 101 4.6 The Case-Law of the EFTA Court ...... 102 4.7 Hierarchy or Homogeneity? ...... 104 4.8 Conclusion ...... 106 5 On the Need to Supplement the Application of Norms Found in the Protocols and Annexes with Those of the Main Agreement . . . . 106 6 The EEA Main Agreement and EEA-Relevant Secondary EU Law Not Yet Incorporated into the EEA ...... 108 References ...... 109

Part III Institutions and Procedure The EFTA Surveillance Authority ...... 113 Frank Bu¨chel and Xavier Lewis 1 Institutional Structure of ESA ...... 113 1.1 Establishment ...... 113 1.2 Structure, Organisation and Appointment ...... 115 2 Competence ...... 117 2.1 Internal Market ...... 117 2.2 State Aid and Competition ...... 121 xvi Contents

3 Power to Adopt Remedies ...... 125 3.1 To Take Measures, Issue Guidelines ...... 125 3.2 To Fine ...... 125 4 Mandate and Procedure ...... 127 4.1 Outline of Procedure ...... 127 4.2 Timeliness ...... 131 4.3 Discretion ...... 133 5 ESA and Other EEA and EU Institutions ...... 134 6 ESA and the Courts ...... 134 6.1 EFTA Court ...... 134 6.2 EU Courts ...... 135 References ...... 138 The EFTA Court: Structure and Tasks ...... 139 Carl Baudenbacher 1 The EFTA Court ...... 139 1.1 Nomination, Appointment and Re-appointment of Judges ...... 140 1.2 Composition of the Court ...... 141 1.3 Secrecy of the Vote ...... 144 1.4 Organisation of the Court ...... 144 1.5 Homogeneity and Reciprocity ...... 145 1.6 Types of Procedure and Access to the Court ...... 149 1.7 Third Parties’ Rights ...... 170 1.8 Language Regime ...... 172 1.9 Methods of Interpretation ...... 172 1.10 Judicial Style ...... 173 1.11 Economics ...... 174 1.12 Transparency ...... 175 References ...... 175 The Relationship Between the EFTA Court and the Court of Justice of the European Union ...... 179 Carl Baudenbacher 1 The Relationship Between the EFTA Court and the ECJ ...... 179 1.1 The Lugano Convention as the Precursor ...... 180 1.2 EEA Law on the Books ...... 182 1.3 EEA Law in Action ...... 183 1.4 ECJ Going First ...... 184 1.5 EFTA Court Going First ...... 187 1.6 The Role of ECJ Advocates General ...... 190 1.7 Judicial Conﬂict ...... 190 1.8 Conclusions ...... 192 References ...... 193 Contents xvii

Dispute Resolution Under the EEA Agreement ...... 195 Christa Tobler 1 Introduction ...... 195 2 Dispute Resolution Under Article 111 EEA ...... 197 2.1 The Technical-Diplomatic Element: The Role of the EEA Joint Committee ...... 197 2.2 The Judicial Element: The Role of the ECJ ...... 198 2.3 The Political Element: Unilateral Remedies ...... 200 2.4 The Element of Alternative Dispute Resolution: Arbitration . . . 201 3 Comparison with the Legal Regimes Between the EU and Selected Non-EU Member States ...... 202 3.1 Turkey ...... 202 3.2 Switzerland ...... 204 4 Conclusion ...... 205 References ...... 206

Part IV National Authorities in the EFTA Pillar Attorney General of Norway ...... 211 Pa˚l Wennera˚s 1 Introduction ...... 211 2 The Attorney General and Litigation Before the EFTA Court ...... 212 3 Preliminary References from National Courts ...... 212 3.1 Competence to Refer ...... 212 3.2 Division of Competence and Judicial Dialogue ...... 213 3.3 The Procedure Before the EFTA Court ...... 215 4 Material Issues ...... 216 4.1 Homogeneity ...... 216 4.2 Restrictions and Discrimination ...... 217 4.3 Mandatory Requirements ...... 218 4.4 The Proportionality Principle ...... 219 5 The Judicial System and the ECHR ...... 221 6 Final Remarks ...... 222 Reference ...... 223 Attorney General of Iceland ...... 225 Einar Karl Hallvarðsson 1 The Ofﬁce of the Attorney-General ...... 225 2 Role with Regard to the EEA Agreement ...... 226 3 Policy with Regard to the EEA Agreement ...... 227 4 Experiences and Cases ...... 230 5 The Icelandic Appeal System ...... 237 Reference ...... 239 xviii Contents

Liechtenstein EEA Coordination Unit ...... 241 Andrea Entner-Koch and Thomas Bischof 1 Role of the EEA Coordination Unit ...... 241 2 Policy with Regard to the EEA Agreement ...... 242 3 Experiences with the EEA ...... 243 4 EFTA Court Cases ...... 243 4.1 Discrimination ...... 244 4.2 Freedom of Establishment ...... 245 4.3 Freedom to Provide Services ...... 247 4.4 Free Movement of Capital ...... 248 4.5 State Aid ...... 248 4.6 Jurisprudence on Secondary Legislation ...... 249 4.7 Compliance with Judgments ...... 251 5 Cases of the Court of Justice of the European Union ...... 251 5.1 Free Movement of Capital ...... 252 5.2 Supplementary Protection Certiﬁcates ...... 252

Part V National Courts in the EFTA Pillar Norwegian Courts ...... 257 Thomas Christian Poulsen 1 The Norwegian Court System ...... 257 1.1 Organisation of the Courts ...... 257 1.2 Appeals ...... 258 2 Advisory Opinion Procedure Under Norwegian Procedural Law . . . . . 258 2.1 Legal Basis ...... 258 2.2 Which Bodies May Refer? ...... 259 2.3 Procedure for Making a Referral ...... 262 2.4 When (at which Stage) May a Referral Be Made? ...... 263 2.5 When (in which Situations) Should a Referral Be Made? . . . . . 263 2.6 Must the Parties Be Heard before a Request Is Made? ...... 265 2.7 Possibility to Appeal a Decision to Refer or Not to Refer? . . . . 265 2.8 Effect of an Advisory Opinion ...... 265 3 Experiences ...... 267 3.1 Effect and Application of the EFTA Court’s Advisory Opinions ...... 267 3.2 Number of Referrals ...... 270 References ...... 274 Contents xix

Icelandic Courts ...... 277 Sku´li Magnu´sson 1 The Icelandic Judicial System ...... 277 1.1 Outline of the Procedures ...... 279 1.2 Appeals ...... 281 1.3 Power to Refer in Terms of Article 34 SCA ...... 282 2 Referral Proceedings Under Icelandic Law ...... 282 2.1 Legal Basis for Referral ...... 282 2.2 Relevance of EEA Law: Icelandic Case-Law ...... 283 2.3 The Procedure for Making a Referral ...... 287 2.4 The Appeal System ...... 288 2.5 Binding Character of an Advisory Opinion ...... 289 2.6 Costs and Legal Aid ...... 290 2.7 Assessing Icelandic Case-Law ...... 291 References ...... 292 Liechtenstein Courts ...... 293 Wilhelm Ungerank 1 The Liechtenstein Court System ...... 293 1.1 Liechtenstein Courts ...... 293 1.2 Appeal System ...... 295 1.3 Authority of Referral in Terms of Article 34 SCA ...... 296 2 Referral Proceedings under Liechtenstein Law ...... 298 2.1 Liechtenstein Procedural Law ...... 298 2.2 Right of Courts of the First Instance to Request Advisory Opinions ...... 298 2.3 Form of the Request ...... 299 2.4 Right of the Parties to Be Heard ...... 299 2.5 No Procedural Claim to Obtain an Opinion ...... 300 2.6 Finality of an Order to Submit a Request ...... 301 2.7 Binding Character of the Opinion ...... 302 2.8 Legal Aid ...... 302 2.9 Particular Decisions under Liechtenstein Procedural Law ...... 303 3 Experience ...... 304 4 List of the Requests by Liechtenstein Courts for an Advisory Opinion ...... 305 xx Contents

Part VI The Practicing Bar in the EFTA Pillar Norwegian Bar ...... 309 Thomas Nordby and Kristoffer Nerland 1 Introduction ...... 309 2 EEA Law Education in Norwegian Universities ...... 310 2.1 The University of Bergen ...... 311 2.2 The University of Oslo ...... 311 2.3 The University of Tromsø ...... 311 3 EEA Law Education and the Norwegian Bar Examination ...... 312 4 The EEA Legal Method Compared to Traditional Legal Methods in Norwegian Law ...... 312 4.1 EEA Law: The Objectives and the Contracting Parties’ Intentions ...... 313 4.2 The Different Legal Methods ...... 313 5 The Application of EEA Law in Norway ...... 314 5.1 The Authorities and Administration ...... 315 5.2 TheCourts...... 315 6 The EFTA Surveillance Authority: An Attorney’s View ...... 316 7 The EFTA Court: An Attorney’s View ...... 317 References ...... 318 Icelandic Bar ...... 319 Stefa´n Geir Thorisson 1 Introduction ...... 319 2 EEA Law Education in Icelandic Universities ...... 321 2.1 The University of Iceland ...... 321 2.2 Reykjavı´k University ...... 321 2.3 Bifrost€ University ...... 322 2.4 Akureyri University ...... 322 3 EEA Law and the Icelandic Bar Examination ...... 323 4 The EEA Legal Method Compared to Traditional Icelandic Legal Methods ...... 323 4.1 EEA Law: The Objectives and the Contracting Parties’ Intentions ...... 323 4.2 International Law and the Traditional Icelandic Legal Method ...... 324 5 The Application of EEA Law in Iceland ...... 325 5.1 The Authorities and Administration ...... 326 5.2 TheCourts...... 326 6 The EFTA Surveillance Authority: An Attorney’sView...... 329 7 The EFTA Court: An Attorney’s View ...... 330 Contents xxi

Liechtenstein Chamber of Lawyers ...... 331 Mario Frick 1 Introduction ...... 332 1.1 From Closure to Controlled Opening ...... 332 1.2 Impact on the Design of the Lawyers Act ...... 332 2 Relevant Law for the Work of Lawyers ...... 333 2.1 Transposition of EEA Law ...... 334 2.2 Authorisation ...... 334 2.3 Relative Monopoly of Legal Services and Disciplinary Law...... 335 2.4 Organisation of Legal Activity ...... 335 2.5 Professional Secrecy: Attorney-Client Privilege and Anti-money-laundering ...... 336 2.6 Role of the Chamber of Lawyers ...... 337 2.7 Rules of Procedure of the Chamber of Lawyers and Professional Guidelines ...... 338 2.8 Actions Brought Before the EFTA Court ...... 339 3 EFTA Court: Case-Law ...... 339 3.1 Case E-6/13 Metacom AG ...... 339 3.2 Case E-10/04 Paolo Piazza v. Paul Schurte AG ...... 340 3.3 Case E 1/07: Criminal Proceedings Against A ...... 341 4 Opportunities? ...... 342 5 Experiences ...... 342 References ...... 345

Part VII General Principles and Prohibition of Discrimination on Grounds of Nationality General Principles ...... 349 Pa´ll Hreinsson 1 Introduction ...... 349 2 The Principles of Homogeneity and Reciprocity ...... 350 3 The Source of Other General Principles in EEA Law ...... 355 4 The Principle of Loyalty ...... 357 5 The Principle of Equality ...... 360 6 The Principle of Proportionality ...... 363 6.1 Introduction ...... 363 6.2 Is the Measure Suitable to Achieve the Desired End? ...... 363 6.3 Is the Measure Necessary to Achieve the Desired End? ...... 366 6.4 Is the Burden Imposed on the Individual by the Measure Excessive in Relation to the Objective Sought? ...... 370 7 The Principles of Legal Certainty and the Protection of Legitimate Expectations ...... 371 8 Principles Derived from Fundamental Rights ...... 374 9 The Principle of Effectiveness ...... 376 xxii Contents

10 The Precautionary Principle ...... 378 11 The Principle of Prohibition of Abuse of EEA Law ...... 379 12 State Liability for Breach of EEA Law ...... 381 13 Direct Effect and Primacy ...... 383 13.1 Introduction ...... 383 13.2 EEA Measures Intended to Ensure That EEA Rules Are Made Part of the Internal Legal Order ...... 384 13.3 EEA Measures Intended to Ensure the Prevalence of Implemented EEA Rules ...... 385 13.4 When Does a Regulation and Directive Gain Effect Under the EEA Agreement? ...... 386 13.5 What Is the Effect of an EEA Rule That Has Not Been Implemented into Domestic Law Either Temporarily or by Mistake? ...... 387 14 Conclusions ...... 388 References ...... 388 General Prohibition of Discrimination on Grounds of Nationality ..... 391 Halvard Haukeland Fredriksen 1 Introduction ...... 391 2 Relationship to the EU Law Right to Equal Treatment Irrespective of Nationality ...... 393 3 Scope of Application Ratione Materiae ...... 395 4 Applicability of Article 4 EEA to Wholly Internal Situations ...... 397 5 Applicability of Article 4 EEA to EEA Nationals Who Are Neither Economically Active Nor Economically Self-Sufficient ..... 398 6 Applicability of Article 4 EEA to Nationals and Economic Operators from Third Countries ...... 402 7 Relationship with Specific Provisions of EEA Law Prohibiting Discrimination ...... 404 8 The Subjects of the Prohibition ...... 405 9 Concept of Discrimination ...... 406 10 Derogations and Justifications ...... 408 11 Legal Consequences of Violations of Article 4 EEA ...... 409 References ...... 410

Part VIII The Fundamental Freedoms Free Movement of Goods ...... 415 Peter-Christian Mu¨ller-Graff 1 Function and System of the Free Movement of Goods in the EEA . . . . 415 2 Product Coverage as a Speciﬁc EEA-Law Problem (Agricultural and Fish Products) ...... 417 2.1 General Rules of Product Coverage ...... 417 2.2 Speciﬁc Rules on Agriculture and Fishery ...... 418 Contents xxiii

2.3 Specific Rules on Coal and Steel Products ...... 419 2.4 Specific Rules on Origin ...... 420 3 Other Rules Relating to the Free Movement of Goods ...... 421 4 Restrictions of the Free Movement of Goods ...... 422 4.1 Customs Duties ...... 422 4.2 Internal Taxation ...... 424 4.3 Quantitative Restrictions and Measures Having Equivalent Effects on Imports ...... 426 4.4 Quantitative Restrictions on Exports (Article 12 EEA) ...... 428 4.5 Justification of Quantitative Restrictions and Measures Having Equivalent Effect (Article 13 EEA) ...... 429 4.6 State Monopolies (Article 16 EEA) ...... 430 5 Cooperation in Customs Related Matters and Trade Facilitation . . . . . 432 6 Relationship to Other Rules in the EEA ...... 433 References ...... 434 Right of Establishment and Freedom to Provide and Receive Services ... 437 Philipp Speitler 1 Introduction ...... 437 2 Relevant EEA Law ...... 438 2.1 Hierarchy of Norms and Relationship Between the Fundamental Freedoms ...... 439 2.2 EEA Agreement ...... 442 2.3 Protocols and Annexes ...... 444 2.4 Focus on: The Common Feature of Mutual Recognition of Professional Qualifications (Articles 30, 35, 39 EEA and Annex VII) ...... 448 2.5 The Exemption of Activities Connected with the Exercise of Official Authority (Articles 32, 39 EEA) ...... 452 3 The Right of Establishment ...... 452 3.1 Right Holders ...... 454 3.2 Rights ...... 455 3.3 Discrimination and Restriction ...... 460 4 The Freedom to Provide and Receives Services ...... 462 4.1 Right Holders ...... 464 4.2 Rights of Service Providers and Recipients ...... 465 5 Justification Grounds and Proportionality ...... 467 6 Conclusions ...... 470 References ...... 470 Free Movement of Persons ...... 473 Kjartan Bjarni Bjorgvinsson€ 1 Introduction ...... 473 2 Workers ...... 474 2.1 The Concept of ‘Worker’ ...... 474 2.2 First Time Work-Seekers ...... 477 xxiv Contents

2.3 Workers Out of Employment ...... 478 2.4 Workers in Public Service ...... 480 3 Self-Employed Persons ...... 481 4 Persons Providing Services ...... 482 5 Directive 2004/38 and the Rights of Economically Inactive EEA Nationals ...... 483 5.1 Introduction ...... 483 5.2 Right to Exit, Entry and Short-Term Residence ...... 484 5.3 Right to Long-Term Residence ...... 485 5.4 Students ...... 487 5.5 Right to Permanent Residence ...... 488 5.6 The Rights of Family Members ...... 489 6 The Need for Cross-Border Activity ...... 490 6.1 Articles 28 and 31 EEA ...... 490 6.2 Directive 2004/38/EC ...... 491 7 What Entities Are Bound by Free Movement Obligations? ...... 492 8 Rights of Persons Taking Advantage of Free Movement Under the EEA Agreement ...... 493 9 Justiﬁed Restrictions ...... 498 References ...... 500 Free Movement of Capital ...... 501 Per Christiansen 1 Introduction ...... 501 2 Treaties and Legislation ...... 504 2.1 The Main EEA Rules ...... 504 2.2 EEA Safeguard Measures ...... 506 2.3 Safeguard Procedures ...... 508 2.4 EEA/EFTA States and Third Countries ...... 509 2.5 Economic and Monetary Policy Cooperation ...... 510 2.6 The Main EU Rules ...... 510 2.7 EU and Third Countries ...... 511 2.8 A Legal Gap ...... 511 3 Surveillance Practice and Case-Law ...... 512 3.1 Surveillance Practice ...... 512 3.2 Case-Law ...... 514 4 A Note on Taxation ...... 519

Part IX Competition Law and Related Matters Competition Law: The Brussels Perspective ...... 523 John Temple Lang 1 Introduction ...... 523 2 Judicial Review ...... 527 3 Restrictive Agreements in the Case-Law of the EFTA Court ...... 528 4 State Monopolies ...... 530 Contents xxv

5 The Posten Norge Judgment ...... 532 6 Legal and Economic Concepts ...... 534 7 The Practice of the EFTA Surveillance Authority: The Color Line Case ...... 535 8 Private Claims for Compensation for Breach of EEA Competition Rules ...... 536 9 Competition Law and Regulatory Regimes ...... 537 10 Professional Independence of Lawyers ...... 538 11 Homogeneity and Innovation ...... 539 12 Conclusions ...... 542 References ...... 544 Competition Law: A National Perspective ...... 547 Siri Teigum 1 Legal Framework ...... 547 1.1 Application of EEA Competition Rules in the EFTA States . . . 547 1.2 Jurisdiction in Competition Matters ...... 548 2 The Competition Authorities of the EFTA States ...... 550 2.1 Overview ...... 550 2.2 Liechtenstein ...... 550 2.3 Iceland ...... 550 2.4 Norway ...... 551 3 Cooperation Between ESA and the National Competition Authorities of the EFTA States ...... 551 3.1 Overview ...... 551 3.2 Mechanisms for Allocation and Assistance ...... 552 3.3 Use of EEA Competition Rules ...... 554 3.4 Advisory Committee ...... 555 3.5 Functioning of the Cooperation in Practice ...... 556 4 Cooperation Between the Competition Authorities of the Nordic Countries ...... 557 5 Cooperation Between ESA and the Courts of the EEA/EFTA States . . . 557 5.1 Overview ...... 557 5.2 Conformity ...... 558 5.3 Requests by National Courts for Advisory Opinions by the EFTA Court ...... 558 5.4 Request by National Courts for Opinions of ESA ...... 559 5.5 Amicus Curiae ...... 559 5.6 Transfer of Information ...... 560 5.7 Assistance of ESA ...... 561 5.8 Functioning of the Cooperation in Practice ...... 561 6 National Competition Provisions of the EEA/EFTA States ...... 562 6.1 Overview ...... 562 6.2 Liechtenstein ...... 562 6.3 Iceland ...... 562 6.4 Norway ...... 564 xxvi Contents

7 EEA Competition Provisions in Practice ...... 568 7.1 Norwegian Competition Authorities’ Application of the Competition Provisions in the EEA Agreement in Practice . . . . 568 7.2 The Norwegian Courts’ Application of the Competition Provisions in the EEA Agreement in Practice ...... 569 7.3 Cooperation Between ESA and Konkurransetilsynet in Practice ...... 573 References ...... 573 State Aid ...... 575 Michael Sa´nchez Rydelski 1 Introduction ...... 575 2 ESA’s State Aid Practice and Policy ...... 576 2.1 State Aid Within the Meaning of Article 61(1) EEA ...... 577 2.2 Compatibility Assessment ...... 584 2.3 State Aid Procedure ...... 589 2.4 Co-operation with the Commission ...... 591 2.5 Limits to ESA’s Competence: State Aid to Fisheries ...... 592 3 Case-Law of the EFTA Court ...... 592 3.1 Admissibility ...... 593 3.2 Reviewability of ESA’s Actions ...... 594 3.3 Suspension of ESA’s Decisions ...... 595 3.4 Reasoning of ESA’s Decisions ...... 595 3.5 Level of ESA’s Assessment ...... 596 3.6 Selectivity in Relation to Regional and Taxation Measures ...... 597 3.7 Services of General Economic Interest ...... 598 3.8 Failure to Open a Formal Investigation ...... 599 3.9 Non-compliance with Appropriate Measures and Existing Versus New Aid ...... 600 3.10 Enforcement of ESA’s Decisions ...... 601 3.11 Recovery of Aid and Legitimate Expectations ...... 602 4 Conclusion ...... 603 References ...... 603 Public Procurement ...... 605 Magnus Schmauch 1 Introduction ...... 605 2 Surveillance in the Field of Public Procurement ...... 606 2.1 The EEA and SCA Agreements ...... 606 2.2 Protocol 2 SCA ...... 608 2.3 Procedures Relating to Directive 2004/18/EC ...... 608 2.4 Procedures Relating to Directive 2004/17/EC ...... 612 3 Conciliation Procedure ...... 616 Contents xxvii

4 Enforcement Before National Courts and Authorities ...... 618 4.1 Enforcement Directives ...... 618 4.2 Directive 89/665/EEC and Directive 92/13/EEC intheEEA...... 618 4.3 National Review Procedures ...... 619 Reference ...... 624 The Principles of Transparency and Openness, and Access to Documents ...... 625 Romina Polley and Michael-James Clifton 1 The Principles of Transparency and Openness ...... 625 2 Making Use of the Right: Strategic, and Tactical Uses ...... 626 2.1 Public Accountability ...... 626 2.2 Private Enforcement of Competition Law ...... 627 3 Relevant Access to Documents Regimes ...... 628 4 Applying the Rules on Access to Documents: A Practical Guide . . . . . 630 4.1 Scope: Who May Make a Request ...... 631 4.2 What Is a Document? ...... 631 4.3 Making an Application for Access to Documents ...... 632 4.4 Time-Limits and Processing of Applications ...... 633 4.5 Access ...... 635 4.6 ESA’s Reasoning (Exceptions) ...... 636 5 Challenge Before the Court ...... 650 5.1 Costs ...... 650 6 Transparency: Beyond Access to Documents ...... 650 6.1 Transparency and Openness of the Courts ...... 651 6.2 Zwartveld Procedure ...... 652 6.3 Future Developments ...... 653 7 Conclusions ...... 655 References ...... 656

Part X Further Areas of Economic Law Financial Services Law ...... 659 Francesco A. Schurr and Johannes Gasser 1 Introduction ...... 659 2 EEA Financial Services Legislation ...... 659 2.1 The UCITS IV Directive ...... 660 2.2 MiFID ...... 665 2.3 The Third Anti-money Laundering Directive ...... 668 2.4 Other ...... 671 3 Analysis of the Case-Law of the EFTA Court ...... 671 3.1 Introduction to the Decision-Making of the EFTA Court in the Field of Financial Law ...... 671 3.2 Ground-Breaking New Findings on Legal and Economic Issues of Financial Crises and on Moral Hazards in Icesave . . . 672 xxviii Contents

3.3 ‘Comply or Explain’ and ‘Lost in Translation’: The Two Main Chapters in the Saga of Irish Bank ...... 675 3.4 Consumer Issues in the Field of Life Assurances in ‘Safe Hands’ of the EFTA Court: The Swiss Life Case ..... 678 3.5 Conclusion ...... 680 4 Practice of the EFTA Surveillance Authority ...... 680 References ...... 685 Gambling Law ...... 687 Simon Planzer 1 Introduction ...... 687 2 Present State of EEA Primary and Secondary Law ...... 687 3 EEA Case-Law ...... 690 3.1 Gaming Machines ...... 690 3.2 Ladbrokes ...... 691 3.3 Casino Admiral AG v. Wolfgang Egger ...... 693 3.4 Norwegian Lottery ...... 695 4 Account of the EFTA Court’s Contribution ...... 695 4.1 Homogeneity and the Role of Case-Law ...... 695 4.2 Peculiar Nature of Games of Chance and Margin of Appreciation ...... 696 4.3 Public Morality and Inconsistencies ...... 698 4.4 ECJ: From Carte Blanche to Stricter Review ...... 699 References ...... 701 Intellectual Property Law ...... 703 Ole-Andreas Rognstad 1 Introduction ...... 703 2 Parallel Imports of Trademarked Goods from Third Countries (Maglite and L’Oreal)...... 705 3 Co-branding of Parallel Imported Pharmaceuticals: Paranova ...... 713 4 ‘Accessory Exhaustion’ (Astra)...... 717 5 Conclusion ...... 719 References ...... 720 Tax Law ...... 721 Richard Lyal 1 Indirect Taxation ...... 723 2 Direct Taxation ...... 730 2.1 Free Movement of Capital: Outbound Dividends ...... 733 2.2 Exit Taxation ...... 735 2.3 Free Movement of Economically Inactive Persons ...... 738 2.4 Cross-Border Company Taxation ...... 741 2.5 Controlled Foreign Company Rules ...... 743 Contents xxix

2.6 Cross-Border Company Reorganisation ...... 745 2.7 Other Direct Tax Issues ...... 746 3 Conclusion ...... 747 Reference ...... 748 Mutual Administrative and Legal Assistance ...... 749 Andreas Batliner and Heinz Konzett 1 Mutual Administrative and Legal Assistance ...... 750 2 The Boundary Between Administrative and Legal Assistance ...... 751 3 Legal Assistance ...... 751 3.1 European Convention on Mutual Assistance in Criminal Matters ...... 752 3.2 Convention on Laundering, Search, Seizure and Conﬁscation of the Proceeds from Crime ...... 753 3.3 Schengen ...... 753 4 Administrative Assistance ...... 753 4.1 Administrative Assistance in Tax Matters ...... 753 4.2 Administrative Assistance Relating to the Financial Market ...... 754 4.3 New Developments in Administrative Assistance in European Financial Market Supervision ...... 757 References ...... 760

Part XI Law of Natural and Economic Resources Natural Resources ...... 763 Knut Almestad 1 The Historic Background ...... 763 2 The General Rules as Interpreted by the Courts ...... 764 3 Public Ownership to Natural Resources ...... 766 4 The Territorial Scope of the EEA Agreement ...... 768 5 The Particular Situation of the Fisheries Sector ...... 770 Energy Law ...... 773 Dirk Buschle and Birgitte Jourdan-Andersen 1 Introduction: The Evolution of EU Energy Policy and Law ...... 773 1.1 The Creation of an Internal Market ...... 774 1.2 Sustainability ...... 777 1.3 Security of Supply ...... 779 1.4 The Energy Union ...... 780 2 Energy Sectors and Markets in the EEA ...... 780 2.1 Iceland ...... 780 2.2 Liechtenstein ...... 781 2.3 Norway ...... 782 3 EEA Energy Law in Substance ...... 783 3.1 The Internal Market Rules in the EEA ...... 783 3.2 Sustainability ...... 786 3.3 Security of Supply ...... 788 xxx Contents

4 The Dynamics of EEA Energy Law ...... 789 4.1 Making EEA Energy Law ...... 789 4.2 Enforcing EEA Energy Law ...... 793 4.3 The Absence of EEA Regulatory Bodies and the New Lisbon Procedures ...... 803 5 Conclusions ...... 803 References ...... 805

Part XII Social Protection and Public Health Social Policy Law ...... 809 Catherine Barnard 1 Introduction ...... 809 2 Mapping the Field ...... 810 3 Posted Workers ...... 812 4 Equality ...... 816 4.1 Introduction ...... 816 4.2 The Legal Principles Underpinning the EU Legislation ...... 818 5 Restructuring of Enterprises ...... 822 5.1 Introduction ...... 822 5.2 The Insolvency Directive ...... 822 5.3 Transfer of Undertakings ...... 824 6 Information and Consultation ...... 834 7 Proof of the Contract of Employment ...... 835 8 Conclusions ...... 836 References ...... 836 The Precautionary Principle ...... 839 Alberto Alemanno 1 The Genesis of the Precautionary Principle in the EU: From Vitamins to Mad Cows ...... 839 2 Precautionary Evolution: Of Hormones and Cereals ...... 842 2.1 From EC Hormones to the Commission’s PP Communication ...... 842 2.2 The EFTA Court’s Kellogg’s Case ...... 843 3 Precautionary Consolidation ...... 845 4 Squaring the Precautionary Circle ...... 847 5 Judicial Review of Precautionary-Based Measures ...... 849 6 Conclusion ...... 850 References ...... 850 Index ...... 853 Biographies

Alberto Alemanno Alberto Alemanno is Jean Monnet Chair in EU Law and Risk Regulation at HEC Paris. He is also the Global Clinical Professor at NYU Law School where he directs the HEC-NYU EU Regulatory Policy Clinic and Adjunct Professor at Georgetown University Law Center where he teaches Global Risk Regulation. Prior to joining the HEC faculty, he clerked at the Court of Justice of the European Union, worked as a Teaching Assistant at the College of Europe in Bruges and qualified as an attorney at law in New York. Knut Almestad Ambassador Almestad graduated in 1968 from the University of Oslo as a Candi- date of Law and joined the Norwegian Foreign Service the same year. At the start of the EEA negotiations, he participated in the Norwegian negotiating team as Deputy Head of Delegation. During the negotiations, he also chaired EFTA’s Negotiating Group IV (horizontal and flanking policies). He subsequently chaired the EFTA Surveillance Authority Preparatory Committee and led the establishment of this institution. In 1993, he was appointed its first President, a position he held until the end of 2001. Catherine Barnard Catherine Barnard M.A. (Cantab), LL.M. (EUI), Ph.D. (Cantab) is Professor in European Union Law and Employment Law at the University of Cambridge, and senior tutor and fellow of Trinity College. She specializes in EU law, employment law and discrimination law. She is author of EU Employment Law (Oxford, OUP, 2012, 4th ed.), The Substantive Law of the EU: The Four Freedoms, (Oxford, OUP, 2013, 5th ed.) and (with Peers ed), European Union Law (Oxford, OUP, 2014). She is also editor of various collections of essays including: The Law of the Single European Market (Hart, 2002) (with Scott), The Future of Labour Law (Hart, 2004) (with Deakin and Morris), The Fundamentals of EU Law Revisited (Oxford, 2007), The Outer Limits of EU Law (Hart, 2009) (with Odudu), A Constitutional Order of

xxxi xxxii Biographies

States? Essays in EU Law in Honour of Alan Dashwood (Hart, 2011) (with Arnull, Dougan and Spaventa) and co-editor of a book aimed at prospective law students entitled What about Law? (Hart, 2011, 2nd ed (with Virgo and O’Sullivan)). Andreas Batliner Andreas Batliner, born on 6 February 1959, studied Business Administration as well as Law at the University of St. Gallen, Switzerland. He has been President of the Administrative Court (Verwaltungsgerichtshof, formerly Verwaltungsbesch- werdeinstanz) of the Principality of Liechtenstein since 1997. Carl Baudenbacher Prof. Dr. jur. Dr. rer. pol. h.c. Carl Baudenbacher President of the EFTA Court since 2003, judge since 1995. Director of the Center of European and International Law of the University of St. Gallen HSG; Founder and Director of the Postgraduate Program Executive Master of European and International Business Law EMBL- HSG; Founder and Chairman of the St. Gallen International Competition Law Forum ICF; Co-Chairman of the St. Gallen International Energy Forum IEF; Chair of Private, Commercial and Economic Law at the University of St. Gallen HSG 1987–2013; Permanent Visiting Professor University of Texas at Austin School of Law 1993–2005; Member of the Supreme Court of the Principality of Liechtenstein 1994–1995; Visiting Professor, University of Geneva, 1991; author of over 40 books and 200 articles mainly in the fields of contract law, company law, antitrust and unfair competition law, IP law, dispute resolution law (court adjudi- cation and arbitration), EU and EEA law in general, law of globalization. Georges Baur Since 2012, Georges Baur has been Assistant Secretary-General at the EFTA Secretariat in Brussels, having previously held the post as Deputy Head of Mission of the Principality of Liechtenstein to the EU in Brussels from 2003. From 2000 to 2003, Mr Baur served as Senior Advisor to the Government of Liechtenstein in the context of the Financial Centre. Prior to this, he worked as a lawyer in a law firm and with the legal department of a bank. He holds a degree (Dr.iur.) from the University of Zurich. From 1996 to 2003, Georges Baur was a member of the Scientific Board of the Liechtenstein Institute, acting as its Chair from 1998. He has published on various issues regarding the EEA, international law and Liechtenstein law. Thomas Bischof Thomas Bischof is the Deputy Director of the Liechtenstein EEA Coordination Unit where he is dealing particularly with the topics free movement of persons, recognition of professional qualifications and social security. He graduated from University of Neuchâtel (Switzerland) with a degree in law in 2002 and from the College of Europe in Bruges, Belgium with a Master in European Law (LL.M.) in 2006. From June 2008 to September 2010, he served in the Liechtenstein diplomatic corps as member of the Liechtenstein Mission to the EU (Brussels, Belgium). Biographies xxxiii

Kjartan Bjarni Bjorgvinsson€ Kjartan Bjarni Bjorgvinsson€ served as a Legal Secretary in the cabinets of Þorgeir O¨ rlygsson and Pa´ll Hreinsson between 2009 and 2015, successive Icelandic Judges at the EFTA Court. He studied Law at the Universities of Iceland (MA) and the London School of Economics and Political Science (LL.M). He was appointed a Judge of the District Court of Reykjavik in April 2015. Frank Bu¨chel Frank Bu¨chel is a member of the governing body of the EFTA Surveillance Authority in Brussels. He is the responsible College Member entrusted with special oversight of the Authority’s work in the core internal market areas of the freedoms of services and establishment, capital and persons as well as the enforcement of the competition rules. Prior to that, Frank had been an advisor to governments, regu- lators and private sector regulatees in network and related industries, with a focus on telecoms. He advised clients on regulatory policy, development of legislative frameworks, inward investment strategies, tender procedures, market reviews, competition analysis, remedies design, implementation, enforcement and litigation. Before that, he served as Senior Officer at the EFTA Surveillance Authority in this field and as the Deputy Director of the Office for Communications in Liechtenstein. Frank is admitted to practice as attorney at law in New York and as solicitor in England and Wales. He holds a law degree from University of St. Gallen (HSG) in Switzerland, an L.L.M. in Comparative Law from University of Miami School of Law and a post-graduate degree in EU competition law from King’s College in London. Dirk Buschle Dirk Buschle has been Deputy Director of the Energy Community Secretariat since 2011 and has headed its Legal Unit since 2007. He leads the Secretariat’s activities related to EU energy law implementation in the eight Contracting Parties of the Energy Community, including environmental law, competition and State aid law. He is also in charge of enforcement and dispute resolution. He has acted as mediator in high-profile investor-state and inter-company arbitrations in the energy sector. Prior to his current position, he was Head of Cabinet of the President of the EFTA Court in Luxembourg. Dirk Buschle graduated from Constance University, Ger- many, and earned his Ph.D. at St. Gallen University, Switzerland. He has widely published in different areas of European law, speaks regularly at conferences and has lectured at the Universities of Reykjavik, Constance and St. Gallen as a visiting professor. He co-chairs the annual St. Gallen International Energy Forum as well as the Vienna Energy Law Forum. Per Christiansen Judge Prof. Dr. Per Christiansen was Secretary of the Board of Governors of Norges Bank (the Central Bank), Counsellor for Financial Affairs at the Norwegian Mis- sion to the EU, Director General of the Ministry of Finance, lawyer at xxxiv Biographies

PriceWaterhouseCoopers and is Professor at the University of Tromsø (Norway) and Judge at the EFTA Court. Michael-James Clifton Michael-James Clifton is a Legal Secretary in the Chambers of the President of the EFTA Court, Carl Baudenbacher. He obtained his LL.B. (EU) from the University of Leicester and his LL.M. Adv. in European Business Law from Leiden University cum laude and Valedictorian. Called to the Bar in 2009. Formerly, an Associate at VVGB in Brussels and stagiaire to Advocate General Eleanor Sharpston QC. He is Co-Chair of the Procedural Law module on the Executive M.B.L. programme at St. Gallen University. He is also Deputy Editor-in-Chief of the European Law Reporter. Andrea Entner-Koch Andrea Entner-Koch is the Director of the Liechtenstein EEA Coordination Unit, which operates under the Prime Minister and is the contact office between the Government of the Principality of Liechtenstein and the institutions of the European Economic Area in Brussels and Luxembourg. Andrea Entner-Koch studied law at the University of Innsbruck (Austria), composed a doctoral thesis on the European Monetary Union and obtains the Master of Laws Degree (LL.M.) in European Law from the College of Europe, Bruges, Belgium. After professional activities at University, courts as well as at a large corporate law firm in Vienna, Mrs. Entner-Koch has been Director of the EEA Coordination Unit of the Govern- ment of the Principality of Liechtenstein since 2002. Halvard Haukeland Fredriksen Halvard Haukeland Fredriksen is professor of EU and EEA law, Faculty of Law, University of Bergen and an associate of the Bergen Centre of Competition Law and Economics (Beccle). Dr. iur. (2009) from the University of Gottingen,€ Ger- many. Ph.D. (2013) from the University of Bergen, Norway. Mario Frick Dr. Mario Frick is partner of the law office Advocatur Seeger, Frick & Partner AG in Schaan. Furthermore, he is President of the Board of a TTA Trevisa-Treuhand- Anstalt, Balzers, and President of the Board of Bank Frick & Co. AG, Balzers. Since April 2015 he is President of the Board of BFC Group Establishment, which is the holding company for a group of various companies. From 1993 until 2001, he was Prime Minister of Liechtenstein. From 2005 until 2014, he was President of the Liechtenstein Chamber of Lawyers. Johannes Gasser Dr. Johannes Gasser is managing partner of Gasser Partner, one of the leading law firms in Liechtenstein, which was established in 1954. He is admitted to the Liechtenstein and Austrian Bar and specialises in challenging and defending Liechtenstein foundations and trusts in international and cross border litigation Biographies xxxv and arbitration. In recent cases, he has handled complex litigation on trust matters involving trustee removals and liabilities. Dr. Gasser is a frequent speaker at Liechtenstein University on foundation and trust law issues and is chairman of the Liechtenstein Arbitration Association (LIS). Einar Karl Hallvarðsson Einar Karl Hallvarðsson, born in Reykjavı´k 1966, obtained his cand. jur. degree from University of Iceland in 1993. He worked as a Legal Secretary at the Internal Revenue Board until February 1994. He became a District Court Attorney in 1994 and a Supreme Court Attorney in 1997. From 1994, he worked as an Attorney at the Office of the Attorney General in Iceland and in December 2010 he was appointed Attorney General of Iceland. Since 2007, he has also served as an associate professor at Bifrost€ University, where he lectures on civil procedure and constitutional law. Pa´ll Hreinsson Prof. Pa´ll Hreinsson has been a Judge at the EFTA Court since September 2011. Before being appointed to the bench of the EFTA Court, he was a Justice at the Supreme Court of Iceland and Chairman of numerous Committees. He was, moreover, Dean of the Faculty of Law and Professor of Law, University of Iceland. In addition to his advisory roles, he was Special Assistant to the Parliamentary Ombudsman’s Office, and Assistant Judge, at the City Court of Reykjavik. Prof. Hreinsson holds a Dr. Jur. in Law from the University of Iceland and is author of numerous and encompassing books and articles, in particular in the fields of administrative law, constitutional law, data protection and information privacy, financial law, EU and EEA law. Martin Johansson Martin Johansson is Partner at the Brussels office of Advokatfirman Vinge. After graduation from the College of Europe, he participated in the EEA negotiations as Legal Officer in the Legal Affairs Department of the EFTA Secretariat in Geneva and thereafter served as Legal Secretary to Judge Norberg at the EFTA Court. After Sweden joined the EU in 1995, he served as Legal Secretary first to Judge Lindh at the EU General Court and thereafter to Judge Sevon and to Judge von Bahr at the EU Court of Justice. He joined Advokatfirman Vinge in 2006. He has published numerous articles on EU and EEA law. Birgitte Jourdan-Andersen Birgitte Jourdan-Andersen is a qualified lawyer from Norway where she started her career at the law firm Arntzen de Besche. She worked for 6 years at the EFTA Secretariat with the portfolio energy, State aid and public procurement. During her time at the EFTA Secretariat, she was responsible, inter alia, for the incorporation of the First Renewable Directive 2001/77/EC and the Second Liberalisation Pack- age into the EEA Agreement. She was employed by DG Energy as a national expert for 3 years where she worked in different task forces related to energy efficiency, xxxvi Biographies the Multiannual Framework (MFF) 2014–2020 and establishing the Energy Effi- ciency Fund for Europe investing in energy efficiency and renewable energy pro- jects. Furthermore, she worked as the political advisor for the Deputy Director General for DG Energy who during this period was dealing with the financial instruments (incl. MFF 2014–2020), international energy relations and policies. Ms Jourdan-Andersen at present works for the EFTA Surveillance Authority in charge of the monitoring and enforcing of all EEA energy legislation. She holds three Masters of Law from the Law University of Oslo (Cand Jur), College of Europe in Brugge (Master’s Degree in European Legal Studies) and the University of Leuven (Master of Energy and Environmental Law). She also has been teaching energy law at the University of Bonn, University of Leuven and the University of Reykjavik. Heinz Konzett Heinz Konzett, born on 10 April 1968, studied Law at the University of Innsbruck, Austria. He has been working in the field of the Banking Division at the Financial Market Authority since 2008. He has also been responsible for the administrative assistance as Head of the Legal Section of the Banking Division since 2010. Xavier Lewis Xavier Lewis is a member of the European Commission’s Legal Service. A dual British and French national, he read law at King’s College, University of London and at the University of Paris 1 (Pantheón Sorbonne), gaining an LL.B., a Maıˆtrise en Droit and a D.E.A. in Civil law. He is also a Fellow of Harvard University. He was called to the English Bar in 1983 and began by specializing in conflicts of laws. He was then called to the Paris Bar in 1986 and worked in a large French commercial law firm. He joined the European Commission, first in DG Competition and then in the Legal Service until 2009 representing the Commission in some 350 cases before the Court of Justice, the General Court, the EFTA Court and the US Federal District Court. In 1995, he was Legal Secretary to Advocate General Francis Jacobs in the Court of Justice. From 2009 to 2015, he was the Director of Legal and Executive Affairs, EFTA Surveillance Authority. Richard Lyal Richard Lyal is director of the Budget and Taxation team in the European Com- mission’s Legal Service. He has represented the Commission in more than 500 cases before the ECJ, the EFTA Court and the European Court of Human Rights, mainly in the areas of competition, State aid and taxation. Sku´li Magnu´sson Sku´li Magnu´sson (1969) became Cand. Jur. (University of Iceland) in 1995 and Mag. Jur. (University of Oxford) in 1998. He is at present Judge at Reykjavik District Court and Docent at the University of Iceland as well as chairing the Complaint Committee for Public Procurement and ad-hoc judge at European Court of Human Rights. He served as Registrar of the EFTA Court from 2007 to Biographies xxxvii

2012 and is the author of number of publications in the fields of European and Constitutional Law as well as Legal Theory. Peter-Christian Mu¨ller-Graff Peter-Christian Mu¨ller-Graff holds the chair for Private Law, Economic Law and European Law at the Heidelberg Law Faculty and has been Director of the Institute for German and European Corporate and Economic Law of Heidelberg University since 1994. Previously, he was Professor of Law at the universities of Cologne (1982–1986) and Trier (1986–1994) and served as a judge at the Cologne Court of Appeals. He received his Dr.iur. and his Dr.iur.habil from Tu¨bingen University and graduated in law (first and second state exams) in Baden-Wu¨rttemberg. He studied law at the universities of Gottingen,€ Berlin (Free University), Tu¨bingen and Cornell. Kristoffer Nerland Kristoffer Nerland is an associate lawyer at Arntzen de Besche law firm, Oslo. He obtained his law degree from the University of Bergen in 2012 and an L.L.M. degree from University of Pennsylvania in 2013. His main area of practice is dispute resolution. Sven Norberg Dr. Sven Norberg is a former Swedish Judge of Appeal, who was Director in DG Competition of the European Commission (1995–2005). Before that, he was Judge of the EFTA Court (1994 and 1995). This followed 12 years as Director of Legal Affairs in the EFTA Secretariat, during which period he was inter alia in charge of all legal and institutional issues under the negotiations on the Agreement on the European Economic Area. Before joining EFTA, he was Permanent Secretary and Chief Legal Officer in the Swedish Ministry of Trade and Commerce. He is the author of numerous articles and books on the EU and the EEA and a Member of the Board of Europara¨ttslig Tidskrift, the main Scandinavian European Law Journal. He is since 2006 Senior Advisor at Kreab, Brussels. Thomas Nordby Thomas Nordby is a Supreme Court Lawyer who has experience working for the Attorney General (Civil Affairs) and the EFTA Court. In addition, he has litigated a number of cases before the Court of Justice of the European Union and the EFTA Court, and has conducted several consultation procedures for the European Com- mission and the EFTA Surveillance Authority. Simon Planzer Dr. Simon Planzer, M.A. is Lecturer in Law at the University of St. Gallen HSG and partner at PLANZER LAW, a law boutique specialized in Swiss and European gaming law. He is a member of the Internal Masters of Gaming Law and the International Association of Gaming Advisors. Among numerous other publications, he authored the Springer monograph ‘Empirical Views on European xxxviii Biographies

Gambling Law and Addiction’ (2014). He holds a Ph.D. from the University of St. Gallen HSG. He completed studies and research inter alia at the College of Europe, Harvard Law School and Harvard Medical School (Division on Addiction), the European University Institute and the Academy of International Trade Law. Romina Polley Dr. Romina Polley is a partner at Cleary Gottlieb Steen & Hamilton LLP, Cologne. She obtained her law degree from Freie Universita¨t Berlin in 1992 and passed her bar exam in Berlin in 1995. In 1996, she obtained her doctorate in law at Freie Universita¨t Berlin and in 1997 an LL.M. degree from Fordham University New York. She has practised European and German competition law since 1995 and has been a partner of Cleary Gottlieb Steen & Hamilton LLP since 2004. Her recent focus has been on international cartel cases including access to document situations and cross-border merger control. Ms. Polley is widely published and teaches at St. Gallen University and Leuphana University in Lu¨neburg. Thomas Christian Poulsen Thomas Christian Poulsen (1979) obtained his cand. jur. (University of Oslo) in 2005, and LL.M. (University of Cambridge) in 2006. He is currently an acting judge at Borgarting Court of Appeal, Oslo. From 2011 to 2014, he served as Legal Secretary in the Norwegian Cabinet at the EFTA Court, and from 2006 to 2011 he was a law clerk at the Supreme Court of Norway. Ole-Andreas Rognstad Ole-Andreas Rognstad has been professor at the Department of Private Law since 2002, University of Oslo. His main field of research is intellectual property law, in particular copyright, and interfaces of IP law and other fields of law, such as competition law, free movement law and property law. Professor Rognstad has published extensively in these fields, both in Norwegian and English, and is also co-author of the EEA textbook Fredrik Sejersted et al., EØS-rett (3rd edition 2011). Professor Rognstad is and has been chairman and member of various decision- making bodies in Norway. He is also a member of the independent academic expert group European Copyright Society. Michael Sańchez Rydelski Michael Sańchez Rydelski has been practising EU law for more than 20 years. This includes both periods in private practice and periods in international institutions such as the European Commission, the EFTA Surveillance Authority and the Office of the Legal Counsel of the United Nations. He has been Deputy Director of the Legal Service in the EFTA Surveillance Authority where he was also appointed Hearing Officer for competition cases. Michael has extensive experience in litigat- ing before the European Court of Justice, the General Court and the EFTA Court in Luxembourg. He has pleaded many landmark cases and succeeded in winning the first case brought under the new locus standi rules introduced by the Lisbon Treaty. Biographies xxxix

Magnus Schmauch Dr. iur. (HSG) Magnus Schmauch is Special Counsel at Advokatfirman O¨ berg & Associe´s AB, the first Swedish EU law boutique law firm. Mr. Schmauch worked for several years at the European Court of Justice and the EFTA Court. He has a doctorate in law from the University of St. Gallen, Switzerland, where his doctoral thesis was on State aid to airlines. Francesco A. Schurr Prof. Dr. Francesco A. Schurr is a Professor of Law and Head of the Chair for Company, Foundation and Trust Law (www.uni.li/gesellschaftsrecht) at the Univer- sity of Liechtenstein, as well as Programme Director of the Master of Laws (LL.M.) in Company, Foundation, and Trust Law (www.uni.li/llm-gesellschaftsrecht). Francesco is the Academic Director of the Liechtenstein Annual Convention on Foundation Law (www.uni.li/stiftungsrechtstag)aswellastheLiechtensteinAnnual Convention on Trust Law (www.uni.li/trustconference) at the University of Liech- tenstein. Previously, Francesco was Professor for Private Law and Comparative Law at the Law School of the University of Innsbruck and Deputy Director of the Department of Italian Law. Francesco has published numerous articles and books on Consumer Protection Law, Law of Foundations, Trust Law, Contracts and European Private Law. Philipp Speitler Dr. Philipp Speitler is a Legal Secretary and Head of the President’s Cabinet at the EFTA Court. Philipp is also lecturer at the University of St. Gallen HSG, a Deputy Director of E.M.B.L.-HSG, a Corresponding Member of CC EIL-HSG, and Editor- in-Chief of the European Law Reporter. In 2005, Philipp Speitler became a member of the Stuttgart Bar. Siri Teigum Siri Teigum has been a partner with Thommessen since 1996 and heads the firm’s practice area of EU/EEA and Competition Law. She acts as an advisor and litigator in procurement matters, and is top ranked within these areas. She also has won major cases before Norwegian courts as well as the EFTA Court and CJEU, and also acts as an arbitrator. She is member of the Complaints Board for Public Procurement (KOFA). Siri also holds experience from the Norwegian Ministry of Justice and was appointed secretary in EFTA during the EEA negotiations in the early 1990s. Through the years, Siri has held several board positions in leading Norwegian companies. John Temple Lang Dr. John Temple Lang has been with Cleary Gottlieb Steen & Hamilton LLP in Brussels since 2000. He is a Senior Visiting Research Fellow in Oxford and a visiting Professor in Trinity College Dublin. Before returning to private practice, he was a Director in the Competition Directorate General of the European xl Biographies

Commission, dealing with telecommunications, electronica and media. Before that, he was in the Legal Service of the Commission, dealing with trade law and international environmental issues as well as competition law. He has appeared frequently before the two EU Courts. He has published a book and more than 300 articles on a wide range of questions of European law, and has spoken frequently at the St Gallen and Fordham competition law conferences, at the Fordham Intellectual Property conferences, and at many other conferences, including several on the EEA. He was twice General Rapporteur at conferences of the Federation Internationale pour le Droit Europeen. Stefań Geir Thorisson Stefań Geir Thorisson is a Supreme Court Attorney and one of the partners of the law firm Forum logmenn€ in Reykjavik, Iceland. Shortly after his graduation as a lawyer, he worked in the Legal Services of the EFTA Surveillance Authority. He has lectured EEA/EU law both at the University of Iceland and University of Reykjavik. His main areas of practice are European law, competition law, banking law, corporate law and tort law. Christa Tobler Prof. Dr. Christa Tobler LL.M. (1961) received her legal education at the Univer- sities of Zurich, Switzerland, and Leiden, the Netherlands. She held research positions at the Comparative Law Institute, Kyoto, Japan, and at the European University Institute, Florence, Italy. In her research work, Prof. Dr. Tobler puts a particular emphasis on the concepts of legal equality and discrimination, both in economic and in social law, and on the legal relationship between the European Union and Switzerland. Wilhelm Ungerank Wilhelm Ungerank, born 1965, Mag. iur. (1987) and Dr. iur. (1990) University of Innsbruck, Master’s degree in European law (2006), judge since 1992 (Regional Court of Innsbruck/Austria 1992–2000; Liechtenstein Princely Court of Justice 2000–2014; Liechtenstein Princely Court of Appeal from 2015), various publications related to Liechtenstein, Austrian and EU/EEA law, and has made several requests for an advisory opinion to the EFTA Court. Pa˚l Wennera˚s Dr. Pa˚l Wennera˚s is an attorney at the Attorney General, Norway.