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: – Casenumber,namesoftheparties(option1). – Casenumber,dateofthejudgment,namesofthe OF THE parties(option2). EFTA Court 1rueduFortThüngen EFTA COURT L-1499Luxembourg www.eftacourt.int 2019 Concept and Design by Imprimerie Centrale, Luxembourg Printed by Imprimerie Centrale, Luxembourg 4 | Foreword Foreword | 5 Lookingbackontheyear2019,ithasbeenasuccessfuloneforthe Court and the EEA Agreement as a whole. I am pleased to observe thatwewitnessedanincreaseinthecaseloadoftheCourt,with13 newcasesbeingregistered,ofwhich12wererequestsforanadvisory opinion.Ofthesecases,fivestemfromquasi-judicialandadministrative bodies outside the regular Court system. This represents an interesting development,whichIbelieveisreflectiveoftheimportantrolethese bodies play in the application of EEA law in the EFTA States. We also witnessedfirstrequestsfromboththeIcelandicandNorwegianPublic ProcurementComplaintsBoards. TherequestfromtheIcelandicTribunalwasthefirstrequestforan advisory opinion received from Iceland in well over two years, and itisnowmorethantwo-and-a-halfyearssincearequesthasbeen 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. Asregardsjudgmentshandeddownin2019,Fosen-Linjen II is the most noteworthy.TheNorwegianSupremeCourtdecidedtorequestasecond advisoryopinionfromtheEFTACourt,seekingclarificationconcerning 6 | Foreword Foreword | 7 theapplicablestandardofliabilityforthe“positivecontractinterest”(loss thus fell outside its scope. Accordingly, the Court’s conclusion was that ofprofits).TheEFTACourtfoundthat“Article2(1)(c)oftheRemedies NorwaywasnotinbreachoftheDirective. Directivedoesnotrequirethatanybreachoftherulesgoverningpublic Turning to the cases that are presently pending, I am pleased to see that procurementinitselfissufficienttoawarddamagesforthelossofprofit wehavealreadyreceivedthefirstquestionsconcerningtheinterpretation to persons harmed by an infringement of EEA public procurement rules”. oftheGeneralDataProtectionRegulation,probablythemostsignificant AnothersignificantjudgmentwasrenderedinthecaseofD and E, E-2/19. piece of legislation recently incorporated into the EEA Agreement. ThiscaseconcernedtherelationshipbetweentheResidenceDirective andthesectoraladaptationsapplicabletoLiechtensteininthefieldoffree In other developments, the European Court of Human Rights dismissed a movement of persons, which are of great importance to Liechtenstein. caseagainstNorway,initsDecisioninApplicationno.47341/15,inwhich 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 aresidencepermit,ofrightsprovidedforundertheDirectiveevenif 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 CourtwassetuptooperateasajudicialbodysimilartotheCJEU,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,intheso-calledparentalbenefitscase,E-1/18,theCourtdismissed regime. Furthermore, the Court of Human Rights noted that the application theEFTASurveillanceAuthority’s(ESA)pleathatheldthattheparental inthecasedidnotdiscloseanyappearanceofmanifestdeficienciesin benefitschemeestablishedbytheNorwegianNationalInsuranceAct the protection of the applicant’s Convention rights. wasinbreachoftheEqualTreatmentDirective.TheCourtheldthatthe scheme did not concern “employment and working conditions” within TheEEAAgreementcelebratedits25thanniversarylastyear.Amongst themeaningofArticle14(1)(c)oftheEqualTreatmentDirective,and the events held to celebrate this important milestone in the life of the 8 | Foreword Contents | 9 Contents EEAwasananniversaryconferenceheldjointlybytheCourtandthe FOREWORD 5 EFTASurveillanceAuthorityinBrusselslastspring.Theconference CASESUMMARIES 11 wasagreatsuccess,withover300peopleinattendanceandahostof distinguished speakers. Case E-2/18, C v Concordia Schweizerische Kranken- und UnfallversicherungAG,LandesvertungLiechtenstein 12 An occasion such as this anniversary represents a good opportunity Case E-3/18,EFTASurveillanceAuthorityvIceland 15 toreflectuponthefutureaswellasthepast.Iamanoptimistwhen Case E-4/18,EFTASurveillanceAuthorityvIceland 17 it comes to the future of EEA law. The reason is that I see a clear Case E-5/18,EFTASurveillanceAuthorityvIceland 19 willingness on the part of the EFTA States to make it work. They have Case E-6/18,EFTASurveillanceAuthorityvIceland 21 shown themselves to be responsible and solution oriented with regard Case E-1/17COSTS,NettbussASvKonkurrenten.noAS 24 to the incorporation of legal acts in the Agreement, and when it comes Case E-1/17COSTSII,TheCountyofAust-AgdervKonkurrenten.noAS 27 tothesubsequentimplementationinthenationallegalsystems,the Case E-7/18,Fosen-LinjenASvAtBAS 30 findingsofESA’slastInternalMarketScoreboardshowedthattheEFTA Case E-2/19,DandE 34 States have all improved upon their performance in transposing EEA Case E-1/18,EFTASurveillanceAuthorityvTheKingdomofNorway 37 directivesintonationallaw.Thecontributionofnationaljudgesshould Case E-1/19,AndreasGyrrevTheNorwegianGovernment, also be acknowledged, as their awareness and dedication to their role representedbytheMinistryofChildrenandEquality 40 asEEAlawjudgesisinstrumentalintheeffectivenessoftheAgreement. I wouldliketoendwiththesewords,whichIbelievebothaptlydescribe NEWSANDEVENTS 45 the past of the EEA and which should also guide us for the future. JUDGESANDSTAFF 53 PállHreinsson 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 sionerbecausethosebenefitsfallout- procedure) side the scope of its social security system. Judgment of the Court of 14 May 2019 The Court held that when a pensioner isnotentitledtobenefitsinkindinthe The Princely Court of Liechtenstein EEA State of residence, because the (Fürstliches Landgericht) referred benefits fall outside the scope of its questionstotheCourtwhichsoughtto social security system, the pensioner clarify the interpretation of Regulation isentitled,pursuanttoArticle24(1)of (EC)883/2004(theRegulation)ofthe theRegulation,toreceivethebenefits European Parliament. The Princely in kind provided at the expense of the CourtquestionedwhetherArticle24of institutionsreferredtoinArticle24(2) the Regulation provides a mandatory of the Regulation. This means that procedurefortheprovisionofbenefits 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 –– Article35oftheRegulationandRegu- that if the competent institution does lation(EC)No987/2009. 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,whichappliestosituationswhere Regulation (EU) 2015/1051) the cooperation between contact for reimbursement directly to the com- thepensionerisnotentitledtobenefits pointsprovidedforinRegulation(EU) petent institution in the EEA State in kind under the legislation of the EEA Judgment of the Court No524/20143oftheEuropeanParlia- under whose legislation the pension is Stateofresidence. « 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