Supranational tribunal of EFTA states
The EFTA Court is a supranational judicial body responsible for the three EFTA members who are also members of the European Economic Area (EEA): Iceland, Liechtenstein and Norway.
As members of the EEA, the three countries participate in the European single market of the European Union. Consequently, they are subject to a number of European laws. Enforcement of these laws would normally be carried out by the European Court of Justice (ECJ); however, there were legal difficulties in giving Union institutions powers over non-members so the EFTA Court was set up to perform this role instead of the ECJ. EFTA does not envisage political integration. It does not issue legislation, nor does it establish a customs union. Schengen is not a part of the EEA Agreement. However, all of the four EFTA States participate in Schengen and Dublin through bilateral agreements. They all apply the provisions of the relevant Acquis.
Since September 1995, the Court has consisted of three judges and six ad hoc judges. They are nominated by the three members and appointed by their governments collectively through common accord.
According to Article 108(2) of the EEA Agreement of 2 May 1992, the EFTA States taking part in the EEA Agreement shall establish a court of justice. That obligation was complied with by the conclusion of the "Surveillance and Court Agreement" (SCA), cf. Art. 27. The EFTA Court was originally designed for the then seven EFTA States Austria, Finland, Iceland, Liechtenstein, Norway, Sweden and Switzerland. On 1 January 1994, upon the entry into force of the EEA Agreement, the EFTA Court took up its functions with five judges nominated by Austria, Finland, Iceland, Norway and Sweden. Switzerland was unable to ratify the EEA Agreement due to a negative referendum. Liechtenstein postponed membership until 1 May 1995. In 1995, Austria, Finland and Sweden left EFTA and joined the EU. Since September 1995, the EFTA Court has consisted of three judges and six "ad hoc" judges nominated by the three actual EEA/EFTA States Iceland, Liechtenstein and Norway and appointed by their Governments through common accord.
When the EEA Agreement entered into force on 1 January 1994, the seat of the Court was the old EFTA capital Geneva. After the accession of Austria, Finland and Sweden to the European Union, it was decided to move the Court's seat to Luxembourg, where the European Court of Justice and the General Court are located. On 1 September 1996, the EFTA Court moved to Luxembourg.
Organization.
The EFTA Court is an independent judicial body, established under the "Surveillance and Court Agreement" (SCA) to ensure judicial oversight of the EEA Agreement in the EEA/EFTA States. It came into operation following the entry into force of the EEA Agreement on 1 January 1994, and it has essentially been modelled on a 1994 version of the European Court of Justice. The main difference is that it has no Advocates General.
Judges.
The EFTA Court consists of 3 permanent judges. Each EEA/EFTA State has the right to nominate one candidate for the position. The Judges are appointed by common accord of the governments of the EEA/EFTA States for a renewable term of six years. In 2016, Norway tried to re-elect Per Christiansen for a term of only three years, officially in conformity with the Norwegian age limit of 70. However, following criticism that this was really to punish him for ruling against Oslo in a series of controversial cases, Norway reversed its position and the Norwegian was re-appointed for the usual term of six years. The judges are chosen from persons whose independence is beyond doubt and who possess the qualifications required for appointment to the highest judicial offices in their respective countries or who are jurisconsults of recognized competence. A further six "ad hoc" judges are also chosen, pursuant to Article 30 SCA. One of the six "ad hoc" judge is called upon to sit if a regular judge is prevented from participating in a case due to bias or illness. Each judge has his or her cabinet which consists of the judge and at least one legal secretary and an administrative assistant. The following is a list of current and former EFTA Court Judges:
President.
The judges elect, by secret ballot, one of their colleagues to be President of the Court for a term of three years. The President may be re-elected. He or she directs the judicial business and the administration of the Court. The President assigns the cases to a judge to act as a rapporteur. He or she sets the dates and timetable for the sessions of the Court, presides at hearings and deliberations. The President is competent to take decisions on requests for the application of interim measures. Presidents of the EFTA Court include:
Registry.
The Court appoints a Registrar for a period of three years, after which he or she may be reappointed. The Registrar assists the Court in procedural matters, and is the head of personnel. He or she is responsible for the Registry as well as for the receipt, transmission and custody of documents and pleadings. The Registrar is also responsible for the Court's archives and publications, for the administration of the Court, its financial management and its accounts. The Registrar supports the judges in their official and representative functions. The operation of the Court is in the hands of officials and other servants who are responsible to the Registrar under the authority of the President. The Court administers its own infrastructure and its own budget.
Registrars of the Court:
Jurisdiction.
The EFTA Court's Statute and its Rules of Procedure are modelled on those of the European Court of Justice. Individuals and economic operators have broad access to the Court. The EFTA Court is in particular competent to decide on:
Expedited Procedure and Accelerated Procedure cases.
In direct action cases, on application by the applicant or the defendant, the President may exceptionally decide that a case is to be determined pursuant to an expedited procedure derogating from the Rules of Procedure where the particular urgency of the case requires the Court to give its ruling with the minimum of delay. This ensures that the case is prioritised so that the Court's judgment can be given as soon as possible in the best interests of justice.
In preliminary reference cases, at the request of the national court, the President may exceptionally decide to apply an accelerated procedure derogating from the Rules of Procedure. Just like expedited direct action cases, the accelerated preliminary reference procedure ensures that the case is prioritised so that the Court's judgment can be given to the referring national court as soon as possible in the best interests of justice.
The homogeneity goal.
The EEA is based in a two pillar structure, the EU constituting one pillar and the three participating EFTA States the other. In substance, the EEA Agreement has extended the EU single market to the participating EFTA States. EEA law is therefore largely identical to EU law. In order to secure a level playing field for individuals and economic operators in both pillars, special homogeneity provisions have been laid down in the EEA Agreement and in the Surveillance and Court Agreement. Under these rules, the EFTA Court shall follow the relevant case law of the ECJ on provisions of Union law that are identical in substance to provisions of EEA law rendered prior to the date of signature of the EEA Agreement (2 May 1992) and shall pay due account to the principles laid down by the European Court of Justice's relevant case law rendered after that date. The EFTA Court's jurisprudence is in fact based on the case law of the European Court of Justice (ECJ). The politically important distinction between old and new ECJ case law has largely been qualified in practice. The EFTA Court also refers to the case law of the General Court of the European Union (EGC). All three EEA courts (ECJ, EGC, EFTA Court) have not only emphasized the need for a uniform interpretation of EU and EEA law, but have actively seen to it that homogeneity is preserved.
The EFTA Court has in the majority of its cases been faced with legal issues that have not (or at least not fully) been decided by the ECJ. The EEA Agreement does not contain a written rule that would oblige the ECJ to take into account the case law of the EFTA Court when interpreting EU or EEA law. In practice, both Union Courts (the ECJ and the EGC), have, however, made reference to EFTA Court jurisprudence. As to the interpretation of EEA law, the Union courts have referred to judgments by the EFTA Court concerning the legal nature of the EEA Agreement, the principle of State liability in EEA law, the free movement of goods and the freedom of establishment.
When interpreting EU law, the Union Courts found support in the jurisprudence of the EFTA Court in cases concerning the Directive on Television without Frontiers, the Directive on Transfer of Undertakings, the precautionary principle in foodstuff law (see "Pedicel" case "infra"), and the selectivity criterion in State aid law. Advocates General of the European Court of Justice have also entered a judicial dialogue with the EFTA Court. Conversely, the EFTA Court regularly refers to Opinions of Advocates General.
Methods of interpretation.
Like the ECJ, the EFTA Court does not follow the rules laid down in Articles 31 and 32 of the 1969 Vienna Convention on the Law of Treaties when interpreting EEA law, but rather the methodological rules usually applied by national supreme and constitutional courts. Teleological (or purposive) interpretation is particularly important, but also dynamic interpretation is not uncommon. Finally, the EFTA Court's case law also displays some comparative US-EU law analysis, as seen in Case E-07/13 "Creditinfo Lánstraust", where conditions for the re-use of public sector information are compared to those of the 1966 US Freedom of Information Act.
Notable cases.
Effect, supremacy and state liability.
The EFTA Court has consistently held that the provisions of the EEA Agreement are intended for the benefit of individuals and economic operators throughout the European Economic Area and that the proper functioning of the EEA Agreement is dependent on those individuals and economic operators being able to rely on the rights before the national courts of EEA/EFTA States.
References.
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