| EFTA Court | |
|---|---|
| Established | 1994 |
| Jurisdiction | Iceland, Liechtenstein, Norway |
| Location | Rue du Fort Thuengen 1499 Luxemburg City Luxembourg |
| Authorized by | Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice |
| Decisions are appealed to | none |
| Judge term length | 6 years, renewable |
| Number of positions | 3+6 |
| Website | http://www.eftacourt.int/ |
| President | |
| Currently | Carl Baudenbacher |
| Since | 2003 |
The Court of Justice of the European Free Trade Association States (more commonly known as 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 have access to the internal 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.
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.
Contents |
According to Article 108(2) of the EEA Agreement of 2 May 1992,[1] 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", cf. Art. 27.[2] 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.
The EFTA Court has essentially been modeled on the template of the European Court of Justice. The main difference is that it has no Advocates General. The EFTA Court consists of 3 regular judges. Each EEA/EFTA State has the right to nominate one candidate for judgeship. The Judges are appointed by common accord of the governments of the EEA/EFTA States for a renewable term of six years. They 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. 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, a legal secretary and an administrative assistant.
The judges elect 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:
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 he or she 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.
The EFTA Court’s Statute and its Rules of Procedure are modeled 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:
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 has been preserved.
The EFTA Court has in the majority of its cases been faced with legal issues that have not or 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 reverted to judgments by the EFTA Court with regard to 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, 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. On the other hand, the EFTA Court regularly refers to Opinions of Advocates General.
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.
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.
State liability is, according to settled EFTA Court case law, part of EEA law so that Contracting Parties infringing primary or secondary EEA law and thereby causing damage to individuals or economic operators may be obliged to pay compensation. The EFTA Court ruled that way in its 1998 Sveinbjörnsdóttir judgment[6] and confirmed this jurisprudence in 2002 in Karlsson.[5]
In its judgment in the Sveinbjörnsdóttir case, the EFTA Court characterized the EEA Agreement as an international treaty sui generis which contains a distinct legal order of its own. Its depth of integration is less far-reaching than under the EC Treaty, but the scope and objective go beyond what is usual for an agreement under public international law.[6] The distinct legal order sui generis established by the EEA Agreement is characterized by the creation of an internal market, the protection of the rights of individuals and economic operators and an institutional framework providing for effective surveillance and judicial review.[7]
In Case E-8/00 Landsorganisasjonen[8] the EFTA Court had to deal with whether a number of Norwegian municipalities had breached certain provisions of the Basic Collective Agreement for Municipalities when they transferred their occupational pension insurance scheme from one supplier, KLP, a private mutual life insurance company wholly owned by members of the Norwegian Association of Local and Regional Authorities, to other insurance companies. The municipalities submitted that several provisions in the Basic Collective Agreement were void because they infringed Articles 53 and 54 EEA, the provisions mirroring Articles 81 and 82 EC. The contested provisions stated, inter alia, that in the event of a change of the pension company, this should be discussed with union representatives; that before the decision-making body might begin to deal with a possible change of company relevant offers for a new occupational pension scheme should be put before those members of the pension committee who represent the parties to the collective agreement; that the occupational pension scheme had to be based on a financing system that is gender-neutral and does not have the effect of excluding older employees; that before the matter might be decided upon by the municipality there had to be approval from the Norwegian Public Service Pension Fund; and that the pension scheme had to be taken note of by the Banking, Insurance and Securities Commission.
The EFTA Court found that the relationship between the national law of collective bargaining and the EEA competition rules must be assessed by applying the test established by the ECJ in Case C-67/96 Albany ([1999] ECR I-5751) and in related cases. It concluded that on that basis, the contested provisions would prima facie fall outside the scope of Article 53 EEA. If, however, the national court found that the contested provisions do not pursue their apparent objectives, the provisions, in light of the objectives actually pursued, fall within the scope of Article 53 EEA. If so, and if the court found that these provisions in effect required the municipalities to obtain supplementary pension insurance services from specific insurers, thus excluding, or severely limiting, their possibility of selecting other qualified service providers, these provisions were also held capable of constituting a restriction of competition within the meaning of Article 53 EEA. The Court held that, in any case, the good faith of the parties in concluding and implementing a collective agreement must also be taken into account. When examining the several elements of a collective agreement, the national court must consider their aggregate effect. Whether an agreement restricts competition, and thereby infringes Article 53 EEA, is a legal question that must be examined in light of economic considerations. The EFTA Court found furthermore that Article 54 EEA may apply if the national court were to find that the supplier of the occupational pension scheme, KLP, enjoyed a dominant position in the relevant market, that an identification might be made between the Norwegian Association of Local and Regional Authorities and the supplier, and that their conduct in relation to the conclusion or the implementation of the contested provisions of the Basic Collective Agreement had in practice prevented transfers of supplementary pension insurance schemes from KLP to other insurance companies, in order to protect the position of KLP.
In Case E-2/96 Ulstein (1995/1996 EFTA Court Report, 65), a company that had provided ambulance services for a hospital was no longer considered after public tenders had been invited, but was replaced by a second company. No tangible assets were taken over by the second service provider. The office in the hospital building that had been used by the first service provider was no longer available. The second company reemployed four of the first company’s nineteen employees. The other employees, including the two plaintiffs, were not offered employment. The EFTA Court ruled that a mere succession of two contracts for the provision of the same or similar services will not, as a rule, be sufficient for there to be a transfer of an undertaking, business, or part of a business within the meaning of the Transfer of Undertakings Directive 77/187/EEC.
In Case E-2/97 Mag Instruments (1997 EFTA Court Report, 127), a parallel importer purchased Maglite flashlights in California, where they were manufactured, and imported them into Norway without the manufacturer’s and trade mark owner’s consent. According to established Norwegian law, international exhaustion applied for trade marks. The EFTA Court held that under the First Trade Mark Directive 89/104/EEC, the EFTA States were entitled to opt for international exhaustion of trade mark rights. The Court emphasized that they retained their sovereignty in foreign trade matters. Unlike the EC Treaty, the EEA Agreement did not establish a customs union, but an enhanced free trade area. The purpose and the scope of the EC Treaty and the EEA Agreement are therefore different. According to Article 8 EEA, the principle of free movement of goods as laid down in Articles 11 to 13 EEA applies only to goods originating in the EEA, while in the Community a product is in free circulation once it has been lawfully placed on the market in a Member State. In general, the latter applies in the context of the EEA only with respect to products originating in the EEA. In the case at hand, the product was manufactured in the United States and imported into Norway. Accordingly, it was not subject to the principle of the free movement of goods within the EEA. Based on this, the EFTA Court rejected the argument put forward by the governments of France, Germany, and the United Kingdom as well as by the European Commission that giving the EEA/EFTA States the right to opt for international exhaustion would lead to disparities in the EEA market. Article 7(1) of the Trade Mark Directive was interpreted so that it was for the EEA/EFTA States’ legislatures and courts to decide whether they wanted to introduce or to maintain the principle of international exhaustion of trade mark rights with regard to goods originating from outside the EEA. The EFTA Court found that international exhaustion was in the interest of free trade and competition and thus in the interest of consumers. Furthermore, the principle of international exhaustion was in line with the main function of a trade mark, to allow the consumer to identify with certainty the origin of the products. This interpretation of Article 7(1) of the Trade Mark Directive was also consistent with the TRIPs Agreement, which left the issue open for the Member States to regulate.