International Judicial Monitor

Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law
Spring 2014 Issue

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International Tribunal Spotlight

Court of Justice of the European Free Trade Association (EFTA)

By: Maria A. Chhabria, Director of Academic Programs, International Judicial Academy

The Court of Justice of the European Free Trade Association (EFTA) is an international judicial body with jurisdiction over the three State members of EFTA and the European Economic Area (EEA) − Iceland, Liechtenstein, and Norway (EFTA/EEA states) (formerly made up of the additional states of Austria, Finland and Sweden). The EEA Agreement is based on a two-pillar structure: the EU system constitutes one pillar, and the second pillar is comprised of the three EFTA states. The EEA Agreement created three independent EFTA organs: the Standing Committee, the Surveillance Authority (ESA), and the EFTA Court), which mirror the European Union (EU) Council, the EU Commission, and the European Court of Justice (ECJ) in the EU system.

The EFTA Court operates in parallel to the ECJ. The purpose of the EFTA Court is to monitor the obligations of the EFTA/EEA States and the functioning of the ESA under EEA law. On the other side, the ECJ insures the respect of EEA law by the EU State members and organs. The EFTA/EEA States participate into the EU single market and EEA law originates from EU law. However, the common EU policies concerning agriculture, fisheries, taxation, foreign trade and currency do not apply to EEA law.

The EFTA Court was established by Article 108 (2) of the EEA Agreement and by the adoption of the Surveillance and Court Agreement in 1992. It started operating twenty years ago, on January 4, 1994, in Geneva, with five judges from Austria, Finland, Iceland, Norway, and Sweden. Several months later, when Austria, Finland, and Sweden became members of the European Community (EC), the EFTA Court was reduced to three judges. Since 1995, the Court consists of three judges and six ad hoc judges nominated by Iceland, Liechtenstein, and Norway. Currently the Court is located in Luxembourg and is regarded as the third European judicial body after the Court of Justice of the European Union and the European Court of Human Rights.

The EFTA Court’s structure mirrors the structure of the European Court of Justice, although the figure of Advocates General is absent. The judges of the EFTA Court are appointed for a renewable term of six years by a common accord of the governments of the EFTA States. The six ad hoc judges may be called to substitute for a regular judge who cannot decide a case because bias or illness. Each judge has a cabinet comprised of a legal secretary and an administrative assistant. The judges elect among their colleagues the President of the Court for a renewable term of three years. The President presides at hearings, assigns the cases to a judge that will act as a rapporteur, sets the dates and timetable for the sessions of the Court. The President also makes decisions on the application of interim measures. In addition, the Court appoints a Registrar for a renewable period of three years. The Registrar assists the Court in procedural matters, and is the head of the Court personnel. He 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 Court administers its own infrastructure and its own budget.

The EFTA Court’s Statute and its Rules are modeled on the rules of the European Court of Justice. As with the ECJ, the EFTA Court does not observe the rules provided in Articles 31 and 32 of the 1969 Vienna Convention on the Law of Treaties when interpreting EEA law. The EFTA Court determined in relation to the legal nature of the EEA agreement that it is a treaty sui generis, and in interpreting the agreement the Court follows the rules usually applied by the national supreme and constitutional courts. In addition, the legal principles embodied in the EEA agreement are applicable within the EFTA States and maybe be directly invoked before national courts. Economic operators and individuals enjoy broad protection before the EFTA court which exercises its jurisdiction in the following cases:

a) Actions brought by the EFTA Surveillance Authority against an EFTA State for infringement of the EEA Agreement or the Surveillance and Court Agreement.

b) Actions concerning the settlement of disputes between two or more EFTA States regarding the interpretation or application of the EEA Agreement, the Agreement on a Standing Committee of the EFTA States or the present Agreement;

c) Actions for nullity brought by an EFTA State or an individual or legal person against a decision of the EFTA Surveillance Authority;

d) Actions for failure to act brought by an EFTA State or a natural or legal person against the EFTA Surveillance Authority;

e) Judgments in the form of an advisory opinion on the interpretation of the EEA Agreement upon a request of a national court of an EEA/EFTA State.

In order to guarantee homogeneity between the ECJ and the EFTA Court jurisprudence, the EEA Agreement and the Surveillance and Court Agreement contain coordination provisions. Under these rules, the EFTA Court shall follow the relevant case law of the ECJ, although there is no provision that binds ECJ to follow principles adopted by the EFTA Court. However, in practice, the ECJ has often made reference to EFTA Court jurisprudence.

The EFTA Court has dealt in the majority of its decisions with legal issues that have not or not fully been decided by the ECJ. As to the interpretation of EEA law, the ECJ has taken into consideration the judgments by the EFTA Court with regard to the legal nature of the EEA Agreement, the free movement of goods, the principle of state liability in EEA law, and the freedom of establishment. When interpreting EU law, the ECJ has referred to the jurisprudence of the EFTA Court in cases concerning the Directive on Transfer of Undertakings, Directive on Television without Frontiers, and the selectivity criterion in State aid law. Advocates General of the European Court of Justice have established an open judicial dialogue with the EFTA Court. On the other side, the EFTA Court regularly refers to the opinions of the Advocates General.

According to the President of the EFTA Court Prof. Carl Baudenbacher “it is fair to say that the EFTA Court is, with its limited case load and its limited means, making a significant contribution to the development of the case law in the whole of the EEA”. This year the EFTA Court celebrated its 20th anniversary by hosting a special conference on June 20, 2014 in Luxembourg.

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International Judicial Monitor
© 2014 – The International Judicial Academy
with assistance from the American Society of International Law.

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