The EEA agreement five years on: Dynamic homogeneity in practice and its implementation by the two EEA courts

Common Market Law Review

Volumn 36, Issue 4, 1999, Pages 751-781

  Forman, John ^a  

^a EUROPEAN COMMISSION   (Belgium)

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EID: 0033461548     PISSN: 01650750     EISSN: None     Source Type: Journal    
DOI: 10.1023/A:1018792701142     Document Type: Article

References (162)

1. O.J. 1994, L 1. See, generally, Jacot - Guillarmod et al. Accord EEE: Commentaires et Réflexions, (Schulthess, 1992).
2. At least in terms of population: Iceland, 275,000; Liechtenstein, 31,700; Norway, 4,400,000. Cf. GNP per cap. (1996): Iceland, 24,882 (euro); Liechtenstein (Switzerland) 41,526 (euro); Norway 32,314 (euro). EFTA Facts and Figures (November 1998) p. 9.
3. E.g. Free Trade Agreement with Norway, O.J. 1972, L 171/2, cf. Art. 120 EEA.
4. In particular, Arts. 89 to 94 of Part VII, Institutional Provisions, EEA.
5. Cf. the term "EFTA States", as defined in Art. 2(b) EEA.
6. [1991] ECR I-6079.
7. From the French "Espace". "Space" then became "area", not least in the light of the views of the then British Prime Minister, Margaret Thatcher, on the imprecision of the former term.
8. Joint E(E)CTEFTA Foreign Ministers meeting in Luxembourg on 9 April 1984, the first such meeting since the signing of the Free Trade Agreements with the EFTA countries in 1972, AGR1984, pt. 652.
9. Denmark and the UK - together with Ireland - had acceded to the European (Economic) Community in 1973, Portugal left EFTA and acceded (with Spain) to the (Economic) Community in 1986.
10. See also the "political message" contained in the EEA Agreement (fourteenth preambular paragraph) that "[its] conclusion . . . shall not prejudice in any way the possibility of any EFTA State to accede to the European Communities".
11. To be established by 31 Dec. 1992, cf. Art. 14 (ex 7a) EC.
12. According to the European Commission, the Community was to pursue a policy of "proximity" as regards relations with the EFTA States. AGR1988, pt. 899.
13. E.g. the Declaration of President Delors before the European Parliament in Jan. 1989, AGR1989, pt.780.
14. See, generally, Booss and Forman, "Enlargement: Legal and procedural aspects", 32 CML Rev., 95-130.
15. AGR 1993, pt. 1 et. seq.
16. Inter alia, Baudenbacher, "Between homogeneity and independence: the legal position of the EFTA Court in the European Economic Area", (1992) Columbia Journal of European Law, 169 at 178.
17. Notwithstanding the setbacks, the Parties' determination to have an agreement was amply shown by the renegotiated text being prepared within 2 months. Norberg op. cit. supra note *, pt. 2.10.4.
18. Inter alia, by the addition of the fifteenth preambular paragraph to the EEA Agreement ". . . a uniform interpretation and application of this Agreement and those provisions of Community legislation which are substantially reproduced in this Agreement. . .": note 154.
19. [1992] ECR I-2821.
20. See, as a consequence, the EEA "Adjusting Protocol", O.J. 1994, L 1/572.
21. This was achieved without modifying the EEA Agreement, i.e. no further ratification by the national parliaments was considered necessary. However, denouncing EFTA membership was a condition of accession, e.g. Art. 78 (Austria), Act of Accession, O.J. 1994, C 241.
22. This led to the conclusion of two further agreements between the EFTA/EEA States: Agreement of 28.9.94 on Transitional Arrangements for a period after the Accession of certain EFTA States to the EU; note 120: Agreement of 29.12.94 Adjusting Certain Agreements between the EFTA States; not published.
23. Decision 1/95, O.J. 1995, L 86/58.
24. Art. 93(2) EEA. Note also the potentially difficult situations to which a "two-man" EFTA Court and EFTA Surveillance Authority (see infra) could give rise.
25. And Switzerland remained the only State amongst "the 19" which had not intensified its relations with the European Union! See further, Conclusions.
26. The notion of "relevance" is not defined in the EEA Agreement: cf. Art. 118 EEA; further, note 74.
27. The four basic freedoms - goods, persons, services, capital; provisions on competition, State aids and public procurement, together with a wide range of accompanying rules and procedures in the form of so-called horizontal provisions relevant to the four freedoms, e.g. social, consumer protection, environment . . . and further articles on cooperation outside the four freedoms in so-called flanking policies: research, education, training, youth, small and medium sized enterprises, audio-visual, . . . See Parts II to VI EEA: but note that several areas appear in both Parts V and VI EEA.
28. But see CFI Case T-115/94, Opel Austria, [1997] ECR11-39: ". . . the EEA Agreement involves a high degree of integration, with objectives which exceed those of a mere free trade agreement" (para 107); also EFTA Court Cases E-2/97, Mag Instrument Inc. v. California Trading Company (Maglite), decision of 3 Dec. 1997: ". . . the aim of the EEA Agreement. . . is to create a fundamentally improved free trade area. . ." (para 27) and E-9/97, Sveinbjörnsdóttir, decision of 10 Dec. 1998: ". . . the EEA Agreement . . . establish(es) an enhanced free trade area" (para 59). Note that as with the ECJ/CFI, summaries of new cases before the EFTA Court and of its decisions are published in the Official Journal of the European Communities. The decisions themselves are published in the EFTA Court's Annual Reports - in English and, more recently, at least as regards those following requests for Advisory Opinions (see infra) also the language of the requesting court in the C.M.L.R. and on the Internet (http://www.efta.int.).
29. e.g. Case C-395/95P, Geotronics, [1997] ECR I-2271, in particular the Opinion of A.G. Tesauro: ". . . the EEA Agreement . . . does not include the sphere of external aid . . . " (para 25).
30. cf. Arts. 19 and 46 EEA.
31. See also Protocol 47 in the abolition of technical barriers to trade in wine and note that Annex II on technical regulations, standards, testing and certification will inevitably contain provisions affecting agriculture.
32. Whilst the word "extension" puts the emphasis more on the (Community's) acquis, which is then to be extended throughout the EEA, "incorporation" looks more at the "unitary" nature of the EEA and the fact that the acquis is applied "across the board" for the benefit of all the Contracting Parties and the economic operators.
33. But not the wide variety of Declarations and other documents which form a part of the EEA "exercise" cf. Art. 119 EEA.
34. See, in particular, Art. 98 EEA.
35. "Decision-shaping" as it is called with regard to the adoption of the acquis at Community level and "decision-taking" as regards the EEA Joint Committee decisions themselves.
36. Cf. the "continuous information and consultation process" to which reference is made in Art. 99(3) EEA. At the decision-shaping stage, the Commission is to seek the advice of EFTA/EEA experts "in the same way" as it seeks advice from experts of the Member States. Whilst no provision places any obligation on the Community institutions as regards the views expressed by the EFTA/EEA States, see the "good faith" principle contained in Art. 99(4) EEA.
37. Note, also, the fifth preambular paragraph: ". . . the important role that individuals will play in the EEA through the exercise of the rights conferred on them by this Agreement. . . ": cf. the "direct effect" of the EEA Agreement, infra. 38. e.g. 1999 Budget of the European Union, O.J. 1999, L 39/1319-1322.
38. See the Joint Declaration on applicable procedures in cases where, by virtue of Art. 76 and Part VI of the Agreement and corresponding protocols, EFTA States participate fully in EC Committees.
39. Cf. Council Decision 87/373 laying down the procedures for the exercise of implementing powers conferred on the Commission, O.J. 1987, L 197/33: Commission proposal to revise that decision in O.J. 1998, C 279/5.
40. Cf. note 36.
41. The position of the Community, to avoid any undue "contamination" of its internal decision-making procedures by the addition of further committees, has been particularly strict, only one added to date: O.J. 1994, L 85/71. See further, note 69 infra. 43. The EFTA/EEA States may also participate as experts in advisory committees assisting the Commission (usually as regards the preparation of proposals), note 36. In the face of these (very different types of) committee, the participants, especially from the EFTA/EEA side, who may well be the same people, could, perhaps, be excused for "forgetting" which particular "hat" (independent expert or State representative) they were wearing at a given moment and what precisely their role was!
42. The amendments to the (Annexes of the) EEA Agreement made by the EEA Joint Committee decision are also to be as "close . . . as possible to the adoption . . . of the corresponding new Community legislation . . ." (Art. 102(1) EEA).
43. "To this end, the Community shall, whenever adopting a legislative act on an issue which is governed by [the] Agreement, as soon as possible inform the other Contracting Parties in the EEA Joint Committee".
44. See, also, Art. 7 EEA on the binding nature of EEA Joint Committee decisions and the manner in which the acquis is, as such, [to] "be, or be made, part of [the] internal legal order of the Contracting Parties". How (an act corresponding to) a Regulation which, by its very nature, is part of the Community legal order is, on extension, "as such [to] be made" part of that order, i.e. within the Community, is not further explained!
45. It is not entirely clear what this means although it would, no doubt, not extend to the Contracting Parties enabling themselves to recognize legislation which breached the Agreement.
46. Although suspension may not take place before "the corresponding EC Act (directive) is implemented in the Community". Cf. the more brutal so-called "guillotine clause" ("if one goes (e.g. following a referendum) they all go"!) contained in the seven sectoral agreements signed by the Community and Switzerland on 21 June 1999, Agence Europe, 22 June 1999, pt. 8.
47. See the five examples of such acquired rights in the Agreed Minutes Ad Article 102(6) annexed to the Final Act of the EEA Agreement.
48. Cf. "Preliminary rulings" in Art. 234 (ex 177) EC. For the "Advisory Opinions" of the EFTA Court see infra. 51. Further, Art. 102(3) EEA: "The Contracting Parties shall make all efforts to arrive at an agreement on matters relevant to this Agreement": also, Art. 3 EEA: see EFTA Court cases E-7/97 and E-10/97, infra. 52. Note the possibility, at any time, for a Contracting Party to raise before the EEA Council (Art. 89(2) EEA) (or the EEA Joint Committee, Art. 92(2) EEA) "any issues giving rise to a difficulty", the so-called "droit d'évocation".
49. Note that a Standing Committee of the EFTA States (cf. Protocol 1, pt. 4, EEA) was also to be set up to "carry out functions in respect of decision-making, administration and management": the EFTA States were to "consult within the Standing Committee for the purpose of taking decisions in the EEA Council and EEA Joint Committee". The "Agreement on a Standing Committee of the EFTA States" has not been published in the Official Journal, but see O.J. 1994, C 85/76.
50. Arts. 108-110 EEA: see, in particular, the Agreement between the EFTA States on the establishment of a Surveillance Authority and a Court of Justice ("the Surveillance/Court Agreement"), O.J. 1994, L 344. Note that the EFTA/EEA States declared their intention to establish a court of first instance for competition cases "should the need arise": in fact, it has not been felt necessary to set up such a court.
51. See also note 84 as regards ESA's "administrative" tasks.
52. Surveillance/Court Agreement, Art. 34.
53. Under Part VIII EEA, Arts. 115 to 117 and Protocol 38, the EFTA/EEA States were also to set up a (5 year) "Financial Mechanism" for the benefit of projects in Greece, the island of Ireland, Portugal and certain regions in Spain, see infra. 58. However, "on the basis of equality and reciprocity. . . " (fourth preambular paragraph): they were also to retain their "decision-making autonomy" and "treaty-making power" (sixteenth preambular paragraph).
54. The concept does not, as such, appear in the EEA Agreement but see, in particular, the fourth preambular paragraph.
55. See also Art. 5 EEA and the further articles cited.
56. Protocol 48 EEA.
57. Always "guided" by the EEA Council and subject to the possible "participation", on the one hand, of the EU Council and, on the other, the EFTA Standing Committee.
58. The first for 1999 on 18 May: Agence Europe, 19 May 1999, pt. 16. For 1998, see AGR 1998, pt. 790 and the further references to the EC Bulletin given: the EEA Joint Parliamentary Committee also met twice in 1998: whilst no reference to any meeting of the EEA Consultative Committee is made, it did, in fact, hold its annual meeting in Reykjavik in June 1998.
59. AGR 1995, pt. 810; AGR 1996, pt. 781.
60. AGR 1997, pt. 866.
61. AGR 1998, pt. 790.
62. AGR 1995, pt. 810. See already the Declaration on this subject adopted at the time of the signature of the Agreement.
63. Note that the Commission proposal (but not necessarily a modification: e.g. O.J. 1998, C 139/1 and O.J. 1999, C 139/7) will, normally, include a reference to its EEA relevance i.e. it is a Community act which, at least in the view of the Commission, should be extended to the EEA. However, whilst the Council (EP) decisions themselves do not, Commission decisions may also contain such a reference, e.g. O.J. 1999, L 77/8. But see e.g. Commission Regulation 757/99 (O.J. 1999, L 98/12) concerned with import licences for bananas which is stated to be EEA relevant.
64. Note that this is usually done, in the first place, by officials from the EFTA side. In practice, the procedure for the adoption of the acquis and that involved in the taking of the Joint Committee decision has always been kept separate. To have tried to "integrate" the taking of the EEA Joint Committee decision into the procedure involved in the adoption of the acquis would have been considered by the EU to have involved an (unacceptable) "participation" of the EFTA/EEA States in the Community's internal decision-making process. However, the "dynamics" of homogeneity will not, thereby, have been helped! see infra. 70. Concerning arrangements for implementing the EEA Agreement, O.J. 1994, L 305/6, in particular Arts. 1(2), 1(3)(a) and 3(2): this is the case even if the act has been adopted following co-decision between the Council and the EP.
65. Also the EP, Art. 3(1), Regulation 2894/94.
66. This may be due, inter alia, to the Council having to take this decision "no later than the time of the adoption" of the acquis in question; Regulation 2894/94, Art. 1(1).
67. But note the extension of Council Regulation 3577/92 applying the freedom to provide services to maritime transport within the Community (maritime cabotage) O.J. 1992, L 364/7, which was not extended for several years. See now EEA Joint Committee decision 70/97 of 4 October 1997, O.J. 1998, L 30/42.
68. e.g. EEA Joint Council Decision 36/95 on incorporating into Protocol 31 on cooperation in specific fields outside the four freedoms the field of culture, O.J. 1995, L 205/45: cf. Arts. 86, 87 together with Art. 118 EEA and the requirement of ratification or approval by the Contracting Parties of amendments to the Agreement which introduce new fields within its ambit. But see already the Joint Declaration on Cultural Affairs attached to the EEA Agreement itself. For further examples of "new areas" incorporated into Protocol 31 by Joint Committee decisions, see e.g. O.J. 1997, L 58/50 (employment); 1997, L 71/44 (energy); 1998, L 272/18 (public health). However, note that any "excessive dynamism" might by-pass the national (and European) parliaments having to agree to a modification of the Agreement.
69. Art. 9(2) reads: "At the end of the transitional period for Liechtenstein the transitional measures shall be jointly reviewed by the Contracting Parties, duly taking into account the specific geographic situation of Liechtenstein" i.e. the transitional period is to come to an end unless decided otherwise by the Contracting Parties: see already the Liechtenstein declaration on this subject attached to the EEA Agreement. See also EFTA Court case E-3/98, Rainford-Towning, decision of 10 Dec. 1998. Cf., e.g., Annex X EEA on Audio-visual Services, pt. 1(b), and the need for the Contracting Parties, within the terms of a review - foreseen for 1995 (but not yet undertaken!) - to agree to abolish the exception (not limited in time) granted to the EFTA/EEA States to be able to scramble spot advertisements for alcoholic beverages. And note that all the Annexes of the Agreement can be modified by an EEA Joint Committee decision: Art. 98 EEA. Were it ever considered impossible to introduce a piece of relevant acquis into an Annex, the question could, perhaps, be raised as to whether (at least) an annex (cf. a protocol) could be added to the Agreement by means of an EEA Joint Committee decision e.g. its title (substance) prevented the addition of a particular new chapter: but see note 74.
70. N.B. Protocol 15 is not listed in Art. 98 EEA as one of the Protocols which may be amended by an EEA Joint Committee decision.
71. AGR 1997, pt. 868; 1998, pt. 791. See also, on the other hand, the only other example of safeguard measures, adopted this time by the Community, in respect of Norwegian salmon exports: Regulation 2907/95, O.J. 1995, L 304/38. For subsequent anti-dumping and countervailing duties, see O.J. 1999, L 101/1.
72. Again, Protocol 38 is not listed in Art. 98. Cf. Art. 7 of Protocol 38: "Further provisions for the implementation of the Financial Mechanism may be decided upon by the EEA Joint Committee as necessary". AGR 1998, pt. 790. In other words, a decision of the EEA Joint Committee taken under Protocol 38 would be limited to giving effect to (but not to extending the life of) the Mechanism. However, "the EEA Joint Committee is invited to define the modalities of continuing this aid as soon as possible": EEA Council meeting, 18 May 1999, note 63. Cf. the "elegant solution" of a Declaration and an exchange of letters, chosen to address the Nordic alcohol monopolies issue during the last enlargement exercise: Booss and Forman supra note 14, section 5.4.
73. Subsequently "unblocked": EEA Council meeting, 18 May 1999, note 63.
74. To a certain extent, the respective protocols (2) of the Free Trade Agreement with Iceland and Norway continue to apply: Art. 11, Protocol 3 EEA.
75. EEA Joint Committee decision 69/98 of 17 July 1998, entry into force on 1 Jan. 1999: O.J. 1999, L 158.
76. Note that references to "third country relations" (cf. note 29) can be found elsewhere in the EEA Agreement e.g. Annex IX, Financial Services. See also Protocol 12 on conformity assessment agreements with third countries (the first between EFTA and Australia and New Zealand, note 63).
77. See also e.g. Council Regulation 2309/93 laying down Community procedures for the authorization and supervision of medicinal products for human and veterinary use and establishing a European Agency for the Evaluation of Medicinal Products (O.J. 1993, L 214/1). Note further the legislation adopted subsequent to Directive 90/220 on genetically modified organisms (O.J. 1991, L 74/32) still to be incorporated into the Agreement: also that following Directive 79/112 on food labelling (O.J. 1979, L 33/1): further, Directive 98/44 on the legal protection of biotechnological inventions (O.J. 1998, L 213/13).
78. Cf. ESA Annual Report 1998, p. 10 and the wide range of tasks of an administrative character, to which reference is made. cf. Protocol 1(4)(d) EEA and the Surveillance/Court Agreement, in particular Protocol 1. Also decision No. 3/94/SC of the Standing Committee of the EFTA States laying down procedures for committees assisting ESA in carrying out its functions under Article 1 of Protocol 1 of the Surveillance/Court Agreement (O.J. 1994, L 85/77): cf. Council Decision 87/373, note 40.
79. Although certain EEA Joint Committee decisions (e.g. amending Protocol 31 on cooperation in specific fields outside the four freedoms) do not include a provision according to which the acquis in question is equally authentic in the Icelandic and Norwegian languages, perhaps because they are considered not to affect the economic operator directly, e.g. O.J. 1999, L 30/57.
80. In other words, even on publication of a Joint Committee decision, the (in particular EFTA/EEA) economic operator does not necessarily know as of when the extended acquis is applicable!
81. An attempt to "ensure" the certainty of application of an EEA Joint Committee decision throughout the EEA, rather than having to rely on its - potentially uncertain - date of entry into force, may be made by the decision containing a specific (retroactive) application date, e.g. O.J. 1999, L 123/60.
82. In 1998, the EEA Joint Committee took 122 decisions involving 824 Community acts: however, of these, 644 were veterinary acts which were incorporated in revised Annex I by EEA Joint Committee decision 69/98 supra, note 81. ESA Annual Report 1998, p. 8.
83. ESA Annual Report 1998, p. 16.
84. EEA Joint Committee decision 7/94, O.J. 1994, L 160, was adopted to bring the EEA Agreement "up-to-date", the "cut-off" date for the inclusion of EEA relevant acts in the Agreement having been 31 July 1991.
85. EC Bulletin 10-98, p. 82.
86. E.g. Publication in O.J. 1999, L 100/38 et seq. as regards a series of EEA Joint Committee decisions taken over 9 months previously and dealing with Community legislation which may have been adopted a number of years beforehand! Also first sentence, note 69. A further question could arise as to how the EFTA/EEA States are to deal with a piece of acquis which has been incorporated into the Agreement but has subsequently been declared invalid by the ECJ or, indeed, is considered relevant but has not (yet) been extended and is being attacked before the ECJ as not compatible with an international agreement entered into by the Community, e.g. case C-377/98, The Netherlands v. EP/Council (pending) on the compatibility of Directive 98/44 on the legal protection of biotechnological inventions (note 83 supra) with the Convention on Biological Diversity.
87. Case E-3/97, Jæger, decision of 1 April 1998, para 30.
88. "This improved notification situation . . . . took place in spite of the fact that the EEA Joint Committee decisions . . . often give the EFTA States in practice no time . . . . to take implementing measures . . . . Thus 26 decisions taken in 1998 [were to] enter into force the day after [they] were taken, e.g. O.J. 1998, L 100/38. Since the date of implementation . . . . in the directives had already passed by [then], the compliance date, . . . . was the next day after the Joint Committee decision" (p. 19). However, the "compliance date" might be more a question of practice than strict law, see supra.
89. Foreword. Note also the "administrative tasks" of ESA, note 84.
90. The figures in the table at p. 22, as regards applications to the EFTA Court are somewhat misleading. In fact, apart from the two cases brought against Norway in 1997 (Cases E-7/97 and E-10/97, respectively judgments of 30 April 1998 and 19 June 1998), the four (other) cases noted against Iceland concern two cases joined in one application in 1996 (case E-1/96) which was withdrawn after the necessary measures were adopted, and two ESA decisions in respect of genetically modified organisms which were not notified to the EFTA Court following implementation in Iceland (cf. ESA Annual Report 1997, pp. 20-21).
91. E.g. O.J. 1999, L 111/46 and C 117/5. On a Community State aid decision with EEA relevance see, e.g. O.J. 1999, L 44/37: for one on competition, see O.J. 1999, L 116/1.
92. Although published decisions taken by ESA in the field of competition are difficult to find, e.g. O.J. 1997, L 284/68 and 91.
93. See already its first Annual Report (for 1994).
94. The EFTA Court moved from Geneva to Luxembourg in 1996. See, in general, Norberg, "The EFTA Court", in Plender et al., European Courts Practice and Precedents (Sweet & Maxwell, 1997), Chapt. 3. Also, Baudenbacher, op. cit. supra note 16.
95. The EFTA Court moved from Geneva to Luxembourg in 1996. See, in general, Norberg, "The EFTA Court", in Plender et al., European Courts Practice and Precedents (Sweet & Maxwell, 1997), Chapt. 3. Also, Baudenbacher, op. cit. supra note 16.
96. In 1998, 374 cases dealt with by the ECJ and 279 by the CFI.
97. At the same time, the number of cases dealt with by the ECJ/CFI where the EEA Agreement has represented the central or at least an important issue has also [and apart from Opinions 1/91 and 1/92 supra] been limited e.g. Opel Austria, supra note 28 and Geotronics, supra note 29, which, at para 28, takes over para 48 of the decision of the CFI according to which ". . . the EEA Agreement takes effect in full as from its entry into force [so] that it can . . . apply only to legal situations which came into being after its entry into force." But note two recent decisions of the ECJ in cases C-140/97, Rechberger and C-321/97, Andersson, both judgments of 15 June 1999, nyr. The Court held that it was not competent to rule on the interpretation of the EEA Agreement as regards its application in Austria (resp. Sweden) during the period prior to accession.
98. Cases E-3/94, Friedman; E-6/94, Helmers; E-7/96, Hansen. 104. Cases E-5/97, Star Forsikring and E-4/98, Blytli Software. 105. Cases E-4/94, De Agostini (Svenska) and E-5/94, TV-Shop; cf. Joined Cases C-34 -C-36/95, De Agostini and TV-Shop, [1997] ECR I-3875; Case E-7/94 Data Delecta, cf. case C-43/95 Data Delecta, [1996] ECR I-4661.
99. Case E-4/96 by E-1/97, Gundersen, decision of 3 Dec. 1997.
100. E-1/96, ESA v. Iceland, supra. Cases E-8/94, Mattel and E-9/94, Lego, both decisions of 16 June 1996, were joined.
101. But see Case E-7/96, Hansen, supra, rejected as inadmissible. See also case E-6/97LA, Skrindo, order of 3 Dec. 1997, where an application for legal aid to bring proceedings against ESA for inaction was summarily rejected.
102. The earlier case (E-1/96 supra) against Iceland had been withdrawn.
103. This may have been helped by the Parties agreeing that the oral hearing could be dispensed with.
104. E-2/94, Scottish Salmon, decision of 2 March 1995, and E-4/97, Norwegian Bankers' Association, decision of 3 March 1999.
105. Art. 87, EFTA Court Rules of Procedure, O.J. 1994, L 278.
106. Art. 80(1), EFTA Court Rules of Procedure.
107. As established by the relevant case law of the ECJ: cf. paras 25 and 27.
108. From the Order, it would appear that this is the only instance, to date, where the European Commission has not been called upon to give its observations in proceedings dealt with by the EFTA Court see infra.
109. Cases E-1/94, Restamark, judgment of 16 Dec. 1994; Joined Cases E-8/94 and 9/94, Mattel and Lego, supra; Case E-1/95, Samuelsson, judgment of 20 June 1995.
110. As of cases E-2/95, Eidesund, and E-3/95, Langeland, both decisions of 25 Sept. 1996.
111. Cases E-9/97, Sveinbjörnsdóttir, supra; E-2/98, "Pharmaceutical Pricing", decision of 24 Nov. 1998, and E-5/98, Fagtún, decision of 20 May 1999.
112. Case E-5/98 Fagtún, supra. Whilst Cases E-7/94, Data Delecta, supra and E-5/97, Star Forsikring, supra were also submitted by the Supreme Courts of, respectively, Sweden and Norway, they were both withdrawn.
113. Case E-3/98, Rainford-Towning, supra.
114. The EFTA Court was called upon to decide whether the requesting body, the "Tullilautakunta", the Appeals Committee at the Finnish Board of Customs, was in fact a "court or tribunal" for the purposes of Art. 34 Surveillance/Court Agreement. In Joined Cases E-8/94 and E-9/94, Mattel and Lego, supra, concerned with Directive 89/552 (television without frontiers) in relation to the prohibition in Norwegian law of commercial television advertisements directed towards children, the EFTA Court found that the "Markedsrådet", although considered in Norway to be an administrative body rather than a court, nevertheless also fell within Art. 34 Surveillance/Court Agreement.
115. See, in general, Tichy and Dedichen, "Securing a smooth shift between the two EEA pillars: Prolonged competence of EFTA institutions with respect to former EFTA States after their accession to the European Union", 32 CML Rev., 131.
116. Case E-3/97, Jæger, supra. Cf. the three further competition cases in the field of State aids, cases E-2/94, Scottish Salmon, E-4/97, Husbanken and E-6/98, Norway/ESA, all supra.
117. The EFTA/EEA States could also, but have not, restricted requests to their supreme courts, Art. 34(3) Surveillance/Court Agreement. However, no EFTA/EEA State has taken advantage of the possibility set out in Article 107/Protocol 34 EEA for its courts to be able to request the ECJ for a "preliminary ruling".
118. Case E-1/94, Restamark, supra at paras. 47, 48, 49, 51, 56, 60, 66 and 70: very specifically in case E-3/95, Langeland, supra, at para 41: note also case E-1/97, Gundersen, supra and the several references to ECJ case C-189/95, Franzén, [1997] ECR I-5909. Further, cases E-2/96, Ulstein, decision of 19 Dec. 1996, at para 17 and Ask E-3/96, decision of 14 March 1997, at para 15: ". . .the ECJ has previously dealt with the concept . . . in numerous cases . . . the general principles of interpretation of (Directive 77/187 on safeguarding employees' rights on the transfer of companies) seem to be well established in ECJ case law and the decisions of the ECJ can give considerable guidance . . .". However, citations have also "gone the other way" e.g. Opel Austria, supra note 28, at para 108, where cases E-1/94, Restamark and E-2/94, Scottish Salmon, supra were cited by the CFI. Further examples can be found in joined cases C-34-36/95, De Agostini and TV-Shop, supra, at para 37; also A.G. Jacobs at paras. 21 and 46 where cases E-8/94 and E-9/94, Mattel and Lego, supra are cited and case C-189/95, Franzén, supra where A.G. Elmer referred to case E-1/94 Restamark: further, case C-13/95 Süzen [1997] ECR I-1268 at para 10 and A.G. Jacobs (at para 43) in case C-355/96, Silhouette, 1998 [ECR] I-4799, referring to but distinguishing case E-2/97, Maglite, supra; see further below. Most recently, see Rechberger, supra, in which reference was made to the decision of the EFTA Court in Case E-9/97, Sveinbjörnsdottir, supra.
119. Art. 6 EEA reads: ". . . the provisions of the Agreement, in so far as they are identical in substance to corresponding rules of the [EC] Treaty . . . shall . . . be interpreted in conformity with the relevant rulings of the EJC given prior to the date of signature of the Agreement". This, as it had to be in view of the continuously evolving nature of ECJ jurisprudence, was "without prejudice to future developments of case law" which, in the Surveillance/Court Agreement (Art. 3(2)), has been "developed" to read: ". . . the EFTA Court shall pay due account to the principles laid down by the relevant rulings of the ECJ . . ." given after the signature of the EEA Agreement.
120. Already in case E-1/94, Restamark, supra at para 24.
121. Note case E-3/98, Rainford-Towning, supra where the EFTA Court "supports the statement of the ECJ [given in case C-350/96]" (para 35) and case E-8/97, TV1000 Sverige, decision of 12 June 1998: ". . . both the EFTA Court and the ECJ have accepted . . ." (para 22). Note, also, the reference to "the Member States [of the EEA]" in Case 6/96, Wilhelmsen, decision of 27 June 1997, cf. the "EEA States" or "the Contracting Parties to the Agreement" otherwise used (e.g. Sveinbjörnsdöttir, supra).
122. E.g. Cases E-8/97, TV 1000 Sverige supra, at para 22.
123. Although the thirteen Community and EFTA (Icelandic and Norwegian - German being the official language in Liechtenstein) languages are equally authentic for the purposes of the Agreement and the acquis contained in the Annexes (Art. 129 EEA).
124. N.B. Whilst English is the working language of the EFTA Court, its Advisory Opinions are also published (and are authentic) in the language of the referring court, therefore not in either of the two other "EFTA languages".
125. Case E-6/96, Wilhelmsen, supra at para 40, although it is "not a procedure to answer general or hypothetical questions": also case E-5/96, Ullensaker, decision of 14 May 1997, at para 13. Again: "The application . . . of the advisory opinion . . . is . . . , a matter for [the national] Court", case E-1/95, Samuelsson, supra at para 17.
126. cf. Art. 20 EFTA Court Statute and the express mention of "the EC Commission". But see note 115 supra. This does not, of course, mean that the observations of the European Commission are inevitably followed on all points or even at all e.g. cases E-2/94, Scottish Salmon, E-6/96, Wilhelmsen, E-1/97, Gundersen and E-7/97, Sveinbjörnsdóttir, all supra.
127. Cf. the reference to "the Community" (and the Commission) in Art. 20 of the EFTA Court Statute.
128. Note that an EFTA State, ESA, the Community and the EC Commission may also intervene before the EFTA Court (Art. 36(1) EFTA Court Statute): an application to intervene is to be made within three months of publication of the notice relating to the case (Art. 89(1), EFTA Court Rules of Procedure); see Norberg, op. cit. supra note 100, pt. 3.54. However, by this time, in the case of an Advisory Opinion, it may (almost) have been given: e.g. case E-3/98, Rainford-Towning, supra where the notice appeared in the Official Journal (C 331/24) of 29 Oct. 1998 and the Advisory Opinion was given the following 10 Dec. Note also that the EFTA/EEA States (and ESA) may intervene or participate in preliminary ruling procedures before the ECJ, cf. amendment to the ECJ Statute in O.J. 1994, L 379/1, e.g. cases C-189/93, Franzén, supra (Norway), C-55/96 Job Centre [1997] ECR 1-7119 (Norway) and C-321/97, Andersson, supra (Iceland and Norway).
129. Except at the oral hearing in case E-4/97, Husbanken, supra.
130. E.g. Joined Cases E-8/94 and 9/94, Mattel and Lego, supra, subsequently joined cases C-34-36/95, De Agostini and TV-Shop, supra; cases E-2/95, Eidesund and E-3/95 Langeland, supra respectively at paras 56 and 28; case E-2/96, Ulstein, supra at para 17, subsequently case C-13/95, Süzen, supra: case E-6/96, Wilhelmsen, supra, subsequently case C-189/95, Franzén, supra: also cases E-4/97, Husbanken, supra, E-1/98, Astra Norge, decision of 24 Nov. 1998. E-2/98, Pharmaceutical Pricing, supra, and 6/98, Norway v. ESA, supra at para 41.
131. First Council Directive to approximate the laws of the Member States relating to trade marks. O.J. 1989, L 207/44. The EFTA Court will keep itself fully informed of developments taking place at the same time before the ECJ. However, it will tend to decide in the first place if there are parallel cases pending because it will have considerably more time and also not to jeopardize its position as an independent and fully-fledged jurisdiction in its own right.
132. For an Advisory Opinion given by the EFTA Court on copyright, see case E-1/98, Astra Norge, supra.
133. Cf. paras 21, Maglite and 26, Silhouette, on the clarity of the wording of Article 7 of the Trade Mark Directive and whether or not it would enable the EEA Contracting Parties to apply international exhaustion. See also A.G. Jacobs at paras. 43 and 44. See also Baudenbacher, "Trademark law and parallel imports in a globalized world - recent developments in Europe with special regard to the legal situation in the United States", (1999) Fordham International Law Journal, 645, and the note in this Review by Gippini-Fournier.
134. In respect of which the EEA Joint Committee is to act so as to preserve the homogeneous interpretation of the Agreement (Art. 105(2) EEA) supra: otherwise, the settlement of disputes procedures laid down in Art. 111 could be applied.
135. See also case E-3/98, Rainford-Towning, supra where the EFTA Court referred to the "specific circumstances" which could "lead to differences in . . . interpretation" (para 21).
136. Council Directive 80/987 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer, O.J. 1980, L 283/23.
137. Joined cases C-6/90 and C-9/90, Francovich, [1991] ECR I-5357.
138. For a variety of opinions on this subject in the academic literature see e.g. Barents, "The Court of Justice and the EEA Agreement", (1992) Rivista di diritto europeo, 751; Van Gerven, "The Genesis of EEA law and principles of primacy and direct effect", (1992) Fordham International Law Journal, 955; Toledano, "The EEA Agreement: an overall view", 32 CML Rev., 1199; Christiansen, "The EFTA Court", (1997) EL Rev., 539 at 547; Sévon, "The protection of the rights of individuals under the EEA Agreement", (1999) EL Rev., forthcoming.
139. For a variety of opinions on this subject in the academic literature see e.g. Barents, "The Court of Justice and the EEA Agreement", (1992) Rivista di diritto europeo, 751; Van Gerven, "The Genesis of EEA law and principles of primacy and direct effect", (1992) Fordham International Law Journal, 955; Toledano, "The EEA Agreement: an overall view", 32 CML Rev., 1199; Christiansen, "The EFTA Court", (1997) EL Rev., 539 at 547; Sévon, "The protection of the rights of individuals under the EEA Agreement", (1999) EL Rev., forthcoming.
140. For a variety of opinions on this subject in the academic literature see e.g. Barents, "The Court of Justice and the EEA Agreement", (1992) Rivista di diritto europeo, 751; Van Gerven, "The Genesis of EEA law and principles of primacy and direct effect", (1992) Fordham International Law Journal, 955; Toledano, "The EEA Agreement: an overall view", 32 CML Rev., 1199; Christiansen, "The EFTA Court", (1997) EL Rev., 539 at 547; Sévon, "The protection of the rights of individuals under the EEA Agreement", (1999) EL Rev., forthcoming.
141. For a variety of opinions on this subject in the academic literature see e.g. Barents, "The Court of Justice and the EEA Agreement", (1992) Rivista di diritto europeo, 751; Van Gerven, "The Genesis of EEA law and principles of primacy and direct effect", (1992) Fordham International Law Journal, 955; Toledano, "The EEA Agreement: an overall view", 32 CML Rev., 1199; Christiansen, "The EFTA Court", (1997) EL Rev., 539 at 547; Sévon, "The protection of the rights of individuals under the EEA Agreement", (1999) EL Rev., forthcoming.
142. For a variety of opinions on this subject in the academic literature see e.g. Barents, "The Court of Justice and the EEA Agreement", (1992) Rivista di diritto europeo, 751; Van Gerven, "The Genesis of EEA law and principles of primacy and direct effect", (1992) Fordham International Law Journal, 955; Toledano, "The EEA Agreement: an overall view", 32 CML Rev., 1199; Christiansen, "The EFTA Court", (1997) EL Rev., 539 at 547; Sévon, "The protection of the rights of individuals under the EEA Agreement", (1999) EL Rev., forthcoming.
143. The EFTA Court did not need to take a decision on this question for the purposes of the case and as it was its very first case it is, perhaps, not surprising that it was not more "courageous".
144. Norberg, op. cit. supra note *, at pp. 206/7.
145. Note, in particular, the ESA Observations submitted to the EFTA Court ". . . a principle of State liability does not presuppose any transfer of legislative powers contrary to the system of the EEA Agreement", (para 45).
146. [1963] ECR 1; [1964] ECR 585.
147. The decision of the Reykjavík District Court of 18 March 1999 in favour of Ms Sveinbjórnsdottir was appealed to the Supreme Court of Iceland.
148. Note the express endorsement of the EFTA Court's decision in Sveinbjörnsdóttir, by the ECJ in Recliberger, supra, in which reference is made to the principle of uniformity as regards the interpretation and application of the EEA Agreement (para 39). Neither the ECJ/CFI nor the EFTA Court has yet been called upon to consider the "status" of and any consequences arising from EEA Joint Committee decisions.
149. See also Case E-3/98, Rainford-Towning, where the EFTA Court held that "where parallel [Community/EEA] provisions are to be interpreted without any . . . specific circumstances being present, homogeneity should prevail" (para 21).
150. "[Community] Acts . . . contained in . . . this Agreement or in decisions of the EEA Joint Committee shall be, or be made, part of [the Contracting Parties] internal legal order . . . a . . . regulation shall as such be made part of the internal legal order. . .". Also note 46.
151. This should in fact read "EFTA States". The reference, in Opinion 1/91, to the "sole" recital in the preamble (at p. 6085) of the English version of the Agreement (in fact, the present fourth recital), communicated by the European Commission in its form prior to initialling, may also be noted. There are, in fact, sixteen recitals and only one, the fifteenth, was added on renegotiation (cf. Opinion 1/92, supra, p. 2826).
152. See also Andersson, supra, where the ECJ held that although it had no jurisdiction to rule on the interpretation of the EEA Agreement as regards its application in the EFTA States, it did, in principle, have such jurisdiction where a question was raised before a court or a tribunal of one of the Member States.
153. AGR 1998, pt. 790. Information is also given "the other way round" e.g. by the EFTA/EEA States on the proposed EFTA/Canada free trade agreement, 38th Annual Report of the EFTA (1998), pp. 18 and 20, "the first-ever free trade bridge across the Atlantic", Financial Times, 2 June 1999.
154. Note 78.
155. Cf. the relative lack of Agreement-breach cases (2) decided by the EFTA Court and their (undisputed) nature.
156. Whilst there have only been a limited number of decisions of the ECJ, apart from Opinions 1/91 and 1/92 supra, which have considered the EEA Agreement in detail, note cases C-321/97, Andersson, supra and C-142/97, Rechberger, supra and CFI case Opel Austria, supra note 28.
157. E.g. extension of the Schengen acquis to Iceland and Norway, cf. Art 6, first paragraph of the Protocol integrating the Schengen acquis into the framework of the EU, attached to the Amsterdam Treaty: their participation in the proposed European Common Aviation Area: EEA Council meeting, 18 May 1999, pt. 17, note 63.
158. The EEA concept would probably "require" at least three members "on the other side" (note 24). However, it might always be possible to fill the "gap" left by an EFTA/EEA. State which, for instance, were to accede to the EU.
159. At all events, the path chosen for the present accession candidates has been in the form of "Europe Agreements" (e.g. Poland, O.J 1993, L 348; cf. the Association Agreement with Cyprus, O.J. 1973, L 133 and with Turkey, O.J. 1963, C 113 and O.J. 1995, L 35/1). For a recent summary of the progress made by the candidate countries towards accession, see EU Bulletin, Supplement 4/98.
160. Cf. certain elements of the sectoral Agreement on Air Transport with Switzerland, note 48.
161. Always provided its success to date is not, in some way, undermined by future activity.
162. The very existence of the EEA Agreement (and the "joint" EFTA-EFTA/EEA administrations) will also have served as an important "link" between the remaining non-EEA, EFTA State, Switzerland, and the Union, in the time between the latter's having rejected the EEA Agreement and at least until, but no doubt also beyond the entry into force of the seven sectoral agreements recently signed with the Community, supra.