Enhanced multilateralism and enhanced bilateralism: Integration without membership in the european union

Common Market Law Review

Volumn 45, Issue 5, 2008, Pages 1433-1458

  Lazowski, Adam ^a  

^a UNIVERSITY OF WESTMINSTER   (United Kingdom)

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EID: 57349098840     PISSN: 01650750     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (89)

1. On the history of European integration see, inter alia, Dinan, Europe Recast. A History of the European Union (London, Plagrave Macmillan, 2004).
2. In the case of the European Economic Area (technically also in the case of Switzerland) these forms of integration may lead to a membership in the European Union. Thus far, the history of the EEA has proved that this framework may successfully serve as a vehicle for membership (Austria, Sweden and Finland) as well as long term arrangement (the existing EEA-EFTA countries - Norway, Iceland and Liechtenstein). See, inter alia, Lazowski, "EEA Countries (Iceland, Liechtenstein and Norway)", in Blockmans and Lazowski (Eds.), The European Union and Its Neighbours. A Legal Appraisal of the EU's Policies ofStablisation, Partnership and Integration (The Hague, T.M.C. Asser Press 2006), pp. 95-146; Lazowski, "Box of Chocolates Integration: The European Economic Area and the Swiss Model Revisited", in Blockmans and Predial (Eds.), Reconciling the Deepening and Widening of the European Union (The Hague, T.M.C. AsserPress 2007), pp. 87-110.
3. The complexity of the EEA's institutional structure led Cremona to call it a Byzantine structure. See Cremona, "The 'Dynamic and Homogeneous' EEA: Byzantine Structures and Variable Geometry", 19 EL Rev. (1994), 508.
4. Case 26/62, NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v. Netherlands Inland Revenue Administration [1963] ECR I, atp. 12.
5. See e.g. Petrov, "Exporting the Acquis Communautaire into the Legal Systems of Third Countries", 13 EFA Rev. (2008), 33; Magen, "The Acquis Communautaire as an Instrument of EU External Influence", IX European Journal of Law Reform (2007) 361.
6. Evans, "Voluntary Harmonization in Integration between the European Community and Eastern Europe" 22 ELRev. (1997), 201-220.
7. E.g. Art. 51 of PCA with Ukraine, which reads: "The Parties recognize that an important condition for strengthening the economic links between Ukraine and the Community is the approximation of Ukraine's existing and future legislation to that of the Community. Ukraine shall endeavour to ensure that its legislation will be gradually made compatible with that of the Community" (Partnership and Cooperation Agreement between the European Communities and their Member States, of the one part, and the Republic of Ukraine, of the other part, O.J. 1998, L 49/3). See further Petrov, "Recent Development in the Adaptation of Ukrainian Legislation to EU Law", 8 EFARev. (2003), 125.
8. Piontek, "Central and Eastern European Countries in Preparation for Membership in the European Union - A Polish Perspective", 1 Yearbook of Polish European Studies (1997), 73; Lazowski, "Approximation of Laws" in Ott and Inglis (Eds.), Handbook on European Enlargement. A Commentary on the Enlargement Process (The Hague, T.M.C. Asser Press 2002), pp. 631-639.
9. It is interesting to see how the approximation clauses contained in agreements with the ENP countries will develop as a result of the European Neighbourhood Policy and the implementation of action plans.
10. Maiani, "Legal Europeanization as Legal Transformation: Some insights from Swiss 'outer Europe'" EUI Working Paper MWP 2008/32 at pp. 4-5.
11. See, inter alia, Lazowski, "And Then They Were Twenty-Seven... A Legal Appraisal of the Sixth Accession Treaty" 44 CML Rev. (2007), 401-430.
12. See Ott, "The 'Principle' of Differentiation in an Enlarged European Union. Unity in Diversity?" in Inglis and Ott (Eds.), The Constitution for Europe and an Enlarging European Union: Unity in Diversity? (Groningen, Europa Law Publishing 2005), pp. 103-132; Ott, "A flexible future for the European Union: the way forward or a way out?" in Blockmans and Predial, op. cit. supra note 2, p. 133.
13. The original name "European Economic Space" was changed in the course of the negotiations to the "European Economic Area".
14. st ed. (Stockholm, Fritzes Wolters Kluwer Sweden 1993); Robinson, Findlater (Eds.), Creating a European Economic Space: Legal Aspects ofEC-EFTA Relations (Dublin, Irish Centre for European Law 1990).
15. To this end, the EEA Agreement reproduces a majority of the substantive provisions of the EC Treaty and incorporates a vast amount of secondary legislation into the EEA framework. Free movement of goods is covered in Part II of the EEA Agreement. The prohibition of customs duties and measures having equivalent effect is firmly established in Art. 10 EEA. It is supplemented by prohibitions concerning quantitative restrictions on imports and exports, as well as measures having equivalent effect (Arts. 11-12 EEA). A list of exceptions similar to Art. 30 EC is provided in Article 13 EEA. Art. 14 EEA prohibits discriminatory taxation. Art. 16 EEA deals with State monopolies and their necessary adjustment. Part III of the EEA Agreement is devoted to the free movement of workers, services and capital. Art. 28 EEA is similarly worded to Art. 39 EC and contains basic rules on the free movement of workers. Provisions dealing with the right of establishment (Art. 31 EEA) and free movement of services (Art. 36 EEA) are also based on their equivalents in the EC Treaty. The situation is similar with regard to, inter alia, provisions on competition (Arts. 53-60 EEA) and State aid (Arts. 61-64 EEA).
16. In this article the special status of Denmark regarding the Schengen acquis is not discussed. Denmark, being a Member State of the European Union (however with a number of opt-outs and opt-ins), does not fit into the frameworks of enhanced multilateralism and bilateralism. Both these models apply to third countries only.
17. Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latter's association with the implementation, application and development of the Schengen acquis, O.J. 1999, L 176/36; Agreement between the European Community and the Republic of Iceland and the Kingdom of Norway concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Iceland or Norway, O.J. 2001, L 93/40. For an academic appraisal see, inter alia, Bull, "The Schengen Cooperation and Norway", in Müller-Graff and Selvig (Eds.), The European Economic Area - Norway's Basic Status in the Legal Construction of Europe (Berlin, Berlin Verlag 1997) p. 141; Eiriksson, "Deeply involved in the European project. Membership of Schengen", in Thorhallsson (Ed.), Iceland and European Integration. On the Edge (London, New York, Routledge 2004) p. 50.
18. Due to legal factors associated with the status of Liechtenstein, the extension of the Schengen framework is achieved by the accession of Liechtenstein to the EU/EC-Swiss Agreement on Schengen. See Council Decision 2008/261/EC of 28 Feb. 2008 on the signature, on behalf of the European Community, and on the provisional application of certain provisions of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation's association with the implementation, application and development of the Schengen acquis, O.J. 2008, L 83/3; Council Decision 2008/262/EC [sic] of 28 Feb. 2008 on the signature, on behalf of the European Union, and on the provisional application of certain provisions of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation's association with the implementation, application and development of the Schengen acquis, O.J. 2008, L 83/5.
19. See Council Decision 1999/435/EC of 20 May 1999 concerning the definition of the Schengen acquis for the purpose of determining, in conformity with the relevant provisions of the Treaty establishing the European Community and the Treaty on European Union, the legal basis for each of the provisions or decisions which constitute the acquis, O.J. 1999, L 176/1; Council Decision 1999/436/EC of 20 May 1999 determining, in conformity with the relevant provisions of the Treaty establishing the European Community and the Treaty on European Union, the legal basis for each of the provisions or decisions which constitute the Schengen acquis, O.J. 1999, L 176/17; Council Decision 2000/777/EC of 1 Dec. 2000 on the application of the Schengen acquis in Denmark, Finland and Sweden, and in Iceland and Norway, O.J. 2000, L 309/24.
20. The Energy Community Treaty, O.J. 2006, L 198/18.
21. Albania, Bosnia and Herzegovina, Croatia, the Former Yugoslav Republic of Macedonia, Montenegro, Serbia and the United Nations Interim Administration in Kosovo.
22. See further Blockmans, Tough Love: the European Union's Relations with the Western Balkans (The Hague, Asser Press 2007), pp. 316-320.
23. See, Art. 5 and Title II of the Energy Community Treaty.
24. Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity, O.J. 2003, L 176/37; Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas, O.J. 2003, L 176/57; Regulation 1228/2003/EC of the European Parliament and of the Council of 26 June 2003 on conditions for access to the network for cross-border exchanges in electricity, O.J. 2003, L 176/1.
25. Council Directive 85/377/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (as amended), O.J. 1985, L 175/40; Council Directive 1999/32/EC of 26 April 1999 relating to a reduction in the sulphur content of certain liquid fuels and amending Directive 93/12/EEC, O.J. 1999, L 121/13; Directive 2001/80/EC of the European Parliament and of the Council of 23 Oct. 2001 on the limitation of emissions of certain pollutants into the air from large combustion plants, O.J. 2001, L 309/1; Art. 4(2) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, O.J. 1979, L 103/1.
26. See Annex III of the Energy Community Treaty.
27. Directive 2001/77/EC of the European Parliament and of the Council of 27 Sept. 2001 on the promotion of electricity produced from renewable energy sources in the internal electricity market, O.J. 2001, L 283/33; Directive 2003/30/EC of the European Parliament and of the Council of 8 May 2003 on the promotion of the use of biofuels or other renewable fuels for transport, O.J. 2003, L 123/42.
28. Council Directive 96/61/EC of 24 Sept. 1996 concerning integrated pollution prevention and control, O.J. 1996, L 257/26. See Arts. 13-14 Energy Community Treaty.
29. For a general overview see, inter alia, Vahl and Grolimund, Integration without Membership. Switzerland's Bilateral Agreements with the European Union (Brussels, Centre for European Policy Studies 2006); Lazowski, "Switzerland", in Blockmans and Lazowski, op. cit. supra note 1, p. 147; Goetschel, "Switzerland and European Integration: Change Through Distance", 8 EFA Rev. (2003), 313; Breitenmoser, "Sectoral agreements between the EC and Switzerland: contents and context", 40 CMLRev. (2003), 1137; Emmert, "Switzerland and the EU: Partners, for Better or for Worse", 3 EFA Rev. (1998), 367.
30. Bilateral I is composed of the following: Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, O.J. 2002, L 114/6; Agreement between the European Community and the Swiss Confederation on Air Transport, O.J. 2002, L 114/73; Agreement between the European Community and the Swiss Confederation on the Carriage of Goods and Passengers by Rail and Road, O.J. 2002, L 114/91; Agreement between the European Community and the Swiss Confederation on trade in agricultural products, O.J. 2002, L 114/132; Agreement between the European Community and the Swiss Confederation on mutual recognition in relation to conformity assessment, O.J. 2002, L 114/369 (as amended); Agreement between the European Community and the Swiss Confederation on certain aspects of government procurement, O.J. 2002, L 114/430; Agreement on scientific and technological cooperation between the European Community and the European Atomic Energy Community, of the one part, and the Swiss Confederation, of the other part, O.J. 2007, L 189/26. Bilateral II comprises the following: Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation's association with the implementation, application and development of the Schengen acquis, O.J. 2008, L 53/52; Agreement between the European Community and the Swiss Confederation concerning the criteria and mechanisms for establishing the state responsible for examining a request for asylum lodged in a Member State or in Switzerland, O.J. 2008, L 53/5; Agreement between the European Community and the Swiss Confederation providing for measures equivalent to those laid down in Council Directive 2003/48/EC on taxation of savings income in the form of interest payments, O.J. 2004, L 385/30; Cooperation Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other part, to counter fraud and all other illegal activities to the detriment of their financial interests, not yet published; Agreement between the European Community and the Swiss Confederation amending the Agreement between the European Economic Community and the Swiss Confederation of 22 July 1972 as regards the provisions applicable to processed agricultural products, O.J. 2005, L 23/19; Agreement between the European Community and the Swiss Confederation concerning the participation of Switzerland in the European Environment Agency and the European Environment Information and Observation Network, O.J. 2006, L 90/37; Agreement between the European Community and the Swiss Confederation on cooperation in the field of statistics, O.J. 2006, L 90/2; Agreement between the European Community and the Swiss Confederation in the audiovisual field, establishing the terms and conditions for the participation of the Swiss Confederation in the Community programmes Media Plus and Media Training, O.J. 2006, L 90/23; Agreement between the Swiss Federal Council and the Commission of the European Communities with a view to avoiding the double taxation of retired officials of the institutions and agencies of the European Communities resident in Switzerland, not yet published.
31. Agreement between the European Economic Community and the Swiss Confederation, O.J. 1972, L 300/191 (as amended).
32. Agreement signed in Schengen on 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, O.J. 2000, L 239/13.
33. Convention signed in Schengen on 19 June 1990 between the Kingdom of Belgium, the Federal Republic of Germany, the French Republic, the Grand Duchy of Luxembourg and the Kingdom of the Netherlands, implementing the Schengen Agreement of 14 June 1985, O.J. 2000, L 239/19.
34. inter alia, Council Regulation (EC) No. 1683/95 of 29 May 1995 laying down a uniform format for visas, O.J. 1995, L 164/1 (as amended); Council Regulation (EC) No. 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose national are exempt from that requirement, O.J. 1991, L 81/1 (as amended); Council Regulation (EC) No. 1091/2001 of 28 May 2001 on freedom of movement with a long-stay visa, O.J. 2001, L 150/4.
35. Council Regulation (EC) No. 343/2003 of 18 Feb. 2003 establishing the criteria and mechanism for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national, O.J. 2003, L 50/1.
36. Commission Regulation (EC) No. 1560/2003 of 2 Sept. 2003 laying down detailed rules for the application of Council Regulation (EC) No. 343/2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national, O.J. 2002, L 222/3.
37. Council Regulation (EC) No. 2725/2000 of 11 Dec. 2000 concerning the establishment of "Eurodac" for the comparison of fingerprints for the effective application of the Dublin Convention with a view of helping to determine the Contracting Party responsible for examining an asylum application in accordance with the Dublin Convention, O.J. 2000, L 316/1.
38. Council Regulation (EC) No. 407/2002 of 28 Feb. 2002 laying down certain rules to implement Regulation (EC) No. 2725/2000 concerning the establishment of "Eurodac" for the comparison of fingerprints for the effective application of the Dublin Convention, O.J. 2002, L 62/1.
39. See Arts. 4-7 of the EC-Swiss Agreement on Asylum..
40. E.g. Council Regulation (EC, Euratom) No. 58/97 of 20 Dec. 1996 concerning structural business statistics, O.J. 1997, L 14/1 (as amended); Council Regulation (EC) No. 1172/98 of 25 May 1998 on statistical return in respect of the carriage of goods by road, O.J. 1998, L 163/1 (as amended); Council Regulation (EC) No. 1172/95 of 22 May 1995 on the statistics relating to the trading of goods by the Community and its Member States with non-member countries, O.J. 1995, L 118/10 (as amended); Council Regulation (EC, Euratom) No. 1287/2003 of 15 July 2003 on the harmonisation of gross national income at market prices (GNI Regulation), O.J. 2003, L 181/1.
41. Decision No. 1/95 of the EC-Turkey Association Council, of 22 Dec. 1995 on implementing the final phase of the Customs Union, O.J. 1996, L 35/1; Multilateral Agreement on the Common Aviation Area, O.J. 2006; L 285/3.
42. Communication from the Commission to the Council and the European Parliament on Strengthening the European Neighbourhood Policy, COM(2006)726 final, at p. 5.
43. Hillion, Mapping-Out the New Contractual Relations between the European Union and Its Neighbours: Learning from the EU-Ukraine "Enhanced Agreement", 12 EFA Rev. (2007), 169.
44. The status of EC regulations in the EEA legal framework was one of the issues during the negotiations. It was agreed that EEA-EFTA countries will be allowed to transpose regulations to their national legal orders. See Art. 7 EEA Agreement.
45. See Communication from the Commission. A Europe of Results - Applying Community Law, COM(2007)502 final.
46. EFTA Court, Case E-9/97, Erla Maria Sveinbjörnsdóttir v. Government of Iceland, [1998] EFTA Court Rep. 95.
47. See judgments of the Swiss Supreme Court and the Federal Administrative Tribunal referred to by Maiani, op. cit. supra note 10 at pp. 14-17.
48. See e.g. Joined Cases C-187 & 385/01, Criminal proceedings against Hüseyin Gözütok (C-187/01) and Klaus Brügge (C-385/01), [2003] ECR I-1345.
49. The legal basis is Art. 35 TEU. At the time of writing, 17 Member States have recognized the jurisdiction of the ECJ in this respect. The jurisdiction will become compulsory with the expiry of the five year transitional period laid down in the Treaty of Lisbon if that Treaty enters into force. For a comprehensive overview of the role of the ECJ in JHA Area see Braum and Weyembergh (Eds.), Quel contrôle juridictionnel dans l'espace penal européen? (Editions de l'Université de Bruxelles, Bruxelles 2008, forthcoming).
50. The exception is the EC/EU-Swiss Schengen Agreement, which falls in the dynamic category.
51. In reality, this scenario is not purely hypothetical. As a matter of fact, there has been a delay in the incorporation into the EEA framework of European Parliament and Council Directive 2004/38/EC. Despite the expiry of the transposition date this was still one of the outstanding issues on the Joined Committee's agenda at the end 2006. See Annual Report of the Joint Committee 2006. Functioning of the EEA Agreement, 27 April 2007, Ref. 1073630 at p. 2. Moreover, by the time of writing, this Directive has not been made part of the EC-Swiss Framework on Movement of Persons (See Maiani, op. cit. supra note 10 at p. 9).
52. The EEA Joint Committee is at the heart of the institutional framework. As noted by the EFTA Court in para 33 of the judgment in Case E-6/01, CIBA Speciality Chemical Waters Treatment Ltd. and Others v. Norway (EFTA Court Rep. [2002] 281) "the EEA Joint Committee is designed to function as an institution working in the pursuit of the common interest of the Community side and the EFTA side." In general terms, the EEA Joint Committee is equipped with competences to ensure the effective implementation and operation of the EEA Agreement. It is composed of representatives designated by the parties to the EEA Agreement, including ambassadors of the EEA-EFTA countries as well as representatives of the European Commission and the EU Member States. Moreover, the representatives of the EFTA Surveillance Authority and European Investment Bank are invited as observers. The EEA Joint Committee meets at least once a month; however, extraordinary meetings may be convened by the president on his or her own initiative or at the request of the parties.
53. See Arts. 98 and 102 EEA.
54. Annual Report of the Joint Committee 2006. Functioning of the EEA Agreement, cited supra note 51, at p. 1.
55. Art. 102 EEA.
56. The rights and obligations already acquired by individuals shall remain unaffected. In such cases, the EEA Joint Committee still has an obligation to take all measures possible to secure a compromise and bring the suspension to an end.
57. To this end, Art. 103 EEA provides for a special procedure, which was tailored to facilitate the fulfilment of constitutional requirements by the EEA-EFTA States without simultaneously undermining the EEA decision-making procedure. The entry into force of EEA Joint Committee decisions may be conditional on the fulfilment of the relevant constitutional requirements. Under certain circumstances, EEA Joint Committee decisions may also apply on a temporary basis.
58. This was one of the difficult issues in the negotiations leading to the creation of the EEA. See Cottier and Gerber, "Some Problems Regarding Ratification and Implementation of the European Economic Area Agreement in the EFTA Member States", 20 Pol. YBIL (1993), 253.
59. On legal consequences of delays, see EFTA Court, Case E-3/97, Jan and Kristian Jœger AS v. Opel Norge AS, [1998] EFTA Court Rep. 1.
60. This may change in the future as an observer status or membership in Energy Community is open to other countries. See Arts. 96 and 100 Energy Community (respectively).
61. Measures may be taken either by the Ministerial Council or the Permanent High Level Group (providing it is authorized by the Ministerial Council). See Arts. 47 and 53 (respectively) of the Energy Community Treaty.
62. See Decision of the Ministerial Council No 2007/06/MC-EnC of 18 Dec. 2007 on the implementation of Directive 2005/89/EC, Directive 2004/67/EC and Regulation (EC) No. 1775/2005, text available at www.energy-cornmunity.org/pls/ portal/docs/36293.PDF.
63. Breitenmoser, op. cit. supra note 29, at 1159. In the referendum organized in 1992 Swiss nationals rejected the Agreement on the European Economic Area, closing the door for the Swiss participation in this framework.
64. One should not forget, however, the different status of the EC-Swiss Agreement on Air Transport in this respect.
65. For more on the institutional framework of the EEA see, inter alia, Reymond, "Institutions, decision-making procedure and settlement of disputes in the European Economic Area", 30 CML Rev. (1993), 449; Lazowski, "EEA Countries...", op. cit. supra note 2, at 108-119.
66. Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice, O.J. 1994, L 344/1 (as amended).
67. "If the EFTA Surveillance Authority considers that an EFTA State has failed to fulfil an obligation under the EEA Agreement or of this Agreement, it shall, unless otherwise provided for in this Agreement, deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations. If the State concerned does not comply with the opinion within the period laid down by the EFTA Surveillance Authority, the latter may bring the matter before the EFTA Court."
68. The non-judicial mechanism of individual complaints has been developed allowing individuals to participate actively in the enforcement of EEA law, on one hand, and improving the chances of detecting infringements, on the other.
69. EFTA Court, Case E-3/00, EFTA Surveillance Authority v. The Kingdom of Norway, [2000-2001] EFTA Court Rep., 73, at para. 39.
70. See, inter alia, Case E-l/02, EFTA Surveillance Authority v. The Kingdom of Norway, [2003] EFTA Court Rep., 1; Case E-1 /03, EFTA Surveillance Authority v. The Republic of Iceland, [2003] EFTA Court Rep., 143; Case E-8/04, EFTA Surveillance Authority v. The Principality of Liechtenstein, [2005] EFTA Court Rep., 86; Case E-3/05, EFTA Surveillance Authority v. The Kingdom of Norway, [2006] EFTA Court Rep., 102.
71. Domestic courts of EFTA countries may also request preliminary rulings from the European Court of Justice, providing that the State in question accepts the latter's jurisdiction (see Protocol 34 to the EEA Agreement on the possibility for courts and tribunals of EFTA States to request the Court of Justice of the European Communities to decide on the interpretation of EEA rules corresponding to EC rules). This has never taken place in practice, and the ECJ rejected its jurisdiction without such notification in Case C-321/97, Ulla-Brith Andersson and Susannne Wåkerås-Andersson v. Svenska staten (Swedish State), [1999] ECR I-3551 at para 29.
72. th ed. (London, Sweet & Maxwell, 2000).
73. It is noticeable that in the first years of its operation the EFTA Court had a tendency to describe its decisions delivered in response to the requests of national courts as "advisory opinions." This practice has subsequently changed and they are now described as "judgments".
74. Under the general preliminary ruling regime, the courts from which there is no further remedy have an obligation to make references, albeit under certain limitations arising from acte clair and acte éclairé principles.
75. See also Case E-8/94 and E-9/94, Forbrukerombudet v. Mattel Scandinavia A/S, Lego Norge A/S, [1994-1995] EFTA Court Rep., 113; Case E-4/04, Pedicel AS v. Sosial-og helsedi-rektoratet (Directorate for Health and Social Affairs), [2005] EFTA Court Rep., 1.
76. Detailed guidelines for making reference have been published in a special note addressed to national courts. See Note for Guidance on Requests by national courts for advisory opinions, available at: www.eftacourt.lu/default. asp?layout=article&id=129.
77. Case E-10/04 Paolo Pizza v. Paul Schurte AG, [2005] EFTA Court Rep., 76.
78. The EFTA Court then repeated the ECJ's reasoning and argued as follows: "It is for the national court to determine, in light of the particular circumstances of the case, both the need for an advisory opinion in order to enable it to deliver judgment, and the relevance of the questions that it submits. Consequently, where the questions referred concern the interpretation of the EEA Agreement, the Court is in principle bound to give a ruling. However, the Court may not rule on a question, where it is quite obvious that the sought interpretation of EEA law bears no relation to the actual facts of the main action or its purpose, or where the issue is hypothetical." Para 21 of the judgment. See also Case E-l/95, Ulf Samuelsson v. Svenska staten, [1994-1995] EFTA Court Rep., 145; Case E-5/96, Ullensaker komune and Others y. Nille AS, [1997] EFTA Court Rep., 30; Case E-2/03, Á kceruvaldiõ (The Public Prosecutor) v. Ásgeir Logi Asgeirsson and others, [2003] EFTA Court Rep., 185; Case E-6/96, Tore Wilhelmsen AS v. Oslo commune, [1997] EFTA Court Rep., 53. In the latter case, the EFTA Court concluded that some of the referred questions were not admissible due to their hypothetical character.
79. Case E-6/01, CIBA Speciality Chemicals Water Treatment, supra note 50.
80. See Case E-2/03 Ásgeir Logi Ásgeirsson, supra note 76. The FTE dates back to 1970s when the EC and ECSC concluded a series of agreements with EFTA countries. For an overview see Wellenstein, "The free trade agreements between the enlarged European Communities and the EFTA countries", 10 CMLRev. (1973) p. 137.
81. Para 12 of the judgment.
82. See Audenbacher, "The EFTA Court, the ECJ, and the Latter's Advocates General - a Tale of Judicial Dialogue", in Arnull, Eeckhout, Tridimas (Eds.), Continuity and Change in EU Law. Essays in Honour of Sir Francis Jacobs (Oxford University Press, Oxford 2008), p. 90.
83. Case E-9/97, Sveinbjörnsdóttir, supra note 44 ; Case E-4/01, Karl K. Karlsson hfv. Icelandic State, [2002] EFTA Court Rep., 240; Case E-8/07, Celina Nguyen v. Norwegian State, nyr.
84. See Arts. 105-106 EEA.
85. For a detailed account of cases, see EFTA Court, Legal framework, case law and composition 1994-2003 (Luxembourg 2004) pp. 26-27.
86. See, inter alia, Skouris, "The ECJ and the EFTA Court under the EEA Agreement: A Paradigm for International Cooperation between Judicial Institutions", in Baudenbacher, Tresselt, Örlygsson (Eds.), The Efta Court. Ten Years On (Oxford and Portland, Oregon, Hart Publishing 2005), pp. 123-129.
87. See, for instance, Arts. 79-88 of the Energy Community Treaty.
88. Similarly, Art. 1 of the EC-Swiss Agreement on Air Transport.
89. The exceptions are Bulgaria and Romania, which have become EU members on 1 Jan. 2007. Also, at the time of writing, the negotiations with Croatia are in full swing.