The Efta Court 15 Years On

Abstract

For over 15 years, the reports of the EEA Agreement's imminent demise have proven to be greatly exaggerated. In this article it is argued that a great deal of the credit for this accomplishment is due to the EFTA Court. Through a distinctly dynamic approach to the Agreement, the EFTA Court has been able to convince an initially sceptical ECJ that the goal of extending the internal market to include the EFTA States is actually achievable. For the EFTA States, the consequence is a more ‘supranational’ EEA Agreement than originally conceived. Further, it is shown that the EFTA Court appears, in hard cases, to lean even further towards teleological (ie integrationist) interpretation than the ECJ. It is suggested that this may be due to to structural imbalances between the two EEA courts, the EFTA Court's desire to prove its independence from the EFTA States and its quest for recognition from the ECJ.

Where culture, language and politics meet: Is there any place for national identity in the EEA legal system?

“…45 Nevertheless, in L'Oréal, the EFTA Court concluded that only "compelling reasons" 46 could justify divergent interpretations of the same rule under EU and EEA law: in so doing it also raised the threshold for allowing differences in purpose and context to justify derogation from the homogeneity principle. 47 The EFTA Court in its case-law has therefore overcome the apparent temporal limitations imposed by the EEA Agreement on its acceptance and use of CJEU case-law and, through the "compelling reasons" test of L'Oréal, has set an even higher threshold for divergent interpretations of the same or similarly-worded legal rules in the EU and EEA legal orders. As Fredriksen has contended:…”

Overlapping regionalism in Europe: Patterns and effects

“…The second contrasting case is the EFTA, which is less supranational and legalized than the EU (Abbott et al, 2000; Gstöhl, 1994; Keohane et al, 2000; Smith, 2000). In the EFTA, instances of non-compliance can be brought before the EFTA court, which then issues binding rulings (Fredriksen, 2010; Graver, 2004). Yet, in contrast to the ECJ and to some extent the ECHR, the EFTA court cannot issue financial sanctions to restore compliance and/or compensate those affected by the non-compliance of states.…”

Bold and newly Independent, or Isolated and Cast Adrift? The Implications of Brexit for Intellectual Property Law and Policy

“…While the decisions of the ECJ would not directly bind the UK as an EEA member, it would nevertheless be subject to the scrutiny of the EFTA Court, which can issue advisory opinions under Protocol 35 of the EEA Agreement, which requires that in conflicts between the EEA Agreement and national law, the Agreement rules prevail (Burke et al , , p. 80). Furthermore, the EFTA Court interacts with the ECJ through a process of judicial dialogue, deciding cases in line with ECJ decisions (Baudenbacher, ), and furthermore, has been shown to demonstrate a strong integrationist tendency that rivals that of the ECJ (Fredriksen, ).…”