The EEA Judicial System and the Supreme Courts of the EFTA States

Leif Sevon ¹

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I. The Negotiations

1.1. In the negotiations concerning the Agreement on the European Economic Area (EEA), the judicial system and the mechanisms for dispute settlement turned out to be among the most difficult issues. The task of the negotiators was to create a judicial system which would provide legal security while simultaneously ensuring as uniform an interpretation and application as possible of rules within the whole of the EEA. In discharging this task the negotiators had to take into consideration the political sensitivity of the judicial system both in the EFTA States and in the Community, insofar as political factors may affect both the sovereignty of the Contracting Parties and the independence of their courts. The balance to be found between these requirements was crucial for the acceptability of the whole EEA Agreement.

1.2. Already at its first meeting in July 1989, the EFTA Working Group on Legal and Institutional Questions agreed amongst themselves and suggested to the Community representatives that procedures for uniform interpretation and dispute settlement within the EEA would be needed.² At that stage of exploratory talks the EC representative could envisage a mechanism of preliminary references to the EC Court of Justice (ECJ) with an ad hoc judge from the EFTA country concerned. He did not exclude, however, other options, such as the setting up of a new EFTA-EC judicial organ. This idea was developed further by the EFTA States, which suggested that an EEA court should be established and given the competence:

- to decide on disputes between the Contracting Parties concerning the application and interpretation of EEA rules and

- to give preliminary rulings or reasoned opinions on questions of interpretation of EEA rules. As to the composition of such an EEA court, it was merely suggested that it should be balanced.

Since these first exploratory talks, many ideas were advanced in the discussions on the judicial mechanism. The Community representatives suggested on several occasions that the judicial mechanism for the purposes of the EEA Agreement should be comprised of ECJ judges supplemented by one or more judges from EFTA States. It was suggested that such a solution would preserve the autonomy of the EC legal system while simultaneously permitting an homogeneous interpretation of EEA rules and the corresponding EC rules. The EFTA States, on the other hand, stressed the independence of the EEA judicial mechanism.

The most peculiar feature of these discussions is that they were successfully concluded so many times. On 14 May 1991, the EFTA and EC ministers adopted a resolution in which it was agreed, inter alia, to create an independent EEA Court composed of five judges from the ECJ and three judges from the EFTA countries, to be nominated to the court. The court was to be functionally integrated with the ECJ. It would have been competent to give rulings concerning dispute settlements at the request of the EEA Joint Committee or the Contracting Parties, concerning disputes between the EFTA Surveillance Authority and an EFTA State and cases brought by enterprises or States against decisions of the EFTA structure in the field of competition.³ At the parallel Ministerial Meetings in Luxemburg on 21-22 October 1991, these results were basically upheld. In addition, it was agreed to add to the competences of the EEA Court the possibility of giving optional preliminary rulings.⁴

1.3. Before the Ministerial Meetings in Luxemburg the EC Commission had requested that the ECJ give an opinion under Article 228 of the EEC Treaty on the compatibility with that treaty of the system of judicial supervision which was proposed under the EEA Agreement. In its opinion the ECJ criticized the draft heavily.⁵ Binding on the Community and its institutions, the opinion necessitated renegotiations and a redistribution of the tasks which the EEA Court would have been entrusted with. The outcome of these renegotiations was submitted to the ECJ for a new opinion. In that opinion⁶ the Court found that the newly proposed provisions for dispute resolution passed muster, provided that the principle that Joint Committee decisions do not affect ECJ case-law be laid down in a form binding on the Contracting Parties.

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1 Judge, Supreme Court of Finland.

2 Present stage of discussions in EFTA-EC Working Group V with regard to a future EES Judicial Body, paragraph 2. The EFTA States promoted at that stage a formula based on Protocol No. 2 of the Lugano Convention but were also ready to discuss other means, including judicial procedures for the settlement of disputes concerning the application and interpretation of EEA rules, paragraph 3.

3 Ministerial Meeting between the European Community, its Member States and the Countries of the European Free Trade Association. Joint Declaration, paragraph 22.

4 Summary results of the EEA Negotiations. Luxemburg, 22 October 1991, 1,45 hr, 3.6.1.

5 Opinion 1/91 of 14 December 1991, not yet reported. For a review of the main points of criticism, see above the contribution by Brandtner.

6 Opinion 1/92 of 10 April 1992, not yet reported.

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