The EFTA Court and Court of Justice of the European Union: Coming in Parts But Winning Together

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Abstract

“Homogeneity is the magic formula of the EEA Agreement. EU and EEA law, two separate legal orders, are essentially identical in substance and they must develop in a homogeneous way. The EEA single market can only function undistortedly if there is a level playing field for operators. Competition must be led by economic, not by regulatory advantage. On a judicial level, ensuring homogeneity is a challenging task to be fulfilled by the two EEA courts, the ECJ and the EFTA Court. The EFTA Court’s task was not facilitated by those passages in Opinion 1/91 which doubted the possibility to guarantee judicial homogeneity. But once it became clear that the EFTA Court was serious about this, its large sister court changed gear and opened what over the years became a fruitful dialogue. Three aspects of homogeneity have been carved out: Substantive, effect-related and—only recently—procedural. Twenty years after signing the EEA Agreement there can be no doubt that substantive homogeneity has been preserved. Homogeneity to a large extent has also been safeguarded with regard to effect, primacy and state liability. The potential of the new concept of procedural homogeneity has yet to be defined.”