Abstract
Professor Carl Baudenbacher was sworn in as Judge of the EFTA Court on 6 September 1995 and became its President on 15 January 2003. During his more than twenty-two and a half years at the Court he has not spared any efforts always to secure the highest quality and standard in the Court’s work. Thanks to Carl’s very personal engagement and devotion to the objectives of the EEA Agreement, the Court has been extremely successful, over all these years, through the exercise of its crucial judicial activity in maintaining the credibility both of the EFTA pillar in the EEA as well as of the EEA as a whole. It is with the greatest admiration and humility that in honour of my great friend Carl Baudenbacher I address an issue that is at the very core of the EEA but so far does not seem to have attracted the attention it deserves in the ongoing Brexit negotiations.
Laws and institutions must go hand in hand
with the progress of human mind.
- Thomas Jefferson
Former Judge of the EFTA Court.
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Notes
- 1.
The Swiss Federal Council had also on 16 May 1992 submitted an application for EC membership. After the vote on the EEA the application was suspended, but only finally withdrawn on 27 July 2016.
- 2.
See Sect. 4 below.
- 3.
Iceland joined EFTA in 1970, Denmark and the UK left to join the EC in 1973, Portugal joined the EC and Finland became full Member of EFTA in 1986. Liechtenstein joined EFTA in 1991, and Austria, Finland and Sweden left to join the EU in 1995.
- 4.
Case 104/81, Hauptzollamt Mainz v. Kupferberg [1982] ECR 3641.
- 5.
Case 270/80, Polydor Ltd. and others v. Harlequin Record Shops Ltd. and others, [1982] ECR 329.
- 6.
Cf. also cases 181/73, Haegeman v. Belgian State, [1974] ECR 499, and 82/75, Bresciani v. Amministrazione Italiana delle Finanze, [1976] ECR 129.
- 7.
EFTA as such is not a party to the EEA.
- 8.
Article 1.1 EEA reads: “The aim of this Agreement of association is to promote a continuous and balanced strengthening of trade and economic relations between the Contracting Parties with equal conditions for competition, and the respect of the same rules, with a view of creating a homogeneous European Economic Area, hereinafter referred to as the EEA.”
- 9.
The Agreement of 2 May 1992 between the EFTA States on the establishment of a surveillance authority and a court of justice.
- 10.
For a more extensive description of this reference is made to Chapter IX, Methods of Ensuring a Homogeneous EEA in Norberg et al. (1993).
- 11.
These are laid down in Protocol 1 to the EEA Agreement on Horizontal Adaptations.
- 12.
Opinion 1/91 ECR [1991] 6079.
- 13.
This should have been integrated with the ECJ and composed of five ECJ judges and three out of seven EFTA judges.
- 14.
In Opinion 1/92 [1992] ECR I-2821 on 10 April 1992 the ECJ gave its green light to the revised Agreement.
- 15.
The EEA Agreement was signed in Oporto on 2 May 1992.
- 16.
Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters done at Lugano on 16 September 1988.
- 17.
Sixth recital of the Preamble.
- 18.
In relation to Protocol 35 there is a Joint declaration, contained in the Final Act to the EEA Agreement, where the Contracting Parties have expressed their understanding that Protocol 35 does not restrict the effects of those existing internal rules which provide for direct effect and primacy of international agreements.
- 19.
Cf. notes 4 and 5 above.
- 20.
Cf. Opinion 1/91 and note 12 above.
- 21.
Cf. Art. 39.8 of the Agreement of 10 October 1989 between the European Economic Community and the Swiss Confederation concerning direct insurance other than life insurance, which entered into force in the beginning of 1993. While practically unchanged since then, updating amendments are now being prepared (SuisseEurope, Edition II/2018-März/mars p. 9, www.eda.admin.ch/europa/suisseeurope).
- 22.
Article 102.5.
- 23.
This number mentioned by Carl Baudenbacher, President of the EFTA Court, in his presentation at the First Judicial Summit of the EFTA Pillar, Luxembourg, 2 May 2017, is now even higher.
- 24.
Cf. under Sect. 2.2 above.
- 25.
Cf. Sect. 4 above.
- 26.
Cf. EU Council and Commission Decision of 4.4.2002, EU OJ L 114/1.
- 27.
Cf. The Legal imbalance referred to in Sect. 4 above.
- 28.
See footnote 1.
- 29.
EU Council conclusions on EU relations with the Swiss Confederation, 28 February 2017.
- 30.
Cf. the ECJ in Opinion 1/91, [ECR] 1991, I-6084, paragraph 21.
- 31.
It is recalled that this was prepared by UK Commissioner Lord Cockfield.
- 32.
Cf. Rt. Hon. David Davis MP, Secretary of State for Exiting the European Union, in his preface to the White Paper “The United Kingdom’s exit from and new partnership with the European Union”, HM Government, February 2017.
- 33.
Cf. Opinion 1/91 referred to in note 12 above.
References
Council conclusions on EU relations with the Swiss Confederation, 28 February 2017
HM Government (February 2017) The United Kingdom’s exit from and new partnership with the European Union
Norberg S et al (1993) EEA law, a commentary to the EEA agreement. Kluwer, Chapter IX
Acknowledgement
The author is very grateful to Martin Johansson juris dr h.c. for his most valuable comments on an earlier draft of this article.
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Norberg, S. (2019). Joint Dispute Settlement and Judicial Interpretation – A Precondition for Participation in the EU Internal Market?. In: Selvik, G., Clifton, MJ., Haas, T., Lourenço, L., Schwiesow, K. (eds) The Art of Judicial Reasoning. Springer, Cham. https://doi.org/10.1007/978-3-030-02553-3_12
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