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Inside and Outside the EFTA Court: Evaluating the Effectiveness of the EFTA Court Through its Structures

Published online by Cambridge University Press:  05 March 2013

Thorbjörn Björnsson
Thorbjörn Björnsson*
Affiliation:
LLM student, LSE. The author is indebted to Erin Goldbarsht and Margrét Einarsdóttir for their comments and encouragement. He is also indebted to Skúli Magnússon and Professor Carl Baudenbacher for their support and for welcoming him to visit the EFTA Court. The author is particularly grateful to Professor Yuval Shany for his patient guidance throughout the research and drafting of this article. The research was funded by a European Research Council Starting Grant for Frontier Research. [email protected]
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Abstract

The article attempts to examine the structures of the EFTA Court in order to gain insights into its effectiveness. For this purpose the article relies on a rational system approach developed within social sciences to improve understanding the performance of public organisations and calibrated to examine international courts by the ERC Project Researching Conditions for Effective International Adjudication. Under the conceptual and analytical framework advanced by the Effectiveness Project the article, therefore, examines the main structures of the EFTA Court: for example, the Court's budget, jurisdictional rules, judicial independence and main legal doctrines. The article will also, in relation to some aspects, attempt to conduct a qualitative assessment of how some of these features relate to the effectiveness of the Court.

Keywords

international courtsEFTA CourtEEA Agreementeffectivenessstructures
Type
Articles
Information
Israel Law Review , Volume 46 , Issue 1 , March 2013 , pp. 61 - 93
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2013

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References

1 Agreement on the European Economic Area (entered into force 1 January 1994) 1801 UNTS 3.

2 The Court of Justice of the European Union (CJEU) fulfils the same role with regard to the pillar of the EEA Agreement as it forms an integral part of the EU's legal order as an international agreement concluded under art 218 (formerly art 300); cf art 216(2) of Consolidated Version of the Treaty on the Functioning of the European Union [2010] OJ C83/144 (TFEU). See Ingadottir, Thordis, ‘The EEA Agreement and Homogeneous Jurisprudence: The Two Pillar Role Given to the EFTA Court and the Court of Justice of the European Communities’ [2002] The Global Community: Yearbook of International Law and Jurisprudence 193Google Scholar.

3 For the sake of convenience this article uses EU as the generic title for the integration process from the 1957 Treaty of Rome (Treaty Establishing the European Economic Community, 25 March 1957, 298 UNTS 3) to the current status. More specifically, differentiation should be made between the European Economic Community (EEC), the European Community (EC), and the European Union (EU). Moreover, the term ‘EFTA states’ will refer to the EFTA states that are party to the EEA Agreement despite the fact that the fourth EFTA state, Switzerland, is not a party to the Agreement.

4 The EEA Agreement was part of a trend encouraging regional free trade agreements that developed after the end of the Cold War. It was motivated by an ideological belief in the benefits of liberalisation and the abolition of barriers to cross-border trade (referred to by some as neo-liberalism). The early 1990s saw the birth, or restoration, of a number of regional entities, including NAFTA and MERCOSUR, to name just two. For an overview of these agreements and a discussion of the possible economic effects see Soloaga, Isidro and Winters, L Alan, ‘Regionalism in the Nineties: What Effect on Trade?’ (1995) 12 The North American Journal of Economics and Finance 1Google Scholar.

5 See generally on the scope and structure of the EEA Agreement: Norberg, Sven, ‘The Agreement on a European Economic Area’ (1992) 29 Common Market Law Review 1171Google Scholar; Norberg, Sven and others, The European Economic Area, EEA Law: A Commentary on the EEA Agreement (Fritzes 1993) 73–89Google Scholar; Blanchet, Thérèse, Piipponen, Risto and Westman-Clément, Maria, The Agreement on the European Economic Area (EEA): A Guide to the Free Movement of Goods and Competition Rules (Clarendon Press and Oxford University Press 1994) 5–18 and 41–49Google Scholar; Björgvinsson, Davíð Þór, EES-réttur og landsréttur (Codex 2006) 31–51Google Scholar.

6 This sharply distinguishes the EEA from other EU preferential trade agreements where funds are generally allocated from the EU but not to it: see Winters, L Alan, ‘EU's Preferential Trade Agreement: Objectives and Outcomes’ in van Dijck, Pitou and Faber, Gerrit (eds), The External Economic Dimension of the European Union (Kluwer 2000) 195, 213Google Scholar.

7 Agreement between the EFTA states on the Establishment of a Surveillance Authority and a Court of Justice (entered into force 1 January 1994) [1994] OJ L344/1.

8 See, eg, Baudenbacher, Carl, ‘The EFTA Court, the ECJ, and the Latter's Advocates General – A Tale of Judicial Dialogue’, in Arnull, Anthony, Eeckhout, Piet and Tridimas, Takis (eds), Continuity and Change in EU Law: Essays in Honour of Sir Francis Jacobs (Oxford University Press 2008) 90Google Scholar; Sevon, Leif, ‘The EEA Judicial System and the Supreme Courts of the EFTA States’ (1992) 3 European Journal of International Law 329, 332CrossRefGoogle Scholar.

9 Baudenbacher, Carl, EFTA Court: Legal Framework and Caselaw (3rd edn, The EFTA Court 2008) 16Google Scholar.

10 ‘Small’ states may be an overstatement as two of the member states, Iceland and Liechtenstein, can be qualified as microstates (population about 320,000 and 40,000 respectively): The World Bank, ‘Population, Total’ (2011), http://data.worldbank.org/indicator/SP.POP.TOTL.

11 Thorbjörn Björnsson, ‘Report 2/12 on the Effectiveness of the EFTA Court: Usage Rate’ (2012), 23, http://www.effective-intl-adjudication.org/admin/Reports/4f46f789be89ecee489aed37ae262f50EFTA-second%20report-toby-final.pdf.

12 Scott, W Richard, Organizations: Rational, Natural, and Open Systems (5th edn, Upper Saddle River and Prentice Hall 2003) 351Google Scholar.

13 See, for instance, Opinion 1/91 of the CJEU on the goal-related aspect of international adjudication, in which the CJEU rejected the original EEA Agreement set-up of having an EEA Court which would comprise judges from both the EU and the EFTA countries. Its rejection was based on the argument that, although the articles of the underlying agreements founding the two organisations (EEA Agreement and EEC Treaty) were identical in wording, the different goals that they were set up to pursue could lead to different rulings; hence, rulings which would possibly be binding for the CJEU under its own case law might be incompatible with the Treaty: [1991] ECR I-6079 paras 19–21. Also, ‘it should be apparent that the “problem solving” “dispute settlement” function is only one aspect of the work of modern international courts. When states create and subject themselves to the jurisdiction of international courts they seek more than just a clarification about the law or facts in dispute so that they can resolve disagreements. They ask international courts to review administrative decision making, to ensure international institutions do not exceed their powers, to enforce international agreements of all kinds so that states can capture the benefits they bargained for so hard have included in them, and even to develop international law’: Romano, Cesare PR, ‘The United States and International Courts: Getting the Cost–Benefit Analysis Right’ in Romano, Cesare PR (ed), The Sword and the Scales: The United States and International Courts and Tribunals (Cambridge University Press 2009) 419, 428CrossRefGoogle Scholar.

14 Shany, Yuval, ‘Assessing the Effectiveness of International Courts: A Goal-Based Approach’ (2012) 106 American Journal of International Law 225Google Scholar.

15 ibid 244–47.

16 ibid 247.

17 ibid 238.

18 ibid.

19 Scott (n 12) 366.

20 Scott defines outputs as indicators that ‘focus on specific characteristics of materials or objects on which the organization has performed some operation’: ibid 363.

21 For reflections on the ‘public good’ creation function of the international judiciary see Romano (n 13) 433–36.

22 Shany (n 14) 248–49.

23 ibid 239.

24 ibid 251.

25 See the EFTA website on the structure and functions of the EEA Joint Committee, ‘EEA Institutions: EEA Joint Committee’, http://www.efta.int/eea/eea-institutions/eea-joint-committee.aspx. The Rules of Procedure of the EEA Joint Committee are laid down in Decision of the EEA Joint Committee No 1/94 of 8 February 1994 adopting the rules of procedure of the EEA Joint Committee [1994] OJ L85/60, as amended by Decision of the EEA Joint Committee No 24/2005 of 8 February 2005 amending the rules of procedure of the EEA Joint Committee [2005] OJ L161/54.

26 EEA, art 102 sets a formal procedure for resolving serious problems when amending annexes to the Agreement (implementing EU law instruments). It states that a decision, which parties must make every effort to achieve, must be reached within six months from the date of referral; at the end of that period the respective annex is suspended (EEA, art 102(5)) unless both parties agree otherwise. The suspension does not affect the rights and obligations which individuals and economic operators have already acquired under the Agreement (EEA, art 102(6)). Art 103 sets up an analogous process in case individual EFTA states fail to incorporate legislation into their domestic legal orders. See Norberg and others (n 5) 142–47.

27 cf ‘The right to veto has never been exercised and [sic] in the EEA and can be compared to an atomic bomb; excellent in theory but hopeless in practice. A chain reaction would be initiated by it and the result would be extremely uncertain’: Bergmann, Eirikur, ‘Deeply Inside the European Project’, in Segesgten, Anamaria D and others (eds), Negotiating Europe: Foundations, Dynamics, Challenges (Centre for European Studies, Lund University 2007)Google Scholar, http://starfsmenn.bifrost.is/Files/Skra_0032584.pdf.

28 See Government Offices of Iceland, ‘Handbók stjórnarráðsins um EES’ (The Manual of the Icelandic Governmental Offices on the EEA Agreement) 22–23, http://www.utanrikisraduneyti.is/media/Utgafa/HandbokEES.pdf (in Icelandic). The numbers and nature of derogations may still be underestimated in practice: see Björnsson (n 11).

29 Ingadottir (n 2) fn 12.

30 cf Case E-6/01 CIBA and Others v The Norwegian State [2002] EFTA Court Report 281, para 33 (rejecting arguments that the Articles giving the EEA Joint Committee jurisdiction in the EEA Agreement were exhaustive).

31 The ESA website, ‘About the Authority: The EFTA Surveillance Authority at a Glance’, http://www.eftasurv.int/about-the-authority/the-authority-at-a-glance-/.

32 SCA (n 7) art 8.

33 A matter of concern is that whereas the Commission has its own dedicated officials, ESA relies on civil servants seconded from national ministries, and who may thus be reluctant to take action against their own governments. See Jim Brundsen, ‘Are National Interests Weakening the EFTA Court?’ European Voice, special issue on the European Free Trade Association, 19 August 2012, http://www.europeanvoice.com/folder/europeanfreetradeassociation/84.aspx?artid=62708. See also Baudenbacher, Carl, The EFTA Court in Action: Five Lectures (German Law Publishers 2010) 13Google Scholar.

34 Information about the nature of the complaints procedure, together with a standard form for submitting complaints, are available on the ESA website, ‘Complaint: To the EFTA Surveillance Authority Concerning Failure to Comply with EEA Law’, http://www.eftasurv.int/media/internal-market/Complaint_form.pdf. Private parties use this process both to lobby the ESA into taking cases against national governments in instances where judicial remedies may be available at the national level, as well as in instances (eg state aid) where the only path to challenging an alleged infringement is at the international level. Complaints may also be brought by EFTA or EU states and institutions.

35 Icelandic Foreign Ministry, ‘Handbók um EES-samninginn, 2. kafli: Tveggja stoða kerfi EES-samningsins’ (Manual on the EEA Agreement, 2nd chapter: The Two Pillar system of the EEA Agreement) 31, http://www.utanrikisraduneyti.is/media/Skyrslur/2kafli.pdf (in Icelandic).

36 Private parties may request the ESA to take up cases, and challenge the decision not to take a case before the EFTA Court, provided that they fulfil the criterion of locus standi: SCA (n 7) art 36(2).

37 Ulf Sverdrup, ‘Compliance and Styles of Conflict Management in Europe’ (2003) Arena Working Paper 08/3 14–15, https://www.sv.uio.no/arena/english/research/publications/arena-publications/workingpapers/working-papers2003/wp03_8.pdf.

38 The CJEU noted in its Opinion 1/00 that ‘the EEA Agreement is based on the twin pillar of the Communities on the one hand and the EFTA on the other’: [2002] ECR I-3493 para 7.

39 EEA, art 56 on competition within the single market (eg cartels (EEA, art 53) and abuse of dominant market position (EEA, art 54) restricts the competence of the ESA to cases where trade between EFTA states is affected and, in mixed cases, if the companies concerned achieve more than 33 per cent of their turnover in EFTA states even if trade between EC member states is unaffected. In terms of EEA, art 57 (mergers), the Commission has sole discretion over the cases falling under Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) [2004] OJ L24/1. On EEA mergers see Commission Paper, ‘Case Referrals under EEA’ (EEA Referrals: 14/10/2004), http://ec.europa.eu/competition/mergers/legislation/eea_referral.pdf.

40 In respect of the CJEU, see article by Francis Snyder in which the effectiveness of European law is approached, inter alia, on the basis of the interplay between the Commission and the CJEU: ‘The Effectiveness of European Community Law: Institutions, Processes, Tools and Techniques’ (1993) 56 Modern Law Review 19Google Scholar.

41 ‘The empowerment of the European Commission to initiate infringement proceedings (Article 226 EC) rendered the ECJ's function as an intergovernmental court much more effective than it would have been possible under purely inter-state infringement proceedings (Article 227 EC)’: Petersmann, Ernst-Ulrich, ‘Judging Judges: From “Principal–Agent Theory” to “Constitutional Justice” in Multilevel “Judicial Governance” of Economic Cooperation among Citizens’ (2008) 11 Journal of International Economic Law 827, 850CrossRefGoogle Scholar.

42 See, eg, Baudenbacher, Carl, ‘The EFTA Court – An Example of the Judicialisation of International Economic Law’ (2003) 28 European Law Review 880, 881Google Scholar; Örlygsson, Thorgeir, ‘Hvernig hefur Ísland brugðist við ákvörðunum EFTA-dómstólsins?’ (2004) 54 Tímarit lögfræðinga 375, 381Google Scholar.

43 An extract of the Headquarters Agreement is available in EFTA Court Texts: Relating to the Organization, Jurisdiction and Procedure of the Court (The EFTA Court 2008) 143, http://www.eftacourt.int/images/uploads/EFTA_Court_Texts_E_2008.pdf.

44 Skouris, Vassilios, ‘The ECJ and the EFTA Court under the EEA Agreement: A Paradigm for International Cooperation between Judicial Institutions’ in Baudenbacher, Carl, Tresselt, Per and Örlygsson, Thorgeir (eds), The EFTA Court: Ten Years On (Hart 2005) 123, 128Google Scholar; Baudenbacher, Carl, ‘The Legal Nature of EEA Law in the Course of Time: A Drama in Six Acts, and More May Follow’ in Björgvinsson, Davíð Þór and others (eds), Afmælisrit: Þór Vilhjálmsson sjötugur (Orator 2000) 36, 48Google Scholar; Baudenbacher, Carl, ‘Facets of an EEA Constitutional Order’ in Colneric, Ninon and others (eds), Une communauté de droit, Festschrift für Gil Carlos Rodriguez Iglesias (Berliner Wissenschafts-Verlag 2003) 343, 359Google Scholar. There are two factors that can be added in respect of the geographical location of the EFTA Court: (1) It is probably helpful for the Court to operate in Luxembourg which is experienced in hosting international organisations, which makes it easier to access specialised staff and other material inputs needed for the operation of the Court (for example, the Court leases it facilities from another international organisation); (2) the location of the EFTA Court provides for a completely neutral forum as Luxembourg is not a member of EFTA.

45 Carl Baudenbacher, ‘The EFTA Court Ten Years On’ in Baudenbacher, Tresselt and Örlygsson (n 44) 13; Baudenbacher, ‘The Legal Nature of EEA Law in the Course of Time’ (n 44) 39–40.

46 Baudenbacher, Carl, ‘Between Homogeneity and Independence: The Legal Position of the EFTA Court in the European Economic Area’ (1996–97) 3 Columbia Journal of European Law 169, 175Google Scholar.

47 SCA (n 7) art 30.

48 Ingadottir (n 2) 195; Baudenbacher (n 42) 886.

49 See list of current ad hoc judges on the EFTA Court website, ‘The Court: Jurisdiction – Organization’, http://www.eftacourt.int/index.php/court/mission/introduction/.

50 The tenure of EFTA Court judges is the same as that of CJEU judges. The European Court of Human Rights (ECtHR) also had six-year terms, but after the adoption of Protocol No 14 to the European Convention of Human Rights there is now a non-renewable nine-year term.

51 ‘The effectiveness of international courts depends, for a start, on the quality of the men and women who ascend to the bench’: Terris, Daniel, Romano, Cesare PR and Swigart, Leigh, The International Judge: An Introduction to the Men and Women who Decide the World's Cases (Oxford University Press 2007) 15Google Scholar. See also Weiler's arguments on the importance of the number of judges and their qualifications with respect to the CJEU: Weiler, JHH, ‘Epilogue: The Judicial Après Nice’ in De Búrca, Gráinne and Weiler, JHH (eds), The European Court of Justice, Collected Courses of the Academy of European Law – Vol X/1 (Oxford University Press 2001) 215Google Scholar.

52 The judge appointed by Iceland, Páll Hreinsson, is a former judge of the Supreme Court of Iceland and was the dean of the University of Iceland's Faculty of Law. The judge appointed by Liechtenstein, Carl Baudenbacher (of Swiss nationality), holds the Chair of Private, Commercial and Economic Law at the University of St Gallen and was an expert adviser to the Liechtenstein government on EEA matters from 1990 to 1994. The judge appointed by Norway, Per Christiansen, is a former professor of the University of Tromsø, former registrar of the EFTA Court and has held various positions within the Norwegian administration. This brief review indicates the current trend of appointing judges to the EFTA Court who have had mixed careers as academics and high-level civil servants. For a more detailed overview of the careers of the EFTA Court judges see the EFTA Court website, ‘The Court: Members – Staff, Judges and Staff’, http://www.eftacourt.int/index.php/court/members/judges_staff.

53 n 3.

54 Little information is commonly available about the internal proceedings leading to the appointment of international judges: see Terris, Romano and Swigart (n 51) 15.

55 SCA (n 7) art 30(1).

56 See Baudenbacher (n 42) 886.

57 The assumption that equal gender representation among judges ensures, is linked to or increases effectiveness may be very difficult to prove; this article does not make such an assertion. Still, it should be noted that Iceland and Norway (representing 99% of the total population of the three states within the EFTA Court's jurisdiction) are quite possibly the two countries in the world closest to obtaining gender equality in practice (these countries occupy the top two places in Ricardo Hausmann, Laura D Tyson and Saadia Zahidi, ‘The Global Gender Gap Report 2010’ (World Economic Forum 2010). Examples of legal measures meant to achieve gender equality are already being scrutinised by the Court and it is not unlikely that such cases will be brought before the Court once more. It might be helpful for the perceived legitimacy of the judgments in those cases if they were not decided solely by male judges. For comparative discussion on the role of the CJEU within the gender spectrum of EU law, specifically on the bench's gender composition within the Court, see Jo Shaw, ‘Gender and the Court of Justice’ in De Búrca and Weiler (n 51) 87.

58 TFEU art 255. The current composition of the Committee is as follows: Jean-Marc Sauvé (Vice-President of the Council of State of the French Republic, President of the Committee), Peter Jann (former ECJ judge), Lord Mance (judge of the UK Supreme Court), Torben Melchior (President of the Supreme Court of Denmark), Péter Paczolay (President of the Constitutional Court of Hungary), Ana Palacio Vallelersundi (former Member of the European Parliament), and Virpi Tiili (former judge of the General Court). Council Decision of 25 February 2010 Appointing the Members of the Panel Provided for in Article 255 of the Treaty on the Functioning of the European Union [2010] OJ L50/20. Note that this committee has already rejected the eligibility of certain candidates. See Bilyana Petkova, ‘Structural Changes and Decision-Making at the European Court of Justice after the Eastern Enlargement’, ECPR Conference on EU Politics, Dublin, 30 August–1 September 2010, http://www.ecprnet.eu/databases/conferences/papers/357.pdf.

59 EFTA Court, ‘Press Release 11/11: An Extended EFTA Court? The EFTA Court Proposes Amendments to the SCA’, 2011, http://www.eftacourt.int/index.php/news/detail/pr_11_11_an_extended_efta_court_the_efta_court_proposes_amendments_to_the_s.

60 Ulfstein, Geir, ‘The International Judiciary’ in Klabbers, Jan, Peters, Anne and Ulfstein, Geir (eds), The Constitutionalization of International Law (Oxford University Press 2009) 126, 129–30Google Scholar.

61 It can be noted that the Caribbean Court of Justice (CCJ) also has a judicial selection committee which is responsible for setting its own procedure for appointments and is not bound to elect a judge from each of the Caribbean Community States. Thus, it has gone even further than the two European Courts to ensure the independence of its judges. See, on the CCJ appointment process, Mackenzie, Ruth and others, Selecting International Judges: Principle, Process, and Politics (Oxford University Press 2010) 147–49CrossRefGoogle Scholar.

62 cf the conclusion of a study by Eric Voeten on the motives for judicial appointment to the ECtHR, which concluded that governments with favourable views towards European integration tended to appoint more activist judges. Essentially wider political aims, such as regional politics, can be seen as influential factors when it comes to judicial appointments: ‘The Politics of International Judicial Appointments: Evidence from the European Court of Human Rights’ (2007) 61 International Organization 669Google Scholar.

63 See, on the one hand, Posner, Eric A and Yoo, John C, ‘Judicial Independence in International Tribunals’ (2005) 93 California Law Review 3, 6–7, 27, 72Google Scholar; and on the other, Helfer, Laurence R and Slaughter, Anne-Marie, ‘Why States Create International Tribunals: A Response to Professors Posner and Yoo’ (2005) 93 California Law Review 899, 906–07, 942–43Google Scholar. Yuval Shany has recently contributed to this debate by pointing to the lack of empirical evidence for both competing claims – ie that judicial independence enhances or lessens international court effectiveness. Furthermore, in recognition of the issue's complexities, Shany notes that ‘[s]ince international courts have distinct goals and operate in unique institutional and political settings, the need for judicial independence may vary across legal contexts’: ‘Judicial Independence as an Indicator of International Court Effectiveness: A Goal-Based Approach’, 254, http://www.effective-intl-adjudication.org/admin/Reports/1e1b35f6296fbda531d87a32c066707bChapter%2016%20-%20Shany.pdf.

64 See further in ‘Instructions to the Registrar’, adopted by the EFTA Court on 7 April 1994. Subsequently amended by the Decision of the EFTA Court to amend its Instructions to the Registrar of 22 August 1996, available in EFTA Court Texts (n 43) 133.

65 Other employees are responsible for such tasks as finance, reception and linguistics (numbers from 2009).

66 Interview with Carl Baudenbacher, President of the EFTA Court, and Skúli Magnússon, then Registrar of the EFTA Court (Luxembourg, 13 January 2009).

67 See list of membership of the Administrative Tribunal of the ILO on the organisation's website, ‘Administrative Tribunal: Membership (TRIB)’, http://www.ilo.org/public/english/tribunal/membership/index.htm.

68 Rules of Procedure of the EFTA Court (amended 2008), art 25, EFTA Court Texts (n 43) 94.

69 A practical explanation for taking this direction is that English was (and is) EFTA's working language and that the negotiations towards the EEA Agreement were conducted in English. Additionally, Nordic nationals are not generally fluent in French. As the EEA negotiations were conducted in English, the EFTA Court gives particular weight to the English language version of the EEA Agreement. See Forman, John, ‘The EEA Agreement Five Years On: Dynamic Homogeneity in Practice and its Implementation by the Two EEA Courts’ (1999) 36 Common Market Law Review 751, 771–72CrossRefGoogle Scholar; Case E-9/97 Erla María Sveinbjörnsdóttir v Iceland [1998] EFTA Court Report 95, paras 25–31.

70 Rules of Procedure (n 68) art 27.

71 Baudenbacher (n 9) 11.

72 ibid.

73 The Registrar of the EFTA Court confirmed in an interview that it is much more common to use international law firms in direct action than in advisory opinion cases: Baudenbacher and Magnússon (n 66).

74 For example, Principle 6 of the Burgh House Principles on the Independence of the International Judiciary identifies adequate resources as one of the factors necessary for courts to operate effectively: ‘The Burgh House Principles on the Independence of the International Judiciary’ (2004) adopted by the Study Group of the International Law Association on the Practice and Procedure of International Courts and Tribunals, in association with the Project on International Courts and Tribunals, http://www.ucl.ac.uk/laws/cict/docs/burgh_final_21204.pdf.

75 SCA (n 7) art 48.

76 EFTA Court, ‘Financial Statements 2008: Member States Accounts as of 31 December 2008’, 25 March 2009, http://www.eftacourt.int/images/uploads/FS_2008_Member_States_Accounts.pdf.

77 EFTA Court, ‘Financial Statements 2008: Income and Expense Summary’, 25 March 2009, http://www.eftacourt.int/images/uploads/FS_2008_Income,_Expense_summary.pdf.

78 One possible alternative to enhance independence is the CCJ system, which establishes a trust fund. The revenues from the fund, obtained through financial markets, are to cover the expenses of the Court's operation: see Revised Agreement Establishing the Caribbean Court of Justice Trust Fund, http://www.caribbeancourtofjustice.org/wp-content/uploads/2011/11/ccj_rev_trustfund.pdf.

79 Trade between EFTA states members of the EEA Agreement and Switzerland is governed by the Vaduz Convention from 2001 (as amended 20 September 2010), http://www.efta.int/~/media/Documents/legal-texts/efta-convention/efta-convention-texts/efta-convention-consolidated.pdf, which updated the EFTA Convention from 1960 (the Stockholm Convention).

80 There are 30 joint declarations of the contracting parties, two declarations of the governments of the EU member states and nine declarations made by one or more contracting parties. These declarations may have limited value regarding the application of the EEA Treaty. See Björgvinsson (n 5) 36–37. See also Case E-1/94 Ravintoloitsijain Liiton Kustannus Oy Restamark [1994–95] EFTA Court Report 15, para 42; Case E-1/01 Hörður Einarsson v Iceland [2002] EFTA Court Report 1, para 44.

81 Björgvinsson (n 5) 34; EFTA, ‘The European Economic Area (EEA): Fact Sheet of the European Free Trade Association – November 2007’, http://www.efta.int/~/media/Files/Publications/Fact%20sheets/EEA%20factsheets/FS_EEA.ashx.

82 Blanchet, Piipponen and Westman-Clément (n 5) 13; Björgvinsson (n 5) 34–35.

83 The secondary legislation (regulations, directives and decisions) comprise the Agreement's annexes. However, there are protocols that refer to secondary legislation as well: Blanchet, Piipponen and Westman-Clement (n 5) 5, fn 21.

84 On the subject matter of art 6 see Norberg and others (n 5) 189–92.

85 See the discussion on changes and additions to the EEA Agreement in Björgvinsson (n 5) 53–66.

86 EEA, art 7.

87 Norberg and others (n 5) 177–80; Hans P Graver, ‘The Effects of EFTA Court Jurisprudence on the Legal Orders of the EFTA States’ in Baudenbacher, Tresselt and Örlygsson (n 44) 79.

88 Norberg and others (n 5) 174.

89 Graver (n 87) 79, 91.

90 ibid 91–96.

91 See, eg, Ingadottir (n 2) 193; Baudenbacher (n 42) 881.

92 The Commission does not often bring infringement cases against the EU states for violations of their obligations under the EEA Agreement. This is because of the legal structure of EFTA/EU relations as the obligations of the EU member states are mostly in the form of EU law rather than the analogous EEA law. Still, it is clear that the EU member states have obligations under the EEA Agreement as well. If member states fail to fulfil such obligations, the Commission has the competence to bring infringement proceedings against them before the CJEU. cf Case C-13/00 Commission v Ireland [2002] ECR I-2943, concerning the failure of Ireland to adhere to the Berne Convention for the Protection of Literary and Artistic Works within the period prescribed in the EEA Agreement.

93 Baudenbacher (n 9) 8.

94 Baudenbacher (n 8) 90; Sevon (n 8) 332; Baudenbacher (n 9) 3; Davíð Þór Björgvinsson and Dóra Guðmundsdóttir, ‘Starfsemi EFTA-dómstólsins’ (1996) 46 Tímarit lögfræðinga 142, 146.

95 Case E-2/03 Ákæruvaldið (The Public Prosecutor) v Ásgeir Logi Ásgeirsson, Axel Pétur Ásgeirsson and Helgi Már Reynisson [2003] EFTA Court Report 185, para 27.

96 For instance, Thordis Ingadottir has stated ((n 2) 195–96) that the EFTA Court has jurisdiction over three types of case: (i) claims brought against EFTA states for violations of the EEA Agreement or the ESA/Court Agreement, brought by EFTA states or by the Surveillance Authority; (ii) claims against the Surveillance Authority for acts or failure to act, brought by EFTA states or any natural or legal person; (iii) advisory opinions on the interpretation of the EEA Agreement, requested by a court or tribunal in an EFTA state. Alternatively, Björgvinsson and Guðmundsdóttir ((n 94) 144–45) state that the Court has jurisdiction in five types of case: (i) cases brought by the ESA against EFTA states on the ground of alleged infringements of the EEA Agreement; (ii) cases between the EFTA states regarding the interpretation or application of the EEA Agreement; (iii) cases brought by EFTA states, or private parties from EFTA states, challenging ESA decisions; (iv) cases brought by EFTA states against the ESA for its omission regarding the bringing of infringement proceedings before the Court; and (v) cases brought against the ESA on the basis of the contractual liability of the organisation. A third example can be found in Ruth Mackenzie, Cesare PR Romano and Yuval Shany (with Philippe Sands), The Manual on International Courts and Tribunals (2nd edn, Oxford University Press 2010) 9.2.5.

97 EEA, art 108(2)(a) and SCA (n 7) art 31.

98 Sverdrup ((n 37) 9–11) has explained that there are basically five types of breach that may occur: (i) violations of treaty provisions, regulations and decisions; (ii) non-transposition of directives; (iii) incorrect legal implementation of directives; (iv) improper application of directives; and (v) non-compliance with European court decisions. Sverdrup stipulated that non-compliance with court decisions was not applicable in the EEA legal order, but in light of recent developments of the case law of the EFTA Court it is questionable that this still holds true. See, eg, Einarsdóttir, Margrét, ‘Bótaábyrgð vegna brota á EES-rétti sem rekja má til æðstu dómstóla’ (2011) 61 Tímarit lögfræðinga 5Google Scholar.

99 As an enforcement institution within the EEA regime, the role of the ESA is different from that of the EU Commission as countries need not complain to the ESA before initiating infringement proceedings against another EFTA state, and EFTA countries may settle disputes between them using a judicial mechanism other than the EFTA Court (unlike the EU countries, which are bound to use the CJEU). See Sevon (n 8) 334.

100 SCA (n 7) art 33.

101 The Treaty Establishing the European Community [2006] OJ C321 E/145 (TEC) added a provision (to art 228) enabling the CJEU to fine member states for failure to comply with an enforcement ruling (now TFEU (n 2) art 260(3)).

102 EEA, art 108(2)(c) and SCA (n 7) art 32.

103 On the nature of infringement proceedings on behalf of an EFTA state against another EFTA state vis-à-vis infringement proceedings between states in the EU law context, see Sevon (n 8) 334.

104 See SCA (n 7) art 36(2) on the standing requirement that natural or legal persons may only institute nullity procedures if the decision concerned is addressed to them or is of direct and individual concern to them. Such a procedure must be instituted within two months of coming to the addressee's knowledge. On the high threshold to challenging decisions not directly addressed to an applicant, see Case E-2/02 Technologien Bau- und Wirtschaftsberatung GmbH and Bellona Foundation v ESA [2003] EFTA Court Report 52, in which an environmental association was not allowed to challenge an ESA decision as the decision was addressed to Norway.

105 SCA (n 7) arts 37 and 39.

106 The original aim of art 177 of the Treaty of Rome (n 3), which obligated the highest courts of EU member states to refer cases to the CJEU, was to ‘make sure that the interpretation of European law was uniform throughout the Community’, its model being the Italian Constitutional system. See Rasmussen, Morten, ‘The Origins of a Legal Revolution – The Early History of the European Court of Justice’ (2008) 14(2) Journal of European Integration History 77, 89CrossRefGoogle Scholar. The EFTA Court's advisory opinion procedure, modelled on the preliminary ruling procedure, also serves the purpose of ensuring uniform application of EEA law in EFTA countries (although other aims may possibly also be achieved by the procedure). See Björgvinsson (n 5) 339.

107 Baudenbacher, ‘The EFTA Court Ten Years On’ (n 45) 35.

108 cf TEC (n 101) art 234 (now TFEU (n 2) art 267).

109 See, eg, Baudenbacher (n 42) 882; Graver (n 87) 81; Baudenbacher (n 46) 187–90.

110 Baudenbacher, ‘The EFTA Court Ten Years On’ (n 45) 34.

111 Baudenbacher 895 (n 42); Baudenbacher, ‘The Legal Nature of EEA Law in the Course of Time’ (n 44) 46; Magnússon, Skúli, ‘Fordæmi Hæstaréttar og EFTA-dómstólsins: nokkur orð um dóm Hæstaréttar 25. október 2001’ (2002) 55 Úlfljótur 191, 201–02Google Scholar.

112 cf Magnússon, Skúli, ‘Judicial Homogeneity in the European Economic Area and the Authority of the EFTA Court. Some Remarks on an Article by Halvard Haukeland Fredriksen’ (2011) 80 Nordic Journal of International Law 507CrossRefGoogle Scholar, fn 52: ‘The fundamental difference with regard to judicial protection remains, of course, the fact that the EFTA Court is not competent to rule on the validity of EU acts incorporated into the Annexes of the EEA.’

113 TFEU (n 2) art 263 (formerly art 230). For a review of legality by the CJEU see Craig, Paul and de Búrca, Gráinne, EU Law: Text, Cases, and Materials (4th edn, Oxford University Press 2008) 502–06Google Scholar.

114 On the general topic of dispute settlement between the parties of the opposite sides of the EEA Agreement see Sevon (n 8) 335; Norberg and others (n 5) 278–84.

115 From this perspective it is worth noting that in 2001 the EFTA countries updated the EFTA Convention from 1960 (the Stockholm Convention) and signed the Vaduz Convention (n 79), which uses arbitration as a mode of dispute resolution – without even foreseeing the possibility of using the EFTA Court's facilities for hosting such an arbitration. This choice sheds light on the EFTA states' lack of dedication to the EFTA Court.

116 Baudenbacher and Magnússon (n 66).

117 An example of such a position can be found in the World Trade Organization US/EU hormone dispute. It appears that the EU prefers to accept counter-measures by the US and Canada (suspension of concessions) to allowing beef which has been treated with certain hormones to be imported for consumption within its member states: WTO EC – Measures Concerning Meat and Meat Products (Hormones), Appellate Body Report adopted 5 January 2008, WT/DS26/AB/R.

118 Alþt. 2001–02 (The Law Gazette), B-division, Case 315, meeting 122 (Davíð Oddsson) 6562–63. (translation by author).

119 See Noortmann, Math, Enforcing International Law: From Self-help to Self-contained Regimes (Ashgate 2005) 149–51Google Scholar.

120 Examples of non-compliance by EU states are well known. See, eg, Tanja A Börzel, Tobias Hofmann, and Diana Panke, ‘Who's Afraid of the ECJ? Member States, Court Referrals, and (Non-) Compliance’, draft of 9 April 2005 (paper prepared for the ECPR Joint Sessions, Granada, 14–19 April 2005, http://userpage.fu-berlin.de/~europe/forschung/docs/BoerzelHofmannPanke_ECPR2005.pdf.

121 ie, Iceland applied to join the EU in July 2009. See Communication from the Commission to the European Parliament and the Council: Commission Opinion on Iceland's Application for Membership of the European Union, which emphasises that the country is already, to a large extent, integrated into the EU economy through the EEA Agreement, and that it has a satisfactory track record in implementing its obligations under the Agreement: COM(2010) 62, 24 February 2010, http://ec.europa.eu/enlargement/pdf/key_documents/2010/is_opinion_en.pdf.

122 ie, both Norway and Iceland have adjusted their legislation on foreigners to include the protections described in Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or Persons Otherwise Needing International Protection [2004] OJ L304/12.

123 On the implementation of Protocol 35 in each of the Nordic EFTA countries, see Björgvinsson (n 5) 111–28.

124 ‘The EEA Agreement has created a single market for the benefit of those who intend to act as producers, distributors and consumers in that market. The cardinal point of EEA law is therefore the protection of individuals and economic operators. The EFTA Court has consistently held that the provisions of the EEA Agreement are, to a great extent, intended for the benefit of individuals and economic operators throughout the EEA. The proper functioning of the EEA Agreement is dependent on those individuals and economic operators being able to rely on the rights thus intended for their benefit before national courts of EEA/EFTA states’ [footnote omitted]: Baudenbacher, ‘Facets of an EEA Constitutional Order’ (n 44) 347–48.

125 Shany (n 14).

126 Mackenzie, Ruth and Sands, Philippe, ‘International Courts and Tribunals and the Independence of the International Judge’ (2003) 44 Harvard International Law Journal 271, 275–76Google Scholar.

127 See n 63.

128 Posner and Yoo (n 63) 52 (Table 6).

129 Weiler has suggested ((n 51) 224) that when deciding a preliminary ruling referred by the highest courts of the member states, the CJEU deciding panel should have an ad hoc judge from the national court in question, inter alia, in order to ‘ensure the fullest possible consideration of all national sensibilities’.

130 ‘The need for representativeness would not in itself threaten the independent character of the Court, but rather bring in useful diversity in experience. It is more difficult to accept a requirement that the judges shall come from designated countries. In a regional setting, it has been required that all states should be represented by a judge, such as in the European Court of Human Rights. The judges obviously act in their individual capacity, but their independence may in such circumstances be questioned’: Ulfstein (n 60) 131. See also the conclusion of a study conducted by Eric A Posner and Miguel FD De Figueiredo on ICJ voting patterns: ‘Judges vote for their home states about 90 per cent of the time. When their home states are not involved, judges vote for states that are similar to their home states – along the dimensions of wealth, culture, and political regime’: ‘Is the International Court of Justice Biased?’ (2005) 34 Journal of Legal Studies 599, 624Google Scholar.

131 The Icelandic Foreign Ministry, ‘Staða Íslands í Evrópusamstarfi: Skýrsla Halldórs Ásgrímssonar utanríkisráðherra til Alþingi’ (Iceland's Position within European Cooperation: Report of Halldór Ásgrímsson, Minister of Foreign Affairs, to the Althing) (2000) 80, http://www.utanrikisraduneyti.is/media/Skyrslur/skyrsla.pdf.

132 However, Weiler has stated ((n 51) 225) that in order to ensure the impartiality of judges in the CJEU, they should be allowed to sit for one term only.

133 Baudenbacher (n 42) 886.

134 Note that the EEA Agreement differentiates between judgments given by the CJEU before and after the signing of the EEA Agreement (2 May 1992). According to art 6 EEA, the EFTA Court is bound by precedents of the CJEU prior to the date of signing. Under SCA (n 7) art 3(2), the EFTA Court is required to take due account of all CJEU jurisprudence adopted after the EEA signing date. The EFTA Court treats both types of precedent as binding, demonstrated by the fact that it has never differentiated between the two types in over 15 years of operation and over 100 cases decided. This obligation is not applicable in instances where differences exist between either the scope or legal nature of EU and EEA law. See reservations towards the position that CJEU judgments are binding on the EFTA Court in Magnússon (n 112), especially 516.

135 By way of explanation, the EFTA Court can be said to be involved in a twofold constitutional sphere: one involving the EU legal order – the primary actor being the CJEU – and the second being its relationship with the EFTA states, which are its formal source of power. Primarily, the EFTA Court has used the EU sphere to increase its power vis-à-vis the EFTA states. Under the conceptual framework of political science, the constitutionalisation process of the EFTA Court can be described as a move towards the EFTA Court being an agent of the CJEU instead of the EFTA states.

136 The former Chairman of the Appellate Body of the WTO, Claus-Dieter Ehlermann, has argued that because of the shortage of structural independence, inter alia, the option of blocking reports, the DSB functions as a quasi-judicial body: ‘Experiences from the WTO Appellate Body’ (2003) 38 Texas International Law Journal 469, 478Google Scholar.

137 The EFTA Court's introduction of these doctrines into the sphere of EEA law has effectively created an EEA Constitutional Order: see Baudenbacher, ‘Facets of an EEA Constitutional Order’ (n 44) 343–57. In contrast to the EFTA Court, see the writings of Laurence R Helfer, Karen J Alter and M Florencia Guerzovich, who have argued in terms of the Andean Court that one of the factors that has limited its effectiveness is that the Court has refused to interpret Andean rules purposively so as to promote the integration of regional markets: ‘Islands of Effective International Adjudication: Constructing an Intellectual Property Rule of Law in the Andean Community’ (2009) 103 American Journal of International Law 1, 4Google Scholar.

138 Despite the fact that the EEA Agreement is a treaty falling under public international law, the EFTA Court has not followed the interpretative rules found in the Vienna Convention on the Law of Treaties (VCLT) as it applies the CJEU's methods of interpretation. See Baudenbacher (n 9) 19; Baudenbacher (n 42) 887–89. It can be noted that the Norwegian government argued in the Wilhelmsen case that art 44 VCLT was applicable in terms of interpretation on the relationship between the main part of the EEA Agreement and one of its protocols: see Case-6/96 Tore Wilhelmsen AS v Oslo Kommune [1997] EFTA Court Report 53, para 29.

139 On the content of the doctrines' ‘primacy’, ‘direct effect’ and ‘state liability’ in EEA law and a comparison of their content and function with their counterparts in EU law, see Björgvinsson (n 5) 139–204; van Gerven, Walter, ‘The Genesis of EEA Law and the Principles of Primacy and Direct Effect’ (1992–93) 16 Fordham International Law Journal 955Google Scholar; Ólafur Börkur Thorvaldsson, ‘Direct Effect, Supremacy and State Liability – A Comparison between EC Law and the EEA Agreement’ (Master's Thesis, Lund University 2002); Méndez-Pinedo, M Elvira, EC and EEA Law: A Comparative Study of the Effectiveness of European Law (Europa Law Publishing 2009) 145–57Google Scholar, 179–205, 221–49, 275–93.

140 In respect of other principles of EEA law, see Baudenbacher (n 9) 27–30; Björgvinsson (n 5) 241–99.

141 For example, the ACP–EU cooperation, the Euro-Mediterranean Free Trade Area and the 1972 free trade agreements with Switzerland.

142 Sieglinde Gstöhl has argued that the closer the ties a third country has with the EU's internal market the more likely it is that such cooperation will raise legitimacy concerns for the country concerned: ‘Political Dimensions of an Externalization of the EU's Internal Market’ (2007) College of Europe, Department of EU International Relations and Diplomacy Studies: EU Diplomacy Papers 3/2007, http://www3.coleurope.eu/file/content/studyprogrammes/ird/research/pdf/EDP%203-2007%20Gstohl.pdf.

143 Petrov, Roman, ‘Exporting the Acquis Communautaire into the Legal Systems of Third Countries’ (2008) 13 European Foreign Affairs Review 33, 37Google Scholar.

144 cf EEA, art 1(1), recitals 4 and 15. Recital 15 states: ‘Whereas, in full deference to the independence of the courts, the objective of the Contracting Parties is to arrive at, and maintain, a uniform interpretation and application of this Agreement and those provisions of Community legislation which are substantially reproduced in this Agreement and to arrive at an equal treatment of individuals and economic operators as regards the four freedoms and the conditions of competition.’

145 Graver (n 87) 79.

146 Norberg (n 5) 1174; Norberg and others (n 5) 177–79; Sevon, Leif and Johansson, Martin, ‘The Protection of the Rights of Individuals under the EEA Agreement’ (1999) 24 European Law Review 373, 374Google Scholar.

147 Baudenbacher (n 9) 13; Ingadottir (n 2) 199; Björgvinsson, Davíð Þór ‘Þýðing fordæma dómstóla EB við framkvæmd og beitingu EES-samningsins’ in Snævarr, Ármann and others (eds), Afmælisrit til heiðurs Gunnari G Schram sjötugum, 20 febrúar 2001 (Almenna bókafélagið 2002) 103–05Google Scholar; Icelandic Foreign Ministry (n 131) 81; Forman (n 69) 771.

148 EU member states also have right to intervene (Statute of the EFTA Court, art 36(1)) [1994] OJ L344/71) or submit written observations (ibid, art 20). See Baudenbacher (n 9) 14–15.

149 ibid 15.

150 Forman (n 69) 773.

151 EEA, art 105(2).

152 EEA, arts 105, 112–14; Norberg (n 5) 1189–91.

153 See Norberg (n 5) 1188.

154 Baudenbacher (n 9) 15. The EEA Joint Committee did review the compatibility between two cases regarding exhaustion of trademark rights (Case E-2/97 Mag Instruments Inc v California Trading Company Norway, Ulsteen [1997] EFTA Court Report 127 and Case C-355/96 Silhouette International Schmied v Hartlauer Handelsgesellschaft [1998] ECR I-4799). The Joint Committee concluded that the rulings were not contradictory. See Ingadottir (n 2) fn 33.

155 EEA, art 106.

156 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, 16 September 1988, 1659 UNTS 13. See Norberg (n 5) 1179.

157 Restamark (n 80) para. 77.

158 Hörður Einarsson v Iceland (n 80).

159 ibid, paras 52–53.

160 Case E-4/01 Karl K Karlsson hf v Iceland, [2002] EFTA Court Report 240, para 28.

161 ibid.

162 Case T-115/94 Opel Austria v Council [1997] ECR II-39.

163 Baudenbacher, ‘Facets of an EEA Constitutional Order’ (n 44) 348.

164 Sveinbjörnsdóttir (n 69) para 59. Baudenbacher has stated (ibid 351) that there were three core arguments for the EFTA Court's finding: (i) the homogeneity objective of EEA law; (ii) the objective to ensure equal treatment for individuals and economic operators; and (iii) equal conditions of competition, and the duty of the Contracting Parties to take all appropriate measures to ensure fulfilment of their obligations laid down in art 3, the provision mirroring EC, art 10.

165 Petrov (n 143) 36.

166 cf Opinion 1/91 (n 13) paras 27–28.

167 Baudenbacher and Magnússon (n 66) (comment by Baudenbacher). See also Baudenbacher, ‘Facets of an EEA Constitutional Order’ (n 44) 357–58: ‘[i]t follows from the above considerations that facets of an EEA constitutional order are in fact visible’ and that ‘[a]t the same time, the EEA Agreement, being an international agreement sui generis, obliges the national courts to go as far as possible in interpreting national law in an EEA-friendly way. This obligation follows from the EEA Agreement itself’. See also Baudenbacher, Carl, ‘The Implementation of Decisions of the ECJ and of the EFTA Court in Member States' Domestic Legal Orders’ (2004–05) 40 Texas International Law Journal 383, 386–87Google Scholar. See, however, para 63 of Sveinbjörnsdóttir (n 69) on the limits of the supremacy doctrine: ‘It follows from Article 7 EEA and Protocol 35 to the EEA Agreement that the EEA Agreement does not entail a transfer of legislative powers. However, the principle of state liability must be seen as an integral part of the EEA Agreement as such. Therefore, it is natural to interpret national legislation implementing the main part of the Agreement as also comprising the principle of state liability.’ See also para 28 of Opinion 1/91 (n 13), which states that the principles of supremacy and direct effect were ‘irreconcilable with the characteristics of the [EEA] agreement’.

168 For example, Baudenbacher (n 45) 26; Méndez-Pinedo (n 139) 147–50.

169 Case C-140/97 Walter Rechberger and Renate Greindl, Hermann Hofmeister and Others v Austria [1999] ECR I-3499, para 39.

170 ‘It follows from all the foregoing that it is a principle of the EEA Agreement that the Contracting Parties are obliged to provide for compensation for loss and damage caused to individuals by breaches of the obligations under the EEA Agreement for which the EFTA states can be held responsible’: Sveinbjörnsdóttir (n 69) para 62.

171 ibid para 63.

172 EEA law still differentiates as to the scope of the doctrine, which is both narrower in the sense that EEA law does not cover all the areas of EU law and broader in the sense that state liability applies in instances wherein the EU law doctrine of direct effect would apply. Nevertheless, the substantive content (conditions for liability) is the same. For discussion on state liability in EEA law, and similarities and differences with EU law see Méndez-Pinedo (n 139) 275–95; Stefán Már Stefánsson, ‘State Liability in Community Law and EEA Law’ in Baudenbacher, Tresselt and Örlygsson (n 44) 145.

173 Sveinbjörnsdóttir (n 69) para 66; Karlsson (n 160) paras 32, 47.

174 Case C-321/97 Ulla-Brith Andersson and Susanne Wåkerås-Andersson v Svenska Staten (Swedish State) [1999] ECR I-3551, Opinion of A-G Cosmas.

175 Joined Cases C-6/90 and C-9/90 Andrea Francovich v Italy [1991] ECR I-5357.

176 Íslenska ríkið gegn Erlu Maríu Sveinbjörnsdóttir, Hrd 1999 (Icelandic Supreme Court, The Icelandic State v Erla María Sveinbjörnsdóttir, Supreme Court Reports 1999) 4916. Note that the Icelandic Supreme Court based its finding on the domestic principle of tort liability of the state, not EEA law.

177 Høyesterett, 28 October 2005, Veronika Finanger mot Staten v/Justisdepartementet, Retstidende 2005:1365. The Norwegian Supreme Court cited the Sveinbjörnsdóttir judgment of the Icelandic Supreme Court.

178 ‘Most notably the liberal democratic regime types of European governments and the strong tradition of domestic courts committed to the rule of law were the product of larger historical, political, and cultural forces that could not be immediately replicated (if at all) in other state or regions’: Helfer and Slaughter (n 63) 907.

179 Indeed, Helfer's later work indicates that other continents are capable of putting up effective international courts: see Helfer, Alter and Guerzovich (n 137).

180 For example, in research conducted by the World Bank which focused on empirical assessment of governance indicators in the years 1996 to 2008, the EFTA countries were in the top ten of the list for the entire period for rule of law, with Iceland and Norway often sharing the top two places: Daniel Kaufmann, Aart Kraay and Massimo Mastruzzi, ‘Governance Matters VIII: Aggregate and Individual Governance Indicators for 1996–2008’, World Bank Policy Research Working Paper 4978, June 2009, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1424591.

181 Baudenbacher (n 8) 90; Baudenbacher, ‘The EFTA Court Ten Years On’ (n 45) 15. Political scientists have put forward theories that the impact of the Nordic majoritarian democratic tradition is observed in judges being reluctant to refer cases to the CJEU: see Wind, Marlene, ‘The Nordics, the EU and the Reluctance towards Supranational Judicial Review’ (2010) 48 Journal of Common Market Studies 1039CrossRefGoogle Scholar.

182 Baudenbacher and Magnússon (comment by Baudenbacher) (n 66).

183 For an example of the diminished importance of the EEA Agreement, one can look to the report from the Foreign Ministry of Iceland on the EEA Agreement (n 131) 83, in which the difficulties of getting EU Foreign Ministers to attend meetings of the EEA Council are described. The report states that EU Ministers have prioritised joint meetings with other neighbourhood countries, such as the Ukraine and Russia, during summits.