How EEA law is interpreted

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1 How EEA law is interpreted Gunnar SELVIK Registrar EFTA Court Brussels, 3 February 2016

2 General points on the EFTA Court Established as a part of the EEA cooperation the judicial function Independent international Court with clearly defined competences Seated in Luxembourg

3 Two pillars one agreement The EFTA Court interprets the EEA agreement in the EFTA states The EU Courts interpret the EEA agreement in the EU states

4 ICELAND LIECHTENSTEIN NORWAY THE TWO PILLAR STRUCTURE UNDER THE EEA AGREEMENT EEA COUNCIL Ministers of EU and EFTA EEA states EU COUNCIL EFTA STANDING COMMITTEE* EFTA Secretariat EFTA SURVEILLANCE AUTHORITY EEA JOINT COMMITTEE EEAS, Commission and EU and EFTA government representatives EEAS+EUROPEAN COMMISSION Commission Services EFTA COURT COMMITTEE OF MPs OF THE EFTA STATES EFTA Secretariat EEA JOINT PARLIAMENTARY COMMITTEE * MPs from the EFTA parliaments and MEPs EU COURTS EUROPEAN PARLIAMENT EP Secretariat EFTA CONSULTATIVE COMMITTEE EFTA Secretariat EEA CONSULTATIVE COMMITTEE* EUROPEAN ECONOMIC AND SOCIAL COMMITTEE (EESC) EESC Secretariat * Switzerland has observer status

5 Legal basis EEA agreement article 108(2): provides that the EFTA States shall establish the EFTA Court Surveillance and Court Agreement (SCA) article 27: the legal basis for the establishment of the EFTA Court Protocol 5 SCA: Statutes Rules of Procedure Instructions to the Registrar

6 Organisation 3 judges Each EFTA state nominates one judge One cabinet per judge, legal secretaries and personal assistants Registrar responsible for procedural questions and for the administration of the Court No Advocate General, no General Court ( ECJ) Guest office for researchers etc. Total staff: 20 + trainees

7 Organigram Mr Carl BAUDENBACHER Judge/President CH Mr Philipp SPEITLER Legal Secretary GER Mr Páll HREINSSON Judge ICE Mr Arnaldur HJARTARSON Legal Secretary ICE Mr Per CHRISTIANSEN Judge NOR Mr Jørgen REINHOLDTSEN Legal Secretary NOR Mr Gunnar SELVIK Registrar NOR Ms Therasa HAAS Legal Secretary (temp) AUT VACANT Legal Secretary (temp) Mr Dag SØRLIE LUND Legal Secretary (temp) NOR Mr Tomasz Mazur Adm.&Fin. Officer (temp) POL Ms Harriet BRUHN Sen. Adm.&Fin.Off. NOR Mr Birgir BUASON Lawyer Administr. ICE Ms Marie COURNOT Legal Secretary (temp) CH/FRA Ms Kerstin Schwiesow Personal Assistant GER Ms Hrafnhildur EYJÓLFSDÓTTIR Personal Assistant ICE Ms Silje NÆSHEIM Personal Assistant NOR Mr Salim GUETTAF Man. premises FRA Ms Candy BISCHOFF Adm. Assistant LUX Ms Sharon WORTELBOER Adm. Assistant UK/LUX

8 Types of cases - I DIRECT ACTIONS (DA) Infringement actions vs. EFTA States: - Initiated by ESA (art 31 SCA) - Initiated by another EFTA State (art 32 SCA) Infringement actions vs. ESA: - Validity of ESA s decisions (art 36 SCA) - ESA s failure to act (art 37 SCA) - Liability of ESA (art 39 SCA) Parties: ESA, EFTA States and in some cases private entities

9 Types of cases - II ADVISORY OPINIONS (AO) Who can request? -..any court or tribunal in an EFTA-State.. (Art 34(2) SCA) When request? - Where... that court or tribunal considers it necessary to enable it to give judgment.. (Art 34(2) SCA) Effect? - Always followed, but formally speaking not binding ( ECJ s preliminary rulings) - National courts incorrect interpretation of the EEA agreement is in principle a breach of treaty obligations

10 Procedure Main focus on written procedure Usually followed by an oral hearing Right to make written observations and to participate in the oral hearing: EFTA states, EU states, ESA, Commission and also private parties (if legal standing)

11 Relationship EU Courts - EFTA Court Article 105(2,3) EEA formal equality Art. 6 EEA and Art. 3 SCA: EEA to be interpreted in conformity with the relevant case law of the ECJ EFTA Court following the ECJ EFTA Court goes first EFTA Court rulings on EEA specific problems

12 Statistics (case load) - I Sharp increase in new cases in recent years: Total : 260 cases (57% DA/43% AO) Annual average: 12 cases First 16 years: 115 cases (7/year) Last 6 years: 145 cases (24/year) Low point : 2 cases (1999) High point : 36 cases (2015)

13 Statistics (case load) - II Trends: Direct Actions: Surge in non-implementations (especially against Iceland), state aid, competition, access to documents... Advisory Opinions: Norway underrepresented, aftermath of financial crisis, increased complexity... Maintain effective case handling time: 6-8 months (ECJ: months)

14 Pending cases: Statistics (case load) - III Total 18: 9 Direct Actions (non-implementations/state aid). 9 Advisory Opinions (milk quotas/waste management/right of residence/finance system-money laundering/labour-comp. lawdock workers/invalidity insurance/life insurance).

15 Statistics (case load) - III Pending cases Total 13: 12 Direct Actions (state aid/access documents/work as dentist/non-implementation/regionally differentiated social security contributions) 1 Advisory Opinion (medicinal products)

16 Court Diary Composition of the Court Legal Sources regarding the Court Decided and Pending Cases Yearly Reports of the Court as from 2004 Contact Info:

17 Advisory Opinions Advisory Opinions - per country Icelandic Courts Norwegian Courts Liechtenstein Courts Others 49 1, rue du Fort Thüngen, L-1499 Luxembourg

18 Direct Actions Direct Actions - divided by applicant Against ESA ESA v Iceland ESA v Norway ESA v Liechtenstein 50 1, rue du Fort Thüngen, L-1499 Luxembourg

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