2.4 Dispute resolution and legal clarification
2.4.1 Introduction
In its Opinion 1/91, the ECJ found that establishing a court system with a common EEA Court would pose a threat to the autonomy of the Community legal order that conflicted with the very foundations of the Community. In its Opinion 1/92, the Court found that the new system for settlement of disputes, with an EFTA Court with jurisdiction only within the framework of EFTA and with no personal or functional links with the ECJ, and an EEA Joint Committee to settle disputes brought before it by the European Union or an EFTA state, was compatible with the EC Treaty.
Thus, under the EEA Agreement, we have a system where two international courts with no personal or functional links between them – the ECJ and the EFTA Court – have jurisdiction over the same body of provisions – the EEA Agreement.
Courts settle disputes. Their power to do so is either embedded in the constitution, or in the instrument establishing the court. Dispute resolution in court is usually mandatory in the sense that, if sued, a party to the dispute subject to the jurisdiction of the court must accept that the court will settle that dispute. A final judgment is usually respected, and if not it can be executed through public authorities. Thus, one element giving a final judgment authority is the fact that it acts as an order to the parties in the dispute, which can be executed by utilizing the powers of other public authorities. The judgments of international courts and tribunals cannot rely to the same extent on the powers of other bodies, in order to be respected. Thus, the procedure under Article 267 TFEU is considered one of the main explanations for the effectiveness of EU law, and the impact of ECJ rulings, on the domestic legal orders of the EU member states. As stated by Weiler:
“When European Community Law is spoken through the mouths of the national judiciary it will also have the teeth that can be found in such a mouth and will usually enjoy whatever enforcement value that national law will have on that occasion”.(1)J.H.H. Weiler, Journey to an Unknown Destination: A Retrospective and Prospective of the European Court of Justice in the Arena of Political Integration, (1993) 31 Journal of Common Market Studies page 417, at page 422.
We find a preliminary ruling mechanism in the EEA Agreement, as well as in the SCA. The preliminary ruling mechanism in the EEA Agreement, found in Article 107 EEA, which makes it possible for courts in the EFTA States to ask the ECJ to decide upon questions of interpretation of provisions of the EEA Agreement identical in substance to provisions of EU law, has so far not been activated. However, under Article 34 SCA, courts in the EFTA states can request the EFTA Court to give advisory opinions on the interpretation of the EEA Agreement and the SCA.
2.4.2 The EU Pillar
The EEA Agreement is, in the EU pillar, part of the EU legal order. Issues pertaining to the interpretation and application of EEA law in the EU pillar are therefore treated in the same fora as (other) issues pertaining to the interpretation and application of EU law.
Thus, EFTA citizens and undertakings can invoke EEA law, as a part of the EU legal order, in cases pending before national authorities and courts in the European Union, and the preliminary ruling procedure according to Article 267 TFEU also applies to questions on the interpretation of the EEA Agreement, included legislative acts originating from the EU legal order in their EEA guise.
2.4.3 The EFTA Pillar
The EFTA Court has, like the ECJ, the power to settle disputes over the interpretation of the EEA agreement, and to give advisory opinions on its interpretation. Reflecting the advisory nature of these opinions, the referring court may, or may not, follow the advice given by the EFTA Court. There are also no provisions in the EEA Agreement or the EFTA Court Agreement obliging courts in the EFTA States to request an advisory opinion.(2) There are suggestions, both in the case law of the EFTA Court and in legal writings, that they are nevertheless obliged to do so in certain situations, see case E-18/11, Irish Bank Resolution Corporation Ltd., at paragraph 64 and Skuli Magnusson, On the Authority of Advisory Opinions, Europarättslig Tidskrift 2010 page 528 et seq., respectively.
The principle of homogeneity embedded in the EEA Agreement provides that the provisions of that agreement shall be interpreted in line with the provisions of EU law which they mirror. However, as only the ECJ has the power to decide the interpretation of these EU law provisions, we have two international courts with parallel jurisdiction, one of which also has jurisdiction over the provisions mirrored in the EEA Agreement. It is quite clear that this may cause problems where the EFTA Court has to rule on a question upon which the ECJ has not yet ruled. Illustrative in this respect is the decision of the EFTA Court in joined cases E-9/07 and E-10/07 L’Oréal, where the court deviated from its decision in case E-2/97 Maglite in order to maintain homogeneity between EEA law and EU law. Here the EFTA Court found that the principle of homogeneity implies that unless there are compelling grounds for diverging interpretations, EEA law shall be interpreted in line with new case law of the ECJ on EU law, regardless of whether the EFTA Court has previously ruled on the question in its EEA law guise. Having two courts on the international level interpreting a common set of rules is definitely not twice as good as having one, but still better than having none.
The Norwegian Supreme Court stated in the first Finanger case that although advisory opinions of the EFTA Court shall be accorded great weight, the Norwegian Supreme Court has both the power and the obligation to independently assess whether, and to what extent, an advisory opinion shall be followed.(3)Rt. 2005 page 1811, on page 1820. This is in accord with the principle of homogeneity embedded in the EEA Agreement, and has a later parallel in the EFTA Court’s decision in L’Oréal, where the EFTA Court found that EEA law shall be interpreted in line with new case law from the ECJ. However, the ruling in Finanger has wider implications, as it also opens the door to departures from EFTA Court decisions in other situations. This was clearly demonstrated in STX, where the Norwegian Supreme Court went far in suggesting that the EFTA Court’s interpretation of directive 96/71/EC in case E-2/11, STX, was not in accord with pre-existing case law from the ECJ. This situation is quite different from the one in L’Oréal, and the Supreme Court seemed prepared to depart from the EFTA Court’s opinion on the point.(4)Rt. 2013 page 258, para 76 to 103. The statements obiter dictum found in case E-3/12, Jonsson, may be seen as a response from the EFTA Court.(5) See case E-3/12, para 55 to 61. Another response is the ESA’s decision to initiate proceedings against Norway, submitting that the law as established by the Norwegian Supreme Court in STX violates the EEA Agreement.(6) See ESA Decision 191/16/COL, 25th October 2016, Letter of formal notice to Norway concerning posting of workers.
The authority of an advisory opinion of the EFTA Court may again be brought into question as the so-called Jabbi-case makes its way through the Norwegian court system. In this case, upon request for an advisory opinion from Oslo district Court, the EFTA Court found that Article 7 of directive 2004/38/EC applies “by analogy” where an EEA national returns to his home State.(7) The case is at the time of writing – February 2017 – still pending. This finding is at odds with the wording of that provision and with consistent case law from the ECJ. This was acknowledged by the EFTA Court, but the court found that the considerations pertaining to substantial homogeneity – married to a EU citizen, Jabbi would have had a derived right to residence in his spouse’s home country by virtue of Articles 20 and 21 TFEU – mandated the Court’s interpretation.(8) See case E-28/15, para 68 et seq. One consequence of the Court’s ruling is that where a third country national marries an EU citizen residing in an EFTA-EEA State, this third country national will have derived rights under directive 2004/38/EC, which the directive does not provide when applied in an EU-context. Hence, the authority of the ruling in this case may not only be called into question by Norwegian courts, but also by national courts within the EU and even by the ECJ.
In the context of European Union Law, the mechanism established by Article 267 TFEU provided for rulings pronouncing seminal principles such as primacy, direct effect and state liability. Not all of these principles were received with great enthusiasm by all national courts,(9) For an account of national responses to these principles, see TC Hartley, The Foundations of European Union Law, 7th ed., Oxford 2010 chapter 8. but the judicial dialogue which Article 267 TFEU facilitates has, over the years, honed these principles in a way that has allowed them to be accepted and applied by the courts of the Member States.(10) The development in the rationale for direct effect of directives from van Duyn to Ratti, Becker and Marshall, may serve as an example, as may the ECJ’s «Solange-jurisprudence». The key elements in this dialogue are the option, and in some cases duty, for Member State Courts to refer questions concerning the interpretation of EU Law to the ECJ, and the binding effect of the ECJ’s ruling on the issue. Through its binding effect on the court requesting the ruling, a preliminary ruling of the ECJ also becomes an order backed by public authorities. These characteristics are not present in the advisory opinion procedure according to Article 34 SCA. Thus, in order for the EFTA Courts’ rulings to derive authority from the national legal system, the national court must find it worthwhile to refer questions to the EFTA Court. This is in turn dependent on the degree of goodwill which the EFTA Court enjoys in the national courts of the EFTA States.(11) As Mancini has emphasised, goodwill is also an important element in the mechanism established through Article 267 TFEU, cf. G.F. Mancini, The Constitutional Challenges Facing the European Court of Justice, in Democracy & Constitutionalism in the European Union. Collected Essays, Oxford Portland, Oregon 2000, page 17. Finally, the EFTA court’s ruling on the questions referred has to be convincing. This, again, will depend on the quality of the reasoning.