Between Homogeneity and Independence: The Legal Position of the EFTA Court in the European Economic Area

3 Colum. J. Eur. L. 169 (1997)

Carl Baudenbacher. Judge of the EFTA Court; Prof., St. Galler University (Switzerland); Dr. jur. Berne University; Privatdozent, Zurich University, Visiting Professor, University of Texas at Austin School of Law.

The European Economic Area (EEA) Agreement was signed in Oporto on May 2, 1992, after protracted negotiations and came into force on January 1, 1994. The Agreement is based on the idea of providing the participating states of the European Free Trade Association (EFTA) with free access to the single European market. By way of compensation, those countries adopt large portions of the European Community’s economic law. The Agreement provides for its institutional basis upon a two-pillar system. To parallel the EC Commission and the European Court of Justice (ECJ), the EFTA states created the EFTA Surveillance Authority (ESA) and the EFTA Court. There is no EFTA Court of First Instance. Problems arise from the fact that the Community law to be applied by the ECJ, and the EEA law to be applied by the EFTA Court, are identical to a large extent. This prompts the question as to how, in the face of such a constellation, the overriding objective of homogeneity can be achieved while simultaneously preserving the independence of the courts. This study will first trace the history of the EEA Agreement and the evolution of its institutional chapter. Such background is indispensable for an understanding of the nature of the Agreement in general and the legal position of the EFTA Court in particular. It is relevant to this context that only three years after it came into force, the EEA Agreement has already been subject to important changes. Subsequently, the competences of the EFTA Court must be outlined. The core of this study will be the examination of the relationship between EFTA Court case law and ECJ case law. This article will then consider whether the existence of a second court of law in the EEA has any effects on ECJ case law. The final sections will deal with the position of the EEA Joint Committee in the judicial sphere and with the consequences of case law divergences.