EEA. In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each underwriter has represented and agreed that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of the Securities which are the subject of the offering contemplated by this Prospectus to the public in that Relevant Member State other than:
EEA. 1 As we shall see, many of the points made in relation to Art. 3 EEA may therefore equally apply as far as Art. 2 SCA is concerned. However, since Art. 2 SCA has never been the subject of interpretation by the EFTA Court, much of the follow- ing will necessarily be based on a certain amount of conjecture. There are proba- xxx more unanswered questions therefore concerning the potential scope and re- mit of Art. 2 SCA than those which still exist with regards to Art. 3 EEA. 1 See the comments on Art. 3 EEA in Part II of this book.
EEA. The Court notes in this context that EFTA citizens and economic operators benefit from the obligation of courts of the EU Member States against whose decision there is no judicial remedy under national law to make a reference to the ECJ (see Case C-452/01 Xxxxxx and Schlössle Xxxxxxxxxxx  ECR I-9743)”.76 37 The ensuing “to refer or not to refer” debate has been much discussed in aca- demic literature.77 Suffice to say for our present purposes that an obligation to 74 Case E-01/04, 23.11.2004, Fokus Bank, para. 41: “The Court notes at the outset that the EEA Agreement does not, as a general rule, lay down specific provisions governing the administra- tive proceedings in the Contracting Parties’ legal orders. However, such proceedings must be conducted in a manner that does not impair the individual rights flowing from the EEA Agree- ment. Such an obligation on the Contracting Parties follows from Article 3 EEA, the provision mirroring Article 10 EC.” 75 See ESA Case No. 76496; Document No. 757520; Decision No. 143/16/COL; Letter of formal notice to Lichtenstein concerning the principle of equal treatment between men and women in the field of insurance and related financial services, pp. 17-19. 76 Case E-18/11, 28.9.2012, Irish Bank, para. 58; as confirmed in Case E-3/12, 20.3.2012, Jons- son, para 60; Case E-11/12, 13.6.2013, Xxxx, para. 117; and Case E-2/12 INT, 31.10.2013, HOB-vín, para 11. 77 See x.x. X. Baudenbacher, “The EFTA Court: Structure and Tasks”, in: Baudenbacher (ed.), The Handbook of EEA Law, 139-178, p. 157: “[i]f there is no clear case-law either from the ECJ or the [EFTA] Court, a [national] court of last resort is basically obliged to make a refer- ence. It is for ESA to enforce that obligation.” Similarly, X. Xxxx, “Preliminary Rulings in the EEA – Bridging (Institutional) Homogeneity and Procedural Autonomy by Exchange of Infor- mation”, in The EFTA Court (ed.), The EEA and the EFTA Court, 169-185, p. 177, who speaks of a “de facto duty to submit”; and X. Xxxxxxxxx, “Efficient Judicial Protection of EEA Rights in the EFTA Pillar – Different Role for the National Judge?”, in The EFTA Court (ed.), The EEA and the EFTA Court –, 117-132, pp. 122-123, who views the EFTA Court’s decision in Irish Bank as making clear that “’whether or not to refer’ is not purely optional for the national courts [of last instance of the EEA EFTA States]”, and that “national courts can- not be considered to enjoy full discretion with regard to this matter...
EEA. In a recent Letter of Formal Notice, ESA has for example claimed that the actions of Lichtenstein authorities – by enacting new national legislation at odds with the ECJ’s decision in Test-Achats, and failing to confer more generally with ESA in the specific situation – constituted two indigenous breaches of Art. 3.75 Inter- estingly, these claims are raised under a separate heading, and unconnected to any other specific EEA provisions. 36 Another issue concerns whether Art. 3 may be used as a joint or independent basis for the potential transformation from mere possibility to positive obli- gation under Art. 34 SCA for national courts of last instance in the EFTA States to request Advisory Opinions from the EFTA Court. In a series of relatively re- cent cases starting with Irish Bank, the EFTA Court has held that