THE EFTA COURT. Article 27 A court of justice of the EFTA States, hereinafter referred to as the EFTA Court, is hereby established. It shall function in accordance with the provisions of this Agreement and of the EEA Agreement. The EFTA Court shall consist of three judges. (9)
THE EFTA COURT. The EFTA Court was founded in 1994 and shall follow relevant ECJ rulings handed down prior to the date of signature of the EEA Agreement (2 May 1992).11 This aimed at ensuring that from the outset the Single Market playing field was perfectly flat. The EFTA Court is required also to pay “due account” to all subsequent relevant ECJ jurisprudence.12 In practice, the EFTA Court makes no distinction between the two and pays equal regard to post 1994 ECJ case-law. These provisions are pure common-sense. It would prove impossible to ensure an equal playing field for individuals and economic operators across the EU/EFTA divide if the same law wasn’t interpreted in the same way. This pragmatism is the common thread of the EEA Agreement and defines its fundamental principles.13 Indeed, with regard to two major issues, the EFTA Court found it appropriate to go its own way:14 when deciding whether a body of the national administration of an EEA/EFTA State constitutes a court or tribunal entitled to make a reference, it has more and more used a functional instead of an institutional approach.15 And with regard to the question of whether an in-house attorney enjoys the right of audience, the Court has, contrary to the ECJ, opted for a case-by-case approach in the assessment of whether such a representative is sufficiently independent.16 Importantly, experience shows that the ECJ and its Advocates General, the General Court, but also national courts of EU Member States pay due account to the case law of the EFTA Court.17 Indeed, the EFTA Court typically faces novel legal problems requiring it to go first.18 For example, the Court of Appeal referred a case to the ECJ on the basis of the EFTA Court’s findings in Paranova v Merck.19 The ECJ subsequently adopted the EFTA Court’s approach.20 The EFTA Court hears two main types of cases: advisory opinions and direct actions. Advisory opinions are identical, in all but name, to preliminary references made by national courts to the ECJ.21 All direct actions brought before the EFTA Court are brought upon the basis of an infringement of the EEA Agreement itself or of the Surveillance and Court Agreement (i.e. actions for annulment, or for failure to act, of ESA decisions). Just as at the ECJ, there are no dissenting opinions in EFTA Court judgments. The single judgment is the view of the bench as a whole and its deliberations as well as the vote remain secret. Likewise, the internal procedures of the two EEA courts illustrated th...
