Prof. Dr. Carl Baudenbacher
President of the EFTA Court
EC Law, Fundamental Rights, and the EEA Agreement
Amicale des référendaireset anciens référendairesde la Cour de Justice etdu Tribunal de première instancedes Communautés Européennes, 15 June 2006
A.Introduction
One year ago, in its judgment in theBosphorus case, the ECHR examined whether substantive EC law on fundamental rights and the enforcement mechanisms are equivalent to the guarantees provided by the Convention.
Ireland had seized an aircraft owned by Yugoslav Airlinies, but leased by a Turkish company, under a Council Regulation which had implemented the UN sanctions regime against the Federal Republic of Yugoslavia.
The Court of Justice of the EC had held that the aircraft was covered by the Regulation and that the right to peaceful enjoyment of property and freedom to pursue a commercial activity could be restricted in the general interest.
The ECHR found that the EC law fundamental rights guarantees and the EC law control mechanisms were to be deemed equivalent to the ones of the Convention.
The Strasbourg Court therefore refrained from re-examining whether Ireland had violated the Convention.
A.Introduction
Some observers have spoken of a new new Solangejugment
For me the judgment is rather a reason to reflect on the question where EEA law stands in this respect.
Using the famous dichotomy introduced by the legal realists:
Not only law on the books, but also law in action
Let me start with a brief overview on the state of the art in Community law
(B.Fundamental rights as part of EC law)
As far as
I.Substantive law
Is concerned, you all know that there were
1.No provisions concerning fundamental rights in the original EEC Treaty
2.Development of ECJ case law
*1969: Fundamental rights recognized: STAUDER
*1975: First reference to the Convention: HAUER
*Since 1991: Reference to judgments of the ECHR: ERT v. DEP.
ECHR citing ECJ
3.Recent ECJ case law
Routine.
A well-known Swiss Professor of human rights law:
There seems to be a tendency to elaborate in fundamental rights also in cases in which such rights are not at stake.
B.Fundamental rights as part of EC law
I.Substantive law
4.Treaty amendments
SEA 1986
Maastricht 1992
Amsterdam 1997
Nice (Charter) 2000
B.Fundamental rights as part of EC law
As far as enforcement is concerned, Concurring Judges have rightly pointed to the fact that there is a
II.Plurality of control mechanisms
(1) No locus standi of individuals under Articles 226 and 227 EC
(But actions brought by institutions and MS also benefit individuals
(2)Restricted right to bring actions under Articles 230 and 232 EC
(Judge Ress has criticized ECJ P.A.)
(3)Non-contractual liability of institutions
(4)The role of national courts (Art. 234 procedure)
Direct effect, supremacy, indirect effect, State liability
If we now turn to the EEA Agreement (extension of the single market to the EFTA States;essentially governed by the homogeneity principle)
C.Fundamental rights as part of EEA law
Recital 1 of the preamble to the EEA Agreement: Much more than there was in the original EEC Treaty, but much less than there is now.
Human rights weakness diagnosed in early literature
But others encouraged the EFTA Court to fill that gap
Case law of the EFTA Court: Not many occasions
*TV 1000 (1998): Article 10 Human Rights Convention; ECHR Handyside
Hard-core pornographic movies transmitted from Sweden to Norway.
The EFTA Court, referring to ECHR Handyside (and quoting almost verbatim), rejected the argument that there was a common European standard of pornography (and that Sweden was the country setting that standard)
C.Fundamental rights as part of EEA law
*Bellona (2003): Access to justice
Dicta: Importance of fundamental rights
*Ásgeirsson (2003): Article 6(1) Human Rights Convention; ECHR Pafitis
Fish caught by foreign vessels off the coasts of Russia and Alaska had been processed and subsequently sold as Bacalhao de Islandia.
One of the defendants in the national criminal proceedings argued that the reference of the case to the EFTA Court was a violation of Article 6 ECHR.
EFTA Court referred to ECHR Pafitis
Provisions of the EEA and the SCA are to be interpreted in the light of fundamental rights; Convention and case law of Strasbourg are important sources for determining the scope of these rights
C.Fundamental rights as part of EEA law
Incorporation of Reg 1/2003 into the EEA
Rec. 37 of the Preamble to Reg. 1/2003: This Regulation respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the EU. Accordingly, this Regulation should be interpreted and applied with respect to those rights and principles.
Chapter II of Part I of Protocol 4 SCA
Strange situation; recitals omitted for aesthetical(?) reasons, but they are clearly part of the Chapter. Otherwise the Regulation could not be interpreted correctly; homogeneity.
There is therefore a reference to the EU Charter in written EEA law.
With regard to the
D.Control mechanisms in EEA law
I would like to say the following:
I.The rule of Art. 3 I SCA as a starting point
No homogeneity obligation
But relevance of ECJ case law (in the EFTA Court’s very first case, Restamark)
And of CFI case law
D.Control mechanisms in EEA law
II.Infringment action
*No right of individuals to sue an EFTAState
*No participation rights of individuals in actions brought by the EFTA Surveillance Authority
Once they have lodged their complaint, they are being sidelined
Situation is as good and (from an access to justice standpoint) as bas as in Community law.
D.Control mechanisms in EEA law
III.Action for nullity
1.Differences in legislation
Decisions of ESA may be challenged on the same grounds as in Community law.
Decisions in the from of a Regulation are not mentioned (no equivalent to Article 241 EC in EEA law)
No jurisdiction to declare decisions of the EEA Joint Committee in the incorporation of new acts of Community law into the EEA-A null and void.
2.No two tier-system in the EFTA pillar
But the EFTA Court is rather strict when it comes to issues such as giving sufficient reasons, opening the formal procedure in state aid cases or respecting the rules of good administration in general (CFI CASE LAW)
D.Control mechanisms in EEA law
III.Action for nullity
3.Locus standi
No open deviation from ECJ Plaumann
But pragmatism and result-orientation; being liberal in cases of doubt
The Commission has in several cases contested the standing of associations and of undertakings, but has rarely been successful
EFTA Court Bellona in particular
Conflict between the ECJ and the CFI discussed; reference to AG Jacobs in P.A.
Pointed to the importance of access to justice as a fundamental rights
But in view of the uncertain future of Community law on that point: caution.
D.Control mechanisms in EEA law
IV.Non-contractual liability of institutions
Comparable situation to the one under EC law
No cases so far
D.Control mechanisms in EEA law
V.The role of national courts
1.The duty of loyalty
Art. 3 EEA framed in the same terms as Art. 10 EC.
Case law of the Norwegian Supreme Court:
The duty of the Contracting Parties to loyally cooperate laid down in Article 3 EEA applies to the courts.
Norwegian courts should use the obligation of courts to interpret national law in accordance with international law, in a way that reaches not less far than the obligation to interpret national law of EC Member States in an Community-law friendly way.
D.Control mechanisms in EEA law
V.The role of national courts
2.The preliminary reference procedure
Differs particularly on two points from the procedure laid down in Art. 234 EC
No legally, but factually binding force of rulings (in practice not weaker than ECJ rulings)
No duty to refer of the Supreme Courts
Problem; we know about cases in which a reference was avoided although the CILFIT conditions were not fulfilled.
But: Professor Graver has shown that whether a Supreme Court is willing to refer depends largely on cultural factors (Sweden, Denmark).ESAhas jumped in in a case involving a State gaming machine monopoly
Finally: Interpretation of the notion of “court or tribunal”: Liberal attitude.
D.Control mechanisms in EEA law
V.The role of national courts
As far as the question is concerned whether
3.Effect, supremacy and state liability
are part of EEA law:
Quasi-direct effect (Restamark)
Quasi-primacy (Einarsson)
Full state liability (Sveinbjörnsdóttir, Karlsson): Implemented by the Supreme Courts of Iceland, Sweden and Norway and the Court of Appeal of Liechtenstein
Indirect effect (Karlsson)
Situation admittedly differs from the one in EC law; but the EFTA Court has given individuals and economic operators rights that go much further than the ECJ imagined in its Opinion 1/91.
E.Conclusions
I.General
Situation in EEA/EFTA with regard to fundamental rights differs from the one in the Community
EFTA Court took the bull by the horns in TV 1000
Broad formula in EFTA Court Ásgeirsson
E.Conclusions
From a legal realism perspective:
II.Acceptance of the EFTA Court’s fundamental rights jurisprudence
Commission (encouraged the Court in TV 1000)
Governments (UK, SwedenNorway in TV 1000)
EFTA Surveillance Authority (immediately after the Court’s ruling inÁsgeirsson, ESA started to plead fundamental rights).
Academic literature: Generally well received.
E.Conclusions
III.Assessment of the judicial mechanisms
Equivalence of EC and EEA law?
As law on the books not quite
But as law in action largely (relatively liberal approach to standing)
Fulfilling an obligation de résultat
Finally: Much of what I have been talking about has been reached by way of judicial dialogue:
Mention 2 judgments
ECJ Rechberger in EEAState liability
CFI Opel Austria on the effect of EEA law.
E.Conclusions
I have made reference to legal realism a couple of times tonight.
One of the most outspoken representatives of that school was Jerome Franck who is famously credited with the line that the outcome of a court case may depend less on the law than on what the judge had for breakfast.
I am not sure whether he was right on that one.
In any case, this not breakfast time.
But the EFTA Courtand the Amicale are happy to invite you to light refreshmentsand snacks now.
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