1. Introduction
1.1 The EEA Agreement and the EFTA Court
The European Free Trade Area (EFTA) Court has the judicial role of interpreting the Agreement on the European Economic Area (the EEA Agreement)Footnote 1 with respect to those EFTA states party to the EEA Agreement, namely Iceland, Norway and Liechtenstein.Footnote 2 The EEA Agreement came into force in 1994; its aim is to liberalise trade between the EFTA states and the European Union (EU)Footnote 3 by integrating the EFTA states into the EU's internal market.Footnote 4 This goal entails the extension of the internal market's legal framework to the EFTA countries – that is, the rules implementing the four freedoms (the free movement of goods, persons, services and capital), competition rules, public procurement, state aid and the so-called ‘horizontal issues’ (such as gender equality, environmental protection and consumer protection).Footnote 5 The EEA Agreement also contains provisions on further cooperation in other areas such as research, education and social policy and on contributions by EFTA states to the EU development fund.Footnote 6
Pursuant to their obligations under the EEA Agreement, the EFTA states concluded a special Agreement between themselves on the Establishment of a Surveillance Authority and a Court of Justice (the SCA Agreement).Footnote 7 The EFTA Court is structurally modelled on the Court of Justice of the European Union (CJEU); it applies for the most part analogous substantive norms and its jurisdictional powers are in most respects modelled on its big sister court.Footnote 8 Additionally, the EEA Agreement is built around the principle of homogeneity, which aims to mirror the interpretation and application of EEA law within EU law (discussed below). Hence the main characteristic of the EFTA Court's case law is that it is built on CJEU case law.Footnote 9
The EFTA Court is a small international court on any scale; it has only three member states, all of which are relatively small.Footnote 10 The Court has a total annual budget of approximately €4 million and only 15 employees. By the end of 2010 it had heard a total of 120 cases: an average of about seven cases per year.Footnote 11 Nevertheless, the EFTA Court provides an interesting view of the limits and prospects of international courts as it is not plagued by many of the problems that often afflict such courts, such as insufficient funding and a large backlog of cases.
1.2 Goal-Based Approach to Effectiveness and the Relevance of Structures and Inputs
This article is a product of research conducted within the framework of the ERC Project Researching Conditions for Effective International Adjudication (the Effectiveness Project). The Effectiveness Project centres on the rational system approach, which perceives public organisations as ‘instruments for the attainment of goals’.Footnote 12 Hence, the underlying hypothesis of the Effectiveness Project is that, like other public institutions, international courts are established in order to accomplish certain goals,Footnote 13 and that the basis for assessing the effectiveness of those courts should be whether they meet these goals.Footnote 14
The goals of international courts can be of a generic and specific nature. Previous work of the Effectiveness Project has identified the following four generic goals, common to most international courts: (i) promoting compliance with the governing international norms; (ii) resolving international disputes and specific problems; (iii) contributing to the operation of related institutional and normative regimes (regime support); and (iv) legitimising associated international norms and institutions (regime legitimisation).Footnote 15 Conversely, the homogeneity objective of the EFTA Court – harmonising EEA law with EU law – is a good example of a goal which is specific to a particular international court.Footnote 16
In order to assess the work of international courts and tribunals the Effectiveness Project, again relying on the rational system approach, differentiates between three distinct aspects of their operations, or operation categories, and seeks to identify those indicators which allow measurement of their performance within each of the different operational categories.Footnote 17 The three different types of indicator are:
• Structure indicators, which are based on the tangible and intangible assets which are available to the organisation and which actually enable it to meet its objectives.Footnote 18
• Process indicators, which attempt to establish the quantity and quality of an organisation's outputs by assessing the process leading thereto. Accordingly, process indicators focus on the quality of activities carried on by the organisation rather than their effect.Footnote 19
• Outcome indicators, which are meant to assess the court's effectiveness under the rational system approach by reference to its outcomes.Footnote 20 Outcomes are therefore the court's actual impacts on its social environment, and are to be distinguished from outputs, which are the direct products of the court's operation (such as judgments)
Only the third type of indicator (outcomes) is directly related to evaluation of whether an organisation actually meets its goals (that is, whether it is effective). Still, it must be acknowledged that quantifying the public goods that international courts (like other public organisations) create is extremely difficult.Footnote 21 Further, in light of the degree to which international courts depend on their external environment for the influence they can exert, it may be especially difficult to establish causation between the outcomes they produce and real life developments.Footnote 22 A better understanding of structure and process can, for instance, help in assessing the feasibility of effective outcomes, because these two variables support diagnosis, by way of reverse engineering, of what led to ostensibly sub-optimal performance on the part of the evaluated organisation.Footnote 23 In short, measuring outcomes will tell us whether a particular court is effective, but we need to study structure and process to tell us why it is or is not effective.
In an effort to facilitate such an understanding, this article focuses on structural indicators of the EFTA Court. Such indicators may, for instance, help us to evaluate whether the Court has the capacity to meet its goals.Footnote 24Structural indicators are also important for comparative research as they include two variables that render many international courts incomparable: substantive rules (such as trade rules, criminal law and human rights), and jurisdictional rules which govern, inter alia, issues of standing (whether the court is accessible only to states or to individuals, etc.). Note that even when these variables are similar – for instance, in the case of the CJEU and the EFTA Court, or the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) – other variables may render such courts very different in practice. Still, when courts can be compared, such comparisons, even if limited, may offer interesting insights into the respective institutions.
The current discussion will take a descriptive approach to structure by describing the Court's internal and external anatomy: that is, its main features, legal and material, as well as the regime within which it operates. It will also attempt to conduct a qualitative assessment of how some of these features relate to the EFTA Court's effectiveness. Such a broad approach may also assist readers attempting to familiarise themselves with the Court. However, it is not the objective to provide an exhaustive list of structural indicators that might be relevant for the operation of the EFTA Court. For clarification it should be noted that this article will not be able to offer a definitive conclusion as to whether the EFTA Court is effective or not, as such a conclusion would require a much more extensive analysis of the goals of the Court than is possible here, as well as a much more developed methodology to assess the quality of the structural factors of international courts in general. This article will nonetheless set out some views on the development of such a methodology.
This article is structured as follows. In the next section, the EEA Agreement and two EEA–EFTA institutions will be introduced briefly as their functions closely intertwine with the EFTA Court's operation (Section 2). The following section (3) will describe objective structural factors relating to the EFTA Court's infrastructure and operation – namely the Court's seat, its judges, its staff, its language regime and its budget. The focus will then shift to several relevant factors of a legal nature – namely, EEA law (the EEA Agreement), the Court's jurisdictional rules, enforcement mechanisms for obtaining compliance with judgments, independence, and the main legal doctrines developed by the Court through its case law (Section 4). The article will then look into factors that do not fit neatly within the previous two categories, such as geographic, demographic and sociological factors (Section 5). Finally, the article will summarise its findings, offer some observations on its subject, and discuss its relevance to future research (Section 6).
2. EEA Institutions
2.1 The EEA Joint Committee
The EEA Joint Committee, which meets every month, is made up of ambassadors of the EFTA states and representatives from the EU Commission. Representatives of EU member states may also attend meetings of the Joint Committee, but they do not generally participate. The Committee is responsible for the day-to-day management and overall execution of the EEA Agreement. It provides a forum for the exchange of views and the making of decisions regarding the incorporation of EU legislation into the EEA Agreement.Footnote 25
Decisions of the EEA Joint Committee are taken by consensus. This means that each EFTA state has a formal veto power over the incorporation of EU internal market legislation into the EEA Agreement.Footnote 26 The actual exercise of veto can still be seen as unrealistic, as vetoing incorporation could put the future of the Agreement at serious risk.Footnote 27 In addition, the Joint Committee is authorised to make approved derogations for the EFTA states with respect to legislation that is unsuitable for them for some reason; in practice, however, such derogations are rarely granted.Footnote 28
The Joint Committee is not formally subject to the jurisdiction of the EFTA Court.Footnote 29 However, this did not stop the Court in the CIBA case from reviewing the EEA Joint Committee's authority to adopt a Joint Statement permitting certain derogations for Norway in respect of the relevant Community rules concerning the classification and labelling of dangerous substances.Footnote 30
2.2 The EFTA Surveillance Authority (ESA)
The ESA represents the executive branch of the EEA Agreement for the EFTA states. Like the EFTA Court, it was founded through the SCA Agreement. The institution monitors compliance by the EFTA states with their obligations under the EEA Agreement and oversees their implementation of secondary legislation, thereby ensuring a level playing field for EU and EFTA states throughout the single market. The ESA is based in Brussels with a staff of about 60 officials.Footnote 31
The ESA is led by a College consisting of three members, each appointed by each of the three participating EFTA states for a period of four years. Despite their appointment by the states, College members are mandated to undertake their functions independently and free from political intervention.Footnote 32 All decisions which formally bind the Authority are taken by the College, which usually meets once a week.Footnote 33
The ESA may investigate possible infringements of EEA provisions, either on its own initiative or in response to complaints lodged by private parties.Footnote 34 If the Authority believes that an EFTA state has violated its obligations under EEA law, it may initiate proceedings against that state before the EFTA Court. Although EFTA states have not delegated as much power to the ESA as EU member states have delegated to the Commission, it is nonetheless clear that in certain areas the institution has supranational characteristics.Footnote 35 For example, ESA decisions (including those reached in cases involving fines exacted from private parties) may not be contested before the national jurisdictions of the EFTA states; furthermore, within certain fields of EEA law (such as state aid), the ESA has the exclusive power to bring cases against EFTA states involving infringement of their EEA obligations.Footnote 36
As a counterpart to the Commission, the ESA has powers that correspond with those of the Commission; close contacts and ongoing cooperation similarly are maintained between the Commission and the ESA.Footnote 37 Still, a number of important differences remain. In particular, the Commission plays an important role in EU legislative processes and is therefore a political organ, whereas the ESA is limited to a surveillance function.
The EEA Agreement has set up a single market with a two-pillar enforcement and judicial system, with the CJEU and the Commission serving EU countries while the EFTA Court and the ESA serve EFTA countries.Footnote 38 However, in certain areas, the division of economic activity between the two communities may not be clear cut. For instance, the Commission and ESA have mixed competencies in the area of competition law.Footnote 39 As a result of the overwhelming share of EU-based companies in the single market vis-à-vis companies based in the EFTA states, mixed competency cases will typically be handled by the Commission.
From a methodological perspective, it is difficult to isolate the Court's functions from those of the other institutions with which it interacts, especially the ESA. This is because the ESA sometimes has sole discretion as to whether to bring cases against member states for infringing the EEA Agreement.Footnote 40 Hence, the Court's effectiveness is linked to the actual effectiveness demonstrated by the ESA. This relationship mirrors the reciprocal empowerment of the CJEU and the Commission within the EU context.Footnote 41
3. Material Factors
3.1 Seat of the Court
The EFTA Court began to function, in Geneva, on 4 January 1994. It moved to Luxembourg on 1 September 1996, after Switzerland declined to ratify the EEA Agreement.Footnote 42 The Court leases its Luxembourg facilities from the International Chamber of Commerce.
The Court, in its own capacity, has concluded a special agreement with the Grand Duchy of Luxembourg, delineating the privileges and immunities necessary for the exercise of its functions in Luxembourg (Headquarters Agreement between the EFTA Court and the Grand Duchy of Luxembourg).Footnote 43
The EFTA Court is located within walking distance of its big sister court, the CJEU. This geographical proximity is considered to have facilitated the attainment of its homogeneity goal as it has allowed the development of professional and private contacts between the judges and staff of the two courts in addition to informal exchanges of information.Footnote 44
3.2 Judges
The EFTA Court originally had five judges, from Austria, Finland, Iceland, Norway and Sweden. Following the accession of Austria, Finland and Sweden to the EU on 1 January 1995, the judges appointed by these countries resigned on 30 June 1995, in accordance with their term lengths as prescribed in the transitional agreements, and the number of judges was reduced accordingly.Footnote 45 Since Liechtenstein joined the EEA on 1 June 2005 and was appointed a judge to the EFTA Court on 6 September 1995, the number of judges has been limited to its current number of three.Footnote 46
The judges are to be appointed by common accord, reached by the member states.Footnote 47 In practice, however, each member state has full discretion regarding the judge to be appointed on its behalf.Footnote 48 The member states also appoint two ad hoc judges who can be called when a judge is disqualified for a particular case or is unable to carry out the required functions for other reasons.Footnote 49 Judges are appointed for terms of six years and are eligible for reappointment.Footnote 50 Judges elect the President of the Court amongst themselves. At the time of writing, the President of the Court is Professor Carl Baudenbacher, a Swiss national appointed by Liechtenstein, serving his fourth term from 1 January 2012 to 31 December 2014.
It is obvious that when it comes to evaluating the quality of the resources of a particular court, the quality and quantity of the judges are imperative factors to consider.Footnote 51 It could be argued that the quality of the judges is especially important in a small court, such as the EFTA Court, since the small number of judges exponentially increases the potential impact of each judge. While it is not the intention of this article to assess the individual qualifications of the EFTA Court judges, it should be mentioned that all three current judges have impressive professional and academic records.Footnote 52
Nonetheless, one criterion that could be considered when discussing the quality of judges, as well as their independence, is the appointment process. It should be noted in this regard that the appointment of judges to the EFTA Court is not a very transparent process and that the relatively short time passed since the EEA Agreement entered into force (at least when compared with the Treaty of Rome establishing the EEC/EC)Footnote 53 means that limited experience has been accumulated with regard to the associated difficulties.Footnote 54 Still, as a starting point for such an assessment, we can look into the wording of the SCA:Footnote 55
The Judges shall be chosen from persons whose independence is beyond doubt and who possess the qualifications required for appointment to the highest judicial offices in their respective countries or who are jurisconsults of recognized competence.
In practice each government makes a ministerial level decision on appointments to the EFTA Court. This reflects the practice within the EU at the time of the drafting of the EEA Agreement,Footnote 56 but it can be criticised on a number of grounds. As has previously been pointed out, it is not transparent and does not ensure diversity in the Court's composition, including adequate gender representation (the fact that all judges appointed to the EFTA Court have been men may be particularly embarrassing for Norway and Iceland, which have long championed the cause of gender equalityFootnote 57). Moreover, the procedure provides no assurance that the most qualified candidate is awarded the position of judge.
Indeed, the appointment procedure for the CJEU has been changed with the adoption of the Treaty on the Functioning of the European Union (TFEU) and there is now an advisory committee which assesses the competence of national appointments for positions of Advocates-General and judges for both the European Court of Justice and the General Court.Footnote 58 In 2011 the EFTA Court proposed to the EFTA states an amendment to the Court's Statute, which included the setting up of a five-member committee responsible for evaluating the competence of potential judges ‘in line with Article 255 TFEU’.Footnote 59 At the time of writing no decision has been taken on the Court's proposed amendments. A second alternative would be to adopt the appointment procedure of the European Court of Human Rights (ECtHR) whereby each member state nominates three candidates who are then interviewed by a parliamentary panel composed primarily of legal experts. This panel presents its recommendations on candidate selection, which are almost always followed in the subsequent elections held by the Parliamentary Assembly.Footnote 60
It is difficult to assert that a change in procedure, whether modelled on the CJEU or the ECtHR,Footnote 61 would in fact enhance the quality of the judges. In the author's personal opinion, such changes would probably not have much impact on the actual quality of the EFTA Court judges, mainly because the EFTA states are already highly motivated to select high-quality judges in order to project an image of professionalism towards their trading partner, the EU.Footnote 62 It can also be considered that allowing governments to choose their preferred judges may facilitate the transfer of knowledge about the EEA system back to the national governments/judiciary. This possibility rests on the notion that such judges may later assume positions within the local legal or political system upon conclusion of their tenures. To illustrate, in 2010 the EFTA Court judge from Norway was appointed to the Norwegian Supreme Court, and in 2011 the judge from Iceland was appointed to the Icelandic Supreme Court and was replaced by a judge from the Supreme Court.
Even if a different method of selection does not increase the individual or collective ability of the judges, a different procedure may alter the EFTA Court's current image. Although the general public may not be very interested in the precise details of the appointment procedure, some circles – such as academics and NGO activists (women's rights movements, for example) – might perceive the Court more favourably were its appointment process to improve. A better view of the Court by such groups may enhance its legitimacy and increase the prospects for bringing new cases before the Court.
At the same time, it should be acknowledged that possible changes in the appointment procedure, entailing limitations on the freedom of states to appoint judges at their own discretion, might result in a loss of government trust in the EFTA Court – in turn making the states more hesitant to entrust the Court with broader jurisdictional powers. This issue is linked to the broader question of the relationship between the effectiveness of international courts and their independence, an issue that has received considerable attention within the academic literature.Footnote 63
3.3 Staff
Each of the three EFTA Court judges has a cabinet with two assistants. In addition, the Court appoints a Registrar (currently Gunnar Selvik, a Norwegian national). The Registrar has an important role in the Court's daily management. Examples of the Registrar's responsibilities include maintaining the files of pending cases, translations of documents as provided for in the Rules of Procedure, and publications of the Court – including reports of cases and submissions to the Official Journal of the European Union.Footnote 64 The Court has five other staff members who assist with its general operation – a grand total of 15 employees.Footnote 65
In interviews conducted by the author in Luxembourg, it was pointed out that the Court's small size is a factor that contributes to its smooth functioning because staff members work closely together and are able to familiarise themselves with one another. Yet the small staff size has hindered the Court in achieving specialisation in selected fields of EEA law.Footnote 66
The EFTA Court is a member of the Administrative Tribunal of the International Labour Organization (ILO), a body with jurisdiction over disputes between staff members and the Court.Footnote 67 In this respect the EFTA Court, like other EFTA institutions, differs from EU institutions, which have their own special Civil Service Tribunal for handling cases involving disputes between EU institutions, including the CJEU, and their employees (Civil Service Tribunal judgments may, in some instances, be appealed to the European Court of Justice (ECJ)).
3.4 Language Regime
The drafters of the EFTA Court's constitutive instruments decided to have English as the Court's official language.Footnote 68 The English language rule covers all of the Court's procedures, including deliberations, minutes and decisions. The choice of English as a working language provides a neutral playing ground as none of the EFTA states have English as their first language.Footnote 69 The EFTA Court differs from the two other European courts in this respect as the CJEU uses French and the ECtHR both English and French as official languages.
There is an exception within the language regime of the EFTA Court, as national courts are entitled to send requests for advisory opinions in their own language.Footnote 70 Parties to the national court proceedings are also entitled to submit documents and to address, and be addressed by, the Court in their own language.Footnote 71 The report for the hearing and the advisory opinion will be written in the language of the request in addition to English, with the advisory opinion being authentic in both languages.Footnote 72
It is difficult to link the language regime in place with the effectiveness of the EFTA Court. However, the following two factors should be considered.
First, it is safe to assume that allowing national courts to communicate with an international court in their own language increases the possibility of a constructive interplay between the national judiciaries and the international court. Had national judges been required to translate all relevant documents before requesting an advisory opinion, the attractiveness of such a course of action would undoubtedly have been reduced. Moreover, it is well known that EEA/EU law is full of specialised vocabulary, which implies that national judges in EFTA states might find it difficult to optimise the impact of such opinions if delivered in English (notwithstanding that domestic judges may have considerable proficiency in the language).
Second, it is understandable why the advisory opinion procedure allows individuals to participate in their own language in that access to the EFTA Court could otherwise be hindered by a lack of knowledge of English. Access to justice would be more expensive if the use of English was required in advisory proceedings as parties might consider it necessary to hire more expensive international lawyers instead of domestic lawyers.Footnote 73 Hence, it is difficult to understand the reasons for not allowing private parties who are parties to cases against the ESA (challenging a decision or an omission on behalf of the ESA) to communicate with the Court in their own language, as do their counterparts under the advisory opinion procedure.
3.5 Budget
The availability (or shortage) of funds is obviously a critical factor that affects the operation of an international court.Footnote 74 Monetary resources can influence the quantity and quality of staff that an international court can attract and hire, as well as the acquisition of the material resources necessary for efficient operation, such as technical and office equipment. These factors directly influence the number of cases the court can handle and, in the long term, might even affect the quality of the judgments themselves.
The EFTA Court is funded by the EFTA states, with funding obligations divided according to economic strength.Footnote 75 Thus, Norway pays 89 per cent, Iceland pays 9 per cent and Liechtenstein pays 2 per cent of the Court budget,Footnote 76 which reached about €3.6 million in 2007 and €4 million in 2008.Footnote 77
All in all, it appears that the Court is very well funded in light of its needs. In fact, the Court has been known to return some of its unexpended funds. Yet it remains dependent on the member states' annual approval of its budget as the EEA/EFTA has no independent sources of income to finance its operation. The shortage of independent sources of income can be seen as a factor that potentially makes the Court more vulnerable to outside influence.Footnote 78
4. Legal Factors
4.1 EEA Agreement
The EEA Agreement governs trade between the EFTA states and the EU, and internal trade between the EFTA states.Footnote 79 It contains 129 articles as well as 22 annexes and 49 protocols. In addition, a number of declarations are attached to the Agreement.Footnote 80 The annexes refer to the EU norms which are to be applicable in the EEA;Footnote 81 the protocols include provisions on specific issues such as rules of origin, trade in fish, transition periods for EFTA states in specified fields, simplified customs procedures matters and certain institutional questions.Footnote 82 The EEA Agreement originally provided for the adoption of over 1,600 secondary EU legislative acts.Footnote 83 Article 6 of the EEA Agreement also incorporates the entire CJEU case law relating to the fields covered by the Agreement up to the date of signing.Footnote 84
In addition, the EEA Agreement sets up a framework for its own continuous development through monthly decisions by the EEA Joint Committee to incorporate into the EEA Agreement a number of EU law instruments.Footnote 85 After their incorporation by the Joint Committee, EFTA states are obliged to introduce the said legislation into their domestic legal orders.Footnote 86
The technical objective of the EEA Agreement is to transpose the law of the single market into trade relations between the EFTA states and the EU.Footnote 87 In all areas possible, the provisions of the EEA Agreement have been formulated to mirror, as closely as possible, the corresponding provisions found in EU law (in particular, that of the EEC) for the purpose of ensuring homogeneous interpretation.Footnote 88 However, major substantive differences between the EEA Agreement and the EU legal order remain. The most notable of these is that, unlike the EU constitutive instruments, the EEA Agreement has been constructed as an agreement under public international law, deliberately excluding the supranational character of community law.Footnote 89 Although this difference has been significantly blurred by the development of the EFTA Court's case law, identical provisions in EEA law and EU law do not necessarily invite the same effects as the EU constitutional rules are not part of the EEA Agreement.Footnote 90
As noted earlier, the EEA agreement is monitored, enforced and adjudicated through a twin pillar system – one for the EU member states and another for the EFTA member states.Footnote 91 The existing EU institutions (the Commission, the Court of First Instance (CFI) and the ECJ) were assigned their tasks with respect to the EU member states, whereas the EFTA Court was established by the EFTA states in accordance with Article 108 of the EEA Agreement for the same purpose and with respect to the designated states.Footnote 92 The role, functions and composition of the EFTA Court are determined by the SCA, particularly by Part IV (Articles 27–41) and Protocol 5, which sets out the Statute of the EFTA Court.Footnote 93 This Statute and its Rules of Procedure are in turn modelled on those of the CJEU.Footnote 94
The EEA Agreement and EEA law are structural factors which affect the ability of the EFTA Court to achieve its goals. Methodologically, it is extremely difficult to evaluate how the EEA Agreement affects the effectiveness of the Court and, in fact, how to conduct such an evaluation without engaging in a general consideration of the effectiveness of EEA law – a question that can and must be analytically separated from the effectiveness of the EFTA Court. At the same time, it is obvious that the substantive rules of the agreements applied by each international court – particularly in respect of their coherence, quality of drafting and relationship to institutional capabilities – affect its ability to achieve its goals.
The characteristics of the substantive rules of the EEA Agreement are, however, most certainly not the only way in which the Agreement affects the effectiveness of the EFTA Court. Many of the factors discussed below derive from the EEA Agreement and the SCA themselves.
4.2 Jurisdiction
4.2.1 General
The EFTA Court has ratione materiae jurisdiction over:
• the EEA Agreement (together with its annexes and protocols);Footnote 95
• the SCA (together with its protocols, including Protocol 5 of the Statute of the EFTA Court);
• its own Rules of Procedure; and
• secondary legislation implemented into the sphere of the EEA Agreement by the EEA Joint Committee.
It has ratione personae jurisdiction in cases against member states, brought by either the ESA or another EFTA state, and in cases against the ESA brought by member states, or by private parties from one of the EEA countries. Furthermore, in cases involving questions of EEA law that are pending before national courts, individuals and other legal persons have access to the EFTA Court through the advisory opinion procedure (it should be noted that actual application of a national law implementing the relevant EEA law remains in the hands of the national court). The EFTA Court's jurisdictional rules are set out in Articles 31–37 and 39 of the SCA and are based on the CJEU's jurisdictional rules (with certain exceptions, explained below). These rules have been classified in the literature in a number of different waysFootnote 96 although, in practice, there are two main categories of case: (i) direct action cases, and (ii) advisory opinions, as discussed below.
4.2.2 Direct Action Cases
The SCA provides jurisdiction for the EFTA Court in three types of direct action case:
1. Infringement proceedings taken against EFTA states by the ESA.Footnote 97 There is no exhaustive definition of what such obligations entail, but they include the implementation of directives and compliance with decisions of the ESA.Footnote 98 In the event of failure to do either, the ESA, acting as a neutral third party, enforces the obligations of the EFTA states.Footnote 99 If a country is found to have breached the EEA Agreement, it is obligated to modify its internal legislation so as to comply with the judgment.Footnote 100 Unlike the CJEU, however, the EFTA Court does not have the power to impose fines in the event that an EFTA state is found to have breached its obligations under the EEA Agreement.Footnote 101
2. The settlement of disputes between two or more EFTA states over the interpretation or application of the EEA Agreement.Footnote 102 This option has not been utilised to date, although its availability may deter states from infringing their obligations towards other EFTA states.Footnote 103
3. Cases brought against the ESA (the EFTA Court has exclusive jurisdiction in assessing the lawfulness of ESA decisions). The Court may hear cases for annulment of ESA decisions brought by a member state, or a natural or legal person if the decision in question is addressed to them or is of direct and individual concern to them.Footnote 104 It may also hear cases based on the ESA's failure to act and claims for damages brought on the basis of non-contractual liability.Footnote 105
4.2.3 Advisory Opinions
The advisory opinion procedure allows the national courts of EFTA states to refer questions regarding the interpretation of EEA law to the EFTA Court. The notion behind the procedure is that national judges should to be able to request directions on how to interpret the relevant elements of EEA legislation raised in cases before them. The procedure is designed, inter alia, to ensure the homogeneous application of the EEA Agreement.Footnote 106
Although the advisory opinion procedure of the EFTA Court is modelled on the CJEU's preliminary ruling procedure, significant differences remain between the two processes.Footnote 107 Unlike the EU,Footnote 108 the courts of last resort in EFTA national jurisdictions are not obligated to refer questions on EEA law to the EFTA Court.Footnote 109 Furthermore, advisory opinions are not, strictly speaking, legally binding.Footnote 110 Hence, they are referred to in the SCA as advisory opinions and not as preliminary rulings. The differences between the two procedures may be less pronounced in reality than initially assumed given the general scholarly view that not following an advisory opinion would be a violation of the EEA Agreement. Advisory opinions therefore tend to be considered as binding on the requesting court.Footnote 111
Two instances of lack of jurisdiction need to be mentioned. First, the EFTA Court does not have formal authority to assess the legitimacy of decisions taken by the EEA Joint Committee.Footnote 112 In consequence, a major political institution exists within the EEA–EFTA institutional structure that is free from the scrutiny imposed by judicial review; this state of affairs differs from the EU, where the CJEU has the authority to scrutinise measures adopted by the Council, the Parliament and the Commission.Footnote 113 In addition, the EFTA Court has no jurisdiction over EU member states in the event of a dispute between an EFTA state and an EU member state. This is one of the Court's inherent weaknesses, especially because the trading partners of the largest EFTA states are not other EFTA states but, rather, EU states.Footnote 114 This raises the question of why EFTA states should increase the effectiveness of a court that has jurisdiction only to enforce norms on themselves and not on their major trading partners?Footnote 115
4.3 Enforcement/Compliance Procedures
An international court's enforcement powers are made up of the mechanisms through which it forces states to comply with its judgments. The EEA Agreement is equipped with a special surveillance institution (the ESA) obligated, inter alia, to monitor compliance with EFTA Court judgments. If an EFTA state fails to comply with a judgment declaring it to have infringed the EEA Agreement, this could lead to termination by the EU of the Agreement with respect to that state.Footnote 116 Otherwise, it would be possible for EFTA states to pick and choose the obligations they wished to abide by, based on a cost–benefit analysis of the EU's anticipated counter-measuresFootnote 117 – a situation that would cause significant damage to the credibility of the single market and to the homogeneity objective of the EEA Agreement. It may be underlined that termination of the Agreement would be a drastic measure and, in all probability, would involve diplomatic efforts aimed at securing compliance with the disputed judgment before such a step is attempted.
Advisory opinions present a rather problematic enforcement phenomenon as they are again, strictly speaking, not binding. But, as previously mentioned, in practice it is expected that they will be followed. In the event that a national court in an EFTA state refuses to follow an advisory opinion from the EFTA Court, such a decision would probably result in infringement proceedings being taken against that member state, and could eventually lead to the termination of the EEA Agreement with respect to that state. Such a procedure would clearly not be formally aimed at non-compliance with an advisory opinion but at the underlying violation of EEA law. It is important to note here that infringement of the EEA Agreement by one of the EFTA states has no automatic consequences: EU counter-measures or termination of the EEA Agreement, in whole or in part, would result from a political decision made on behalf of the EU.
In reality, the true enforcement power of the EEA Agreement lies in the benefits brought by the single market. The ideology of linking markets is to make the member states' economies dependent upon one another. Termination of the EEA Agreement would thus have drastic economic outcomes for each country – a long-term threat that induces compliance. This weighing of considerations was illustrated in Icelandic parliamentary discussions on modifying Icelandic law in order to comply with an EFTA Court judgment. When the Prime Minister was asked whether Iceland was obligated to comply with the EFTA Court's judgment, his answer was simple: ‘No. As no legislative power was transferred by the EEA Agreement, Iceland is free to legislate in any way it chooses to. However, noncompliance would, in all likelihood lead to protective measures being taken by the EU’.Footnote 118 Furthermore, as explained above, protective measures could culminate in termination.
The EEA regime differs in this respect from that of the EU, which bans all forms of self-help measures as a response to violations of EU law; EU member states have to rely on the built-in EU enforcement process (including the monetary fines imposed by the CJEU).Footnote 119 A ban on self-help is more in line with the idea of the rule of law/Rechstaat (where a centralised mechanism monopolises the use of force and thereby reduces the threat of force or sanctions applied in an arbitrary or disproportionate manner). It may be tempting to assume that a regime enforcing such a ban, along with an effective surveillance mechanism (such as the Commission) would be more effective than a regime where member states can unilaterally adopt enforcement measures. The relevant academic literature still does not seem to describe the enforcement power inherent in the EU framework as more effective in practice than that of the EEA. This is perhaps because the threat of termination of the EEA Agreement is much more credible than parallel threats that exist in the EU context, where member states are aware that isolated instances of non-compliance would not lead to their expulsion from the EU.Footnote 120
It remains necessary to connect the structure of enforcement mechanisms with the motivations of the EFTA states in complying with their EEA obligations. We can expect EFTA states to be interested in maintaining good relations with the EU and a favourable image regarding their dedication to the single market project, thereby ensuring continued EU perception of the EEA Agreement as worth retaining (implying acceptance of EFTA states as equal partners devoted to the single market). EFTA states may also want to keep open the option of joining the EU at some point; having a good track record in terms of EEA obligations might be an important factor in EU readiness to allow such accession.Footnote 121 In this context it can also be noted that the EU and EFTA nations are culturally entwined to some extent and that the latter's institutions draw inspiration from the operation of EU institutions (for example, Iceland and Norway regularly look to other Nordic countries when it comes to developing their laws). Thus, even in areas not covered by the EEA Agreement, EFTA states will often unilaterally adapt their legislation to the legislation applicable in the EU.Footnote 122
In addition to infringement proceedings, the EEA Agreement also employs the remedies available in the sphere of national law to induce compliance by the EFTA states. The EEA Agreement, which is meant to be incorporated into national legal orders, also includes the obligation to make any future legal instruments introduced into EEA law part of the legal orders of the EFTA states. In addition, the EEA Agreement includes Protocol 35, which addresses the following stipulations to EFTA states:Footnote 123
For cases of possible conflicts between implemented EEA rules and other statutory provisions, the EFTA States undertake to introduce, if necessary, a statutory provision to the effect that EEA rules prevail in these cases.
This rule is meant to afford individuals and economic operators the option of utilising rights afforded to them by the EEA Agreement within national courts even if those rights appear to be negated by national rules. EFTA Court case law has given special weight to this important function of EEA law. It has thus introduced several doctrines, such as state liability, to increase the effectiveness of the remedies available to individuals when seeking to enforce their EEA rights.Footnote 124
4.4 Court Independence
The independence of international courts can be seen as a structural indicator of effectiveness. In this respect, the previous work of the Effectiveness Project has differentiated between judicial independence, institutional independence, and reputation for impartiality.Footnote 125 There is, of course, a sizeable academic literature on the need for national judiciaries to be independent of political actors and other branches of government. Yet it is questionable whether these notions can be applied, mutatis mutandis, to the international judiciary.Footnote 126 There is similarly no consensus as to whether independence per se necessarily increases effectiveness when it comes to international courts.Footnote 127
We should also note in this context that it may be extremely complicated to measure judicial independence on an objective scale. There are still certain factors, such as court funding and methods of judicial selection, which, as discussed above, obviously should be included in such an assessment. As a possible starting point for this analysis, we can turn to a five-point scale for assessing international court independence, introduced by Eric Posner and John Yoo:Footnote 128
• compulsory jurisdiction;
• no right to a judge being a national of a party to the dispute;
• permanent body;
• judges having fixed terms; and
• the right of third parties to intervene.
Applying this scale to the EFTA Court would produce good results. The Court has compulsory jurisdiction in some cases; it is a permanent body; the judges have fixed terms and third parties have the right to intervene (four out of five). However, the scale proposed by Posner and Yoo is designed to evaluate all international tribunals and arbitration courts, so it may be overly simplistic when applied to a particular court having unique features that the scale fails to capture. Moreover, as perhaps cannot be avoided, these indicators can lead to conflicting results in terms of other effectiveness indicators. The right to have a judge from each state party may be considered an absolute necessity for a court such as the EFTA Court, which frequently conducts an in-depth analysis of national law and thus requires the participation of experienced jurists on the bench in order to ensure detailed understanding of that country's law and practice.Footnote 129 Not having a national judge on the bench could also leave room for criticism in the countries involved on the grounds that the court had failed to understand fully the domestic legal or factual context at hand; this may, in turn, contribute to a process which could lead to either delayed compliance or non-compliance on the part of the losing state.
Individual judges may possibly feel that they owe some allegiance to their home state. They may also seek to be reappointed by that country after the end of their term, at least within the context of the EFTA Court.Footnote 130 The quite effective EFTA Court response to these concerns has been to construct a procedure that dictates that voting is to be executed by secret ballot and to disallow individual opinions (both factors being common with the CJEU).Footnote 131 Hence, at least in theory, states are unaware of whether or not the judge they appointed has ruled in their favour.Footnote 132 The EFTA Court has thus been able to insulate its judges from many of the pressures related to their reappointment by showing a homogeneous face to the world.Footnote 133
With regard to institutional independence, two additional factors must be considered. The first is the special status of the CJEU vis-à-vis the EFTA Court. The EFTA Court is de facto bound by the CJEU's interpretation of EU law (which EEA law mirrors).Footnote 134 The EFTA Court is consequently not truly an independent court. At the same time, the protective shadow of the CJEU ensures the Court's independence vis-à-vis EFTA states as the justification it provides for making difficult decisions is found in its duty of allegiance to the jurisprudence of the CJEU.Footnote 135
Second, the EU Commission has the right to intervene in cases before the EFTA Court; it is also a party to the EEA Joint Committee, a body called into action once a conflict arises between EFTA Court case law and the CJEU. Hence, a political entity within the EEA regime is ranked above the Court but does not fall within its jurisdiction. This is not unique within the structure of international organisations (the International Court of Justice (ICJ) has limited power to review Security Council decisions and the WTO's Appellate Body rulings may be blocked by the General Council in the form of the Dispute Settlement Body).Footnote 136 Still, what is perhaps unique in the case of the EFTA Court is the Commission's participation in every proceeding before the Court. The Commission then participates in the Joint Committee (where it is by far the most powerful player) in order to review the EFTA Court's case law. In other words, the Commission has two opportunities to impact on the outcomes of EEA law – by influencing judicial interpretation and by participating in a political process designed to override it.
With respect to the EFTA Court's reputation for impartiality, nothing in the research conducted by the author revealed any indication that contradicts the notion that the Court is very professional in its work; judged on a qualitative basis the Court must be considered as fulfilling all the basic requirements for judicial independence.
4.5 Main Doctrines
This article is intended to analyse the organisational inputs (structures) of the EFTA Court rather than its actual practice. Nevertheless, three doctrines – direct effect, primacy and state liability – must be considered here as they have become important parts of the Court's legal structure and may significantly affect the power attributed to its judgments.Footnote 137 These doctrines parallel the EU doctrines from which they are derived (direct effect, primacy and state liability), as the EFTA Court bases its interpretation and legal methodology on CJEU approaches to the respective issues.Footnote 138 However, there are several differences between the respective EFTA Court and CJEU doctrines.Footnote 139
This section provides a very brief description of these three doctrinesFootnote 140 in order to explain how they may be viewed as structural factors capable of influencing the possible impacts of EFTA Court judgments. Before discussing the doctrines the homogeneity principle will be considered. Homogeneity in the context of the EEA Agreement is a unique umbrella concept that describes the Agreement's main objective of ensuring equal conditions of competition among EEA member states, together with a number of legal remedies and institutional processes designed to advance this objective.
4.5.1 Homogeneity
It should be noted that the EU has concluded a number of preferential trade agreements with neighbouring countries and other regional organisations.Footnote 141 The EEA is unique among these agreements as it incorporates the tool of homogeneity to achieve the objective of identical legal status within the two legal orders (and continuous export of the EU norms to EFTA states). Pursuant to this objective, the EEA Agreement obligates EFTA states to incorporate voluminous legislation in diverse yet important sectors outside the province of local democratic institutions (crucially, although focused on economic matters, the respective EEA legislation addresses many other spheres, such as environment protection and workers' rights).Footnote 142 In return for these weighty obligations the EFTA states have been allowed to participate in the EU single market on the same basis as EU member states – a privilege not yet extended to other free trade agreements.Footnote 143
Several elements can be found in the EEA Agreement (and in EFTA Court practice) that seek to advance homogeneity. In order to explain the content and objective of this principle, it is helpful to differentiate between five different manifestations of homogeneity within the EEA Agreement:
1. The manifestation of homogeneity as a goal in recitals to the EEA Agreement and its main parts. The initial constructs of homogeneity are found in the EEA Agreement provisions describing this aim and the means by which it should be maintained.Footnote 144 The other elements are safeguards put in place to ensure fulfilment of this objective.
2. The technical legislative objective of identical – or similar – wording of the texts of the EEA Agreement and EU law instruments. The technical objective of the EEA Agreement is to transpose the law of the single market into trade relations between EFTA states and the EU.Footnote 145 Consequently, in all possible areas, the provisions of the EEA Agreement have been formulated to mirror, as closely as possible, the corresponding provisions of EU law (in particular the EEC) so as to ensure homogeneous interpretation and application.Footnote 146
3. Statutory safeguards. There are also certain statutory rules aimed at helping to attain homogeneity. These rules include Article 6 of the EEA Agreement and Article 3(2) of the SCA. Under Article 6 of the EEA Agreement, the EFTA Court is bound by the CJEU precedents established prior to the signing of the EEA Agreement on the interpretation of EEA law (2 May 1992), identical in substance to EU law. Under Article 3(2) of the SCA, the EFTA Court is required to take due account of CJEU jurisprudence adopted after the signing of the EEA. The crux of the arrangement agreed upon is that the EFTA Court must abide by pre-existing CJEU case law on common substantive rules, but needs only to take into account the subsequent development of CJEU case law. The EFTA Court does not, however, differentiate in practice between these two types of precedent.Footnote 147
4. Institutional safeguards. Homogeneity safeguards are also found in the form of institutional mechanisms facilitating the achievement of homogeneity by both the Commission and the EEA Joint Committee. First, the Commission has the right to intervene in all cases that are brought before the EFTA Court,Footnote 148 and has exercised this right in all cases adjudicated by the EFTA Court to date.Footnote 149 As a result of the Commission's extensive capacity and specialised knowledge, it is capable of ensuring that all relevant EU law sources, including CJEU case law, are brought to the attention of the EFTA Court.Footnote 150 Second, the EEA Joint Committee has a broad role in preventing conflicting jurisprudences between the two EEA Courts. On the one hand, it has the general obligation to review the case law of both courts;Footnote 151 on the other, it has the obligation to react to situations of conflicting case law. In the event of such a conflict, the Joint Committee may reach a political settlement,Footnote 152 but if the Committee has not succeeded in doing so within two months, it may seek a binding interpretation from the CJEU under Article 111(3) (conditional on the conflict involving a provision identical to Community law).Footnote 153 No such conflict has arisen so far.Footnote 154 Finally, the Committee is responsible for establishing a system for the exchange of information on case law between the EEA Courts.Footnote 155 This function draws inspiration from the Lugano Convention.Footnote 156
5. Judicial safeguards. Two different judicial safeguards allow the EEA Joint Committee to ask the CJEU questions on the appropriate interpretation of the EEA Agreement. First, under Article 105(3) of the EEA Agreement, the EEA Committee may respond to differences in case law between the EFTA Court and the CJEU. Second, in the event of a dispute between the Contracting Parties on issues regarding the mirror legislation (that is, EEA law identical in substance to EU law), the Joint Committee has the authority under Article 111(3) of the EEA Agreement to ask the CJEU for a ruling on the interpretation of the said rules. An additional component of the dispute resolution mechanism of the EEA Agreement that may be considered in this context is the availability of a special arbitration procedure referred to in Article 111(4) of the EEA Agreement (under the procedure laid down in Protocol 33 to the Agreement), to assess the scope or duration of a safeguard measure, but this process cannot involve the interpretation of mirror legislation.
4.5.2 Direct Effect
The question of direct effect arose during proceedings related to the first case coming before the Court, Restamark. A Finnish customs authority (the Tulliluatakunta) requested an advisory opinion regarding the compatibility of the Finnish alcohol monopoly with EEA law requirements. One of the questions asked was whether Articles 11 and 16 of the EEA Agreement could have direct effect within the national legal orders of the EFTA states. The Court responded that, following from Protocol 35 to the EEA Agreement, individuals and economic operators are entitled to invoke and to claim any rights at the national level that could be derived from EEA Agreement provisions and had been implemented into the respective national legal order – provided that such rights are unconditional and sufficiently precise in nature.Footnote 157
The EFTA Court clarified the scope of its direct effect doctrine in its 2002 Einarsson judgment, a case concerning an Icelandic VAT (value added tax) rule that differentiated between books in Icelandic and those in foreign languages.Footnote 158 In that case, the Court stated that, according to Protocol 35, an EEA Agreement provision that is unconditional and sufficiently precise takes precedence over a conflicting provision of national law, provided that the former has been implemented into national law.Footnote 159 The EFTA Court observed in Karlsson that EEA law does not entail the transfer of legislative powers and concluded that EEA law does not require individuals and economic operators to rely directly on non-implemented EEA rules before a national court.Footnote 160 National courts should still consider any relevant element of EEA law when reaching a judicial decision, whether implemented or not.Footnote 161 The direct effect of the EEA Agreement within the EU legal order was confirmed by the CFI (now the General Court) in Opel Austria, a judgment that stressed the goal of homogeneity within the judicial system put in place by the EEA Agreement.Footnote 162
4.5.3 Primacy
In Restamark, the EU Commission had claimed that the EEA Agreement included the doctrine of primacy; yet the EFTA Court did not address that question in its decision.Footnote 163 A few years later, the Commission no longer maintained that position, but the EFTA Court did embrace it in its most well-known judgment, Erla María Sveinbjörnsdóttir, in which the EFTA Court claimed the quasi-supremacy of EEA law. The judgment itself concerned an Icelandic rule that precluded Ms Sveinbjörnsdóttir from access to payments from a fund that guaranteed wages in the event of insolvency arising from a sibling relationship with her employer. In the Court's own words:Footnote 164
The Court concludes from the foregoing considerations that the EEA Agreement is an international treaty sui generis which contains a distinct legal order of its own. The EEA Agreement does not establish a customs union but an enhanced free trade area, see the judgment in Case E-2/97 Maglite [1997] EFTA Court Report 127. The depth of integration of the EEA Agreement is less far-reaching than under the EC Treaty, but the scope and the objective of the EEA Agreement goes beyond what is usual for an agreement under public international law.
The wording and substance of this statement must be considered in context together with the aforementioned Protocol 35 to the EEA Agreement, where EFTA states undertook to ensure under their national legislation the precedence of EEA law in cases of conflict between rules of the two bodies of law,Footnote 165 and Article 7 of the EEA Agreement, which stipulates that future legislative acts shall be incorporated into the sphere of national law in order to take effect – thus excluding a direct link between the EEA legal order and the national legal order. The interplay between Article 7 and Protocol 35 created a mechanism that allowed the Nordic states to maintain their formal dualist approach to international law.Footnote 166 Still, the essence of the Sveinbjörnsdóttir judgment is that the supremacy of EEA law derives from EEA law and not from the national legislation that implements Protocol 35.Footnote 167 This conclusion may be inferred from the fact that the Court does not rely in its judgment on Protocol 35 as a basis for state liability (contrary to its conclusion in Restamark). Furthermore, if the doctrine of state liability had been included in the EEA Agreement, there would have been no need to emphasise the far-reaching and sui generis nature of the Agreement as these effects would already be guaranteed by the implementing legislation. E contrario, as state liability did not have any foundation in the EEA Agreement, its basis must have been found in the supremacy of the EEA law.
The EFTA Court still maintained that the EEA Agreement did not entail the transfer of legislative powers from the EFTA states to any of the EEA institutions. This argument has led academics to term the EFTA Court doctrine as reflective of quasi-supremacy.Footnote 168 The conclusion of the Sveinbjörnsdóttir judgment later gained support from the EU pillar of the EEA as it was subsequently cited with approval by the CJEU in Rechberger.Footnote 169
4.5.4 State Liability
The doctrine of state liability was also established in the Sveinbjörnsdóttir judgment,Footnote 170 in which the EFTA Court statedFootnote 171 that
the principle of state liability must be seen as an integral part of the EEA Agreement as such. Therefore, it is natural to interpret national legislation implementing the main part of the Agreement as also comprising the principle of state liability.
The EFTA Court did not directly cite CJEU case law on this issue but it is considered to have fully integrated the EU law doctrine of state liability into EEA law.Footnote 172
The principle of state liability under EEA law stipulates that infringement of EEA law on behalf of member states causing damage to individuals or economic operators obligates those member states to pay compensation, provided that the breach is sufficiently serious, and that there is a causal link between the infringement and the damage sustained.Footnote 173
There are several additional factors which can be noted on EEA law state liability. Before the Sveinbjörnsdóttir judgment was cited in the CJEU in Rechberger, the possibility of applying state liability was rejected in the Advocate-General's Opinion in the Andersson case, which was issued about a month after the EFTA Court gave its judgment.Footnote 174 It can also be noted that the Sveinbjörnsdóttir case involved the same directive considered by the CJEU in Francovich which established the doctrine of state liability in the sphere of EU law.Footnote 175 State liability for failure to implement directives was then applied by the Icelandic Supreme Court,Footnote 176 and was later recognised by the Norwegian Supreme Court in Finanger II. Footnote 177
5. Other Factors
To understand the effectiveness of international courts, it is evidently necessary to examine the non-legal factors which impact on the real life results generated by such courts. These factors include cultural, political and geographical factors related to the court as an institution, as well as to the member states that adhere to its jurisdiction. It may not be possible to provide an exhaustive list of such factors but what follows is a brief discussion of some of the major non-legal factors which are relevant for an assessment of the EFTA Court's effectiveness.
The cultural environment in which a court operates is an important and complex variable that must be taken into account while assessing the effectiveness of international courts. Academics have suggested, for example, that the European pro-rule of law environment is one reason why the continent has seen far more successful international courts established in Europe than on any other continent and that this success may not be immediately replicated elsewhere.Footnote 178 In the opinion of the author there is no basis for assuming that successful international courts cannot be set up outside Europe.Footnote 179 Nevertheless, it is clear that the domestic legal culture of the countries adhering to an international court's jurisdiction creates an environment upon which the international court must rely for facilitating real life changes, as in most instances such changes can be attained only through cooperation with the relevant national authorities. Indeed, a pro-rule of law environment would be, in this respect, a key factor favouring cooperation.
The EFTA states have been considered among those nations that carry the highest standard of the rule of law,Footnote 180 an attribute representing considerable strength for the EFTA Court. Still, other cultural factors can generate adverse effects: it has been mentioned in this context, for instance, that the mentality of Nordic judges leans towards preserving their country's sovereignty, an attitude that affects their willingness to refer cases to the EFTA Court.Footnote 181
Cultural diversity can similarly affect the internal operation of international courts. On the one hand, cultural diversity can enrich a court and enable it to identify a larger pool of possible solutions to a particular legal problem; on the other hand, having individuals from different cultures sitting in one court may engender difficulties relating to language barriers or ideological tensions. In this respect, the EFTA states are culturally very similar. Although it may be extremely difficult to establish causation between cultural diversity and effectiveness, the President of the EFTA Court has commented in an interview that he perceived the cultural similarity of the countries represented within the Court as a factor contributing to its effectiveness.Footnote 182
Still another factor that is crucial for understanding the political environment of the EEA Agreement is the significant difference in size between the two country blocs party to the Agreement. There are only three states on the EFTA side of the Agreement, all relatively small – with a total population of about 5.2 million people or approximately 1 per cent of the EU's population (residing in 27 states). This is far from the balance that existed between the two blocs at the beginning of the EEA negotiations. The small size of the EFTA states clearly affects the perceived importance of the relationship for the EU and often leads to frustration on the part of the EFTA states, who feel deprived of the attention to which they believe they are entitled. Nor is their voice adequately heard, in their view, when legislative proposals of significant relevance to them are considered within the EU.Footnote 183
This survey has provided a short overview of selected non-legal factors, mainly specific to the EFTA Court. Future research within the Effectiveness Project framework might consider the development of a twofold approach to non-legal factors as structure indicators. First to be considered would be the construction of an objective scale to measure the Court's background conditions by means of indicators such as democracy, rule of law and, possibly, the level of economic development and security in member countries. This may be followed by a qualitative assessment of the factors that affect the relevant court's potential effectiveness. Understandably, such steps would be more of interest to regional courts than to global courts as regional courts generally represent more cohesive constituencies (for example, the EFTA states, members of the East African Community, and countries belonging to the Andean Community). Still, a similar assessment might account for different usage rates and impacts of global courts on their various constituents.
6. Conclusion
This article has discussed the structural factors considered to be most relevant to an understanding of the effectiveness of the EFTA Court. It has highlighted the obvious strengths of the Court as a well-funded institution which has built upon experience gained in the sphere of EU law in an effort to optimise its effectiveness. It has also revealed how the Court's small size has had obvious impacts on its function and organisational structure. It is therefore tempting to conclude that the EFTA Court somewhat reflects the strengths and weaknesses of the EFTA states.
As explained at the beginning, structures are all the assets available to an organisation at its outset, at some later point in time, or on a continuing basis. These assets, which determine the operative capacity of the organisation, may be enhanced by the very outputs produced by the organisation (for example, judgments create precedents and advance, in theory, the relevant legal system; they therefore become part of the assets of the respective court). Accordingly, the task of future research is also to examine how the EFTA Court has utilised these assets to obtain its mandated goals. Such research may lead to the conclusion that the Court has been invested with inappropriate resources, that these could possibly have been invested elsewhere, or that other institutions have been more effective in advancing the same goals.
