Having your own court is the essential advantage of the EEA/EFTA States

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At the 30th anniversary of the EFTA Court, its long time President, Carl Baudenbacher, gave the following speech. Prof. Dr Dr h.c. Carl Baudenbacher acted as the Court’s President from 2003 until 2017 and is currently a Partner at Baudenbacher/Kvernberg, in Zurich/Oslo/Stavanger/Brussels. 

EFTA Court’s Pearl Anniversary, Dinner Speech, Cercle Munster, Luxembourg, 26 September 2024

Mr. President, ladies and gentlemen, dear friends,

I.

We are here tonight in the EFTA Court’s canteen as the EFTA Court’s guests in order to celebrate its 30th anniversary.

The European Economic Area (“EEA”) Agreement came into force after a difficult birth.

First, the Court of Justice of the European Union (“CJEU”) rejected the originally planned EEA Court which would have consisted of judges from the CJEU and from the EFTA States in its fundamental, and some say fundamentalist, Opinion 1/91.

After this, Switzerland dropped out after a negative referendum. Many Swiss disliked the EFTA Court which was labelled “a foreign court”. This was a senseless designation, because the EFTA Court would have been neutral towards Switzerland. But it worked.

Liechtenstein then postponed the ratification of the EEA Agreement because it wanted to keep its customs union with the Swiss.

On 4 January 1994, the EFTA Court took up its functions with five Judges,

After the prolonged birth, the EFTA Court also had a troubled youth. Austria, Finland and Sweden left the EFTA pillar after one year. The Court had no cases, and during the summer of 1995, it only consisted of the two judges from Iceland and Norway.

But then, a Swiss fellow was appointed to the bench on behalf of Liechtenstein. He is standing here, and this appointment turned out to be the honour of his life.

It changed the life of my family, and I am deeply grateful that I was nominated as a Judge by the Government of the Principality and accepted by the Governments of Iceland and of the Kingdom of Norway.

Well, they had no idea what they were letting themselves in for.

II.

In Germany, the 30th wedding anniversary is called the pearl anniversary. The pearl necklace, which consists of many pearls strung together, is said to symbolise the experiences that the couple has shared or endured together.

III.

If we transpose that to the EFTA Court, the following events could me mentioned:

First perl: The start on 4 January 1994 with five judges from Austria, Finland, Iceland, Norway, and Sweden.

Second perl: The downsizing of the Court from 5 to 3 judges in the summer of 1995.

As my friend Sven Svedman, a former President of the EFTA Surveillance Authority stated, a court of three is not weak, but vulnerable.

Third perl: The move of the EFTA Court from Geneva to Luxembourg in September 1996.

Not everybody was happy with that step. Life in Geneva had been pleasant, there were few cases, one was not in the limelight, and yet, one had in important position.

There is no Lac Léman in Luxembourg, there is only the little bulge of the Sure. And there is no Mont Blanc.

And yet, to locate the EFTA Court basically in the neighbourhood of its big sister court CJEU proved the right thing.

Fourth perl: The recognition of EEA fundamental rights in 1998.

In TV 1000, a case concerning the broadcasting of hard-core pornographic movies from Sweden to Norway, the EFTA Court referred to the European Court of Human Right’s famous Handyside judgment.

It was said this afternoon that this development was facilitated by the fact that the Icelander Thór Vilhjálmsson had been a Judge of the Strasbourg Court before being appointed to the EFTA Court. But that’s not correct. Thór sat on both courts at the same time. The Strasbourg court was a part-time institution, the Judges would come together at regular intervals, and rumour had it that Le Crocodile, at the time a Michelin three-star restaurant, made big turnovers when certain Judges were in town.

Fifth perl: The recognition of EEA State liability in Sveinbjörnsdóttir in the same year.

This caused a major uproar in our largest Member State; but in the meantime, this is “acqua passata”, water under the bridge. Everybody has understood that, as my late brother on the bench Thór Vilhjálmsson said, without State liability, we could have gone home.

Sixth perl: The EFTA Court’s Tenth Anniversary in 2004.

It took place at Cercle Cité where today His Holiness Pope Francis received the people of Luxembourg.

Seventh perl: The enlargement of the EU (and the EEA) in 2004/2007.

This enlargement was facilitated by the decision of generous Norway to basically double its cohesion payments in 2004.

Their Prime Minister Kjell Magne Bondevik, a Lutheran vicar, said that, as good Christians, the wealthy Norwegians must give to those less privileged in Europe (“love thy neighbour”).

Eight pearl: The Icesave saga (2008 to 2013)

In my opinion, Icesave was the biggest case of the Court’s first 30 years. ESA sued Iceland claiming that it was liable for deposits in a failed bank. The Commission, the British and the Dutch Government supported ESA. Against the general expectation, the EFTA Court found in favour of Iceland.

A lot of people said that if Iceland had lost, it would have gone bankrupt.

Others speculated that if the CJEU had had jurisdiction, Iceland would have been defeated. Nobody can tell how the CJEU would have decided the case. But if these voices were true, it would be proof that it is of utmost importance for the three EEA/EFTA States to have their own court.

That having your own court is the essential advantage of the EEA/EFTA States has never been understood by the Swiss. As I said, they rejected the EFTA Court.

My countrymen and -women are now about to essentially subject themselves to the CJEU which has certainly a great reputation. But it is the Court of the other side.

That’s why many Swiss are having second thoughts about this.

You know what? I once had the opportunity to visit the Tokyo Tuna Court early in the morning, at 5 o’clock. It has been set up by the State for the tuna traders and is said to resolve conflicts between tuna sellers and buyers in a fast and inexpensive way. A Japanese Bluefin Tuna may sell for several 100’000 $.

Switzerland always had a special relationship with Japan and Heidi, the girl from the Swiss Alps, is a cult figure in the Land of the Rising Sun. So, docking to the Tuna Court might be an opportunity.

Ninth perl: The EFTA Court’s 20th anniversary in 2014 (again at the Cercle Cité).

Tenth perl: The Norwegian NAV scandal (since 2019, ongoing).

NAV is the Norwegian welfare authority. For decades, it made the payment of all sorts of allowances dependant on physical presence on Norwegian soil.

The EFTA Court has dealt with NAV cases on several occasions. And there may be more cases.

I will, however, refrain from going into the NAV matter because my law firm is representing victims of NAV’s wrongdoing.

There may have been many more pearls in the EFTA Court’s first 30 years. But I think I have enumerated the most important ones.

The eleventh and so far last pearl are today‘s celebrations.

The number 11 is a Master Number that represents intuition, spirituality, teaching, charisma, and dynamism. It is considered to be a symbol of new beginnings and opportunities.

IV.

Ladies and gentlemen, let me conclude with the motto of my Swiss students fraternity: The EFTA Court vivat, crescat, floreat! Let it live and grow and flourish!

Thank you very much for your attention!

 

 

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