"To refer or not to refer"

"Chief Justices' tea time: To Refer or not to Refer, that is the question."

Chief Justice of The Supreme Court of Norway, Tore Schei's speech at the Anniversary Conference June 20th 2014

First of all I would like to congratulate the EFTA Court on its twentieth anniversary.  The EFTA Court has played an important role as one of the key institutions within the EEA to secure a common understanding of EEA law throughout the EEA countries. I'm sure that I have all my colleagues with me when I say that the Supreme Court of Norway considers the EFTA Court to be a court of very high professional standards and a court we look upon with the greatest respect. 

The theme for the discussion is "To refer or not to refer".  I will start with some basic reflections.  As we all know the legal basis for the EFTA Court's jurisdiction to answer questions from the courts of the EFTA states is Article 34 of the Surveillance and Court Agreement (SCA). And –as we also all know – Article 34 differs from its counterpart in Article 267 in the Treaty on the functioning of the European Union (TFEU) in two important ways.   Article 267 makes it obligatory for a national court of last instance to refer unresolved questions of EU law to the ECJ. The judgment of the ECJ is binding. No such obligations are imposed on the national courts in the EFTA states. According to the wording of Article 34 a national court in an EFTA state may, if it considers it necessary to enable it to give judgment, request the EFTA Court to give an opinion.  And the opinion is – still according to the wording of Article 34 – "advisory".   In Norwegian legislation the request-procedure is implemented through Article 51 of the act relating to the Courts of Justice. This provision allows national courts on any level to ask the EFTA Court for an advisory opinion and there is no appeal against a decision to make or not to make such a request. 

Despite the clear wording of Article 34 there have been voices advocating the view that national courts of last instance within the EFTA states have a legal obligation to refer unresolved questions on EEA law to the EFTA Court.  I do not share this view.  To my mind, the starting point here must be the unwillingness of the EFTA states to give up or transfer national sovereignty in legislative, administrative and judicial matters.  For the Norwegian Parliament this certainly was a basic political and constitutional precondition, something that Norwegian courts would find it very difficult – to put it mildly – to disregard.

I can't see how the principle of loyalty laid down in Article 3 EEA can alter this fundamental starting point. Of course there may be very persuasive reasons to ask in a particular case and wrongful application of EEA law may have negative consequences, perhaps even be the basis for an infringement case. But I cannot really see how such arguments can establish a legal duty to ask bearing in mind the basic condition for the EEA that I have described.  On this point, Article 3 EEA must be read in the light of the very clear wording of Article 34 SCA and the principle that led to this choice of wording.

Nor can the principle of access to justice and the right to a fair trial in Article 6 § 1 of the European Convention on Human Rights be a basis for such a duty to ask – in the sense that a refusal to ask might amount to a breach of Article 6 § 1, as discussed by the EFTA Court in the Irish bank case. I do agree however with the EFTA Court that where a national court rejects an application from the parties to ask the EFTA Court for an advisory opinion, there are often good reasons for explaining why. Let me here add that there is a trend in Norwegian civil procedure to give reasons also for decisions on procedural matters.  I'm convinced that a refusal of a motion to ask the EFTA Court for an advisory opinion at least in the Supreme Court of Norway to day will be a reasoned decision. 

There should be no doubt that the Norwegian courts recognise the authority and competence of the EFTA Court. Here the leading case is the plenary judgment from 2000 in the so-called Finanger I case. The first judge to deliver his opinion, who on this point was followed by all of his colleagues, first made the observation that since the EFTA Court's opinion is of an advisory nature, the Supreme Court has both the authority and the obligation to consider independently whether and to what extent the Supreme Court's decision should be based on this opinion. He then stated – and I quote: "Nevertheless, I find that significant importance must be attributed to the opinion."  He went on to give compelling reasons for his statement on the effect and weight of the EFTA Court's opinion.  This view has since been followed by the Norwegian courts.    

Let me then turn to the core of today's topic. The Norwegian courts have been criticized for making too few requests to the EFTA Court. The total is 43 requests, compared to 27 from Iceland and 15 from Liechtenstein.  I might have overlooked a request or two but the numbers given are at least near to the exact ones. There is no doubt that per capita, Norwegian courts have requested advisory opinions in far fewer cases than the other EFTA states.

Let me start by saying that I'm open to accepting that the criticism at least to some extent may be valid. When analysing a judgment after it has been rendered, it is usually easier to identify a question that might usefully have been put to the EFTA Court, than it is during the preparatory stage for the oral hearing, or indeed during the oral hearing itself. At least when one has a number of judgments involving EEA law to analyse in this way, it is probably easy to conclude that in one or two of the cases, the EFTA Court should have been asked for advice.  The lesson to be drawn from this is to try be more careful, already in the preparatory stage, to identify the EEA law involved and to analyse in the best way possible the need for asking the EFTA Court.  

The Norwegian Supreme Court has been the object of special attention in this regard. The Supreme Court has requested advisory opinions in three cases, dating from 1997, 1999 and 2002. In other words there has been no request for the last 12 years. The question has been raised whether this means that the Supreme Court's view on the need for advisory opinions has changed. I have seen the theory that there has indeed been a change and that this is the consequence of the shift in leadership in 2002. In that year I replaced Carsten Smith as chief justice.  However, it is not a task for the chief justice, but for the Appeals Selection Committee or for the judge with the task to prepare the case for the oral hearing,  to decide whether or not to ask the EFTA Court. Let me add: I am convinced that Carsten Smith had the same ambition as I have: To apply EEA law in a fully correct manner. I am also convinced that this view is shared by my colleagues in the Supreme Court. The ambition to apply EEA law correctly is the starting point for all of us when considering whether or not to ask the EFTA Court.

In my opinion, the issue of referrals from the Supreme Court requires a wider approach than a mere glance at the numbers. First and foremost, it is important to take into account the requests originating from the lower instance courts. To the extent that one of the lower instance courts has requested an advisory opinion in the case, there is normally no need for the Supreme Court to do the same if the case eventually ends up before the Supreme Court.

Norway has a court system of three levels, contrary to a two tier system in Iceland and obviously a very different system in Lichtenstein. In cases where there is a need to ask the EFTA Court the best approach would be if the request is made by the court of first instance or the Court of Appeal. It is obviously an advantage if difficult questions of EEA law are identified and discussed on a complete and correct legal basis before the case reaches the Supreme Court. We have also seen over the years that many of the cases involving EEA law have ended in the lower courts and never reached the Supreme Court. This is not to deny that quite a few EEA law cases have been brought before the Supreme Court, and of course the Supreme Court in those cases has the ultimate responsibility of applying the law correctly.  My point is only that it is no goal in itself that the requests should be made by the Supreme Court rather than by other Norwegian courts.

In deciding whether or not to ask, the key issue must be the need for clarification of EEA law.  This evaluation must take into account as its starting point the existing case law of the EFTA Court and the ECJ, which may give adequate guidance. Another important factor must be whether the uncertainty concerning the application of EEA law is intimately connected to the court's assessments of the facts of the case, which may still be in dispute even before the Supreme Court, or rather concerns the general interpretation of the law.

Also other factors are important in order to understand the relatively small number of referrals from the Norwegian courts in general and The Supreme Court of Norway in particular.

A challenge for Norwegian Courts is the identification of EEA relevant issues which arise in the case at hand. To a considerable degree, the Norwegian procedural system leaves it to the parties to identify the legal basis for the court's decision. To quite an extent, the courts, including the Supreme Court, have relied on the attorney's ability to identify the relevant legal questions and to present to the court the pertinent legal material. In some cases, we have experienced that we cannot rely on the attorneys in this regard. As the Supreme Court in all cases brought before it still has the ultimate responsibility for the correct application of the law and for the the identification of the legal questions that the case raises, this is a problem.  That is why the Supreme Court now plans, and has asked the Government and Parliament for the necessary funds, to enlarge the legal secretariat considerably so that it may assist the Court after leave to appeal has been granted. Today, the legal secretariat mainly assists the Appeals Selection committee in the assessment of whether or not to grant leave to appeal. A more thorough preparation of the cases would certainly enable us to make a better evaluation of whether or not to ask the EFTA Court for advisory opinions.

At least two other factors are important – costs and time. There is no basis for criticizing the EFTA Court for working slowly. But waiting for the decision of the EFTA Court and then for the exchange of written arguments between the parties thereafter, easily adds a year to the handling of the case. Norwegian courts place considerable importance on the need for expedient decisions, and a year is very much in this context. In many cases a swift decision is of particular importance for the parties involved. In some categories of cases it may even be considered more or less impossible to add a year to the handling, for instance in criminal cases and in some employment law cases.  To ask will also inevitably lead to an increase in costs that might be considerable. Due to the increase in time and costs the parties might argue for not sending a request to the EFTA Court even if the Norwegian Court in question would be interested in doing so. Time and costs may also partly explain why the parties in many cases, I would even say most cases, involving issues of EEA law do not themselves ask for a referral. Of course it is up to the court – not the parties to make a decision. But at least in cases where the need to refer is not obvious, the court will take the parties views into account.

I will conclude and sum up:  The Norwegian Supreme Court fully recognises the special competence of the EFTA Court and the important role it plays within the EEA. I hope that in the future, we will be better equipped for identifying questions of EEA law and for deciding whether or not to ask the EFTA Court.  Still the decision may be difficult, and in many cases factors like costs and time will have to be taken into account when deciding to ask or not to ask.

Let me add: There is obviously a lot more to discuss about this issue – to ask or not to ask – and questions related to it than we are able to do to day. I think a direct dialogue between the EFTA Court and the Supreme Court of Norway is a good idea in this respect and to get a better understanding of the role, tasks and challenges the courts are faced with. I will therefore end my remarks by inviting President Baudenbacher and judges Hreinsson and Christiansen and other representatives of the EFTA Court to the Supreme Court of Norway for a seminar between our two courts, hopefully before the end of this year. It is my sincere hope that you will accept the invitation and that we can work together in preparing the seminar. And once again – congratulations to the EFTA Court on its twentieth anniversary and the very best wishes for the future.