What does the Supreme Court expect from an answer of the EFTA Court, and how does it deal with it procedurally?

1.         The Topic

I am asked to speak on what the Supreme Court expects from an advisory opinion of the EFTA Court. This is quite a difficult question. It is well known that the number of requests for advisory opinions is not large, and therefore we don’t have any large experience material. Nevertheless I will make some remarks based on my personal views. I haven’t discussed the issue with other judges. In the discussion afterwards other judges may perhaps express other opinions.

After having dealt with what I expect from an advisory opinion, I will say some words on how we deal with it procedurally.

2.         What does the Supreme Court expect from an advisory opinion?

According to the Agreement on the establishment of a Surveillance Authority and a Court (in Norwegian normally abbreviated to ODA) Article 34 the EFTA Court has jurisdiction to give advisory opinions on the interpretation of the EEA Agreement.

On this article I would like to make two remarks:

Firstly, the authority of the EFTA Court is limited to interpret the EEA law. The EFTA Court has not the authority to adjudicate the case. It is up to the national courts to assess the evidences, and it also belongs to the competence of the national courts to apply the EEA law in the individual case.

Certainly, if the EFTA Court gives a very detailed interpretation, the scope of the concrete application can be relatively narrow. It is up to the EFTA Court to decide how detailed interpretation guidelines it is possible to give. But in almost all cases there will remain some assessment for the national courts.

Secondly, the EFTA Court's opinions are not binding for the national courts, but only advisory. Certainly, an opinion of the EFTA Court will be a heavy source of law, and normally it will be followed by the national courts. In my opinion a national court cannot deviate from an advisory opinion without very good and heavy reasons. But since the EFTA Court’s opinions are not formally binding, the national courts are obliged to review those opinions. In all cases where there has been obtained an advisory opinion from the EFTA Court, the Supreme Court therefore has evaluated the interpretation of the EFTA Court and expressed its own view on the rule.[1]

On this background it is important that advisory opinions of the EFTA Court are thoroughly and convincingly reasoned.

As all of us know, the purpose of the rule is of great importance in the interpretation of EEA law. Both for the review of the EFTA Court’s interpretation and for the concrete application of the EEA law, the EFTA Court therefore ought to discuss thoroughly the purpose of the rule.

In its judgment in the STX Case the Supreme Court questioned the EFTA Court's view on a provision in the Posting of Workers Directive (Directive 96/71/EC) concerning minimum wages of pay.[2] I did not participate in that case, and I don’t want to express any view on the judgment of the Supreme Court. My concern is that the advisory opinion of the EFTA Court in that case was quite shortly reasoned, and I think that a more thorough presentation of the purpose of the relevant provisions would have been useful.

Subsequently the EFTA Court has in another case got the opportunity to make a deeper analysis of the purpose of the relevant provisions in the Posting of Workers Directive. In the EFTA Court's advisory opinion 20^th March 2013 in the case Norway v. Stig Arne Jonsson the purpose of the impugned provisions is more thoroughly discussed than in the STX Case. I think that the EFTA Court's analysis in its opinion in the Jonsson Case is quite convincingly. If this analysis had been given in the STX Case, perhaps the Supreme Court would not have questioned the EFTA Court's opinion. Who knows? As I have mentioned, I did not participate in the STX Case, and therefore I am only able guess.

In addition to an exhaustive description of the purpose of the relevant provisions, I think it will be useful that the EFTA Court in advisory opinions gives detailed references to the sources of law on which the opinion is based. As advisory opinions of the EFTA Court are not formally binding for the national courts, it is of significant importance that the reasoning is convincing. The EFTA Court therefore not only must account for the relevant sources of law, but also must make it clear how the court understands the various sources, and, if they are contradictory, how they should be balanced against each other. On this point the EFTA Court has a more interesting and challenging task than the EU Court. As you know, the opinions of the EU Court are binding for national courts. Since the opinions of the EFTA Court only are advisory, the EFTA Court has to persuade the national courts. Therefore the EFTA Court's opinions must be more exhaustive.

First time the Norwegian Supreme Court concluded that Norwegian law was in conflict with the EEA law, was in the famous Finanger I Case. The question was whether a passenger who passively rode in a car despite he knew or must have known that the driver was influenced of alcohol, could be denied compensation if he was exposed for a traffic accident which was causal linked to the intoxication of the driver. According to the Norwegian Automobile Liability Act at that time a passenger who was injured under such circumstances, was not entitled to compensation unless there were special grounds for granting compensation. One of the disputed issues in that case was whether this rule could be accepted as a rule on contributory negligence. On this point the advisory opinion of the EFTA Court was very short. Without any references to sources of law the EFTA Court shortly stated:

"Submissions have been made about the possibility of reducing compensation as a consequence of contributory negligence. The Court limits itself to stating that a reduction of compensation due to contributory negligence must be possible in exceptional circumstances. However, the principles set out in the Motor Vehicle Insurance Directives must be respected. A finding that a passenger who passively rode in a car driven by an intoxicated driver is to be denied compensation or that compensation is to be reduced in a way which is disproportionate to the contribution to the injury by the injured party would be incompatible with the Directives."[3]

I would have appreciated if the EFTA Court in this case in more details had discussed the scope of a rule on contributory negligence and explained how a rule on contributory negligence should be construed.

In its judgment in the case, the Norwegian Supreme Court concluded that the disputed provision could not be upheld as a rule on contributory negligence, and that Norwegian law at that time accordingly was not compatible with the EEA law.[4] In reaching this conclusion the Supreme Court found some, but rather wage support in the advisory opinion of the EFTA Court. My opinion is that the advisory opinion from the EFTA Court could have been far more elucidatory on this point.

I would like to emphasize that my cautious criticism of a couple of advisory opinions of the EFTA Court should not be misunderstood. I have read all the advisory opinions the EFTA Court has delivered to Norwegian courts, and the main feature is that those opinions are satisfactorily reasoned and give the Norwegian courts necessary help in applying EEA law. By focusing on two insufficiently reasoned advisory opinions, I want to stress the necessity of a detailed statement of the purpose of the relevant rules and a thorough explanation of how the EFTA Court understands the disputed EEA provisions with references to the relevant sources of law. If the EFTA Court's advisory opinions are duly reasoned, it will not only make it easier for the national courts to review the opinions, but it will also be to a great help for the national courts in their application of the EEA law in the individual case.

3.         How does the Supreme Court deal with an advisory opinion?

When requesting an advisory opinion the counsels of the parties play a central role.

On the preparatory stage of the case the counsels normally have a better knowledge of the details in the case than the court has, and therefore the counsels of the parties often will have well founded suggestions on how the questions to the EFTA Court should be formed. In technical complicated issues it often will be appropriate to ask the counsels to make a draft. This was the procedure in the Paranova Case, which concerned quite complicated trade mark questions in connection with parallel import of pharmaceuticals. I was the preparatory judge in the Supreme Court. Before I wrote the request for an advisory opinion, I asked the counsels to make a draft. The draft they presented for me, was quite difficult to understand, and I therefore – in cooperation with the counsels – reformulated the questions before they were sent to the EFTA Court.

In other cases the court can have sufficient basis to formulate questions without asking the parties for a draft. If the questions are formed by the court itself, the parties must of course be given the opportunity to comment on the formulations before the request is sent to the EFTA Court.

After the EFTA Court has delivered its judgment, the parties will be asked to comment on the judgment, and in the main hearing the EFTA Court's judgment of course will be dealt with as a heavy source of law. Normally most of the discussion will be on how the opinion of the EFTA Court should be understood, and how it should be applied in the individual case. The advisory opinion will be interpreted, and as far as possible the counsels will interpret the opinion in favour of their parties' interests. In some cases the opinion of the EFTA Court is challenged, but this is very seldom. Normally the discussion is limited to how the opinion should be understood, and how it should be applied in the individual case.

As I have mentioned, normally the Norwegian Supreme Court will follow an advisory opinion from the EFTA Court. In my opinion a national court cannot deviate from an advisory opinion without very good and heavy reasons. An example of a sufficiently good and heavy reason will be that the EU Court subsequently has dealt with the same issue and has come to another conclusion. In such cases the national courts must evaluate the two judgments. If the judgment of the EU Court is more convincing, the national court in my opinion must follow the view of the EU Court.

In the STX Case the Norwegian Supreme Court questioned the advisory opinion of the EFTA Court without support from a subsequent decision of the EU Court. However, the Supreme Court didn’t conclude and solved the case on another ground. By the Supreme Court’s questioning of the advisory opinion, the EFTA Court got the opportunity to explain its view in a later judgment. This form of dialogue is in my opinion of a great value.

I believe that the threshold for Norwegian courts to deviate from an advisory opinion of the EFTA Court without support from a subsequent judgment of the EU Court is very high, and so it ought to be. In my opinion this should only happen if the national court finds the EFTA Court’s opinion obviously untenable.

Of course, if a national court finds an advisory opinion of the EFTA Court untenable, unclear or doubtful, it has the possibility to ask supplementary questions. But in Norway we have a strong focus on the time of the proceedings. According to the Conventions on Human Rights the proceedings should be brought to an end within reasonable time, and the Norwegian Code on Civil Procedure provides that the main hearing normally should be held within a time limit of six months from the case was brought before the court. If we require an advisory opinion, we will not manage to keep this time limit. Therefore advisory opinions only are requested when it is found necessary, and the threshold for asking a supplementary question is extremely high. The EFTA Court therefore can not take into account that Norwegian courts will ask for a supplementary question if they find an advisory opinion of the EFTA Court unclear.

Thank you for your attention!