14
11 November 2010 BOOKS
How did the EFTA court
acquire an influence out of
all proportion to its tiny
size? David Lawsky
reviews one account
“
As a small dog you
must bark louder than
a big dog,” declares
Carl Baudenbacher,
president of the court
of the European Free Trade Association
(EFTA), which has jurisdiction over 1%
of the European Economic Area. And
bark it does, loud enough to attract
notice from the European Court of
Justice (ECJ), with jurisdiction over
the other 99%.
Baudenbacher’s book, “The EFTA
court in action”, argues that it is
possible to make one’s mark in
international jurisprudence, even as a
tiny court that faces pushy bureaucrats
and state courts that hate referring
cases.
The EFTA and ECJ courts are
supposed to keep EU and EFTA laws
in synch, to help foster trade between
their members. When he took up his
post in 2003, the court faced a one-
way street in that he was supposed to
follow the ECJ’s lead but not the other
way around. Baudenbacher was not
discouraged.
His court looked to build a “judicial
dialogue” with the ECJ by wooing the
ECJ judicial advisers, known as
advocates-general.
“How do you establish good contacts
with the advocates-general?” asked
Baudenbacher. The answer was to talk
with them, publish articles they would
see, give speeches and attend social
events. Most importantly, his court
used quotations from the opinions of
the advocates-general, because “vanity
is a human sentiment and once they
see that we are making reference to
Supported by
A small dog with a big bite
REUTERS
them, they will be more inclined to
take us into account”.
And so the advocates-general did,
citing EFTA rulings. They were not
alone. These days the EFTA court can
see its rulings invoked by the German
Supreme Court, the Austrian Supreme
Court and the Court of Appeal for
England and Wales.
In search of a caseload
It has been a challenge for the EFTA
court to fill its docket. While the ECJ is
overwhelmed with cases pouring in
from the 27 EU member states, the
EFTA court has been deliberately
starved of cases by the three members
of the far smaller free-trade
association. The EFTA staff charged
with finding violations instead often
protected their countries – Norway,
Iceland and Lichtenstein. Gruel has
been so thin that the EFTA court has
sometimes clocked in fewer than one
case a year.
Baudenbacher is scathing about
bureaucrats who drag their feet in
presents
www.evawards.org
filing cases out of fear that their careers
at home might suffer once they depart
EFTA for their respective civil services.
He calls their timidity and chumminess
with home countries “unacceptable”.
He is equally critical of state courts
that hold back from referring questions
to his court, a practice he dismisses as
an attempt to “protect the power of
high civil servants…ministers…[and]
lobbyists”.
These people forget that the EEA was
designed to make markets work by
dealing fairly with manufacturers,
employees, consumers, dealers and
investors, he argues.
“Many of the people in the EEA/
EFTA states have still not understood
this. They still think that stonewalling
is the most important thing. The EFTA
court has been around for more than
15 years and I think the time has come
to change this attitude. In fact, it is
high noon to change it,” writes
Baudenbacher.
He says his tough stance has paid off.
The court got a vote of confidence
during the
Icesave
scandal,
involving
major losses
by Icelandic
banks that did
business in the
UK and the
Netherlands.
The two
countries
became
advocates The EFTA court in action
for their By Carl Baudenbacher
depositors and (180 pages)
sought justice German Law Publishers, €48
in Iceland.
They have made it clear that any legal
disputes arising from the resolution of
these problems had best be referred by
Icelandic courts to a tribunal they can
trust – the EFTA court.
The court has a wider significance as
well. Europe’s post-war experiments
with supra-national law serve as a
model for other continents.
Baudenbacher has spoken in Asia
about the EFTA court as a precursor
for courts in a possible free-trade area
for China, Korea and Japan.
Baudenbacher’s reflections on the
court’s growth and its accomplishment
come at a crucial moment. Iceland has
applied for EU membership and its
admission would leave the future of
EFTA and his court uncertain. But no
matter what happens, Baudenbacher
can reflect that the little dog with the
big bark has proved to have some
bite, too.
David Lawsky is a former Reuters journalist
who now works as a Brussels-based public
policy adviser for Fipra.
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