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11 November 2010 BOOKS

How did the EFTA court
acquire an influence out of
all proportion to its tiny
A small dog with a big bite
size? David Lawsky
during the
reviews one account Icesave

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


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