President of EFTA Court discusses issues arising out of Brexit

In a lecture given to the Centre of European Law at King’s College, London, on 13 October, the President of the EFTA Court, Judge Baudenbacher, made a number of important observations about Brexit and possible models for the UK’s relationship with the EU and EEA. His handout is here.

Important points that he makes include: –

• He does not consider that EEA membership for the UK is automatic: the UK would have to apply to join EFTA (requiring consent from Switzerland, Norway, Iceland and Liechtenstein) as well as the EEA.
• He refers to the EU’s suggested arrangements between Switzerland and the EU under which the Swiss would take part in the EFTA Court and Surveillance Authority to the extent that they are dealing with Swiss/EU agreements: he suggests that as a possible model for the UK. 　He notes that acceptance by Switzerland of multilateral enforcement bodies is likely to be essential to future Swiss/EU arrangements.
• The UK would, he thinks, have to make financial contributions, though he notes that the EEA Member States choose the projects that they want to fund.
• He considers it to be an open question whether the UK would be happy with the “co-determination” right, but not voting right, of EEA Member States in relation to new EU law, but notes that in the 1980s Jacques Delors as Commission President offered the EFTA states a more structured partnership with common decision-making.
• On the question of whether the EFTA Court is the same (in effect) as the ECJ, he is recorded as saying this: –

In that regard, Baudenbacher referred to the fact that the EFTA Court is an independent court of law. Because of the EFTA pillar’s size, a British ESA College Member and a British judge would be involved in each case. The President of the EFTA Court also mentioned that the court system of the EFTA pillar leaves the EFTA countries more sovereignty than the court system of the EU pillar leaves the EU countries. This is reflected in the EFTA Court’s case law. Moreover, that case law is market-oriented and based on an image on man that is similar to that of the man on the Clapham omnibus. Baudenbacher foresaw that in case of British EEA membership that such reasoning would become even more relevant for his Court.

Judge Baudenbacher therefore emphasises the more “Anglo-Saxon” or “liberal” approach of the EFTA Court, its greater respect for EEA Member States’ sovereignty – and notes that the arrival of a UK judge (who would be one of four or five judges rather than one of 28 and who would sit on every case affecting the UK) might well accentuate that trend.”