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: –
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.”