Article 34 SCA - An Obligation to Request an Advisory Opinion of the EFTA Court?

University essay from Lunds universitet/Juridiska institutionen

Abstract: This thesis examines the question of whether Iceland, Liechtenstein and Norway are under an obligation to refer questions on the interpretation of EEA law to the EFTA Court (the Court). These countries enjoy access to the EU’s internal market through the EEA Agreement. Article 34 of the Surveillance and Court Agreement, concluded between the EEA/EFTA States, establishes an advisory opinion procedure similar to the preliminary ruling procedure in Article 267 TFEU. The thesis focusses on the difference in wording between Article 34 SCA and Article 267 TFEU, where wording of the former suggests that national courts are under no obligation to refer questions on the interpretation of the EEA Agreement to the EFTA Court. The examination is conducted against the fundamental objectives of the EEA Agreement and the purpose which Article 34 SCA serves in the attainment of those objectives. Advisory opinions serve an important purpose for the fundamental objective of the EEA Agreement, which is the achievement of a dynamic and homogeneous European Economic Area. When national courts do not make use of the advisory opinion procedure this objective is undermined. The thesis examines the objective reasons for references to be made to the EFTA Court in order to achieve this objective. These reasons derive from the principles of homogeneity, reciprocity and loyal cooperation. A decision not to refer can also impact more subjective interests, such as the right to a fair trial under Article 6(1) ECHR or contribute to damages to individuals and economic operators. These issues are examined, as well as the question of whether the EFTA Surveillance Authority can initiate infringement proceedings against the EEA/EFTA States when their national courts adopt a systematic practice of not referring questions on the interpretation of EEA law to the EFTA Court.

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