EFTA makes available its own court to solve disputes after Brexit

EFTA Court President Carl Baudenbacher [EFTA]

The court of the European Free Trade Area (EFTA) could present a way-out for Britain as it seeks a new authority to arbitrate in disputes after it leaves the European Union, the president of the court said on Monday (21 August).

The European Commission, the EU’s executive arm, says Britain should continue to fall under the jurisdiction of the European Court of Justice (ECJ) for solving any disputes during the transitional phase after March 2019.

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British companies operating in the EU will be “begging on their knees” for the jurisdiction of the European Court of Justice (ECJ) after Brexit, the Court’s president has warned.

But Britain’s Conservative government, which regards the ECJ as intrusive, has called ECJ jurisdiction an EU “obsession” that would not be acceptable and wants an alternative.

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Britain’s most senior judge has said the government needs to spell out how British courts should interpret rulings from the European Court of Justice after Brexit.

Currently Britain must abide by ECJ judgments but Prime Minister Theresa May’s government has said that Britain will leave its jurisdiction after Brexit.

Britain has begun the long and complicated process …

Founded in 1994, the EFTA court has three members, Iceland, Liechtenstein and Norway, and mainly deals with the rules of the European Economic Area and their implementation and has no wider jurisdiction in the 28-member EU.

The Luxembourg-based EFTA court at present consists of only three judges.

“My court would certainly be a possibility,” Carl Baudenbacher, president of the EFTA court, told Reuters.

“As far as I can see my counterpart at the ECJ Koen Lenaerts also has said on this issue that the wheel should not be re-invented. There are structures which can be used,” he said.

Britain was considering a “number of precedents” in its proposals on how to resolve any future disputes after Britain leaves the ECJ’s jurisdiction in March 2019, a spokeswoman said on Monday.

The EFTA system of enforcing rules is considered to be lighter than that of the ECJ, which has been criticised by British policy makers and British media for being too intrusive.

There is no written obligation for a country’s supreme court to refer to the EFTA court in case of legal uncertainty and the system of enforcing judgments is seen as weaker.

However, EFTA-member Norway has been frustrated with the EFTA court as it has lost several cases.

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The newly-elected Norwegian government has promised to reduce the tax that the previous government had put on goods imported from the EU, such as cheese and meat. The tax is breaches the rules of the EU’s single market, of which the Scandinavian country is a part.

The fact that the court can overrule the Norwegian supreme court in matters relating to EU law has also created a debate on how much influence a supranational body should have in national matters.

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