Mind the (Homogeneity) Gap: Independence of Referring Bodies Requesting Advisory Opinions from the EFTA Court

Graham Butler*

*Corresponding author for this work

Research output: Contribution to journalJournal articleResearchpeer-review

Abstract

How independent must referring bodies be in a European Free Trade Association (“EFTA”) state applying the European Economic Area (“EEA”) Agreement, for the purposes of requesting an advisory opinion from the EFTA Court? To answer the question, one must pay attention to not only the case law of the EFTA Court; but also the case law of the Court of Justice of the European Union (“CJEU”) in a comparative perspective. This is because EEA law rests on the fundamental principle of homogeneity with European Union (“EU”) law. To date, the EFTA Court and the CJEU have diverged on their understanding of the independence of referring bodies, particularly tribunals, with the CJEU placing greater weight on the criterion of independence, whereas the EFTA Court cares far less about this factor. This Article unequivocally sides with the CJEU, and argues that the case law of the EFTA Court is deficient, and in need of rectification. Consequently, to close the homogeneity gap that has opened up between EU law and EEA law, this Article argues that the EFTA Court will have to bring its own case law into line with the CJEU, to ensure that judicial dialogue in the EEA between the EFTA Court and referring tribunals shall be dialogue between independent actors.
Original languageEnglish
JournalFordham International Law Journal
Volume44
Issue number2
Pages (from-to)307-352
ISSN0747-9395
Publication statusPublished - Dec 2020
Externally publishedYes

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