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  • Writer's pictureefta-studies.org
    • Mar 19

Transparency and efficiency in Advisory Opinion Cases before the EFTA Court

Comments on the EFTA Court’s proposal to abolish the Report for the Hearing in Advisory Opinion cases.

 

The EFTA Court has recently opened for Consultation on the future of the Report for the Hearing in Advisory Opinion Cases. The Court’s proposal is simply to do away with the report for the hearing in such cases, in the interest of efficiency. According to the Court, drafting, revision and translation of the report for the hearing generally accounts for around 4–6 weeks in the handling of each request for an advisory opinion at the Court. The Court currently endeavours to complete these cases in 8–11 months but would like to be able to give its answer to the referring national court even quicker in future, presumably hoping that this will increase the number of requests for Advisory Opinions.

Authors: Ingrid Barlund, Christian N.K. Franklin, Halvard Haukeland Fredriksen, all Centre on the Europeanization of Norwegian Law (CENTENOL), University of Bergen

 

The consultation builds on the Court’s decisions in 2020-21, applicable to all requests registered at the Court as of 1 January 2021, to publish all requests for Advisory Opinions as well as all written observations submitted to the Court in such cases on its website,. Together with the Court’s decision post covid to continue to stream the oral hearings, this contributes to enhancing the transparency of the judicial dialogue between the Court and the national courts in the EFTA States. The Court’s justification for the current proposal is quite simply that the report for the hearing is no longer needed to ensure transparency of the proceedings.

 

As academics with a keen interest in EEA law in general, and the workings of the EFTA Court in particular, we take the opportunity to present some thoughts on the proposal and the balancing of transparency and efficiency in Advisory Opinion cases more generally.

 

  1. The endeavour to shorten the time a national court or tribunal must wait for an answer from the EFTA Court is to be welcomed. It is unfortunate that the average time it takes the EFTA Court to answer the questions put to it, appears to be on the rise. The oldest case still pending before the EFTA Court is a case where the request for an advisory opinion was received in November 2022, more than 15 months ago (E-13/22). If the EFTA Court is to attract more referrals in the years to come, the time the national court has to wait for an Advisory Opinion needs to come back down to around 8-10 months. Of course, even more can (and should) be achieved on this front by the EFTA States working together to increase the number of judges and staff at the Court itself. Not only would an increase in manpower significantly contribute to developing an even stronger collegiate body and legal environment at the Court, but it would almost certainly bring the time for dealing with cases down even further.

  2. It is true that the added value of the report for the hearing is very limited once the written observations haven been published. Unfortunately, however, the written observations are only published after the Court has delivered its Advisory Opinion. Provided that this is now changed, in line with the established practice of prominent international courts such as the International Court of Justice, the International Tribunal for the Law of the Sea and the International Criminal Court, we have no objections to abolition of the report for the hearing in Advisory Opinion cases. If the Court intends to keep the written submissions out of the public eye until the case is closed, however, it will make it more difficult for outside observers to follow the oral hearing. It will also make it impossible for academics, journalists, politicians and the public at large to access and, if need be, criticise the positions to be taken by e.g. one’s own government in the oral hearing.

  3. Admittedly, the current very short version of the report for the hearing does not contain any record of the arguments set out in the written observations, only the proposed answers by each participant. If the written observations are published ahead of the oral hearing, this is not a problem. However, if the Court decides to stick to the current practice of delayed publication of the written observations, a return to the previous practice of proper reports for the hearing is needed to ensure transparency in the judicial process. In order to reduce time and costs for the Court, perhaps a certain part of the onus here might be placed directly on the parties/interveners to the case to submit a short summary of its main arguments along with its written observations to begin with? And perhaps even better – to simply require that (at least the summaries) be delivered exclusively in the English language?

  4. As noted by Franklin et al, Transparency in the judicial proceedings before the EFTA Court, EFTA-Studies.org (2021) it is difficult to see how the serenity of the judicial deliberations can prevent publication of the written observations prior to delivery of judgment. Given that comprehensive reiterations of the arguments set out in the written observations of all parties were previously (until 2021) included in the Report for the Hearing, and thus made public before the oral hearings, the same ought to apply for the publication of written observations on the Court’s website. Debate that such swift publication might entail would contribute to wider discussion and dissemination of the issues at stake in a given case, thereby further enhancing the public’s general awareness and understanding of the Court’s work.

  5. An alternative or, if the publication of the written observations is moved forward, additional, reform proposal to speed up the Advisory Opinion procedure would be to simplify the language regime. The working language of the Court is English, and all users of the Court’s case-law ought to read the decisions in English. Our experience is that the Norwegian translations of the Advisory Opinions to Norwegian courts and tribunals are not always the best, and we therefore always advise students, colleagues and practitioners to read and rely on the original English version. Whilst understanding that language questions can be sensitive, we suggest that the referring court or tribunal at least be given the opportunity to opt for an answer to be given only in the English language in cases where a swift reply is more important than an answer in e.g. Norwegian. As the European Court of Human Rights gives its advisory opinions under Protocol 16 to the European Convention on Human Rights in English and/or French only, the EFTA Court should be able to stick to English also in Advisory Opinion cases, at least as long as the referring judge considers this unproblematic.

  6. The transparency in the judicial process would be improved further if the publication of the requests for Advisory Opinions were supplemented by any subsequent exchange between the EFTA Court and the referring court under Article 97(4) of the Court’s Rules of Procedure, whereby the Court may ask the referring court for clarifications.

  7. To ensure transparency in cases where the Court asks the parties to a case for supplementary observations, these – along with the requests made by the Court – should also be published in full on the Court’s website.

 

 

Authors

Ingrid Barlund, University of Bergen

Christian N.K. Franklin, University of Bergen

Halvard Haukeland Fredriksen, University of Bergen

 

How to cite

Barlund, Ingrid; Franklin, Christian N.K.; Fredriksen, Halvard Haukeland, Transparency and efficiency in Advisory Opinion Cases before the EFTA Court (2024). Blog. EFTA-Studies.org.

 

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