The court responsible for adjudicating disputes between the EU and Iceland, Liechtenstein and Norway is emerging as a possible solution to the impasse over dispute resolution between the UK and EU after 2019. Carl Baudenbacher, president of the European Free Trade Association Court, will propose to parliamentarians next week that the Luxembourg-based English-language court could extend its remit after Brexit.
Jurisdiction over UK-EU disputes is likely to be a major stumbling block in the negotiations. In its position paper on the issue published last month, the UK government said that any continued role for the Court of Justice of the European Union would be unacceptable.
In a series of talks in London next week Baudenbacher is expected to propose a 'Columbus' egg' solution (after the apocryphal story in which the explorer tackled the apparently impossible task of making an egg stand on one end). The EFTA court, already recognised by the EU, could meet the UK's requirements as a neutral arbitrator. Baudenbacher's office stresses that he will be speaking in a personal capacity.
The EFTA Court was set up in 1992 under an agreement between the European Communities and what were then seven EFTA states: Austria, Finland, Iceland, Liechtenstein, Norway, Sweden and Switzerland. However, it now exercises jurisdiction only of cases involving states that are members of both EFTA and the European Economic Area: Iceland, Liechtenstein and Norway.
Its three judges, who serve terms of six years, are appointed by the governments of Iceland, Liechtenstein and Norway. The judges are be ‘chosen from persons who possess the qualifications required for appointment to the highest judicial offices in their respective countries or who are jurisconsults of recognised competence’.
Cases are referred by national courts and judgments are final and binding - though the court has no means of enforcing its decisions.
Its most recent judgment answered questions referred to it by the Oslo District Court on whether a health insurer can claim compensation from a third party for the costs of medical treatment abroad. The case involved a German national who was injured in a car accident while on holiday in Norway in 2011.