Av Carl Baudenbacher, Monckton Chambers, London, Former President of the EFTA Court
With the publication of the (non-)decision to acquit EFTA Court President Páll Hreinsson of the accusation of bias in the second Fosen case, the missing link in a chain of events has come to light which I – and probably most observers of the EEA – could not have imagined. Now the Norwegian Supreme Court is called for.
The course of events
The backdrop is well known. On 31 October 2019, the EFTA Court held in its Fosen opinion that a simple breach of European public procurement rules may be sufficient to establish the liability of the awarding authority. This went against the Nucleus case law of the Norwegian Supreme Court, which requires a sufficiently serious breach and thus privileges the state. The Nucleus standard is the standard used in State liability cases.
Two Norwegian professors, Finn Arnesen from Oslo University and Halvard H. Fredriksen from Bergen University, launched the fight against the Fosen ruling with a targeted paper. Following their suggestions, the referring Frostating Court of Appeal refused to follow the EFTA Court and the Fosen company brought the case before the Supreme Court. The Norwegian EFTA Court Judge Per Christiansen who was dissatisfied with the Fosen opinion flew to Oslo and in a conversation with Chief Justice Toril Marie Øie invited the Supreme Court to re-submit the case, (https://www.vg.no/nyheter/innenriks/i/0nWKL0/efta-dommer-diskuterte-omstridt-sak-med-hoeyesterett-kan-ha-gjort-seg-inhabil). The Chief Justice passed this information on to the preparing Justice, Bergljot Webster. All this because the EFTA Court has a new composition. I had resigned from the bench and the Icelandic ad hoc judge Benedikt Bogason, who replaced the sick judge Páll Hreinsson in the Fosen case, was no longer present. Christiansen thereby broke his oath to keep the secrecy of the deliberations. It is to be noted that an oath contains a religious component. Per’s hope was obviously that in its new composition the EFTA Court would overrule Fosen I and confirm Nucleus. Justice Webster formulated a “new” referral question which had, however been answered in substance in Fosen I. Her request is based exclusively on the paper of Messrs. Arnesen and Fredriksen and thus has the same shortcomings.
But let us go step by step. In January 2018 the junior judge on the bench Páll Hreinsson and not senior judge Per Christiansen is elected new President of the EFTA Court. Hreinsson appears to do everything in his power to ensure that his colleague Christiansen’s plan can be implemented. This is astonishing, not least because Icelandic law including the case law of the Icelandic Supreme Court is on the same line as the EFTA Court’s Fosen ruling of 31 October 2017. The European Commission had also pleaded accordingly.
The support that Hreinsson gives his colleague is fourfold: First, he leaves Christiansen in peace when the latter travel to Oslo in order to instigate a second reference. Second, he publishes a newsletter sent to all EFTA national judges writing that Fosen is a State liability case which could be the start of a great judicial dialogue between the EFTA Court and the supreme courts of the EFTA States. (Ok, that was probably not such a clever move.) Third, he assigns Fosen II to himself and not to the new Liechtenstein judge Bernd Hammermann. And fourth, when Christiansen suffers an accident in early March 2019, Hreinsson postpones the planned hearing by almost two months to ensure that the majority Hreinsson-Christiansen would not be endangered. According to the Rules of Procedure, a substitute ad hoc judge should have been called. The hearing is re-scheduled for 13 May 2019. The Fosen lawyers file a motion of bias against Hreinsson and the other judges. Contrary to more than 20 years of tradition, Hreinsson refuses to resign from the case. Three days before the hearing, Christiansen suffers a heart attack. Professor Ola Mestad, a next door neighbour of Professor Arnesen and the latter’s predecessor as the director of the University of Oslo Centre of European Law is called as an ad hoc judge.
The decision to call Professor Mestad as an ad hoc judge is taken on Saturday, 11 May 2019. On Monday, 13 May 2019, Professor Mestad who must fly to Luxembourg from Oslo via Frankfurt participates in the hearing. In these few hours he not only finds time to read his way into the complicated case file and to participate in the decision on the motion for bias against President Hreinsson (see below). Mestad is the sole judge to ask questions during the oral hearing. One wonders, of course, how somebody who has not dealt with public procurement law before can manage all this.
Back to the request of the Fosen lawyers that President Hreinsson steps down from the case because of bias. The other two judges, Bernd Hammermann and Professor Mestad, must decide whether Hreinsson is to be excluded. An exclusion is only possible if they are unanimous. On 13 May 2019, Hreinsson presides over the hearing. The decision of the other two judges, who acquitted him, is kept secret.
Rule of law, democracy, separation of powers – trampled underfoot
That court rulings must be published is part of the right to a fair trial guaranteed by Article 6 of the European Convention on Human Rights. This must a fortiori apply to a crucial decision such as the one in question.
What the German Federal Administrative Court stated in a judgment of 26 February 1997 must apply to all European legal systems: By virtue of constitutional law, all courts have the task of making their decisions accessible to the public. “This duty follows from the rule of law including the duty to guarantee justice, the requirement of democracy and also from the principle of the separation of powers: judicial decisions concretize the provisions of the laws; they also develop the law further [….]. For this reason alone, the publication of court decisions has a significance comparable to the promulgation of legal norms. [….] The citizen must also have access to the relevant decisions so that he is at all in a position to influence what he considers to be a dubious legal development with the aim of (law) amendment. [….] Last but not least, it also serves the functioning of the administration of justice for the task of the further development of the law if the publication of court decisions facilitates a scientific discussion.” (https://www.bverwg.de/260297U6C3.96.0, unofficial translation.)
Although the EFTA Court refused to publish the decision, it found its way into the public. On 1 July 2019, Anbud365 printed the ruling (https://www.anbud365.no/). It is now clear why the EFTA Court had kept the decision secret. They knew that this would not hold water. That also sheds light on the Court’s new Registrar Ólafur Jóhannes Einarsson. I cannot imagine anything like this occurring had the former Registrar Gunnar Selvik still been there.
A decision without any reasons
The decision first describes in nine paragraphs the course of events since the proclamation of the first Fosen judgment on 31 October 2019. However, this description already contains only a part of the truth. Nothing is being said about the essence of the first Fosen judgment. The decision is also silent about the astonishing circumstances of the second reference. The assertion in paragraph 6 that Article 42(2) RoP was not applicable in the case of the first illness of Judge Christiansen is simply wrong. Of course an ad hoc judge should have been called and of course this was not done because Christiansen obviously wanted to make sure that the majority of Hreinsson-Christiansen would not be endangered. Hreinsson acted accordingly.
The comments on the legal background, on the other hand, are unobjectionable. They constitute an exemplary summary of the case law of the EFTA Court and the European Court of Human Rights on the issues of judicial independence, impartiality and bias. The respective considerations emphasise that the Court is only lawfully composed if the judges are independent and impartial and that “[a]ny other approach could lead to the erosion of public confidence in the Court” (paragraph 13). The decision also highlights that the EEA Agreement must not only guarantee the rights of individuals and economic operators in the EFTA pillar, but also in the EU pillar (paragraph 14). Reference is further made to the importance of the proper composition of the Court for the safeguarding of the democratic order (paragraph 15).
Paragraphs 17 to 20 of the decision deserve to be reproduced verbatim:
“17 Impartiality itself denotes the absence of prejudice or bias. The European Court of Human Rights has found that the existence of impartiality must be determined first, according to a subjective test, where regard must be had to the personal conviction and behaviour of a particular judge, that is, whether the judge held any personal prejudice or bias in a given case; and, second, an objective test, that is to say that by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt of its impartiality (ECtHR, judgment in Appl. No. 38191/12, A.K. v Liechtenstein, § 65 and the case law cited).
18 As regards the subjective test, it must be recalled that the personal impartiality of a judge must be presumed until there is proof to the contrary (A.K. v Liechtenstein, cited above, § 66 and the case law cited).
19 As regards the objective test, even appearances may be of a certain importance or, in other words, “justice must not only be done, it must also be seen to be done”. What is at stake is the confidence which the courts in a democratic society must inspire in the public (A.K. v Liechtenstein, cited above, § 67 and the case law cited).
20 In other words, judicial recusal is not a matter of discretion. The test for determining apparent bias is this: if a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the judge was biased, the judge must be recused. That test is to be applied having regard to all the circumstances of the case.”
After these important considerations, one would have expected a subsumption of the facts under the legal norms. Instead, the decision states in paragraph 22:
“Having given full and proper consideration to Fosen-Linjen’s submissions, and having regard for paragraphs 14 to 21 above, and the case-law cited, the Judges consider that President Páll Hreinsson fulfils the requisite requirements as to impartiality in Case E-7/18 Fosen-Linjen AS, supported by the Confederation of Norwegian Enterprise (Næringslivets Hovedorganisasjonen, NHO) v AtB AS.”
Not a single reason is given. This is not a decision, but a non-decision. There is a clear violation of Fosen’s right to a fair trial as guaranteed by Article 6(1) of the European Human Rights Convention.
The Fosen Saga is a serious attack on the integrity of the EFTA Court. It amounts, as Professor Mads Andenæs QC has written, to an attempt to fix a trial in advance (https://www.linkedin.com/in/carl-baudenbacher-91410688/detail/recent-activity/). Andenæs’ view is particularly important because with his outstanding academic career in the United Kingdom he’s got the English DNA. England is the country that first guaranteed the principle of judicial independence. English judges are still exemplary today. Mads’ contributions are in striking contrast to the lack of sensitivity shown by many actors and commentators of the Fosen fiasco.
Fosen is not the first attack on the EFTA Court’s integrity. Three years ago, the Norwegian government tried to shorten the term of its judge from six to three years in violation of the ESA/Court Agreement. The attempt failed because it was opposed by courageous Norwegian scholars, the EFTA Surveillance Authority, the Norwegian Judges Association, the Icelandic Judges Association, the Liechtenstein Court of Appeal and the EFTA Court itself (Baudenbacher, Judicial Independence, Chapter 28). The Fosen assault was harder to parry. Following the disaster in STX, (EFTA Court E-2/11 and Norwegian Supreme Court nr. 2012/1447), the theoretical possibility of refusing to follow the EFTA Court was discarded as an option. Instead, a revisionist approach was adopted which seemed promising because there were confederates in the EFTA Court itself. It was thus not easy to establish the facts.
In the meantime, however, the facts are established. Since the reference involved the violation of the oath of an EFTA Court judge, it should be declared inadmissible. However, it is unlikely that the EFTA Court in its current composition will make such a decision.
Hreinsson was acquitted of the accusation of bias by a decision with no reasons, i.e. by a non-decision. How can one then say that the bench in Fosen II was lawfully composed?
Any opinion of the EFTA Court in Fosen II which would differ from the ratio decidendi of Fosen I would be tainted. If the Supreme Court wants to get out of this unpleasant situation, it has only two options: Either it withdraws the reference, as Professor Mads Andenæs QC has suggested (https://www.vg.no/nyheter/innenriks/i/0nWKL0/efta-dommer-diskuterte-omstridt-sak-med-hoeyesterett-kan-ha-gjort-seg-inhabil). Or it ignores a different Fosen II opinion and follows Fosen I. This will be all the easier since Fosen I is celebrated as a landmark ruling of pan-European significance by independent scholars and practitioners of public procurement law all over the globe. This was again confirmed at the leading conference in public procurement law which was chaired by the number one authority in the field Professor Sue Arrowsmith QC in Nottingham on 17 and 18 June 2019. Fosen I is in line with the case law in countries such Denmark, Germany, France, Iceland, but also the fourth EFTA State Switzerland and it is not likely that the ECJ will adopt a different position in a future parallel case.
Om Fosenlinje-saken, se også: