Av Carl Baudenbacher, Monckton Chambers London, Former President of the EFTA Court
Anbud365 gir deg bakgrunn for Baudenbachers artikkel:
Den såkalte Fosenlinje-saken er blitt kontroversiell langt utover anskaffelsesmiljøet. Sakens bakgrunn er en tvist etter en anbudskonkurranse om fergetjenester utlyst av kollektivtransportselskapet AtB i 2012. Saken står nå for Høyesterett, som har bedt EFTA-domstolen om en uttalelse. Saken har også tidligere vært innom EFTA-domstolen, men lagmannsretten som da spurte, valgte ikke å følge EFTA-domstolens tolkning. Det er to sentrale spørsmål i saken:
– hvilke vilkår som skal gjelde for å få tilkjent erstatning for positiv kontraktsinteresse ved brudd på anskaffelsesreglene.
– om vilkårene for slik erstatning samsvarer med forpliktelsene som Norge har pådratt seg gjennom EØS-avtalen. Det er også uklart hva disse forpliktelsene i det hele tatt innebærer. Saken aktualiserer også en langvarig rettslig usikkerhet i norsk rett.
En rivende strid mellom ulike fagjuridiske miljøer har utspunnet seg og utspinner seg i sakens anledning. Sentral i striden er tidligere president i EFTA-domstolen, Carl Baudenbacher. Han ledet domstolen da norsk lagmannsrett valgte ikke å følge råd fra EFTA-domstolen.
I den følgende artikkelen dokumenterer han sitt syn på saken. Her hamrer han løs på navngitte norske juristers uttalelser, synspunkter og handlemåter – og på den norske regjeringen. Fosen-historien er et alvorlig angrep på EFTA-domstolens integritet, skriver han, og dette er ikke det første angrepet på EFTA-domstolen fra norsk hold. Men, «I am aware that it is unusual for a former President of the EFTA Court to write such a contribution. But unusual circumstances require unusual actions.»
Anbud365 har valgt å publisere hele denne omfattende artikkelen i originalspråket.
In the first Fosen case, E-16/16, the EFTA Court held on 31 October 2017 that under the so-called Remedies Directive (Directive 89/665/EEC), a simple breach of European public procurement law may in itself be sufficient to trigger the damages liability of a contracting authority. It is quite clear that this finding refers to both the negative and the positive contractual interest. The theory that the breach had to be “sufficiently serious” because the rules on State liability applied, was, contrary to the Norwegian government’s argument, rejected. The EFTA Court consisted of myself as President and Judge Rapporteur, the Norwegian Judge Per Christiansen and the Icelandic Ad hoc Judge Benedikt Bogason. Bogason, a Justice on the Supreme Court of Iceland, replaced Judge Páll Hreinsson who was ill at the time. I resigned from the EFTA Court in the Spring of 2018. Judge Hreinsson who had recovered became President. On 19 November 2018, the Supreme Court of Norway made a second reference of the Fosen case (E-7/18).
Fierce resistance right from the start
Fosen’s lawyer Anders Thue was cited in Verdens Gang (“VG”) of 10 May 2019 with the words that there is a lot that is special in this case (https://www.vg.no/nyheter/innenriks/i/0nWKL0/efta-dommer-diskuterte-omstridt-sak-med-hoeyesterett-kan-ha-gjort-seg-inhabil?utm_source=recirculation-matrix&utm_content=jdkQyn). He is right on that. The particularities started with a rather aggressive attack on the EFTA Court’s Fosen opinion by Professors Finn Arnesen and Halvard Haukeland Fredriksen only two weeks after its announcement (https://www.anbud365.no/efta-domstolens-uttalelse-erstatningsansvar-brudd-pa-anskaffelsesreglene-star-na/). In their essay, they contended that the judgment was in direct contradiction to the Nucleus judgment of the Norwegian Supreme Court (Rt. 2001 p. 1062; confirmed in Rt. 2008 p. 1705 Traffic and Construction (Trafikk & Anlegg). According to Nucleus, an error must be significant for the positive interest in the contract to be claimed. The notion of significant error is according to my understanding identical in substance to the notion of “sufficiently serious breach”. Traffic and Construction even referenced the ECJ’s State liability case law, inter alia, C-46/93 and C-48/93 Brasserie du Pêcheur. If the EFTA Court deviated from the Norwegian Supreme Court’s view in such a case, the two scholars went on, it had to deal with that view. Three things must be said about the accusation that the EFTA Court did not discuss the Supreme Court’s case law. Firstly, there is no provision in EEA law requiring the EFTA Court to consider the case law of national supreme courts in the EEA/EFTA States. Secondly, the EFTA Court did indeed deal with the Supreme Court’s theory on the merits, even though it did not mention the Nucleus judgment in the reasons. And thirdly, had the Supreme Court shown the same eagerness to seize the EFTA Court in the two cases Nucleus and Traffic and Construction as it did in Fosen II, a lot of bad blood could have been avoided.
In the two cases C-314/09 Strabag and C-568/08 Combinatie, the 3rd and the 2nd Chamber of the ECJ came to apparently contradictory conclusions. The Strabag chamber opted for strict liability whereas the Combinatie chamber thought that the more lenient State liability standard should apply. In order to save the Norwegian Supreme Court’s Nucleus case law, Profs. Arnesen and Fredriksen engage in seemingly skilful interpretation of the two rulings. They also point to the fact that Combinatie was rendered after Strabag. This kind of argument is not convincing.
There were roughly only two months between the delivery of Strabag by the ECJ’s 3rd Chamber and of Combinatie by the ECJ’s 2nd Chamber. Combinatie was already pending months before Strabag arrived at the ECJ. In view of this, an outside observer may wonder why the two cases were decided the way they were. There are a number of possible answers to this questions and an even bigger amount of explanations for the (in-)compatibility of Strabag and Combinatie. Most of these views have been pleaded before the EFTA Court in Fosen I, as can be inferred from the Report for the Hearing.
The fact remains that – due to the secrecy of vote which unlike at the EFTA Court is taken seriously at the ECJ – it is impossible for an outsider to give a definite answer to any of these questions. As an academic you are at liberty to guess. But as a judge, you must decide. And when you decide you should not put words in the mouth of other judges. The EFTA Court did thus not comment on the different views that were expressed as to the compatibility of two ECJ judgments. Its task is not to guess what the two chambers of the ECJ could have meant when rendering their judgments. It may be added, though, that the EFTA Court in Fosen I refers to both Strabag and Combinatie in its reasoning. All this shows that the EFTA Court had to make a decision. It did so and it gave broad reasons.
The central idea of Fosen I is that privileging the State can only be justified if it is acting in State functions, for example when the legislature is implementing EEA law or when a court applies EEA law. Contrary to what Profs. Arnesen and Fredriksen assert, the fact that the subdivision of State action into the two categories sovereign acts – acta jure imperii – and commercial activities – acta jure gestionis is not to be found in the case law of the ECJ on state liability is irrelevant. The EFTA Court is not the slave of the ECJ and it is well known that its judicial style differs from that of the ECJ in that it gives more comprehensive grounds for its judgements (Carl Baudenbacher, Judicial Independence. Memoirs of a European Judge, 2019, Chapter 27). A finding such as the one in question is an important contribution to the case law in the whole EEA. Experience shows that the Commission, the ECJs Advocates-General, the ECJ, and indeed the national courts in the EFTA pillar appreciate this style.
The EFTA Court held that corrections may be made by an appropriate interpretation of the causality requirement. In paragraph 101, it expressly stated that “there must be a balance between the different interests at stake. While liability of the contracting authority for any errors committed promotes, in principle, the overall compliance with the applicable legal framework, exaggerated liability of the contracting authority could lead to excessive avoidance costs, reduce the flexibility of the applicable framework and may even lead to the unjust enrichment of an unsuccessful tenderer. Furthermore, excessive liability may provide an incentive for a contracting authority to complete award procedures, that were evidently unlawful, or impinge upon the freedom to contract” (see in that regard Sven Erik Svedman, The Enforcement of the EEA Agreement by the EFTA Surveillance Authority: Enhancing Welfare and Prosperity, in: Festschrift for Carl Baudenbacher, 2019, 65, 73).
As any complex EFTA Court case, Fosen I was not a matter of legalistic gymnastics. We are rather talking about sturdy economic interests. The approach of the EFTA Court is the only approach that guarantees both a fair result and an efficient use of scarce resources. It is also the only approach that avoids moral hazard, which would materialize if public procurement bodies were allowed to make mistakes without bearing the consequences. People who attended the hearing in the second Fosen case reported that the Commission put a lot of emphasis on this point. If one were to opt for a requirement that there must be a “sufficiently serious” or a “material breach”, things would become blurred. It would then be quite easy to deprive an aggrieved bidder from obtaining damages for the positive contract interest. There are plenty of cases in the Member States of the EU and the EEA/EFTA in which an injured party was refused damages on the grounds that a breach of the law was deemed not to be sufficiently serious. The most famous is probably the German Beer Purity Law case (ECJ 178/84), where the German Supreme Court concluded that a sufficiently serious infringement which would have directly caused the alleged damage could not be established (III ZR 127/91, judgment of 24 October 1996). As regards EEA law, Case E-6/00 Jürgen Tschannett may be mentioned where the Liechtenstein Supreme Court denied compensation twice holding, inter alia, that the breach of EEA law committed by Liechtenstein was not sufficiently serious (Supreme Court CO.2004.2-25 ) and CO.2004.2-38 ).
Profs. Arnesen and Fredriksen blame the EFTA Court for not having taken into account the case law of the Supreme Courts of the UK and Sweden. In fact, these judgments are not mentioned. But that does not mean that the Fosen I ruling is not correct. The verdict of the UK Supreme Court in Nuclear Decommissioning Authority (https://www.supremecourt.uk/cases/docs/uksc-2016-0006-judgment.pdf) is, with respect, not a masterpiece (see, for example, the criticism by Totis Kotsonis at https://www.lexology.com/gtdt/workareas/public-procurement/content/ef348ffe-6053-457f-a7dc-1ec138c20b9). Of course one can try to reconcile the two judgments Strabag and Combinatie issued by two different chambers of the ECJ by way of interpretation, as the Supreme Court did. What is decisive, however, is that the Supreme Court was under Article 267(3) TFEU obliged to refer the case to the ECJ for a preliminary ruling. The conditions for the assumption of an acte claire, which must be fulfilled if a national supreme court wishes not to seize the ECJ despite this obligation were not fulfilled (ECJ Case 283/81 Srl CILFIT v Ministry of Health). Even if it is true that national courts of last resort enjoy a certain discretion in that regard, the Supreme Court should have analyzed at least the case law of the most important other national supreme courts. The Supreme Court didn’t do that. Had it done so, it would have found that only the Supreme Court of Sweden was (more or less) on the State liability track (NJA 2016, p. 358).
Profs. Arnesen and Fredriksen have essentially committed the same sin: They selected the legal systems that support their preconceived view and ignored those which adhere to other solutions. This is not what comparative law is about (see, in particular, Notre Dame Professor Roger P. Alford, Misusing International Sources to Interpret the Constitution, 98 Am. J. Int’l L. 57 (2004), 57, 66 ff. https://scholarship.law.nd.edu/law_faculty_scholarship/565 – Alford is currently on leave serving as the Deputy Assistant Attorney General for international affairs with the Antitrust Division of the U.S. Department of Justice).
In his comparative study from 2011 “Basis and Conditions for a Damages Claim for Breach of the EU Public Procurement Rules” (in: Duncan Fairgrieve/François Lichère eds., Public Procurement Law: Damages as an Effective Remedy, 149 ff.), University of Copenhagen Professor Steen Treumer comes to the conclusion that limiting damage claims to “sufficiently serious” breaches is pretty much a Norwegian-Swedish thing. The Danish Complaints Board for Public Procurement found in a ruling of 8 March 2005 that the conditions are the same as in the general law on damages which does not contain a “sufficiently serious” hurdle (Treumer, loc. cit., 159).
The large EU states Germany and France clearly tend to strict liability. In Germany, there are several ways for a bidder to obtain damages after mistakes were made by the awarding authority (see, for example, Hanna Schebasta, Damages in EU Public Procurement Law. Case Study Germany, 2016, 117 ff.). § 181 GWB (Gesetz gegen Wettbewerbsbeschränkungen, Act Against Restraints of Competition) states under the heading: “Claim for Damages Arising from Reliance”: “If the contracting authority has violated a provision intended to protect undertakings, the undertaking may claim damages for the costs incurred in connection with the preparation of the tender or the participation in a procurement procedure if, without such violation, the undertaking would have had a real chance of being awarded the contract after assessment of the tenders, and provided that such chance was impaired as a consequence of the violation. Further claims for damages shall remain unaffected.” (Emphasis added.) The last sentence clearly refers to the positive contractual interest. Such claims may be based above all on § 280(1) BGB (Bürgerliches Gesetzbuch, Civil Code) in conjunction with §§ 311(2), 241(2) BGB (pre-contractual obligation). Further possible bases are tort law and competition law including Articles 101 and 102 TFEU (an example for the liberal approach of the Bundesgerichtshof is X ZR 143/10 of 9 June 2011, http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&sid=4febe785c0a6a14ae9129331c21011b6&nr=57031&pos=0&anz=1&Blank=1&file=dokument.pdf.).
There are also several possible bases for claims in France: Pre-contractual (“le reféré précontractuel”), contractual (“le reféré contractuel”) and abuse of power (“le recours pour excés de pouvoir”). All in all, there is strict liability: Illegality of the authority’s decision means fault on the part of the authority (“responsabilité sans faute”). The rules applying to damages for breach of EU public procurement provisions are the ones that apply in normal public tort law. As Professor Nicolas Gabayet wrote: “This liability is not specific to breaches of public procurement procedures. [….] To be awarded damages, the claimant simply has to prove three things: a breach of a procurement provision during the tendering procedure, loss and a causal link between the two. There is nothing else – such as negligence, intention or breach of a duty of care to prove.” (Damages for Breach of Public Procurement Law. A French Perspective, in: Duncan Fairgrieve/François Lichère eds., loc. cit., 7 and 8). This also applies to the positive contract interest (Gabayet, 8 ff., with summary of the case lase.)
When we look to the EFTA pillar, in Iceland the normal tort rules apply without there being an extra barrier of a need to demonstrate a “serious” breach (Article 119 of the Act No. 120/2016 on Public Procurement; see last the judgment of the Supreme Court 618/2016 of 21 Sept 2017; also Skúli Magnússon, Complaints and Remedies in Public Procurement: The Icelandic Model, in: EU´s Udbusregler, Jurist- Ökonomsforbundets Forlag 2006, 147 ff.). And when we look to EFTA at four, the legal situation in Switzerland is similar (https://www.basler-liberale-nachrichten.ch/download/bln_25_17_dezember_2017.pdf). A serious comparatist would have taken account of all this.
It fits into the picture that the two critics have hushed up the position of the European Commission. As regards Combinatie, the Commission stated at the hearing in Fosen I that “it was questionable whether [….] [the illegality under public procurement law] was attributable to the contracting authority, a court, or a third party. This was an issue that was to be decided under Dutch law. Accordingly, Combinatie rightfully provides a rather reserved view on the issue of damages” (Fosen I, para 60).
The Commission concluded that “the attempt to ‘re-import’ a condition from general principles to the Remedies Directive is a matter of concern. The Remedies Directive harmonises remedies. The general principle of State liability should apply only by default where there is no such harmonization. As damages are frequently the only remedy available, they should not be made more difficult or less advantageous to obtain than the other types of remedies provided for by the Remedies Directive. This was confirmed by the ECJ in Strabag and Others. The Remedies Directive is clear on the point that any infringement of public procurement law should be followed up and should not be left unattended because the breach is not ‘sufficiently serious’.” (Fosen I, paragraph 59.)
The ECJ has given increasing importance to the right to an effective remedy when dealing with the Remedies Directive, in judgments such as Stadt Halle (C-26/03) The right to an effective remedy is also the guiding principle of the EFTA Court’s judgment: The Court held, inter alia, that “while it is preferable that a breach of public procurement law will be corrected before a public contract takes effect, there may be cases where such a breach can only be remedied by way of damages” (Fosen I, paragraph 73). And against the background of the fundamental right to an effective judicial remedy, the EFTA Court found that “it must be possible for unsuccessful tenderers to obtain a judgment finding a breach of the EEA rules on public procurement law, even in circumstances in which the other remedies provided for by the Remedies Directive are excluded” (Fosen I, paragraph 74).
On balance, the EFTA Court concluded that the State liability standard was not the appropriate standard in a case such as the one at hand. State liability was only recognized (one may say “invented”) by the ECJ after the adoption of the Remedies Directive. The Directive dates from 21 December 1989 and the ECJ’s first State liability judgment, C-6/90 and C-9/90 Francovich and Bonifaci, was delivered two years later, on 19 November 1991. Finally, attentive readers will note that the ECJ in Combinatie predominantly referred to cases involving general principles. In fact, there is only one public procurement law case quoted by the ECJ in Combinatie, C-351/01 GAT. In Strabag there is almost no paragraph which does not refer to cases which were rendered in the public procurement context; however, Strabag does not refer to a single State liability case.
As regards legal doctrine, one could have expected that the view of University of Copenhagen ProfessorSteen Treumer would have been taken into account. Treumer complained about the confusion arising from the Strabag and Combinatie judgments (loc. cit., 159 ff.). Importantly, Professor Kai Krüger, arguably the leading scholar in Norwegian public procurement law, criticised the Nucleus standard in 2012 and questioned “whether the high level for liability laid down in Nucleus is in accordance with the enforcement effectiveness policies underlying the EU remedies regime as in Dir 89/665” (Compensation for Procurement Damage: A Nordic Exposé, fn. 99, http://www.scandinavianlaw.se/pdf/57-9.pdf). As far as I know, there is no general requirement that a violation of the law by the Norwegian administration must be serious in order for citizens and businesses to be able to claim damages. From the point of view of the consistency and coherence of the legal system, it is difficult to see why procurement law should be different.
In view of all this, I was a little surprised at Mr. Arnesen’s statement that the first Fosen judgment was “bad legal handcraft” (“dårleg juridisk handtverk”) (Nationen of 5 April 2019, https://www.nationen.no/eu/jusprofessor-finn-arnesen-avviser-omkamp-i-anbodsrunde-saka/). Scholars should be careful with such reproaches, especially if they themselves approach things in such a parochial way.
In the meantime, University of Nottingham Professor Sue Arrowsmith, arguably the leading authority of European public procurement law, has clearly taken the side of the Fosen I judgment. In her standard book “The Law of Public and Utilities Procurement Volume 1 & 2, Regulation in the EU and the UK, 3rd eds., 2018”, she meticulously analyses the ruling on not less than 9 pages (1045 to 1053). Professor Arrowsmith states, inter alia, that Fosen I is on the same line as Advocate General Cruz Villalón’s view in Combinatie that since “it must, in practice, be possible to make reparation of damage in the case of a breach of European Union law, the total exclusion of loss of profit as a head of damage cannot be accepted” (point 110 of the Opinion). She also mentions that in Combinatie the issue of whether a sufficiently serious breach was required was not in fact relevant. Arrowsmith concludes that the criteria used to determine what is a sufficiently serious breach are liable to lead to confusion and uncertainty. “Further, the logic of the Remedies Directive arguably indeed suggests the conclusion reached by the EFTA Court.”(1050.) Finally, the author also concurs with the EFTA Court’s considerations on causality.
One might have expected that Profs. Arnesen and Fredriksen who continue their crusade against Fosen I to this day would have dealt with this well-founded view (see regarding Arnesen https://www.nationen.no/eu/jusprofessor-finn-arnesen-avviser-omkamp-i-anbodsrunde-saka/; regarding Fredriksen https://www.jus.uio.no/ifp/forskning/arrangementer/privatrettssymposiet/2019/presentasjoner/harald-haukeland-fredriksen.pdf).
The invitation to re-submit the case
According to Profs. Arnesen and Fredriksen, the impact of an EFTA Court advisory opinion depends on whether it is able to convince Norwegian courts. In view of the duty of loyalty laid down in Article 3 EEA, this is a remarkable statement. It is an expression of orthodox dualism that is incompatible with the very purpose of the EEA Agreement to create a homogeneous and dynamic European Economic Area, a barely hidden call to disloyalty. Fosen I, Arnesen and Fredriksen asserted, leaves so many unanswered questions that it is not particularly suitable to convince Norwegian judges. Frostating Lagmannsrett understood the message and refused to follow the EFTA Court. On 2 March 2018, it rejected the Fosen company’s claim for damages for its positive contract interest, although the company was granted NOK 1.5 million in damages for its negative contract interest. That Frostating disregarded the Supreme Court’s case law according to which EFTA Court opinions must be given essential weight “(vesentlig vekt”; see Rt. 2000 1811 Finanger I), is only a passing remark.
Profs. Arnesen and Fredriksen also touched upon the question of whether in view of the alleged unsatisfactory result in Fosen I, a second reference to the EFTA Court should be made. But they came (in November 2017) to the conclusion that given the clarity of the Fosen I judgment, it was not very likely that a second request would bring anything new. However, after I announced my resignation by the end of March 2018, the opponents of Fosen I sensed that there could be a new ball game. In fact, on 5 March 2018 Professor Fredriksen proposed a second reference (https://rett24.no/articles/-bor-sendes-tilbake-til-efta). As mentioned above, also the Icelandic Ad hoc Judge Benedikt Bogason was no more there.
The Fosen company appealed Frostating’s judgment to the Supreme Court of Norway. In May 2019, Chief Justice Toril Marie Øie confirmed to the newspaper Verdens Gang that senior EFTA Court Judge Per Christiansen visited her in the winter of 2018 and said that the EFTA Court would not take it badly if the Supreme Court requested a clarification of its earlier opinion in the Fosen case. The Chief Justice passed this information on to Justice Bergljot Webster (https://www.vg.no/nyheter/innenriks/i/0nWKL0/efta-dommer-diskuterte-omstridt-sak-med-hoeyesterett-kan-ha-gjort-seg-inhabil). The latter formulated the question whether the Remedies Directive 89/665/EEC requires “that any breach of the rules governing public procurement in itself is sufficient for there to be a basis of liability for positive contract interest”. On 19 November 2018, the Norwegian Supreme Court referred this question to the EFTA Court. None of the parties had requested the reference. The decision was largely based on the essay of Messrs. Arnesen and Fredriksen. Reference was made to the case law of the Supreme Courts of the UK and of Sweden, but no other jurisdiction was cited (https://www.domstol.no/globalassets/upload/hret/artikler-og-foredrag/brev—anmodning-om-radgivende-uttalelse.pdf). Already on the next day, at 6:18 h, Professor Arnesen commented on the reference decision praising Justice Webster to the skies. That’s elegantly done, he wrote, in particular because the Supreme Court underlines that the EFTA Court appears to have overlooked both Swedish and British case law and because it points to the (sc. alleged) inner inconsistencies (indre inkonsekvensene) in the decision (https://rett24.no/articles/her-er-hoyesteretts-sporsmal-til-efta-domstolen).
Professor Arnesen asserted that the Supreme Court’s question was different from Frostating’s questions (https://www.nationen.no/eu/jusprofessor-finn-arnesen-avviser-omkamp-i-anbodsrunde-saka/). Of course, that is not decisive. What is decisive is that, as every reasonable and unbiased reader will easily understand, the EFTA Court’s judgment answered the question in the affirmative whether the positive interest may be due. In over 50 cases and indeed in Nucleus and in Traffic and Construction, the Supreme Court dared to decide cases which raised much more difficult problems without asking questions from the EFTA Court (see Halvard Haukeland Fredriksen, EU/EØS-rett i norske domstoler – Europautredningen, http://www.europautredningen.no/wp-content/uploads/2011/04/Rap3-domstoler.pdf). Given the circumstances, in particular the role played by Judge Christiansen, it has to be concluded that the goal of the second reference was to invite the EFTA Court to overrule Fosen I.
On 13 January 2011 Christiansen had taken the oath to keep the secrecy of the deliberations. This includes the secrecy of the vote. His conduct is incompatible with this oath. To my knowledge there is no precedent, but the question arises whether the second reference is inadmissible.
Taking a substantive stand in advance
Officially Christiansen flew to Oslo in order to take part in a “judicial lunch” (https://indd.adobe.com/view/b67e060d-e966-481a-9010-ba2b9c9b2a3f, page 32). But this only served to camouflage the main purpose of his visit, to instigate a second reference. Of course this could not remain hidden. But nobody stopped Christiansen. However, that was not all.
For New Year 2019, President Hreinsson sent a newsletter to the national courts of the EEA/EFTA States in which he described the Fosen case as a State liability case. He thus took a substantive stance on the matter in advance. The respective passage reads: “The Norwegian Supreme Court has recently referred a question concerning the threshold for State liability in public procurement law.” With this, the President made it clear that he wanted the first Fosen opinion which had rejected the State liability standard to be overruled.
Steering the Court’s composition
But not even that was all. Around 10 March 2019, Judge Christiansen was hit by a falling tree and had to be hospitalised. President Hreinsson decided to postpone the hearing which had been scheduled to take place on 21 March 2019 to 13 May 2019, a date on which Christiansen would be operational again. According to Article 42(2) of the Court’s Rules of Procedure, the President may in special circumstances, after hearing the parties, either on his own initiative or at the request of one of the parties, defer a case to be dealt with at a later date. That illness of a judge is no special circumstance follows from the fact that the EEA/EFTA States have set up a list of ad hoc judges who are supposed to sit in case a regular judge becomes ill or is biased. It has in the 25 years of the EFTA Court’s existence never happened that a hearing was postponed by almost two months because of illness of a regular judge. The contention that the President was at liberty to postpone the hearing is wrong. The decision was obviously taken in order to secure a majority Hreinsson-Christiansen which would overrule Fosen I. The assertion that whether to postpone a hearing or not is at the discretion of the President is wrong. And even if it were, there would have to be objective reasons. Discretion is not a carte blanche for arbitrary decisions
Fortunately, Judge Christiansen recovered from his accident, but three days before the hearing, which was scheduled for 13 May 2019, he suffered a heart attack. He had not stepped down from Fosen II although his bias had become obvious after the confession of Chief Justice Øie. This time the hearing was not postponed. Christiansen was replaced by ad hoc Judge Ola Mestad who is working in the same institute as Professor Arnesen. This was possible at very short notice. I emphasize this because Mr. Arnesen, who obviously is very keen that Fosen I is overruled, made some amazing remarks after Christiansen’s accident in March 2019. In Nationen of 5 April 2019, he contended that there were good reasons for postponing the case. Christiansen, Arnesen said, had to sit because he was “the only judge who participated in the first decision” (https://www.nationen.no/eu/jusprofessor-finn-arnesen-avviser-omkamp-i-anbodsrunde-saka/). That the Director of the Centre of European Law of the University of Oslo makes such a remark is astonishing. Furthermore, Professor Arnesen said, the medical report came abruptly so that there was hardly time to call in an ad hoc Judge. How did he know that? In fact, there were still 11 days to go and President Hreinsson did not even make an attempt to call an ad hoc judge.
Rule of law, democracy and separation of powers
The Fosen lawyers asked President Hreinsson to step down from the case for bias, but Hreinsson refused. It has never happened before in the 25-year history of the EFTA Court that a judge against whom a request for recusal because of bias was made did not stand down automatically. Occasionally, even legal secretaries refrained from working on a case when they felt that they were not impartial. With Hreinsson’s resistance the ball was in the field of the other two judges, Bernd Hammermann and Ola Mestad. According to Article 30(3) ESA/Court Agreement, a judge can only be disqualified from acting in a particular case if the two other judges are unanimous. President Hreinsson was acquitted of the accusation of bias and presided over the hearing of 13 May 2019 (https://www.vg.no/nyheter/utenriks/i/zGxlLK/efta-domstolen-avviser-inhabilitet).
The decision on Fosen’s bias motion has not been published. For the first time in the 25-year history of the EFTA Court, a decision is kept secret. It is, however, part of the right to a fair trial guaranteed by Article 6 of the European Convention on Human Rights that court rulings be published. This must a fortiori apply to a 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.)
The Fosen Saga is a serious attack on the integrity of the EFTA Court. What we are witnessing is an attempt to get rid of an EFTA Court ruling that does not suit the Norwegian Government. This effort is carried out by all means, including unlawful ones. The second reference is by no means an “excellent example of judicial dialogue,” as Mr. Arnesen (https://www.nationen.no/eu/jusprofessor-finn-arnesen-avviser-omkamp-i-anbodsrunde-saka/) and President Hreinsson (in his ominous newsletter) have claimed. It is, as Professor Mads Andenæs QC has written, an attempt to fix a trial in advance (https://www.linkedin.com/in/carl-baudenbacher-91410688/detail/recent-activity/).
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 scholars, the EFTA Surveillance Authority, the Norwegian Judges Association, the Liechtenstein Supreme Court and the EFTA Court itself (Baudenbacher, Judicial Independence, Chapter 28). The Fosen assault is 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 are confederates in the EFTA Court itself. Citizens and economic operators, those for whose benefit the EEA Agreement has been created, have every reason to be concerned about this development. Right now they wait impatiently for the publication of the decision which cleared President Hreinsson from the accusation of partiality.
I am aware that it is unusual for a former President of the EFTA Court to write such a contribution. But unusual circumstances require unusual actions. As the French existentialist philosopher Jean-Paul Sartre wrote: “Every word has consequences. Every silence, too.”